DOMA overturned

[obadiah]

When you have one state which permits an action, and a neighboring state which prohibits the same action, which state has to give credit to the other's laws?

I always wondered this. It is generally used to allow something in the "prohibited" state but where does it say that? Why doesn't California have to give full faith and credit to Oregon's constitutional provision banning gay marriage and not do anything that would compromise that provision?

[fortinbras]

A state can forbid a wedding between two persons of a particular category (e.g., first cousins) but, once the wedding takes place in a jurisdiction where it is valid, the resulting marriage contract is treated as valid in ALL states, even those which would not have permitted the wedding ceremony.

Part of this is the Constitution's provision that each state will give full faith and credit to every other state's official acts (Art. IV, sec. 1), but also that a state cannot impair the obligation of contracts (Art. I, sec. 10, cl. 1).

[obadiah]

I understand it has basically always worked that way but why? The marriage case is not absolute, as far as I know. What about states that allow marriage at 14 with parent's permission? I seem to remember prosecution in another state for statutory rape (I will try to find a cite tomorrow). Or an unregistered common law marriage (Washington does not recognize common law marriage). Isn't a constitutional provision, passed by initiative an official act? And the ffac isn't absolute is it? Or the contract provision? I contract to deliver liquor in another state - the receiving state is sovereign and their laws apply, not the sending state's.

[Famspear]

A state can forbid a wedding between two persons of a particular category (e.g., first cousins) but, once the wedding takes place in a jurisdiction where it is valid, the resulting marriage contract is treated as valid in ALL states, even those which would not have permitted the wedding ceremony.

Part of this is the Constitution's provision that each state will give full faith and credit to every other state's official acts (Art. IV, sec. 1), but also that a state cannot impair the obligation of contracts (Art. I, sec. 10, cl. 1).

I think the question, though, is not whether the resulting marriage contract is treated as valid in all states, but rather whether the Full Faith and Credit Clause requires that the marriage contract be treated as valid in all the states.

On Article I, section 10, clause 1, I think the question would be whether this clause applies to "marriage contracts" in the context of same sex marriages, etc.

[Famspear]

Hypothetical 1: State # 1 enacts a statute that says that marriages consisting of three "partners" -- a human, a kangaroo, and a zebra -- shall be legally valid for all purposes.

Does the Full Faith and Credit Clause require that such a marriage be treated as legally valid by all the other states?

===

Hypo 2: Same as 1, except the statute of State # 1 also specifically states that "these marriages shall be treated as legally valid in all states."

Does the Full Faith and Credit Clause require that such a marriage be treated as legally valid by all the other states?

===

Hypo 3: Same as 1, except that State # 2 enacts a statute that says that marriages consisting of a human, a kangaroo and a zebra in any state shall be void for all purposes, and that actions to make such "unions" shall be considered felonies in State # 2, even though State # 1 has the law purporting to make such marriages valid. A human, a kangaroo and a zebra are married in State # 1, and thereafter move to State # 2, and continue to live together in the marriage. State # 2 brings criminal action.

Under the Full Faith and Credit Clause, is State # 1's statute invalid? Is State 2's statute invalid?

[fortinbras]

I am not sure there are enough kangaroos to go around. From your suggestion I gather that you have not actually attempted to have carnal relations with a kangaroo; a truly memorable experience.
Option 1 is common, when it involves only humans.

Option 2 is unlikely because one State cannot legislate how other States must react. In marriage, the fact that the first State regards the marriage that took place in it as valid is ordinarily binding on the rest of the states.

Option 3 sort of harkens back to the 1960s and the Loving case when mixed-race marriages, although valid in some states, were absolutely illegal in some Southern states notwithstanding the marriages had been contracted in states where they were legal. The US Supreme Court stomped on that - on the basis of racial discrimination, not on the Full Faith and Credit clause nor on the Obligation of Contracts clauses.

[notorial dissent]

My sense of the matter, and what I was taught in school is that 1 is valid due to state sovereignty on laws within their own borders, barring the usual state and federal constitutional constraints, and would have to be at the very least tolerated in other jurisdictions due to full faith and credit, regardless of its legality in that state. Basically, just because it is illegal to gamble in state A, and someone gambles in state B where it is legal, they cannot be prosecuted in state A for something they did legally in state B.

2 would not be, as while state 1 can legislate for itself, it cannot for other states, although full faith and credit says that if it was legal in state 1, then other states must accept that and cannot treat it differently even though it may not be legal for their citizens to do so.

I think that 3 would fall to full faith and credit, and equal protection issues as they equally cannot legislate on what is legal and valid in another state. Laws on cousin marriages being a prime example, legal and valid in one state does not constitute illegal and void in another if the marriage took place where it was legal. This is the same precedent that brought down the miscegenation laws. The prosecution of a biracial couple who were legally married in a state where it was legal moving to a state where it wasn't, and being prosecuted. The end result ALL miscegenation laws being struck down for full faith and credit and equal protection.

[AndyK]

I am not sure there are enough kangaroos to go around. From your suggestion I gather that you have not actually attempted to have carnal relations with a kangaroo; a truly memorable experience.
Option 1 is common, when it involves only humans.

Option 2 is unlikely because one State cannot legislate how other States must react. In marriage, the fact that the first State regards the marriage that took place in it as valid is ordinarily binding on the rest of the states.

Option 3 sort of harkens back to the 1960s and the Loving case when mixed-race marriages, although valid in some states, were absolutely illegal in some Southern states notwithstanding the marriages had been contracted in states where they were legal. The US Supreme Court stomped on that - on the basis of racial discrimination, not on the Full Faith and Credit clause nor on the Obligation of Contracts clauses.

But not until at least one mixed-race couple was criminally prosecuted by Virginia.

[jg]

Having arrived home today from an IRS Nationwide Tax Forum where a session on "The New Form 706" was given by the Estate and Gift Tax Territory Manger for the Northeast (one of four nationally) I can report that her only comment in regard to DOMA ruling inspired changes was that they are "waiting for direction from the Treasury" though she said she had hoped she would have heard something prior to the meeting.
Not a particularly informative comment; but interesting in that the exact phrase was used by another presenter at the forum, as well.

Given that Form 706 is generally due nine months after date of death, there is an implied need for guidance prior to the end of September. One good piece of news is that Schedule PC, Protective Claim for Refund, is now part of the Form 706 (though Form 843 can also still be used).

Guess we just need to stay tuned for IRS pronouncements.
As to the thornier issues, given the dysfunctional legislature, it seems we will have to wait for many of those issues to be worked through the courts.

Also, I do not have any reason to accept that the effect of the ruling is retroactive.
If it were, is the federal government thereby obliged to pay reparations (or some such) to all of the same sex partners of federal workers (including servicemen) that were previously denied spousal benefits? I certainly hope it is not so.

[LaVidaRoja]

Retro-active---hmmmm. I would counsel anyone in a same-sex relationship where their partner has died and a 706 has been filed to file a claim. After all, the death in the initiating case occurred when? If that death qualified for a marital deduction, any death since then should as well. Since there is no way of extending the statute on a 706, it is limited to returns filed within the past three years (from the date the ruling was announced). Given the $$ figures involved, I suspect any attorney who has been involved with such an estate would be guilty of malpractice if the surviving spouse was NOT advised to file a claim.

[webhick]

Earlier in this thread, there was some discussion on divorce. Namely that if you were married in a state that recognized your same-sex marriage but moved out of state and the new state does no, how would one get divorced.

I was working another job today and passed by a tidbit. Apparently, the state of Delware says that if you were married in Delaware and the state in which you currently reside does not recognize your marriage, Delaware is where you file for divorce.

No I can't give a source. I forgot to copy and paste it.

[JamesVincent]

Earlier in this thread, there was some discussion on divorce. Namely that if you were married in a state that recognized your same-sex marriage but moved out of state and the new state does no, how would one get divorced.

I was working another job today and passed by a tidbit. Apparently, the state of Delware says that if you were married in Delaware and the state in which you currently reside does not recognize your marriage, Delaware is where you file for divorce.

No I can't give a source. I forgot to copy and paste it.

I seem to recall hearing this in other places, not just Delaware.

[JamesVincent]

We were last discussing whether a gay couple that had been married legally could be divorced in a state that does not recognize the marriage. The answer, according to Kentucky, is no.

http://news.cincinnati.com/article/2013 ... d-Kentucky

Family Court judges and divorce lawyers say Alysha’s petition – filed Oct. 25 in Jefferson Family Court – is the state’s first involving a same-sex couple who were married in another state where same-sex marriages are legal, and want to end their marriage in Kentucky.

But both opponents and supporters of gay marriage – including Waterman – say the court will have no choice but to dismiss the petition because Kentucky’s marriage amendment bans not only gay marriage, but the recognition of such marriages performed elsewhere as well.

The actual law states:

Marriage is prohibited and void:
(a) With a person who has been adjudged mentally disabled by a court of competent jurisdiction;
(b) Where there is a husband or wife living, from whom the person marrying has not been divorced;
(c) When not solemnized or contracted in the presence of an authorized person or society;
(d) Between members of the same sex;
(e) Between more than two (2) persons;
Kentucky Statute 402.020

http://www.lrc.ky.gov/Statutes/statute.aspx?id=36466

Now another question would be this: according to what I've been reading since this petition was filed and became news a marriage between same sex couples cannot exist under Kentucky law. So how does that work? Are they actually *not* married here?

edit: forgot some things

[fortinbras]

Under DOMA there was, for same-sex marriages, a situation not very different from mixed race marriages in the South before the Loving decision; namely, mixed race marriages that were legally commenced in one state were not recognized if the family moved into another state where such marriages were forbidden, so the couple was not only not recognized as married but (1) could be prosecuted where unmarried sex was treated as a crime, (2) the normal laws relating to inheritance and community property and next-of-kinship of spouses did not apply, (3) a variety of situations and conveniences available to married couples, such as joint bank accounts, were denied to them.