I read a bit in the newspaper about the courts in Connecticut ruling that gay people could marry in that state. The newspaper said something to the effect “of course it won’t be reconginzed in other states.” But this got me wondering would a gay marriage in Massachusetts be recognized in California or vice versa or does each state have to specifically pass a law recognizing other states marriages.
Each state has to pass a law doing so or else have a court declare that the marriage will be recognized, as New York courts have just done.
I don’t believe that this is correct.
Under the full faith and credit clause, each state must recognize marriages contracted in other states, unless the marriage is againt “public policy”, and states would pretty much universally recognize marriages contracted outside the U.S., again unless the marriage is against “public policy”.
Prior to the same sex marriage debate and after Loving v. Virginia (striking down anti-miscegenation laws), states would pretty much recognize all marriages that valid where entered into and were not polygamous/bigamous or closely incestious. Even in states which prohibited first cousin marriages, if such marriages were entered into in a state where they were valid, they would be recognized.
Same sex marriage did not change the basic rules, it just shifted the question to what is the state’s “public policy” about same sex marriages. In some states, particularly those with state constitutional amendments on the subjects, the essential ruling has been that same sex marriages entered into elsewhere are against public policy and not recognized.
On the other hand, in the states that recognize same sex marriage, California and Massachussets, and now today Connecticut, they should automatically recognize same sex marriages contracted in other states or foreign jurisdictions. Thus, a same sex couple married in Massachusetts should be recognized as married in California.
New York is a sort of odd case in that the courts have ruled that there is no public policy or law prohibiting same sex marriage, but the current law on who may get married requires that there be a “bride” and “groom”, so only mixed sex couples may enter into marriages in the state (though this may be changed if the legislature decides to do so). The follow-up ruling has been that same sex couples who entered into same sex marriages in other jurisdictions should be recognized as married, as there is no public policy against doing so.
Where there needs to be special legislation recognizing offical same sex relationships is in civil unions. Because marriage is a well-recognized category that has rules on what is accepted in other states (at least in the heterosexual context), same sex marriages carry over as discussed above. On the other hand, there are no general rules for civil unions, so they would have to be dealt with on a state by state basis under the state’s particular law.
As far as I know, the states that have same-sex marriages do recognize all marriages from another state. When my partner and I went to get married in Massachusetts, our previous civil union was not an impediment, but we were told that any current marriages, including one between us in another jurisdiction, would bar us from marrying each other in Massachusetts.
I thought the “Defense of Marriage Act” permitted states to NOT extend full faith and credit unless they chose to do so.
Not quite. DOMA says that they are not required to, but from my understanding full faith and credit would be the norm and the state would have to specifically say that they chose not to. The other part of the act says that at a federal level, same sex marriage will not be recognized at all. Whether or not DOMA is actually constitutional is not yet a settled question.
Massachusetts recently repealed an old law dating from 1913 that prohibited marriages from other states from being recognized there. The repeal was specifically meant to validate same-sex marriages from other states, on the heels of Massachusetts itself legalizing them.
Related to this (and specifically to Billdo’s post:
I recall seeing a grayscale map of the U.S. a while back on which the states were shaded according to their stance on gay marriage: (Gay marriage legal; civil union legal; gay marriage banned by statute; gay marriage banned by state constitution; etc.) If I was reading the shadings right, there were several states that, like New York, do not authorize gay marriages or civil unions within their boundaries but which do recognize as legal gay marriages legally contracted elsewhere. I specifically remember New Mexico as having been shaded for the “we don’t do 'em but we recognize 'em” group.
Does anyone have a list of what states have actually taken such a stance?
I believe the law that was repealed was one that prohibited marriages from being performed in Massachusetts where both parties resided out of state and the marriage were illegal where they resided. In other words (to use a neutral example), if two first cousins living in a state that prohibited first cousin marriages wanted to get married in Mass., they couldn’t, even if Mass. permited first cousin marriages.
The law was passed in 1913, presumably, to prohibit mixed race couples from states where miscegenation was prohibited from coming to Mass. to get married. However, once same sex marriages were legalized in Mass., it served to prohibit residents of all other states (as same sex marriages were prohibited in all other states at the time) from coming to Mass. to get married (unless one party was a Mass. resident).
What I don’t believe that the law did was prohibit Mass. from recognizing a same sex marriage from another jurisdiction such as Canada.
Can States use the DOMA to justify not recognizing out-of-state marriages between first-cousins, people under 16, etc.?
DOMA specifies same-sex marriages. So I doubt it, but I’m not exactly a legal scholar.
You have it backwards. The 1913 didn’t prohibit Massachusetts from recognizing out-of-state marriages; it prevented out-of-state couples from getting married in Massachusetts unless they were legally able to marry eachother in their home state.
“Who am I? I’m Hawaii! Didn’t you notice my lei?”
So a law passed by Congress somehow overrules a 200-year-old original provision of the Constitution? I doubt that.
Presumably, we’ll find out when a case involving this comes before the US Supreme Court for a ruling.
But it seems like even the supporters of DOMA recognize that it’s on shaky Constitutional grounds – they are pushing to remove it from judicial review by passing it as an amendment to the Constitution.
Article 4, Section 1 (otherwise known as the Full Faith and Credit Clause):
Note the bolding.
That language is what DOMA supporters point to as Constitutional backing for the Act. (I disagree, natch)
Frankly, even trying to give the presumption of constitutionality to Federal DOMA (the name was used for some state laws too), I cannot see where Congress has the power to enable states to supersede their FF&C obligations. The empowerment clause simply enables them to set a national standard for proofs, so that a Utah official will be obliged to believe what a New Hampshire bureaucrat certifies if he follows the national standard. The clause places a constitutional obligation on the states; Congress’s role is simply to be a national arbiter of standards of proof. Can “the effect thereof” be construed to mean “no matter what proof, hold it of no effect whatosever”?
Any lawyer want to weigh in with what the assertion of authority is, according to Congress?
No, but there is an implied limitation on FF&C; after all, if Idaho started issuing driver’s licenses to six-year-olds, no court in the country would uphold a six-year-old’s right to drive in another state under FF&C.
That’s right, I stand corrected, thanks.