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February 15, 2004



Henson, Deborah “Will Same-Sex Marriages Be Recognized In Sister States?” 32 U. of Louisville J. of Fam. L. 551 (Summer, 1994)

This article was Ms. Henson’s LL.M. thesis at UC-Berkeley and provides an excellent detailed review of this issues and relevant case law involved here. It looks at past similar cases involving polygamy, incest, and interracial marriages. Ms. Henson argues that despite these cases invalidating sister-state marriages, changing attitudes should convince us that the policies against SSM should not be considered strong enough to avoid Full Faith and Credit. It seems to me, though, that if it’s not enough to avoid FF&C, it’s probably not enough to avoid equal protection either. If we assume, for the sake of argument, that states don’t have to perform same-sex marriages it is hard to see why they have to allow their marital laws to be circumvented by traveling to another state.

Cox, Barbara “Same-Sex Marriage and the Public Policy Exception in Choice-of-Law: Does It Really Exist?” 16 Quinnipiac L. Rev. 61 (1996)

This article was researched with, among others, Mary Bonauto, subsequently the lead attorney in Goodridge. Professor Cox notes that while courts have often mentioned the public policy exception, they rarely have used it. Even in the evasion cases in states with evasion statutes, state courts have sometimes validated a marriage. The trend is towards accepting the marriages, and thus for a court to switch directions now with same-sex marriage would be a sure sign of unconstitutional animus. The problem with that argument seems to me that, first of all, the courts never claimed they were required to accept such marriages. They just noted there were good policy reasons for doing so. The courts generally defer to the legislature on matters of policy. If, due to equal protection or liberty concerns, the legislature is not to be given as much deference in this matter it would also seem they would not be given as much deference in deciding not to perform the marriages in the first place. Secondly, the trend towards acceptance might just stem from a growing tolerance to types of marriages that were heretofore controversial. If same-sex marriages now are as controversial as such marriages used to be, there is reason to believe a state could refuse recognition in some scenarios.

Koppelman, Andrew “Same-Sex Marriage, Choice of Law, and Public Policy” 76 Tex. L. Rev. 921 (1998)

This is the law article from which the book chapter I referred to in the post was adapted. It provides a little more detail than the chapter, but in general I would recommend just getting the book. Koppelman believes in an equal protection argument for same-sex marriage, but also believes (believed?) the Supreme Court would be unlikely to agree in the near future [the book was written before Lawrence]. In any case, he notes that if the courts do accept such an argument there is no conflict-of-laws issue. So for the sake of argument, he assumes that this is a matter on which different states might reach different conclusions. He provides several ideas for possible choice-of-laws rules to govern and notes the advantages and disadvantages of each. He notes that it is fairly clear the Full Faith and Credit does not require recognition of sister-state marriages (although it would require recognition of judgments based on those marriages), but notes why from a policy perspective there is a lot to be said for recognizing them anyway, except in the evasion situation. For that case, what would be the point of having a law if anyone could avoid it for the price of a plane ticket?

Michael Friedman

Good post... however I was more concerned about the practical issues involved.

Until now there have only been a small number of marriages that were recognized in some states but not others and, except for inter-racial marriages (which were in an earlier and less litiginous time), participants in them were not usually backed by interest groups wished to get those marriages recognized nation wide.

What kinds of litigation can we expect if the California marriages are upheld and the couples involved travel, move to, or return to other states where gay marriages are not recognized?

For example, if a liberal city in a non-gay marriage state extends spousal benefits to the spouse(?) of one of its workers can unmarried heterosexual couples with members working for the city sue under equal protection laws?

What are the likely issues in inheritance? Can a hospital be prosecuted for releasing private medical information to the spouse(?)? What about divorces - can a gay couple married in San Francisco but living in another state get divorced? If so, what law would govern allocation of the assets? What would the impact be on child custody suits? If a member of a gay couple married(?) in California marries a member of the opposite sex in a state that does not recognize gay marriage can that person be prosecuted for bigamy?

I see an incredible tangle of litigation heading for us at warp speed if we have this kind of piecemeal approach to marriage.


Good point. I didn't address what litigation there may be. Many of the gay rights groups issued a joint statement after SSM became legal in Canada which included the following:

For those who contemplate litigation as a response to discrimination against their marriage, it is critical to remember that any legal case has profound implications beyond the individuals involved. Please contact the organizations below who have the most experience litigating on marriage, civil unions and the rights of GLBT people and who have definite thoughts about what, when and where litigation is and is not advisable for taking our movement forward. Couples should absolutely not race across the border just to set up lawsuits; the wrong cases could set us back for years. We will be strongest if we work together.

I think they would like to plan a careful strategy of picking certain test cases that are strong both legally and emotionally--for example in a state without a DOMA with a couple that has been together a long time, etc. Still, you can expect litigation from a number of situations. This isn't all bad, though. A body of law will continue to develop in each state.

I don't think the fact that Massachusetts will have legal marriages will effect the amount of litigation, though. Couples could go to Canada, get married, and face the same legal difficulties upon returning here.

I'm guessing that the response will vary. A city that offers a domestic partner registry will probably automatically grant such status to a married couple. Likewise for private employers that offer benefits to same-sex partners. It would be interesting to see if any employers stop giving benefits to unmarried sex-same partners and actually require marriage for same-sex and opposite-sex couples.

More and more countries are recognizing same-sex relationships and this legal tangle will arise regardless of what the relationship is called, or where it is established. We've already seen cases involving civil unions (mainly in terms of requesting a divorce) in other states. So far the results have been mixed. GA and CT refused to recognize them. An IA judge granted a divorce which caused quite a stir. Finally a NY judge has ruled that the civil union should be recongized for the purpose of a cause of action in a wrongful death suit.


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