The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections

By Mark Strasser | Go to book overview

6
Subsequent Domiciles and Full Faith and Credit

Domiciles that wish to prevent their domiciliaries from marrying a same-sex partner can manifest that intention quite clearly by making such marriages void. That way, their domiciliaries will know that marrying a same-sex partner in a state in which such marriages are valid will not guarantee that their domicile will recognize the validity of their marriage.

A separate question that has not received adequate attention is whether states will have to recognize same-sex marriages that were recognized by both the states of celebration and domicile at the time of the marriage. Thus, suppose that Hawaii and Alaska come to recognize same-sex marriages and that a same-sex couple domiciled in either state marries and then, a few years later, moves to another state because of some employment opportunity. Even if a state could have precluded its own domiciliaries from going to Hawaii or Alaska, marrying, and then insisting that the marriage be recognized, much more argument would be needed to establish that the state was entitled to refuse to recognize the marriage of the Hawaiian or Alaskan same-sex couple, since such a refusal would implicate both constitutional and policy issues that simply are not involved when a state denies recognition to a marriage of its own domiciliaries. 1

Historically, states had to confront whether subsequent domiciles could refuse to recognize a marriage valid in a previous domicile when a couple was married in one state and then, after some time had passed, moved to a new state that did not recognize such marriages. The marriage might have violated the latter state's law because, for example, the individuals were too closely related by blood (e.g., first cousins) or because the individuals were of different races. Many courts confronting this issue understood that such marriages had to be recognized, local law notwithstanding. 2 A minority of

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The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Acknowledgments ix
  • Introduction xi
  • 1 - Marriage Rights 1
  • Notes 19
  • 2 - Equal Protection 31
  • Notes 47
  • 3 - The Referenda 53
  • Notes 66
  • 4 - Retroactive Legislation 71
  • Notes 87
  • 5 - Full Faith and Credit 101
  • Notes 117
  • 6 - Subsequent Domiciles and Full Faith and Credit 125
  • Notes 143
  • 7 - Natural Law and Same-Sex Marriage 159
  • Notes 180
  • 8 - The Defense of Marriage Act 187
  • Notes 213
  • Selected Bibliography 225
  • Index 245
  • About the Author *
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