Married in New York but Not in Texas

[Valin]

Slate:

William Baude

April 12, 2013

 

 

 

In the wake of the Supreme Court arguments about same-sex marriage, there has been widespread agreement that the justices aren’t likely to create a right to gay marriage throughout the land—thereby invalidating the ban in 41 states that don’t perform it. And there has also been lots of confusion about what, practically speaking, a ruling that stopped short of legalizing gay marriage in 50 states would mean. If the Supreme Court leaves the laws of most states intact, but strikes down the part of the Defense of Marriage Act that defines marriage as the union of a man and a woman, will it create “legal chaos” as the federal government tries to figure out which marriages to recognize where? Or is it relatively obvious which couples will receive federal benefits?

 

The answer is somewhere in between. If the court strikes down DOMA, the federal courts will have to settle serious, hard legal questions about which same-sex couples are married for purposes of federal law. And that’s to be expected. After all, states have had different marriage laws for centuries, and their definitions can conflict when people marry in one state and live in or move to another. And so states also have longstanding practices for resolving the conflicts created by these differing laws. The questions about gay marriage will up the ante, but the courts will be perfectly capable of dealing with them.

 

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The result is a patchwork. Take the real example of two men {known by their initials, H.B. and J.B} who married in Massachusetts in 2006. The couple moved to Texas in 2008, but shortly after the move, they separated and sought a divorce. The Texas courts have refused to recognize their marriage for any purpose—not even to end it. Yet so far as Massachusetts is concerned they are still married, which could affect their shared property if the couple ever moves back. Here’s another story, by Karen Hartman, about the barriers she faced when she tried to divorce, and the weirdness of living in legal limbo. It may seem strange and sometimes unfair, but this is how the field called “conflict of laws” works. The Constitution requires states to give “full faith and credit” to judicial rulings from other states, but it generally leaves them free to decide when to apply another state’s laws—including marriage laws. (A different part of DOMA, which isn’t being challenged in the current Supreme Court case, reinforces states’ freedom to ignore out-of-state gay marriages, but states have long done the same thing on their own anyway.)

 

(Snip)

[Valin]

An interesting point from the comments

 

RoninX

It's interesting that the issue of reciprocity is also coming up simultaneously on the gun issue. Right now, states can refuse to recognize carry permits from other states, so someone who has a fully legal carry permit in New Hampshire could get arrested for carrying a gun in Boston.

 

One of the proposed amendments to the Senate gun bill currently being debated would require states to recognize other states' carry permits. If that passes, but universal background checks stay in the bill, it will be interesting to see whether the bill's backers and opponents switch positions or not.