Gay marriage: Legal in MA, illegal in MO. What now?

I guess the header says it all. In MA, gay marriage is now legal (for the time being). In MO, a state referendum has just made gay marriage unconstitutional.

I can’t imagine this thread won’t turn into a debate on the morality of gay marriage, but I would like to ask: What does one do with this situation from a purely legal standpoint?

The US Constitution, thus far, has been interpreted to indicate a marriage license in one state is valid in another; yet we now have two mutually-exclusive state constitutions. Does this mean the issue goes to the SCOTUS? If so, how could any ruling by the SCOTUS not run afoul of the Tenth Amendment, or other parts of the Constitution delineating State Rights?

Not being at all familiar with constitutional law, I have no idea. I’m curious how this might play out in the courts; that is all.

Well, I don’t imagine it’s illegal for a gay couple in Missouri to say the words “we’re married.” What it probably means is that if a gay couple moves to Missouri, they should probably each have separate health insurance, some legal form declaring mutual legal guardianship any kids the couple has, explicit wills, and similar legal measures that non-related people make use of to accomplish what marriage confers on a heterosexual couple automatically.

I guess the trouble starts when a gay couple recently come from MA decides to take MO to court, citing extensive legal precendent for honoring out-of-state marriage licenses. Our national Constitution, it would seem, is at odds with state constitutions on this matter, and I don’t know enough to predict what the outcome might be.

IANA(US)L but, as I understand it

(a) the US Constitution prevails over state law, including state constitutions;

(b) the US Constitution requires each state to give “full faith and credit” to the public acts, records and judicial proceedings of each other state.

So, if you got married in New York according to New York law (a public act) and subsequently move to New Jersey, New Jersey would accept that you were married and treat you accordingly. If you produced a New York marriage certificate showing that you were married (a record), New Jersey wouldn’t look behind it and question whether New York law had been complied with. And if you had been divorced in New York (a judicial proceeding), New Jersey would accept that too.

The MO constitutional amendment looks like an attempt to get around this so far as gay marriages are concerned. If I’m right in thinking that the “full faith and credit” requirement overrides state constitutions, then the attempt will fail. But it will take a federal court case to establish this, and by then the elections will have happened and the promoters of this amendment will have secured the electoral advantage which I suspect is their real objective. Am I too cynical?

It’s actually very complicated. States have long had different standards for marriage. In smoe states it is legal to marry a second cousin while in others it isn’t. Likewise some states let you get married earlier than others. Since these types of differences are larhely invisible it does not cause a stir and states recognize each other’s marriages. In the recent past, however, inter-racial marriage was illegal in some states. This is more akin to gay marriage in that it is obvious on observation.

I don’t have a site, but some states did not recognize inter-racial marriages done in another state. The case law on this is ambiguos.

I recently got a great explaination of why that argument that “a marriage in one state is binding on all” is a load of baloney. A state is only compelled to recognize the acts of other states if the state does not have a policy prohibiting such acts.

Check it out.

But, the poster states:

“How, then, does this apply to the marriage issue. Marriage is a “status” which people carry with them even when they leave the jurisdiction within which the ceremony took place. Let us assume John and Jack get married in state A. They then move to state B, and assert that they are married when filing state income tax returns. State B’s laws do not allow John and Jack to get married in state B; can they nevertheless claim the status of being married, pointing to the public record of state A? Unlike the license to drive, limited in its effect, this is an issue of a status that is not intended to be limited. In such a case the answer is NOT trivial; it is so far untested in court cases at the appellate level to my knowledge.”

Why would such an argument (based on the SCOTUS’ ruling on Phillips Petro. Co. vs. Shutts) render the potential issues with Article IV “baloney”? Are you saying it is likely that the SCOTUS will rule, using the cited case as precedent, that the Articles of the Confederation do not bind states to honor marriage licenses from other states? It seems even the poster you cited is not so sure, and offers up the Court’s erratic rulings on workers comp as evidence of potential unpredictability.

Can we all agree that this issue does call for a national policy, rather than a state-by-state matter?

I’d think that if not-gay marriage states did allow civil-union status, gay marrieds from other states would be considered CU’ed in the others.

I don’t think we can. That’s why I’m worried, and also very curious about the legal path forward.

What happens if you marry someone of the same sex in MA, then go to MO and marry someone of the opposite sex? You’d be a bigamist according to MA law, but not (I assume) according to MO. Could MA demand that MO hand you over to be prosecuted in MA, and does that usually happen for traditional bigamy cases?

What if you travelled to a third state, which hasn’t taken a stand on the gay marriage issue - would you be a bigamist or not there? If a bunch of annoyed inlaws follow you there and beat you up, and you end up unconcious in hospital - which spouse would be allowed to make medical desicions on your behalf?

If the offence of bigamy has been committed, it has been committed in MO, and it is MO who will prosecute it. I doubt very much if MA, or a third state, could or would prosecute you.

I guess that in a traditional bigamy case you would be prosecuted in MO.

If the “full faith and credit” clause requires all states to recognise a gay marriage lawfully celebrated in MA, then you would be bigamist in MO and in any other state. A policy decision might well be taken not to prosecute people who had disclosed their prior marriage and were assured that it was invalid and presented no obstacle to a second marriage in MO, but the second marriage would nevertheless be bigamous and invalid, in MO and in every other state. The first spouse will be the lawful spouse so far as personal care decisions, inheritance rights, etc, are concerned.

Of course, that’s assuming that the “full faith and credit” clause does require other states to recognise MA gay marriages. I guess we’re going to have to wait for a Supreme Court decision to settle that question decisively.

A bigger mess - I contract a gay marriage in MA, and subsequently become a resident of MO. I can’t get a divorce in MO, since MO doesn’t recognise that I am married in the first place, but I get a declaration of nullity and then contract a hetertosexual marriage in MO. Is MA bound, under the “full faith and credit” clause, to accept the MO declaration of nullity? Are other states so bound? Are they bound to accept he MO nullity decree even if the MO courts were themselves viiolating the full faith and credit clause in granting that decree?

My head begins to ache. This is bound to end up in the Supreme Court and the sooner it does the better.

This isn’t the first time the US has been in this situation. When Hawaii became a state in 1959, if memory serves, not only were interracial marriages legal there, they were downright common. At the same time, interracial marriages were illegal in several states. I’d be interested in hearing how things were handled then.

CJ

Yeah, it seems to me that would be a relevant legal precedent. It would appear, on the face of it, that either the states in question ammended their constitutions to allow inter-racial marriage, or the “full faith and credit” clause nullified their prohibition of interrracial marriage. Again, I don’t know this for sure, but how does the tenth amendment fit in here?

It is my understanding from the lawyers on this board that the FF&C does not compell states to recognize marriages if it is against their interests to do so. Ignoring the constitution is not in a state’s interest; hence they can ignore MA marriages.

So what happened with interracial marriage? Did states just realize that there was no way in hell that they could maintain their position? And I’m not sure how any state could justify a position of, “This marriage is against state interests.”

Now that I think of it, wouldn’t prohibition of interracial marriage run afoul of the 14th Amendment? I seem to remember some antimiscengenation law somewhere being nixed because of that. Maybe the 14th amendment is what we need to look at.

Should have googled first:

Loving v. Virginia, 1967. SCOTUS under Warren unanimously ruled that the antimiscengenation laws of Virginia, as well as all other states, were unconstitutional, citing the equal protection and due process clauses of the 14th Amendment.

An anti-same-sex-marriage article in the National Review discusses the potential relevance:

http://www.nationalreview.com/comment/franck200403160942.asp

Good Wiki summary of Article IV relevance, vis Lawrence v. Texas:

Man, things change quickly:

WA has ruled the WA version of the DOMA is unconstitutional. Gay marriage is now legal in WA.

http://www.cnn.com/2004/LAW/08/04/washington.samesex.ap/index.html

You’ve been Googling the wrong terms. The Defense of Marriage Act was passed by Congress and signed by President Clinton in 1996.

“No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such
relationship.”

As far as I know, the Surpeme Court has not ruled that the law violates the U.S. Constitution, as they did for interracial marriage in Loving vs. Virginia.

The practical effect of this in Missouri is that a gay couple isn’t married, no matter what documentation they have that says otherwise.

According to the St. Louis Post-Dispatch "Four other states - Alaska, Hawaii, Nebraska and Nevada - have passed constitutional bans on same-sex marriage. "

Kind of ironic about Hawaii.