(no subject)

[yesthattom]

(for the sake of simplicity I’ll use 2 women as the example, but it works the other way too)

If two women were married in Massachusetts and then moved to, say, Texas, and one of them sought a marriage license with a man, Texas would be in a bind:

1. Texas could deny the marriage license claiming that the woman is legally married in another state and thus is disqualified for gaining a marriage license. Thus they have recognized the marriage as being valid. Thus, people of Texas that have been denied marriage licenses could sue for discrimination since they are being forbidden from getting married when others are permitted.
   • While that’s going on (a suit like that would take years) the two women would file taxes as a married couple.
     • If Texas accepts their taxes, it bolsters the plaintiffs case... Texas has yet again acknowledged a same-sex marriage for some but not others.
     • If Texas does not accept their taxes, it means that Texas does not recognize their Massachusetts marriage, and they’ll gain another law suit as the man and woman sue for being wrongfully denied their marriage license.
2. Texas could approve the marriage because Texas does not (and due to federal DOMA laws must not) recognize their Massachusetts marriage. Thus, a 3-person marriage is permitted, which would cause quite a lot of confusion.
   • Texas could pass a law recognizing Massachusetts’ marriages, which would virtually legalize same-sex marriage (or leave them open to a law suit that would legalize same-sex marriage.)
   • Texas could pass a law banning people from marrying if they are in a non-recognized same-sex marriage from another state, thus virtually recognizing same-sex marriage from other states, demonstrating the unworkableness of federal DOMA, leaving it open to supreme court challenges, which would win, thus forcing Texas to recognize same-sex marriages from other states, which is what they set out to prevent in the first place.

Remember that a marriage license and a marriage certificate are two different things. The license is permission to marry, an acknowledgment that the two people pass all the qualifications to get married. The certificate means that they have taken action based on the permission granted by the license. So a couple from MA could do this and not actually have to get married, they could cause all this trouble by just getting the license.

Comments

[mcl.livejournal.com]

In instance 2, it'd either be a 3-way marriage or bigamy. Illegal either way.

I thought the gubbermint's latest soundbite was that the states should decide what is and isn't right w.r.t. marriage? So how do they justify the DOMA laws?

[docstrange.livejournal.com]

It'd be bigamy in Mass, as that state would continue to recognize the first marriage, and would be required by the 'full faith and credit' clause of the Constitution to recognize the Texas marriage as performed. But it would just be one marriage in Texas, which would not recognize the Mass marriage. When Mass issues an arrest warrant, Texas would be required to respect that warrant, however (also under the FF&C clause). That would not be an unreasonable event -- Texas would not recognize the marriage, but it would recognize that under Mass law, the person who got into the second marriage had broken Mass law (by getting married there and then getting married somewhere else).

It's really a great question for a family law or conflict of laws class final exam. Actually, not bad for a bar exam -- family law, conflicts, criminal law, Constitutional issues, and jurisdictional issues could all come into play.

The issues are more complex than the press has reported. For example, a state with a strong public policy against some kind of marriage (first cousins, for example) is not required to recognize a marriage where its residents travel to another state to take advantage of more permissive law. Meanwhile, normally, states do recognize a marriage that was legal "where celebrated" (performed), if the persons were residing in that other place at the time. So then there's questions of what constitutes residency (state, federal, and international law aspects come into play).

You can see why legal scholars may find the DOMA as a creating a frightful mess on long-understood legal principles. You can also see why this situation is headed for a Supreme Court review at some point.

[mactavish.livejournal.com]

It'd only be bigamy in Texas if Texas recognized the Massachusetts marriage.

[qwrrty.livejournal.com]

I agree that it's a great legal question, and one that should be addressed in the popular media, but I have problems with some of the premises:

Texas could deny the marriage license claiming that the woman is legally married in another state and thus is disqualified for gaining a marriage license. Thus they have recognized the marriage as being valid. Thus, people of Texas that have been denied marriage licenses could sue for discrimination since they are being forbidden from getting married when others are permitted.

Denying a new marriage license on the basis that another state has already performed a marriage is not necessarily the same thing as recognizing the first marriage as "valid." It seems like it would depend heavily on the legal reasoning applied. Texas law might allow the state to refuse the new license in order to avoid creating an apparent conflict with Massachusetts law. The Texas AG could quite plausibly refuse to issue a new marriage license without recognizing a Massachusetts same-sex marriage in his state.

Texas could approve the marriage because Texas does not (and due to federal DOMA laws must not) recognize their Massachusetts marriage.

I'm quite sure this isn't what DOMA says. DOMA says that no state will be required to recognize same-sex marriages performed in a different state. It definitely doesn't say that no state will be allowed to recognize such marriages. Indeed, the New York AG said as much when he acknowledged the possibility that New York might recognize Massachusetts marriages.

[docstrange.livejournal.com]

DOMA says that no state will be required to recognize same-sex marriages performed in a different state.

Exactly. (Mind, in the case of Texas, it's probably a given that they wouldn't recognize it, given the option.) The Congress has provided an exception to the effect of the FF&C clause. DOMA raises the question of whether Congress has the power to create a such flat-out FF&C exemption (See http://archive.aclu.org/issues/gay/doma.html).

[redbird]

Being both bi and poly, I am amused by this, but I'm not surprised that the sort of idiots who would write such a law in the first place haven't realized that people like me exist.

(Not being resident in Massachusetts, I'm not going to be the one--or one of the three--to test this.)

[awfief.livejournal.com]

but that could never happen!

You see, you're either homosexual or heterosexual.

(amazing points, though. . . I like the way you think).