Some Questions and Some Answers about Marital Choice of Law

Here are a few follow-up questions to my first post this morning.

“Burt Likko” says: Prop. 8 is worded: “…only marriage between a man and a woman is valid or recognized in California.” I have a hard time getting past the plain meaning rule to reach a result that an Iowan or Canadian same-sex marriage license would be “valid or recognized” in California.

Answer: Maybe. But note that in Strauss v. Horton, (starting on p. 128) the California Supreme Court has already made an exception to the text of that provision, holding that same-sex-marriages that preceded the enactment of Prop 8 are indeed valid and recognized in California. The court relied on background principles of anti-retroactivity, as well as respect for vested rights (and the state’s due process provision). And Maryland recognizes out-of-state same-sex marriages despite a law that provides that “only a marriage between a man and a woman is valid in this State.”

Would a marriage validly celebrated in another state — especially by a resident of that other state, though that is not the only scenario — be treated as a “vested right” that Prop 8 left intact? I do not know, but I am not as sure as the commenter is that the answer is obvious.

“Henry Clay” asks: I’ve been looking forward to this post because I’ve been wondering what examples there are of states not recognizing marriages from other states apart from the obvious examples of SSM and Jim Crow. Are you really going to just wave your hand at that (“sometimes they don’t”) or is there another post on the way?

Answer: If you really want to dig into the historical examples here, you’ll have to leave the blogs. The short answer is that most of the examples are indeed from same-sex marriage and the interracial marriage context. Basically, most states claim a right to refuse to recognize a marriage only in extreme circumstances, known as the “public policy exception,” and this exception doesn’t get invoked that often.

For further reading about the rarity (outside of same-sex marriage) of the “public policy exception,” see Steve Sanders’s very engaging paper, The Constitutional Right to (Keep Your) Same-sex Marriage.” For further reading about the interracial marriage precedents (and others), see Andrew Koppelman’s excellent book, Same Sex, Different States (the only e-book I’ve ever purchased!). To see what other complications I’m trimming out for blogging purposes, see my paper.

“Rocket Scientist” says: I take some small issue with the claim that same-sex marriages would be recognized in New Mexico. The opinion is an attorney general opinion not really a court ruling, so there may still have to be litigation in order to resolve the question.

Answer: A good point! While I’m not aware of a court in any of the states I mentioned that has bucked the ruling of the state Attorney General, those issues are still up for grabs in litigation, so the state of affairs is even more uncertain and confusing than I made it sound.

This brings me to my ultimate point — which is that this is a mess. (There is a saying you only need to know two things about conflict-of-laws: that there is no area where 20th-century academics have had a greater impact on the law, and that there is no area of the law that is more screwed up.) And we haven’t even gotten to the worst part of the conflicts problem yet, which will come when we bring in the federal government. So stay tuned; it gets worse before it gets better.

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