:::cough:::
Hmm, just had a wandering thought, no more than that.
A license is required to get married (at least, in states that don’t recognize common-law marriages). Licenses in one state are not automatically good in another state, despite the full faith and credit clause. Thus, though I am licensed to practice law in New York and California (my Colorado needs the bar dues paid, but that’s another story), I can’t go to any other state and practice there without getting licensed there. Same with medical doctors, and a host of other professions, and nobody’s screaming “full faith and credit” over that. Indeed, I think, technically, a state doesn’t have to allow you driving privileges if you don’t have a license issued by that state, although they do, of course (but note that age restrictions apply in some places; a 17-year-old with a valid driver’s license in any state can’t drive in New York City anyway).
This is a totally un-thought-out, off-the-top-of-my-head observation, no more, but I’m wondering if a state could avoid the full faith and credit issue this way?
This differs from the divorce issue, because divorce requires a judicial act. Marriage doesn’t.
-Melin
Moomph. I am feeling very fearful, disagreeing with Melin on a matter of law, but here goes:
A marriage is required in order to get married – to conduct a legal wedding (whether before the JP or in the cathedral) – to transfer one’s identity from being a single person to being half of a married couple. That’s all it does.
As I once noted, my grandparents were married on the evening of December 31, 1906 – the last couple to be legally married without a license in New York State.
Guess what? In the 50-odd years of their married life, nobody ever asked for their marriage license. The few times they needed legal proof of their marriage, a formal letter from the church they were married in sufficed.
You need a license to get married. You don’t need a license to be married.
If tomorrow I moved to California and Saturday had you perform a lawyers-only legal service for me, and then Monday they find out about you and disbar you( ;)), the thing you did for me Saturday is still valid. You were a licensed lawyer when you did it.
If Snark and Rosie should decide “the heck with our differing beliefs, let’s run off to Nevada and get married” – then they’re legally married. Everywhere. The fact that Utah or Ohio laws may require a longer waiting period or different tests, or don’t recognize marriages solemnized by the County Clerk (whom they used in Nevada), doesn’t matter. It was a legal marriage contracted in Nevada under Nevada law. And the other 49 states have to recognize it.
Now, to stretch this analogy a bit further, and with apologies to Bill, if Snark and Esprix decide to marry, and run off to Hawaii or Vermont (supposing one or the other has made same-sex marriages legal), the same situation should apply. (Sorry, Bill – the series of analogies was too perfect!)
Final point: The whole Loving v. Virginia holding that marriage is a fundamental Ninth Amendment right was brought up over in the pit. It would be most interesting to see the present Court deal with a same-sex marriage case brought under this argument without (a) overruling the Loving precedent (and you can just imagine the headlines!) or (b) finding (by stare decisis all) state laws restricting marriage to two persons of opposite sex from each other unconstitutional.
I think Poly has a good point. “Married”, for all the talk of “working at being married” is not something you do, like driving or lawyering; it’s something you are. Melin doesn’t stop being a lawyer one she crosses the state line; she can’t do lawyering things legally in that state, but she’s still a lawyer. However, that opens up the argument that perhaps a person can be married, but if they don’t have a license to do “married things” in that state they can’t do them. This seems a pretty absurd argument, though, since it goes completely against the way we view marriage.
Another issue is that lawyering, unlike marriage, is a profession that requires specialized knowledge that changes from state to state. You may know New York’s civil and criminal codes, plus the entire humongous pile of case law, backwards and forwards. But move to Louisiana and you’re a legal ignoramus. So there’s good common-sense reason why a law license in one state isn’t automatically accepted in another.
None of that applies to marriage, needless to say. So even if a couple needed a license to be married, rather than to merely get married, I think Melin’s analogy would still fail.
Poly, I’m honored that you feel that way, really! 
That’s one reason, actually, that I made it clear that it was just a passing though, kind of off the top of my head. We kick around a lot of ideas and eliminate most of 'em before we decide on a strategy.
I tend to agree with the analysis, I think, although I note what RTFirefly says is not completely true in terms of making sure that one knows the local law. Most of lawyering is knowing how to find out what the law is, and applying it, and it doesn’t take long to ascertain the law of another state. Given what I do, working for a national insurance company, I research the law, and write opinions about its effect, of every state and occasionally a few provinces.
Plus that doesn’t explain the medical licensing issue. Or insurance agents, etc. I suspect all of that comes down to regulation, the more I think about it, and we don’t regulate marriage the way we do the professions. What is the purpose of a marriage license? That would be the way to begin analyzing the question, I suspect, and I imagine the ultimate result is going to be what Poly and Gaudere have put forward here.
Still, if I were in the camp that was opposed to gay marriages, and supported the DOMA, it’s one area I’d be looking into.
Interesting academic exercise, no more.
Thanks for your thoughts!
-Melin
Re Full Faith And Credit Clause (Marriages):
I addressed this issue in the thread: http://www.straightdope.com/ubb/Forum3/HTML/003079.html . For my complete recapitulation of the basic FF&C clause tests and holdings, see that thread.
Regarding the issue of marriage, I stated there the following:
Thus, it is not open and shut that a marriage solemnized legally in one state must be given legal effect in another state. Clearly this would be up in the air regarding same-sex marriages.
As to what a marriage consists of, I have previously addressed that, too. Using Ohio laws as an example, I noted the following:
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A marriage required two parties of certain ages to obtain a license.
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No person can legally solemnize a marriage without the parties presenting a valid license.
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No person can legally solemnize a marriage unless that person is licensed to perform marriages.
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Any person who marries, or who solemnizes a marriage, without the marrying parties having valid license, is guilty of a crime.
Ohio, btw, outlawed ‘common-law’ marriages, except those which are made in a state in which such marriage is legal. Obviously the Ohio legislature thought that these marriages in other states should be given full faith and credit, though I’ll bet quite a lot of money that a same-sex common law marriage that comes to Ohio won’t get treated with that same supposed faith and credit.
DS, I have to take exception to your other-thread post (which I had forgotten about, and thanks for the link!). The courts are very much inclined to treat questions of personal rights in a different category than questions of property ownership.
Whether my bonds are tax-exempt in a state other than the one I purchase them in is a question between me and the state’s tax-levying office. It is of minor significance except to my tax liability and hence my net income.
My marital relationship or lack thereof is a question affecting major and significant portions of my life. At present, living in a state with modified community-property rules, I must obtain my wife’s consent to many major legal actions I might undertake. Whether or not we are married is an issue that would come up nearly daily in my life.
The issue you raise on the “significant interest in the subject area” of the forum state would, I think, be mooted, on the Loving precedent. While to a racist of the time, Virginia had a valid interest in prohibiting miscegenative marriages, Mr. & Mrs. Loving’s right to marry took precedence over it. If State X permits gay marriages, and Smith and Jones enter into one, then move to State Y, their interest in preserving their marriage, validly authorized by and in State X, would take precedence over whatever socio-politico-religious arguments might condition State Y not to allow gay weddings within its limits. State Y would therefore have to give “full faith and credit” to it. Of course, Smith could not give Jones tax-exempt bonds as a wedding gift! 