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View Diary: Elena Kagan proves that DOMA's original intent was bigotry, not tradition (129 comments)

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  •  If DOMA is struck down on federalism grounds (3+ / 0-)
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    basket, mmacdDE, BlueStateRedhead

    then states will define who may be granted a marriage license within their respective borders.

    As for what happens if a same sex couple were to move to a state that does not recognize marriage, the answer is, it depends. Traditionally, states have recognized any marriage performed validly under the laws of the state or country where the couple was married.  For example, first cousin marriage isn't legal in all states, but first cousins married in a state where it is permitted are considered validly married if they move to a state where a marriage license are not issued to first cousins.  The state would grant "full faith and credit" to the marriage licenses issued by sister states, just as would enforce civil judgments issued by the courts of other states, even if the judgment arises under law that doesn't apply in the enforcing state.  

    When it comes to same sex marriage, it's a little tricker (although of course it shouldn't be). For example, New York State recognized same sex marriages legally performed elsewhere even before it began issuing marriage license to same sex couples a couple of years ago. Indeed, Edie Windsor has standing in this case precisely because NY recognized her 2007 Canadian marriage to Thea Speyer even though same sex marriages could not be performed within the state.  By contrast, some states have passed laws explicitly saying that they will not recognize same sex marriages performed in other states.  I think the better view would be that if DOMA is struck down, a same sex marriage would still be treated as a valid marriage for federal purposes even if the couple moved to a state where they could not have been married in the first place. But to the extent that there were state law benefits for married couples, whether they would qualify for those would depend on whether the state recognized ALL sister state marriages, or excluded same sex marriages from recognition.

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