Thanks PBear, but the Yale article simply says states have never been forced to recognize other states’ marriages. I assume the professor can back up his assertion with cases, but I (IANAL) don’t find any. The obvious one in this day and age is refusal to recognize under-age marriage. It’s pretty clear cut, it screams “public policy” issue, and it’s a situation where two states’ laws say opposite things.
OTOH, the Windosr DOMA case is about being required to pay federal estate taxes, so it’s more of a state-vs-feds precendece issue, not a state-vs-state issue, is it not? Scotus could punt it by saying the feds must accept any state’s definition without saying a state must, because the feds have no say over state marriage rules? (States’ rights).
From the Google links:
Of course, the argument is that marriage is not a court judgement, just a state license; and the ceremony? Debatable what legal standing it has, despite it’s obvious ties deep into the legal system. (Whereas divorce*** is*** a legal court judgement, hence binding).
What I am reading into these papers (IANAL) is that the answer to my question is that except in obvious public policy cases for all states (except maybe vs. Utah? ) it has never really been tested - that no state has challenged a valid monogamous MF marriage in another state; so states assume they have the right to refuse to recognize, but until gay marriage the issue has never been tested.
What I see from the Lovlin case is not annullment, “you are not married”, but “if you’re going to carry on like that, take it out of state”.
For the benefit of anyone following along (not many, as this thread isn’t getting many views), the second quote comes from p.13 of a draft article (which I’ve only had the time to read in full this evening) by Joanna Grossman of the Hofstra Law School. Interestingly, when she gets to the nub of md2000’s question (starting at p.19), it turns out there are very few cases (prior to the recent furor over SSM) declining recognition of marriages lawful in other states but not permitted in the state where challenged. And almost all of those she cites involve polygamy or incest. Indeed, the thrust of her argument is that states have for a long time almost universally recognized marriages they would not themselves permit, so there’s no good reason SSM should get different treatment. The point remains that it wasn’t Full, Faith & Credit which created the prior body of case law, but rather ordinary principles of conflict of law and comity. In other words, states didn’t have to recognize those marriages, but in almost all cases they did.
Not sure whether that’s helpful, md2000. If not, could you please clarify the question?
Digging around this evening turned up a FindLaw article by Grossman and Edward Stein which covers much of the ground in the draft law review article linked above (never finalized or published, AFAICT), but in non-technical language. Non-lawyers interested in the subject of recognition of marriages not permitted in the state of challenge, particularly as it relates to SSM and DOMA, will find this much more readable.
) it has never really been tested - that no state has challenged a valid monogamous MF marriage in another state; so states assume they have the right to refuse to recognize, but until gay marriage the issue has never been tested.