Before New York adopted the 2011 legislation that permitted SSMs to be performed in the state, it recognized SSMs that had been legally performed in other jurisdictions.
In fact, Edith Windsor, who prevailed in the Supreme Court case striking down Section 3 of the Defense of Marriage Act, was married in Canada in 2007, her wife Thea Spyer died in 2009 and she commenced her lawsuit in 2010 on the basis that her Canadian marriage was recognized as valid under New York law.
Let me also say, in an attempt to be even-handed and not just confrontational, I think that there is a very strong Equal Protection argument. The Kentucky case doesn’t do it very well (it reads like he wants to just invalidate the marriage laws, but doesn’t have the right facts, so he jiggles it). But the Ohio dying husband case goes through the analysis in a fairly persuasive manner.
I’d put the argument something like: No state is required to recognize any out of state marriages. But they choose to. And it would certainly be within the state’s right to refuse to recognize any marriage that would have been illegal if performed in that state. But that’s not what they do. In fact, most states recognize such marriages (except for a very few that won’t recognize other state cousin marriages). The only exception to the “recognizing marriages if valid where created” is same-sex marriage. And there is no rational basis to carve out that subset of “not legal if performed here” marriages from the general rule of recognizing “not legal if performed here” marriages.
An old thread, I know.
While it has been mentioned that Congress has lawful constitutional authority to prescribe “the effect thereof” state records should have in other states.
In this case, in federal DOMA the Congress has exercised this apparently lawful authority to declare that any state that wishes may treat out-of-state SSM as a null record. The Kentucky court didn’t mention this.
I have always been under the impression that one clause of the Constitution cannot be used to nullify or overrule another, and it appears to me the Kentucky Court used the EP clause to take away Congress’ power to declare the effect of state marriage records. Nor did it take into account the longstanding public policy exception the Supreme Court has upheld many times.
Recent developments in Ohio: Judge Says Ohio Must Recognize Same-Sex Marriages Performed Out of State - The New York Times
Still not full faith and credit. That ruling was based on du process and equal protection.