On Same-Sex Marriage and the Full Faith and Credit Clause

[kiahzero]

Or, Why Orrin Hatch is Full of Shit.

The Massachussets ruling did not "force" same-sex marriage on any other state. There are three "choice-of-law" doctrines for handling the obligations of the Full Faith and Credit Clause, specifically when dealing with marriage contracts.

The first, and most general, is the norm of respect. This means that a marriage is treated as valid if it was valid where it was celebrated. This is the doctrine applied to most marriages.

The second, and the crucial one here, is the norm of good faith. This means that a marriage may be held as invalid if the couple in question went to another state solely to avoid the restrictions in their home state.

The third (of questionable Constitutional stature) is the norm of "hewing to the mainstream," also known as the public policy exception. Under this norm, an act of another State may be ignored if it is against some fundamental principle of justice within the State in question.

Under existing choice-of-law doctrines, no new law is required to prevent same-sex marriage from spreading beyond those states which have approved it through whatever means their respective Constitutions allows. If a same-sex couple goes to another state simply to avoid the restrictions in their home state, the home state is under no obligation under the United States Constitution to honor that marriage.

Additionally, a state may refuse to honor any sort of same-sex marriage if it is odious to some public policy perogative of the highest order; a "fundamental principle of justice." Basically, if a State Constitution bars recognition of same-sex marriages, the State would be under no obligation to honor the marriage - this is, of course, assuming that you accept the public policy exception as valid under the United States Constitution.

The problem with DOMA (well, not the only problem, but one of them) is that it glosses over an important aspect of these exceptions - it allows all states to apply them, not just the state with the most significant interest in the people in question. For instance, under choice-of-law doctrine minus DOMA, if a same-sex married couple legally married in Massachussets were to pass through a state which has a clause in their Constitution banning the recognition of same-sex marriages, the State would still be obliged to recognize the marriage, since they are not the State with the most significant relationship to the spouses. After DOMA, they still may refuse to recognize the marriage.

So, when you hear this meme that "same-sex marriage is being forced on the rest of the states" - call the liars and fools on it, and point out how wrong they are.

[AngryAmish]

1. Dead on

Now, next week in Con Law 101, we will talk about long-arm jurisdiction...

[kiahzero]

2. It amazes me how dumb conservatives are

One civil liberties class, and I can easily explain why the chair of the Senate Judiciary Committee is full of shit.

[AngryAmish]

5. I can think of one example of this

Illinois does not recognize common-law marriage. If for example Kentucky recognizes common-law marriage (I have no idea if they do) but only after 5 years of cohabitation, and the couple lives in KY for 4.5 years then move to IL, then the folks are not married, just shacked up.

(I am trying desperately, to little avail, not to make the the joke about growing up with your sister in Kentucky and common law marriage. But I am weak.)

[kiahzero]

9. Ehhhh

That's a hard comparison to make. The best analogy to above would be a couple that lived in Illinois, but goes to Kentucky to get a common-law marriage... which doesn't make sense, because to do that, they'd have to live together for 5 years in Kentucky, at which point Kentucky would be the state with the most significant relationship, not Illinois. So the good faith norm doesn't really apply.

Now, the public policy one might: if it were so fundamental a principle in Illinois that common-law marriages not be recognized that it rose to the level to meet the requirements for the public policy exception, and the couple traveled to Illinois, Illinois would still be bound to recognize the marriage. If they moved to Illinois, I don't think it would be similarly bound, since they're now the state with the most significant relationship to the spouses.

A much better analogy is inter-racial marriage, both in the way it would work from state to state, and the reason why the United States Constitution compels the States to recognize same-sex marriages.

[cardlaw]

4. I thought that

was Civ Pro

[AngryAmish]

8. Ya got me.

[Nevernose]

3. And speaking of Orrin Hatch

What was the constitutional frame of mind in the 19th century, when polygamist marriages were legal in Utah?

Edited: not that I'm comparing gay marriage to Mormon polygamy, just curious as to how other states treated non-traditional views of marriage in other states. Besides, Orrin Hatch is an asshole and need to be reminded of HIS state's (non)stand on alternative marriages every chance we get.

[AngryAmish]

6. Utah could not join the Union until they dumped plural marriage

I think at some point the US gov't seized all Mormon property.

[kiahzero]

10. Good point

If they weren't part of the Union until they stopped recognizing the marriages, it would have never come up.

[kiahzero]

7. I dunno

I searched JSTOR for any law review articles on the topic, but nothing turned up. It's entirely possible that it didn't come up - perhaps I'm mistaken, but I don't think that the polygamist Mormons we're talking about were the most mobile group, so it's entirely possible that it was never dealt with.

If someone knows of a SC case (hell, even a Circuit Court ruling) dealing with it, I will happily renounce the previous statement, however.

[FreeState]

11. I cant quote sources now but

before Utah was part of the Union the US Government arrested the polygamist and confiscated all the church property while installing a "gentile" governor.

Utah had to give up polygamy in order to join the Union. However polygamy was practiced by the LDS church until the early 1900s. They publicly denounced it and then only the leaders of the Church practiced it.

On a side note Mormons still practice polygamy. They are not married to two living wives, however they teach that you can be "sealed" for eternity to more than one wife. SO if wife one dies they can get sealed to another wife and have both wives in the next.

For a lot more information check out:

http://www.lds-mormon.com/mormon_polygamy.shtml

[Ms. Toad]

12. You might want to reread Loving v. Virginia

>>The second, and the crucial one here, is the norm of good faith. This means that a marriage may be held as invalid if the couple in question went to another state solely to avoid the restrictions in their home state.<<

The Lovings did just that. Virginia forbid interracial marriage. The Lovings went to DC to be married where it was legal, and then returned home to Virginia.

The Supreme Court in Loving v. Virginia held that Virginia could not refuse to recognize the marriage.

So, although it will take some time for the ramifications to be fully felt, legal marriages entered into in Massachusetts will force the rest of the country to accept same gender marriages. Every constitutional scholar I have read or consulted agrees that other states will be forced to treat out of state marriages as valid on the same basis as Virginia was in Loving v. Virginia. Marriage discrimination laws may slow the process down, as the laws at least facially provide the strong public policy basis for refusing to accept same gender marriages - but ultimately virtually all public policy arguments made against same gender marriages apply equally well to a variety of other marriages and ultimately discriminating against a valid marriage from another state on the basis of the gender of the parties will be found to be a deprivation of liberty without due process of law, as it was when the "deprivation of liberty without due process of law" was based on the mixed genders of Lovings in Loving v. Virginia.

In the mean time, I am enjoying the fact that I could count on my Canadian marriage being treated exactly as any other marriage when I visited Massachusetts recently, and am looking forward to the increased recognition of my marriage elsewhere as the marriage discrimination laws are recognized state by state as the unconstitutional garbage they are.