So we’ve established that in a world without DOMA, state law is the natural place to look to figure out whether a same-sex couple is married. Here is where we meet our first conflict-of-laws problem.
You surely know that some states allow same-sex couples to marry, and others do not. So what happens when a couple lives in a no-same-sex-marriage state, but gets married out of state? Or lives and marries in a same-sex-marriage state, but then moves to a no-same-sex-marriage state? Well, it depends.
In Maryland (or Rhode Island, or New Mexico), the couple will still be treated as married, even though they couldn’t have gotten married in that state. In many other states, they won’t be. Texas is an extreme example: a same-sex couple moved there from Massachusetts and wasn’t even given access to divorce court, because Texas figured they were never married in the first place.
And in other states, the answer is still up in the air. Remember the controversy about District Judge Vaughn Walker’s same-sex relationship, and possible marriage plans? Steven Gillers suggested that if Walker had any interest in getting married, he could just travel to Iowa or another same-sex-marriage state. Ed Whelan’s response was that such a marriage should not be recognized in California. But the strange thing is that California law isn’t really clear on this point, so even after looking into it, I don’t know for sure how the California courts would apply Prop 8 to an out-of-state same-sex marriage.
Now, in a sense, this is not a new problem for the states. People have been getting married and moving around for a very long time. But there’s never been widespread agreement about the solution to that problem. Most of the time states defer to the state where the marriage was “celebrated,” but sometimes they don’t.
So when you ask whether a same-sex couple is married under state law, the answer depends on which state you ask.