Steve Sanders on The Obligation to Recognize Out-of-State Marriages

IU Law Professor Steve Sanders has a post on the ACS Blog discussing Obergefell v. Kasich, the S.D. Ohio decision I blogged about earlier that required Ohio to recognize a marriage from Maryland — a marriage performed on a jet that had touched down in Maryland for the ceremony.

Sanders is quite critical of the district court’s reasoning (“the opinion seems conclusory and lacking in rigor”) although he is potentially sympathetic to its result. He argues that a constitutional obligation to recognize out-of-state marriages should come from the Due Process Clause: “Given marriage’s enormous legal, social, and practical significance, an existing union should be understood to implicate its own unique liberty interest under the Due Process Clause, separate from whatever ‘right to marry’ that clause may provide.” (I don’t read his piece to express a firm view about a case like this one, where the marriage was “evasive” of the couple’s home-state laws.)

I don’t necessarily concur in all of his constitutional analysis (largely because of our different constitutional methodologies), but those who are interested in the issue should read Sanders’s article in the Michigan Law Review making this argument in greater detail.