Some may point to Kansas having passed a constitutional amendment banning same-sex marriages and civil unions as a sign that the country is moving in one direction. Others may point to a poll in New York or actions in the Connecticut General Assembly as a sign that the country is moving in another direction. I take all that I have seen as a sign that the country is moving apart. In the foreseeable future we will have some states which allow same-sex couples to marry, some states which allow them "full" civil unions, some states which allow them some limited domestic partnership, and some states which reject any formal recognition of same-sex couples. I think that is a fact that we must all face. To those who would reply that the Federal Marriage Amendment--excuse me, the newly entitled Marriage Protection Amendment--will change this state of affairs I would reply (1) it will not pass the Senate, (2) even if it did we would still face many of the same issues with civil unions, and (3) even if it did we would still face many of the same issues with marriages performed in other nations. So we can't avoid the question, we must decide how to best address it. Let us consider some possibilities a state may take.
Option I -- Blanket Nonrecognition. A state, say Kansas, could instruct its court and agencies to refuse to recognize same-sex marriages and any consequences thereof. For example, if a Massachusetts or Vermont court issues some judgment based upon the existence of a same-sex marriage or civil union--say in a wrongful death suit or a divorce settlement--that judgment would be completely unenforceable in Kansas. This extreme approach might be comparable to a state refusing to enforce an order based upon recognition of slavery. The idea is that slavery is so morally repugnant that to give even indirect effect to its existence is taking part in the crime. I don't doubt that a few may view same-sex marriage as such an evil, and DOMA would seem to permit this (although this permission to ignore sister state judgments seems like the most likely aspect of DOMA to be declared unconstitutional), but I must wonder if states really want to hold themselves out as a harbor for those fleeing justice.
Option II -- Respect Foreign Judgments But Never Recognize The Marriage Or Civil Union Directly. The state could decide that it is willing to recognize judgments but not the marriage or civil union itself. This is hardly any better with regards to providing a harbor for those fleeing justice. Yes divorce judgments would need to be enforced, but who needs a divorce. A person could take all the family assets and flee to Kansas and remarry without divorce. Is this what people want? Or a couple from Vermont is driving through Kansas when they get into an auto accident. The hospitals in Kansas do not, by law, allow one spouse to make medical decisions for the other. I hate to think about all the consequences if one spouse died, especially if they had a child.
Option III -- Recognize Foreign Marriage and Civil Unions For Some Purposes But Not Others. Perhaps Kansas may refuse to recognize the marriage or civil union for its own tax purposes, and refuse to recognize it for governmental programs, but allow it for determining next of kin. They might require that anyone entering into marriage in the state have obtained a divorce from any previous marriages including same-sex marriages and civil unions. The more situations the legislature deals with, the more guidance the courts and agencies of the state have. A state may even pass a marriage evasion law (which some states already have) that would declare invalid a marriage of its own residents who marry elsewhere to avoid the states restrictions and then return to the state. This option requires the legislature to give some serious thought to why it is prohibiting same-sex marriage and weigh that against the interests of other states and thier residents who decide that same-sex couples may marry or obtain civil unions.
Option IV -- Recognize Foreign Marriages as a Civil Union. For states with civil unions or domestic partnerships, it seems reasonable to treat foreign same-sex marriages the same way they would treat domestic civil unions or partnerships. A couple would be "married" in Massachusetts and "civilly united" in Vermont. Similarly it would make sense for states with same-sex marriages to recognize "full" civil unions from other states as marriages. (There would need to be some test, though, for determining whether a foreign civil union was "full").
Option V -- Recognize Foreign Marriages. Some states refuse to perform marriages within a certain degree of consanguinity or affinity, and yet are willing to recognize them if performed elsewhere. It could likewise make sense for a state to refuse to prohibit same-sex marriages but recognize them if performed elsewhere. This would allow the state to put forth its view that only men and women should marry, and yet still recognize that other states may reach different views and recognize that reality.
These are just a few options, and which a state pursues may depend on the purpose in prohibiting same-sex marriage in the first place. If the issue is keeping uniformity with other state laws, then liberal recognition policies make a great deal of sense. If the issue is maintaining the traditional definition of marriage, then it may make sense to establish full civil unions and recognize foreign marriages as such. If the issue is a fear that allowing same-sex marriage would "send a message" that marriage has nothing to do with procreation, then one may ask whether the same message be sent merely by acknowledging that other states and nations do allow it. It is hard for me to offer any advice on this matter because I don't see that message being sent in the first place, nor do I see any other harm in allowing same-sex marriages in the state itself. Still, whatever one's views, this is a discussion states should have. States which have civil unions should consider how to treat foreign marriages (and foreign civil unions). Even states opposed to same-sex marriage and civil union should consider the issue carefully. If they choose blanket nonrecognition it should be with full awareness of the implications of that choice, and not just as a visceral reaction to same-sex marriage.