The real problem was that the courts have said Full Faith and Credit does not apply if it offends a state’s public policy. So that is why a person legally married to a 12 year old in Kansas was convicted of child rape (I believe in Kentucky) because their public policy does not recognize that a 12 year old can be married even with parent permission.
What we need is a Court that is willing to say, “We don’t care if you don’t like it. It is recognized there so all y’all need to recognize it.” That being said, I wonder if there is a case to be made that if you are resident of State A and you go to State B to get a legal act recognized that you cannot do in your own state of residence if State A would still be required to recognize it. So in the example, the child being of resident of Kansas must have her Kansan marriage recognized by the other states BUT if someone takes a 12 year old across state lines to marry her then their marriage does not have to be recognized.
I am not against the idea of a national minimum age of consent and marriage, assuming that would be constitutional.
OTOH, one of the underpinnings of Obergfell is that there are different rules in different states as to marriage eligibility, mostly dealing with how incestous it can be, and yet, states recognize these marriages they wouldn’t have allowed to be solemnized in their own state.
So, if someone legally marries a 12 year old in one state and goes to another state, I do think that should be recognized, however I don’t think that you should be allowed to marry a 12 year old in any state.
Personally, I’d put age of marriage at 18. I don’t really understand why anyone would need to get married any earlier than that.
I have a thread on what a Constitutional amendment would look like for marriage and reproductive rights and with that marriage would be defined as a contract and thus by definition you would have to be legally competent yourself (viz. your parents can’t marry you off) to get married.
Anything can be Constitutional if we amend the Constitution to include it. That’s the whole point of the document.
The fact that the Constitution seems to now be a closed document strikes me as a real problem in American democracy. I can’t imagine an objection to setting the national marriage age at 18+, especially given that (compared to 100 years ago) high school graduation is presumed; sex outside of marriage is no longer so heavily stigmatized; and reliable contraception now exists.
And if the FFC clause does not apply, then what prevents states from declaring that first cousins who got married in one state are no longer married once they cross state lines?
Marriage between first cousins is prohibited, KRS 402.010, and there are no exceptions to the prohibition. See Ex parte Bowen, 247 S.W.2d 379 (Ky. 1952); OAG 80-300. Kentucky does not recognize a marriage between first cousins even when consummated in another state. Although Kentucky may recognize some marriages otherwise prohibited by statute when consummated in another state, both “polygamous and incestuous marriages” are never recognized because such marriages are “contrary to the law of nature and are subversive of the good order of society.”
This comes immediately after an explanation of Obergefell v. Hodges, so if this prohibition had ever been struck down by the courts, I assume it would say so.
I’m not entirely sure what you’re asking. What I mean is that the FFC Clause jurisprudence that exists generally recognizes a “public policy” exception. And I would think that refusing to recognize marriages that would have been unlawful if performed in your state would be the type of thing that this would plausibly cover.
I’m not an expert on this, by any means, but it’s my understanding that the majority of states recognize any cousin marriage that was lawful in the place it was formed, but some states view all cousin marriages as void (regardless of where it was performed) and others view cousin marriages as void if they were entered into while residents of that state (i.e., residents of State A – where cousin marriage is illegal – go to State B – where it is permitted – to get married; State A may view that marriage as void, even if it would recognize a marriage entered into by residents of State B who later move to State A).
That Kentucky Code quote from Lord_Feldon seems to me to be more enforceable for cases of this latter example, if only because how the heck would Kentucky know if a couple of new residents moving in married in Florida or Vermont were cousins?
And at the very least it should be legally irrelevant.
It should be legally irrelevant because it’s no longer a horrible blight on the child? Or it should always have been legally irrelevant? Because I’m going to disagree if you say the latter.
It should be legally irrelevant because in today’s world where the law nominally imposes child support obligation on every parent for every child, what is the rationale for privileging children in wedlock above children outside of it? Though maybe I’m prejudiced for having grown up in a legal regime where children outside marriage were already mandatory heirs on equal standing with those in marriage, so I view it as a no-brainer matter of justice.
Okay, then i have no major quarrel with you. But when it made an enormous difference to the child whether its parents had been married, i think it was not unreasonable to make it possible for the parents to marry.
They wouldn’t really (although, in some instances, incestual sexual relations are a crime, so I suppose they could investigate that). The very limited research that I did suggests that the issue tends to come up in the context of intestate succession (where an heir challenges the marriage) or situations where the parties are seeking to dissolve the marriage.
For example, as I read Cook v. Cook (Arizona Ct. App. 2005), the parties married in Virginia (where it was legal), moved to Arizona (where it would have been unlawful), and wound up in court because they wanted a divorce. The issue in Cook was whether a change in Arizona’s law to no longer recognize cousin marriages performed in other states could be retroactively applied to the Cooks (who moved to Arizona at a time when the state recognized foreign marriages that would have been unlawful). The answer is “no” as to retroactivity on due process grounds, but it seemed to be accepted that Arizona could (and post-1996 does) refuse to recognize a cousin marriage performed elsewhere.
That was just a couple minutes of reading; it’s possible that the law has changed, but the Cook court certainly didn’t seem concerned with showing FFC to the Virginia marriage.
I can think of at least one reason that the state should give greater recognition to legitimate offspring than to illegitimate. Suppose that a man writes a will, stating that on his death, he wants all of his property divided equally among his children. But years ago, the man had a one-night stand, and unbeknownst to him, the woman got pregnant and had a child. And then, after the man’s death, the child comes forward (with DNA or other sufficient evidence to prove their parentage) and claims a share of the man’s estate. Should the bastard be considered to be one of the children the man was referring to in his will, when he said “All my children”?
Though admittedly it’s probably not be what the man meant. Which is why enumerating them by name is not a bad idea. Especially after one is old enough that additional offspring become unlikely to impossible.
In my birth jurisdiction that is exactly what would happen. The words “all my children” means ALL his children. In some jurisdictions, in fact, a portion of the estate must be divided among the descendants, no choice to do otherwise, and disinheritance must be for cause specified in the law