Abolition of gay marriage and the Contracts Clause:

Massachusetts courts have said that Massachusetts must recognize gay marriages. Say this begins to happen; but Massachusetts voters amend the state constitution to essentially abolish the preexisting marriages. (This need not be the case — they might just prohibit ones but retain the old ones, or change the existing ones into civil unions, but say that they abolish them outright.) Would this violate the Constitution’s Contracts Clause, which prohibits impairing the obligation of contracts?

     I first blogged about this a couple of weeks back, and said that my tentative research has led me to the answer “no”: Though marriages are in a sense contracts, courts have seen them as not being within the scope of the Contracts Clause — the issue had arisen in the past when divorce law was liberalized, or when state legislatures issued legislative divorces. I can now confirm that; the 1888 Supreme Court case Maynard v. Hill specifically held that “marriage is not a contract within the meaning of the prohibition.”

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