Explain something to me about gay marriage.

[white_wolf]

So the ruling in California got me wondering about something. Lets say a gay couple got married there and then moved to a state where it is not legal wouldn't they still be married because isn't it federal law that papers such as marriage licenses issued in one state are valid in all states? I know some states have laws defining marriage between a man and a women but state laws can't override federal law so shouldn't they be void in this case?

[elleng]

1. Yes,

but some states may try to 'void' the policy that every state should honor laws of other states.

[Xipe Totec]

2. The answer is no. Reciprocity means If we recognize your state's marriage as legal

You must do the same for ours.

Either California recognizes all other state marriages as legal, or no state recognizes California marriages as legal.

[rurallib]

3. there is probably some precedent from the old days of no inter-racial marriage

[AlienGirl]

6. Loving v. Virginia was supposed to have settled that a marriage valid in one state is valid in all

http://en.wikipedia.org/wiki/Loving_v._Virginia

From the ruling:

Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Tucker

[david13]

4. Whatever you do, don't look at the consitituion. Particularly not

the full faith and credit part.
But do remember there are exceptions to any rule.
dc

[laconicsax]

5. Article IV Section I of the Constitution.

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Article VI, Paragraph 2:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

...and that's why DOMA is unconstitutional, and why states that ban marriage equality are Constitutionally obligated to honor marriages performed in other states.

[MajorChode]

7. The answer is no because of DOMA

DOMA specifically allows states to refuse to recognize a marriage performed in another state.

[Mariana]

8. Interesting. So they could refuse to recognize any marriage?

or does the DOMA specify that they may do so only with same-sex marriages?

States still have different laws regarding who may marry whom, aside from the same-sex issue. Some let first cousins marry and some don't, and there are different age requirements, for example. I've never heard of one state refusing to recognize a marriage from another state that wouldn't be allowed for one of those reasons.

[COLGATE4]

9. No, DOMA lets them choose not to recognize another State's

marriage for whatever foolish reason they choose (but the issue only comes up because of teh Gay)

[Ms. Toad]

11. Actually most marriage discrimination amendments or laws

are specific to gender. Ohio's is fairly typical: Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

[Ms. Toad]

10. The real answer is (1) yes, they are still married

and (2) the constitutionality of the laws and amendments (both state and federal) which purport to permit states and the federal government to refuse to recognize those marriages has not yet been tested - so we really don't know.

Marriage is a quasi-contract between three parties - the couple who entered into the marriage and the state which sanctioned it. That state has laws which grant certain rights and impose certain obligations associated with couples it recognizes as married. In the US, with the sole exception of same gender marriages, if the state in which the couple created their marriage recognizes that marriage then federal rights (and obligations) follow that state recognition.

Moving to another state doesn't invalidate the marriage which was, and continues to, be sponsored by the state that created it - and when a couple moves to a new state, a whole host of cases/laws (including Loving v. Virginia) worked out over decades in the areas primarily of estate and family law have resulted in the new state standing in the shoes of the originally sponsoring state in the quasi-contract. If it was precisely a contract, the new state would be bound to offer the benefits and obligations the "home" state gave it - but instead rather than picking up the original state v. couple rights and obligations, the couple is entitled to whatever rights/obligations are offered in the new state (so the "contract" changes - which doesn't happen in a true contract). What happens with same gender marriages is that the new state says it doesn't care what any other state says - it just refuses to acknowledge the marriage exists (or in the language of the marriage discrimination statues and laws, doesn't recognize the marriage. That means the couple doesn't get the rights or obligations that go with marriage in the new state.

As a side note, because moving to another state that doesn't recognize same gender marriage still doesn't invalidate the marriage, it creates for same gender couples (like my partner and I) kind of a super-marriage. In order for us to get divorced (should we ever decide to), we would need to move to. and establish residency in. a state that recognizes our marriage (since in order to grant a divorce, the state has to recognize that a marriage exists in the first place). Any same gender couple entering into marriage needs to recognize this odd quirk in the law - there are current court cases over this very issue.

But - I digress - Under Loving v. Virginia, and a whole host of other cases, a lawful marriage should be recognized by other states and the federal government. DOMA, and all of the mini-DOMAs purport to permit states to ignore Loving v. Virginia (and the rest of the similar laws/cases). Whether or not they can constitutionally do that is another question that has not yet been answered. The court in Massachussets said at least some pieces of DOMA (which purport to permit the federal government to refuse to recognize marriages that are lawful within that state). The court in California took a different approach - but is also challenging refusal to recognize/grant same gender marriages on federal constitutional grounds.

We will see.

[Withywindle]

12. No, they would not be.

That's what the "state's rights" argument leads to.

Obama was lucky, because interracial marriages were legal in Hawaii at the time that he was born there (1961). They were specifically illegal in several states at that time, including my own.

If Barack Sr, Stanley Ann, and little baby Barack Jr had been visiting my OWN state, VA, in the early 60s and if, god forbid, there'd been some kind of accident, their family would have had no legal rights whatsoever, because VA at the time refused to recognize the marriage of a black man and white woman, and would have been within their technical legal "state's rights" at the time to arrest both adults and hand the baby over to an orphanage. "State's rights" just means that particular states are allowed to be as racist, sexist and homophobic as they want --and we all know many states will exercise that right to the fullest. All it really does is hurt minority populations within the bounds of that state.