Since it is now legal in Canada (at least Ontario) for same sex marriages to take place, I was wondering about any requirements of the US to recognize these marriages.
For instance, if a couple from Canada (legally married there) were to move to the US, is the US obligated (by some sort of treaty) to recognize that marriage here? I don’t know how detailed treaties are and whether they even mention marriage.
If yes, is this recognition a sort of ‘back door’ approach to gay marriages (which I am in favor of) here?
From Canada? Nope. There is even some question about this in the US and our own Constitution has something to say on the matter. It is in Article IV and is called the ‘Full Faith and Credit Clause’.
Because of this clause and because some states (Hawaii being the first I think) might recognize gay marriages many (more than half) of the states adopted ‘Defense of Marriage’ acts which specifically prohibited recognition of same-sex marriages.
I’m not sure if this has been challenged in the US Supreme Court yet but it will be interesting.
However, when a foreigner visits the US I don’t think the US gives a hoot about your marriage status. In a legal sense being married in the US affects taxes, your ability to participate in a spouses health insurance and so on. Noe of this would apply to a foreigner. If you became a citizen of the US then you forego whatever legal status of your previous citizenship and have to abide by the laws of the US. For instance, I don’t think the US would allow an Arab man to keep multiple wives upon becoming a citizen of the US.
Previously under US law, there was a requirement that stated that each state had to accept the marriage rules of other states and countries which basically (and with some exceptions) that if a marriage was legal where it was performed, then it would be accepted wherever the married couple might live.
A few years back, the Defense of Marriage Act was passed. This act basically left it to each state to decide which marriages to accept and which marriages to declare as void as against public policy. The specific purpose of this law was to allow states the right to deny acceptance of same-sex marriages.
Many states now have specific laws on the books which state that marriages between two people of the same sex are against the public policy of the state and are therefore void and not accepted as marriages by that state.
Since the ongoing legality of a marriage is based on the place where the couple lives, a marriage of two men (or two women) performed in Toronto would not be accepted in most states.
Some states do not have such specific statutes on their books. In many of those states there is current litigation which is testing the limits of the state laws as they are written. IIRC, Massachusetts is set to have its state supreme court decide whether that state’s statutes allows for the recognition (as well as the performance) of same-sex marriages. If the answer is “yes,” Mass. will become the first state in the union to fully recognize the right of two consenting same-sex people to marry each other.
On preview I see that someone has already responded. I will respond to Whack-A-Mole by saying that foreign tourist should care about the recognition of their marriage here in the US. If one of the married couple gets sick or gets into legal trouble while on vacation, the rights of their spouse to visit, care for, and help defend their spouse would greatly curtailed if the state they were visiting did not accept their same-sex marriage as legally valid.
Hawaii voters amended the state constitution to outlaw marriage consisting of anything other than male and female, one each. Over 30 other states have passed “mini-DOMAs” doing the same. The only place currently where a Canada marriage might be recognized as a matter of course is Vermont, which has “civil unions,” a separate-but-supposedly-equal state recognition of same-sex partnerships which is not marriage. Obviously this has not been tested. I am unaware of any specific treaty provision which requires the United States to honor marriages performed outside the United States although such marriages are recognized as a matter of course, presuming that they do not violate the law or public policy of the United States. Since same-sex marriages violate both the law and the public policy of the United States, any couple seeking to have its marriage recognized in any state or by the federal government will most likely have to fight for it. There’s a hell of an equal protection argument to be made by such a couple, especially if they’re two American citizens who travel to Ontario and marry.
I had forgotten about the (IMO) stupid ‘Defense of Marriage’ laws. I believe that Colorado has one too. I really need to get more involved.
I can’t find a cite right now, but there was a case recently which involved a couple with a ‘civil union’ from New Hampsire. One of the couple was in the hospital and the hospital refused to let the other of the couple to visit/make medical decisions. A court ruled that since the non-hospitalized person was able to visit and make medical decisions because of the civil union.
Can DOMAs possibly overrule the Full Faith and Credit clause of the Constitution? I don’t see how…the US Constitution is THE rule of the land against which any other law or state constitution must abide. Do they pass these laws to send a message to the US Supreme Court to ‘encourage’ it to not overrule DOMAs?
For instance, if Indiana allowed 15 year-olds to marry and Illinois said they had to be 18 I think Illinois is still obliged to recognize the marriage (this is just an example for illustration…I doubt Indiana allows 15 year-olds to marry).
The text of Article IV, Section 1, of the U.S. Constitution, which houses the Full Faith and Credit clause, is as follows:
The authors of DOMA are hanging their hat on the right of Congress to “prescribe…the Effect thereof.” Those of us who feel DOMA is unconstitutional believe that the Constitution places the affirmative duty on the states to give full faith and credit to the acts of other states (under the general comity guidelines) and that neither Congress nor a state legislature may remove that affirmative duty which is constitutionally mandated.
Such a potential case has strong potential for a major constitutional crisis, as I think you can see.
State DOMA’s can’t overrule the Constitution, but the Constitution also says that the federal law is the Supreme law of the land, and the federal DOMA says that states are not required to recognize gay marriages legitimated by another state. If the federal gov’t had the power to pass this (I’m not sure it did), then it controls
No, the Constitution (and the [federal] laws passed in accordance with it) are the supreme law of the land.
That’s why the Supreme Court can declare Acts of Congress unconstitutional.
The question boils down to, did the second sentence of Art IV Sec 1 give Congress the power to supersede the apparent duty of the states seemingly imposed by the first sentence? Opinions will differ. However, Congress cannot just decide that it will pass a given law and have that govern what the states can and cannot do; it must have the power under the Constitution to pass that law in the first place.
New Hampshire doesn’t have civil unions. Only Vermont does. I hope you can find a cite because the only similar case of which I’ve heard recently resulted in a loss.
Whack-a-mole
In general it’s true that Illinois would have to recognize the marriage, assuming that it were not otherwise barred by Illinois law (i.e. the couple left Illinois to marry in Indiana and then returned to Illinois) or the marriage were not in violation of Illinois public policy.
Out of curiosity, how was it handled when interracial marriage was first legalized at the state level? (I’m assuming that most states had initially outlawed it.) Was South Carolina, for instance, required to recognize interracial marriages from, say, New York? Was any DOMA-equivalent legislation introduced/passed?
Are you sure about that? I was under the impression that we voted against a Constitutional Convention necessary to change the constitution. It was a dead issue anyway since Hawaii voted against same-sex marriages. I think the only thing to come out of the whole debate was Reciprocal Beneficiary Relationships.
Well, I meant Vermont, of course (Howard Dean for President!). I can’t find a cite for what I posted, and I’m not sure what to search for. So, you can take it that I was dreaming, or something. There are some cites I found which deal with one partner wanting to disolve the civil union, in another state, but was told that since it wasn’t recognized in that state they couldn’t do that. The other partner has since died.
I’ll keep looking but so far it doesn’t look promising.
Strangely enough, I make exactly this point. (“If the federal gov’t had the power to pass this (I’m not sure it did), then it controls.”) It’s late, so I forgive you for missing it.
Quite sure. Quoteing from the Hawaii supreme court decision:
As a result, the previous decision declaring Hawaii’s limitation of marriage to male and female, one each a violation of the state constitution was reversed.
urban1z
One state in question was Texas. What, this surprises us? A civilly united couple were granted a divorce by a Texas judge earlier this year. The Texas attorney general intervened in the case, stating that because the men were not married according to Texas law no divorce could be granted. The judge agreed and reversed his earlier decision. The other is Connecticut. In that case (scroll down about half way in my cite) a CT couple sought to dissolve a union and were refused, and one of the partners has now died, but there was no hospital visitation issue of which I am aware in that case.
No. They were the first state to almost do so. An appeal to the Hawaii Supreme Court looked like it had a chance of winning, so the legislature kicked into gear and changed the constitutional requirements for a marriage. It also sparked the national DOMA, signed into effect by Bill Clinton, wunderkind of posturing and backstabbing.
