Joanna L. Grossman

The State of the Same-Sex Union: Part Three in a Three-Part Series

By JOANNA L. GROSSMAN & EDWARD STEIN
Tuesday, August 4, 2009

In the previous parts of this series (available here and here), we described the history of the fight over same-sex marriage in the United States and mapped out the current national landscape, which features full marriage equality rights in some states, quasi-marriage rights in other states, and absolute bans on same-sex marriage in a large majority of states.

In this part, we will consider a thorny but important question that arises from such a checkered national landscape: Will same-sex marriages that are validly celebrated in one state also be recognized in other states? That question of interstate recognition is governed by an entirely new and unprecedented set of laws that states have enacted primarily in the last decade.

Marriage Celebration versus Marriage Recognition

It's important when thinking about same-sex marriage to distinguish between the law governing the celebration of marriage – that is, addressing whether a particular state will let couples within its borders marry – and the recognition of marriage – that is, addressing whether a particular state will give effect to a marriage that it would not have permitted, but that was validly celebrated in another jurisdiction. These might seem like closely-related areas of law, but, historically, they have developed differently.

The need for laws regarding "recognition" arises from a fundamental aspect of American marriage law: Each state crafts its own rules about who can marry. Those rules have to comply with federal constitutional standards, but states still retain a lot of discretion to impose procedural and substantive limitations on access to marriage.

Historically, states disagreed about whether to allow marriage in certain circumstances – for interracial couples, for the feeble-minded, for minors below a certain age, and so on. They also disagreed, sometimes sharply, about whether to permit "common-law marriage," a marriage that is formed by the members of a couple's acting as if they are married rather than by their obtaining a license and solemnizing the union through a formal ceremony. Courts were routinely asked to decide whether a marriage contracted in one state could be recognized in another state that would not, itself, have permitted them to marry. A standard doctrinal approach for dealing with these types of situations emerged, but most states do not follow this approach with respect to same-sex marriages.

Interstate Marriage Recognition: The Conventional Approach

The standard approach, which all states generally follow, is called the "place of celebration" rule. In a nutshell, this means that if a marriage is valid where it was celebrated, it is accepted as valid everywhere. The converse principle is also true: If a marriage is void where it was celebrated, then it is void everywhere.

This pro-recognition approach is designed to minimize conflicts between the states, and to make marriages "portable," ensuring that married couples do not become unmarried just by crossing a state line, and children do not become illegitimate because their parents' marriage is not recognized, and so on. Under this approach, it was understood that a state could continue to prohibit a particular kind of marriage, despite sometimes recognizing one formed out of state.

These traditional rules of recognition are not constitutional rules and do not expressly derive from the idea of "full faith and credit," which is set forth in a constitutional clause requiring states to give effect to court judgments from sister states' judicial systems. A marriage is not a judgment, and the rules of recognition are just common law principles, developed by courts over time, that try to promote "comity" – respect for the laws and actions of sister states and nations – and to minimize the disruption to individual expectations caused by states' conflicting marriage laws.

Because of the common law origin of the rules of recognition, they are not absolute. A court in one state could still decline to recognize a particular marriage if it was a violation of natural law – "universally abhorrent" – or if the state legislature had expressly precluded recognition by statute. What that meant, in practice, was that by and large states did recognize marriages from other states and foreign jurisdictions unless they involved bigamy, incest between close relatives, or "marriage evasion" – which occurred when a couple deliberately evaded their home state's rules by crossing the state line in order to obtain a prohibited marriage. Interracial marriages were, in many cases, recognized by states that did not permit them, as long as the marriages were not "evasive" and as long as the state legislature had not expressly dealt with the question of extraterritorial recognition.

Two Examples Illustrating the Conventional Approach

Let's consider two easy examples to illustrate the basic rule: a marriage between first cousins and a bigamous marriage. About half of the states prohibit first-cousin marriage; half permit it. (A detailed discussion of first-cousin marriage is available here.) If first cousins marry one another in their home state and then move to a neighboring state that does not allow first-cousin marriage, the marriage will almost certainly be recognized in the destination state. Reasonable minds could differ on the wisdom of first-cousin marriage, and thus, states tend not to hold such prohibitions dear. In contrast, a couple who enters into a bigamous marriage in a foreign jurisdiction that permits polygamy would have almost no hope of garnering recognition from any American state; all would view this as a violation of so-called "natural law."

In addition to the basic rule and its exceptions, there is longstanding precedent -- reinforced today by modern conflict-of-laws theories -- for an "incidental" approach to marriage recognition. Under this approach, courts can recognize a marriage for one purpose alone, if the particular concerns or policies implicated militate in favor of recognition for that particular purpose. It is understood, with such an approach, that a court might analyze the same relationship differently in a different context.

Claims involving inheritance, for example, were highly susceptible to "incidental" analysis because a court could recognize the economic harm that would be suffered by a surviving spouse who had been in a prohibited marriage, were that marriage not to be recognized, without putting its imprimatur on a continuing, disfavored relationship. The incidental approach has many virtues, but among them is the ability to protect the interests and expectations of parties to a union, without compromising the ability of a state to express its disapproval of similar unions.

Together, these general principles have allowed our federal system to work – preserving states' near-total control over domestic relations, yet reconciling conflicts when various states do not always see eye-to-eye on how domestic relations law should be drafted.

Interstate Recognition of Same-Sex Marriages: New Issue, New Rules

If we were simply to apply the conventional interstate recognition rules to same-sex marriage, we would see a strong likelihood of recognition in states that do not permit same-sex marriage, at least for non-evasive same-sex marriages. What we have seen instead, however, is the erection of an entirely new, unprecedented set of rules that has been specifically designed to fend off same-sex marriages from other jurisdictions. As we discussed in Part Two of this series, most of the statutes and constitutional amendments that prohibit the celebration of same-sex marriage also expressly prohibit recognition of a same-sex marriage validly celebrated elsewhere.

These laws prevent courts from applying the conventional rules of marriage recognition to same-sex marriages and adopt, instead, an inflexible rule of non-recognition. Congress has also adopted, through the Defense of Marriage Act (known as "DOMA"), a firm rule of non-recognition for same-sex marriages for federal law purposes.

Because of these anti-recognition provisions, same-sex partners who validly marry in Massachusetts, or in another state or foreign country that permits such unions, will not have their marriages recognized by most other states. Thus, by moving or even traveling, a same-sex couple can effectively lose their marital status while in other states. That same couple will also be denied recognition for any federal law purpose such as immigration, Social Security benefits, or tax status.

A few jurisdictions have, in effect, adopted the more conventional approach of accepting the rule of celebration for same-sex marriage. New York, for example, does not allow same-sex couples to get married within its borders, but will recognize valid same-sex marriages from other jurisdictions. An intermediate appellate court ruling, in Martinez v. County of Monroe (discussed here), required a state employer to provide spousal benefits to an employee who had married her same-sex partner in Canada. After Martinez, Governor David Paterson issued an executive order requiring states to give full recognition to valid marriages from out of state. And the District of Columbia recently adopted a law to authorize the recognition by the District of same-sex marriages validly celebrated elsewhere.

Even within the few jurisdictions that do or may recognize same-sex marriages, many same-sex couples will find themselves unprotected. New York's broad pro-recognition stance, for example, does not apply to other statuses like civil unions. Before Martinez, another appellate court, in a case called Langan v. St. Vincent's Hospital (discussed here), refused to give recognition to the relationship of a couple that had obtained a Vermont civil union. The crucial difference, under New York law, was that Martinez and her partner were married, and marriages are entitled to comity; Langan and his partner, on the other hand, had a civil union, rather than marriage, and a civil union is a new legal status to which the tradition of recognition does not apply.

Depending on the jurisdiction, it may be possible for same-sex couples to create marriage-like rights by private contract in states that do not grant formal legal recognition. Private contracts can be important to establish property-sharing and support obligations, as well as inheritance rights or co-parenting rights. But in some states, the anti-recognition laws discussed above are so broad as to refuse recognition not only to "marriage" or other formal statuses, but also to all claims and rights arising out of it or any related contract. In these states, which include, among others, Florida, Kentucky, and Virginia, couples may find that any attempt to establish rights and obligations by contract will be ineffective. It is important, when considering these sorts of private contracts, to hire a lawyer who specializes in same-sex relationships. The terrain is tricky and changing all the time.

A Unique Problem for Same-Sex Married Couples: Where Can They Divorce?

A growing problem for same-sex couples who have obtained legal recognition for their relationships – either as a marriage or a civil union – is access to divorce. This problem arises from a basic facet of family law: Marriage laws do not have a residency requirement, but divorce laws do. So couples can marry outside of their home state, but can only divorce where one of them is a legal resident (and has been for a period of time, sometimes as long as a year). Moreover, because so many states bar celebration and recognition of same-sex marriage, same-sex couples who live in those states are likely to find that they cannot dissolve a marriage or civil union there. This problem is exacerbated by the sheer number of non-resident same-sex couples who do marry in the various states that permit it.

The problem is even more complicated with non-marital, legally-recognized, same-sex relationships. The recent history surrounding Vermont civil unions provides a good example of this problem. When Vermont first established civil unions, a large majority of the couples who obtained them were from out of state. When some of those couples sought divorces in their home states, they discovered that dissolving a civil union was much harder than entering into one. Vermont will only dissolve a marriage or a civil union when at least one member of the couple that entered into the civil union has been a resident of Vermont for 12 months. Meanwhile, attempts to dissolve civil unions outside of Vermont have met with mixed success. Thus, many same-sex couples continue to live in legal limbo, stuck in a formal relationship that is effectively non-dissolvable. The state commissions appointed to study civil unions have strongly noted the problem of access to divorce.

This issue persists not only with civil unions, but also with full-fledged marriages. The ability to get a divorce hinges on the same rules of recognition that we discussed above. A couple will be able to obtain a same-sex divorce in states that recognize same-sex marriage, regardless of whether those states authorize such marriages to be celebrated in the first instance. But in states that preclude recognition as well as celebration, same-sex divorce is likely to be entirely off the table. (In New York, perhaps ironically, courts will dissolve same-sex marriages, but perhaps not civil unions, because of a strange set of precedents applying the rules of recognition.) Most domestic partnership statutes provide that similar statuses from other states will be recognized – and, thus, those statuses can presumably dissolved. In general, one can have a same-sex relationship from one state dissolved in other states that provide the same sort of relationship recognition.

Overall, A Complex Landscape with Shifting and Uneven Terrain

As we have described throughout this series of columns, the landscape for same-sex marriage is complicated, with a great deal of variation among states in their treatment of same-sex relationships. In the short term, we believe that significant additional changes are unlikely, with the possible exception of the legislatures in a few states voluntarily adopting laws to authorize same-sex marriage.
Public opinion is clearly shifting in favor of same-sex marriage, but until that view dominates, couples will be forced to navigate the current terrain – being mindful of different states' approaches to both the celebration and recognition of same-sex unions.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

Edward Stein is Acting Dean, Professor of Law, and Director, Program in Family Law, Policy, and Bioethics at Cardozo Law School. His current research focuses on issues at the intersection of family law and sexual orientation, gender and the law.

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