July 12, 2002

Just wanted to let you know that your gay brothers and sisters here in the USA are with you today. I am eagerly awaiting today's decision. Please send us a posting as soon as you possibly can.

Alan Spector Hamden,
CT USA

 

 

 

 

Link to learn more about our national fund in support of all five marriage cases in Canada.

 

 

 

 

 

July 12, 2002

Congratulations to all our Canadian friends for their hard work!!! Would
you now please consider annexing New England?

EJ Graff - author of What is Marriage For?

 

 

 

 

 

 

July 13, 2002

GAD! EJ, some days I think I love you <grin>... I am finding it increasingly difficult to accept the prevailing attitudes
in our country while the rest of the western world moves beyond the religious argument and approaches our relationships so much more honestly. I'd like to think that this would have an effect here but don't think so given the other ways we are out of step with nearly everyone else.

Joeline

 

 

 

 

July 12, 2002

KEVIN, JOE:

I know it is not the end of the road, but this is definitely a time to
celebrate.

CONGRATULATIONS!!! I am so pumped up that I'm crying. GO CANADA!

GO BOURASSA/VARNELL!! YES!

Bill Dubay
Washington State, USA

 

 

 

July 12, 2002

Kevin and Joe,

Congratulations!!! We're all so happy for you and the rest of Canada with the court ruling. It's really given us even more encouragement here in California for all the work we're doing.

All the best to you,

L.J. Carusone
Executive Director, MECA
877-356-4125 (voice mail) lj@marriageequalityca.org www.marriageequalityca.org

 

 

July 12, 2002

Dear Joe Varnell and Kevin Bourassa,

Congratulations on your victory, your hard work has paid off. I am happy to hear the news!

Sincerely,

Chad E. Rousseau EqualMarriage.org

 

 

 

 

 

July 15, 2002

Dear Brent [Reverend Hawkes, MCC Toronto] -- Life being how it is, I've gotten to speak with Doug and Kevin and Joe already, but not you directly... and I want to say congratulations and thanks to you! Guess I'll have to settle for this e-mail medium until we are all in the same city celebrating. A big Mazel Tov and thank you to you, your congregation, and all the team, and all my best wishes! I am so proud of you, and thrilled for all of us. Please give my best to everyone -- xxoo

Evan Wolfson
Freedom To Marry Project
New York

 

 

 

 

"The momentum toward extending the protections of marriage to those of us who're gay is growing. On July 13, a unanimous court in Ontario, Canada, ordered its government to issue gay couples marriage licenses. While appeals may take years, the ruling underscores how quickly gay couples are advancing toward full equality in Canada."
The Detroit News
July 23, 2002

 

 

 

 

 

Link to information about our book Just Married (Published  in Canada and the U.S., 2002)

 

 

 

 

And Around The World ...

 

July 12, 2002

Dear Kevin and Joe,

CONGRATULATIONS!!! I am so happy for the wonderful news. As I was writing Douglas yesterday, I was very confident, but to hear about the decision has been great! Fabolous! I really want to thank you for what you have done, for all of us!!! Every change is so important worldwide! And I am honoured to personally know the first married same-sex couple in the world! My hearth and my mind are with you!

Ciao, Stefano Fabeni
CERSGOSIG - InformaGay
Italy

PS: thank you for the wonderful report of the Turin conference on your website!

 

 

 

 

July 13, 2002

Kia ora Kevin and Joe

Wow!! My congratulations to you both. I haven't read through the decision itself - still finding my way through all the news items, etc, but just wanted to send you my congratulations and best wishes.

Enjoy your success - I guess you are still celebrating!!!

My best regards

Nigel Christie
Wellington, New Zealand

 

 

 

 

July 15, 2002

Dear Kevin and Joe,

Although I do realise that it is rather cruel for a court to tell some married couples to postpone their wedding night for another two years, I still think you deserve the warmest and deepest congratulations with winning this important battle. Well done!

Kees Waaldijk
Netherlands

 

 

 

 

July 15, 2002

Hi, My name is Aditya Bondyopadhyay and I am from India. Kevin and Joe met me when I was in Turin last month for the ILGLaw Conference ... I just read about the Ontario Superior Court Decision online.

Please congratulate Kevin and Joe for me and wish them a very long and happy life together.

Regards

Aditya Bondyopadhyay
India

 

 

 

 

July 16, 2002

Dear Kevin & Joe, Rev Brent Hawkes, Douglas, brothers and sisters in Canada,

It's thrilling to hear from the court ruling on your case. Congratulations!! The Tongzhi community in Hong Kong is very excited about this. This ruling is a landmark to all common law jurisdictions. May I wish you all the best in your pursuit of advancement for equality for all our LGBT brothers and sisters in Canada and in the world eventually. Your have shown tremendous courage and leadership. I wish we have the same here in Hong Kong. I am sure this case will become an important case for other jurisdictions, shedding light on our future road of same-sex marriage.

Best Regards,

Roddy Shaw
Civil Rights for Sexual Diversities Hong Kong

 

 

 

 

"The whole world is watching and they are waiting to see how Canada reacts because we're seen as the next piece in the puzzle. What happens here will pull the United States along and add more pressure."
Joe Varnell, Hour Magazine
July 18, 2002

 

 

 

 

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Join us as we legalize same-sex marriage.  Subscribe to our free newsletter

 

 

 

 

 

They Do: Gay marriage in profile (U.S. online video about same-sex unions)

 

 

 

 

 

 

External link to our listing at Speaker's Spotlight

 

 

 

 

 

 

 

 

 

 

Link to  Elliott & Kim - our heroes fighting for our right to marriage in Ontario

 

 

 

 

 

 

 

 

Photo by Kay Tobin Lahusen
Michael McConnell and Jack Baker applied for a marriage license in Minneapolis on May 18, 1970.

 

 

 

 

 

 

 

 

 

 

 

 

 

Send this page to a friend!

 

July 13, 2002 - The U.S. Impact:

[The following is written by Jon Davidson of the Lambda Legal LA office in response to a question about possible U.S. recognition of marriages solemnizedin countries outside the U.S.]

Q: How do US law or international treaties/law treat/affect same sex marriages legalized in the Netherlands or Canada in the US?

A: How a marriage between a same-sex couple entered in the Netherlands or in Canada would be treated in the United States is not an easy question to answer, unfortunately.

Because these marriages were entered in another country, the "full faith and credit" clause of the Constitution does not apply to them. Instead, as a general rule, most foreign marriages historically have been respected (that is, treated as valid) for most purposes in the United States if they were validly entered in the country where the couple married under what are known as "principles of comity." This is a flexible doctrine that says that countries generally should respect the legal acts of other countries because its important that other countries be willing to respect your own country's legal acts, and because people should not have to worry about whether another country won't do so, as they cross borders.

It is easier for a state or country to decline to apply "comity" to a foreign marriage, however, than it is to refuse to recognize a marriage validly entered in another state. Thus, while there are instances of states for at least some purposes treating people as married who were wed in another country when they wouldn't have been allowed to marry in that state (due to their ages, their relationships to one another, issues of capacity or consent, their already being married to someone else, how or by whom the wedding was performed, etc.), there also are instances where states have declined to do so, based on notions of their own "public policy" relating to marriage.

One important thing to recognize is that, in deciding these previous cases involving foreign marriages, courts strongly have been influenced by the context and the equities (the fairness factors) involved. Courts have been willing to treat a foreign marriage as valid for some purposes, without necessarily saying that it would be valid for all purposes, and they have been more willing to treat the marriage as having been valid if it's now over, so that the result is not an ongoing marriage that the state wouldn't allow to be entered there. For example, one older California case allowed a woman whose late husband had had multiple wives to share in inheritance rights even though her marriage legally couldn't have been legally entered in the U.S., because the couple's home country allowed polygamy, and because otherwise she would be left destitute, at no fault of her own. This didn't necessarily mean that all foreign, polygamous marriages would be valid for all purposes in California, however.

Many states historically also have treated foreign (and even out-of-state American) marriages differently if they were entered by two people from that country or state than if a couple from their own state who couldn't marry at home went elsewhere to get married and then returned home, claiming they were married. Some states in fact have "marriage evasion" statutes that specifically say they won't recognize marriages in this situation, at least as a general rule.

What makes things even more complicated right now is the presence of the federal Defense of Marriage Act and the multiple state laws (including California's very own Knight Initiative). Under the federal DOMA, the federal government will not treat as valid for any federal law purposes (immigration, taxes, benefits, etc.) a marriage between a same-sex couple entered in the Netherlands or Canada. This might be able to be challenged on a number of constitutional principles, including whether it violates equal protection and due process, but not the "full faith and credit" clause. The federal DOMA also purports to authorize states not to treat same-sex couples as married who were legally married in another jurisdiction, and I think it's now 36 states that have adopted laws saying they won't (including California). Of course, there laws too might be challenged as unconstitutional, under both the U.S. and their own state constitutions (though, again, not under the "full faith and credit clause"), if they were the basis for not recognizing a marriage validly entered elsewhere. No such challenges have been attempted yet.

As for treaties, as you might expect, none of them directly address this issue. (There were no such things as legal marriages between same-sex couples anywhere in the world until last year, after all.) We have had a leading international law firm look at more general provisions of treaties to which both the United States and the Netherlands are signatories and they did not find anything particularly helpful. I don't know if anyone has looked yet at treaties to which both the United States and Canada are signatories, and I'm sure we will have someone undertake that at some point. One additional complication, however, is that most treaties are not "self-executing," which means that ordinary citizens usually can't rely on them to argue in court that the treaty granted them rights. (It might set up an interesting international conflict if Canada -- which would have standing to object if general provisions of an existing treaty do apply -- were to argue that the U.S. had to recognize these marriages, although I do have visions of American troops marching northward, singing "Blame Canada" from "South Park - The Movie.")

What all this means is that I don't think there is a simple "abstract" legal answer to whether the United States (or a particular state) would treat a marriage lawfully entered in the Netherlands or Canada between a same-sex couple as valid. The "best" test case, from legal and equitable perspectives, would be one involving two resident citizens of the Netherlands (or, two years from now, when the Canadian decision goes into effect, assuming it's affirmed on appeal and the Canadian Constitution isn't amended in some way to try to undo it, two resident citizens of Canada) who married there, have lived there as married for some time and changed their lives in various ways that rely on the understanding that they are legally married, then travel to or move to the U.S. - to a state that does not have a state DOMA - and there have a real life, compelling, state law problem that turns on whether their marriage is or was valid (and even better if ruling that it was valid only affected past events and not future ones - such as a case involving inheritance, property rights or custody).

What it also means, I think, is that, at least from a legal perspective, we should not be urging same-sex couples in California to think that in two years they will be able to travel to Canada, get married there, and come back and have an easy time obtaining legal treatment as married here. (One additional issue I haven't checked yet is what the residency requirements for getting married in Canada are, if there are any. In the Netherlands, you can only get married there if one of you is a Dutch citizen or a lawful Dutch resident, which I believe means you have to have resided there at least 6 months.)

People sometimes think that "the law" should have simpler and clearer answers than the mess I've sketched out above, but unless you have a statute or constitutional provision that directly deals with a question (and there is nothing else it might conflict with), all you have is various legal principles that have to be applied to particular problems. We have no "direct" on-point precedents that establish the answer here; the statutes that some would say govern (DOMA and things like the Knight Initiative) we believe "do" conflict with other constitutional principles, but this hasn't been tested yet to know whether the courts will agree; and, as I've indicated, the answer in a particular case very well may depend on who got married (foreign citizens or Americans who traveled abroad) and on what particularly is at stake if the marriage is treated as valid or not.

One final - and overriding - point is that I strongly believe that how courts will interpret these sorts of questions will be influenced in important, unspoken ways by whether they believe marriages between same-sex couples are "real" marriages; whether they view LGBT people as full members of our polity; what they understand state "policy" on LGBT issues and on marriage to be; and how much they think their jurisdiction is ready for change. All of those considerations are factors that our educational and organizing work can help change, which makes that work all the more critical. By devoting our primary energies on doing that work (rather than just seeking a quick fix from the courts in advance of that work, which may be overthrown by constitutional amendments, as we saw happen in Hawaii and Alaska), we hasten the day when a legal ruling is most likely to come out correctly, and to stick.

The latest ruling in Canada is thrilling, and it shows that we are on the road to winning this battle world-wide, but we cannot allow ourselves to be lulled into thinking that there will be an easy solution to the ways in which LGBT people and our relationships historically have been treated as outside the law, the anti-gay sentiment that remains in this country, and the political forces arrayed against us. We should all be inspired, but what we need to be inspired to do is the educational and organizing work that helps continue to change the nation's (and the world's) understanding of who LGBT people are; how our lives and the problems we face are not fundamentally different from those of non-gay people; how our love for our partners and children is a good thing for us and the world; and how it is wrong and hurtful to us and our families (including our parents, our siblings and other relatives, and our friends) -- as well as to society in general -- to continue to deny us full equality. We need to come out and reach out and tell the truth about our lives, and that is how I truly believe we will win, and win for good.

It's not that I think that people shouldn't start dreaming about Canadian honeymoons. Assuming there is no residency requirement, getting legally married in Canada in two years will send important messages about how same-sex couples legally do marry and, yet, society has not crumbled. It will help change people's understanding (in ways similar to, but for some people maybe even more compelling than domestic partnership registrations, civil unions, and commitment ceremonies and even religiously-blessed unions) that a couple was legally married in Canada. We should not expect, however, that it automatically will result in that couple being treated for all purposes as legally married in the United States (or even that it would be smart, from a legal perspective, to seek to obtain a ruling saying that right away). I have faith that that automatic cross-border recognition (which, is after all how a marriage entered in Canada between a man and woman is treated, without anyone giving it a second thought) will occur some day, but I firmly believe that getting there continues to require that we all continue to do the hard but critical work of enlisting allies and together engaging people truly to think about what marriage, love, family, equality, and humanity are all about. Doing so not only will help change how courts understand and are willing to apply the law; it will help change the world.

Jon W. Davidson
Senior Counsel
Lambda Legal Defense and Education Fund, Inc.
6030 Wilshire Boulevard, Suite 200
Los Angeles, California 90036
(323) 937-2728, ext. 228
(323) 937-0601 (fax)
jdavidson@lambdalegal.org
www.lambdalegal.org


July 15, 2002

RE: Jon Davidson's very good and useful information, here are some notes:

The Doctrine of Comity: Basically, this is "you scratch my back and I'll scratch your back" taken to a very formal level. Generally, local rule will override the doctrine. In the United States, however, the full faith and credit clause of the U.S. Constitution significantly constrains the ability of local rule to override comity in interstate matters - but not international ones. A state must show a strong contrary public policy to avoid extension of full faith and credit to another state's public acts (statutes), public records, and judicial proceedings (judgments). But absent a treaty provision, there is nothing in the U.S. Constitution that requires states to give full faith and credit to foreign public acts, public records, or judicial proceedings.

Many states do, however. Courts in the State of New York, for example, have given full faith and credit to rabbinical court (Beit Din) orders from the State of Israel. In one case, the husband moved home to New York City while the wife remained in Israel. He refused to give her a "get" (a Jewish divorce). She applied to the rabbinical court to order him to give her a get. The court in Israel so ordered, and the court in New York enforced the Israeli court order. (Note for non-Jews: In Orthodox Judaism, a man divorces his wife by giving her a "get" - basically, a piece of paper informing her that she is divorced. Without the get, she cannot remarry.)

Dual Sovereignty: The federal government and the governments of the several states are all sovereign entities. The federal sovereign overrules the state sovereigns on those matters the Constitution assigns to it by enumeration or implication. Otherwise, the two sovereigns operate independently of each other. Regarding marriage, the fact the federal government will or will not recognise a foreign marriage does not mean an individual state will or will not recognise a foreign marriage, because the two sovereigns operate independently in this area.

In Canada, the 'dual sovereignty' concept is different. Canada has one sovereign, Queen Elizabeth II, who represents the abstract 'one indivisible crown.' She is also, however, Queen of Ontario, Queen of Quebec, Queen of Saskatchewan, etc., as well as Queen of Canada; but she is still just one person. She is represented to the federal government by a governor general, and to each province by a lieutenant governor. (The eleven governors general and lieutenant are appointed by the Queen on the advice of the federal prime minister.) The principal difference between the United States and Canada on this question, then, is that the Canadian federal and provincial governments have one shared sovereign who operates on two levels, while the governments of the United States and of the several states have fifty-one sovereigns between them. And, of course, the Canadian sovereign is a person, who represents the eleven aspects of the one indivisible crown; whereas the American sovereigns are embodied by the federal and state constitutions.

What is a Foreign Marriage?: For the federal government, a foreign marriage is any marriage performed outside of the United States. For any state government, a foreign marriage is any marriage performed outside of that state. A marriage performed in Nevada is obviously a domestic marriage in Nevada, and it is a domestic marriage in context of federal law, because it is performed in the United States. But it is a foreign marriage in California, Oregon, Idaho, and every other state, because it was not performed any of those states.

In Canada, where the federal system is very different from the United States (it's a monarchy, for a start), a marriage performed in Ontario is NOT a foreign marriage in Manitoba or Nova Scotia, because marriage is federal jurisdiction in Canada. So, a question of inter-provincial full faith and credit (comity) never arises, at least not on this issue.

The Defense of Marriage Act in re Treaties: Section 3 of Public Law 106-199, codified as 1 USC Sec. 7, defines the terms "marriage" and "spouse" as they are used in any federal law. Per the U.S. Constitution, treaties are the law of the land. Because they are produced by the federal government, they are federal law of the land. Thus, the definition of marriage found in 1 USC Sec. 7 applies to the interpretation of any treaty, because it applies to all federal law and all treaties are federal law.

That said, treaties occupy the same rank in the hierarchy of American law as federal statutes. A statute that conflicts with a treaty made before it was passed changes the treaty as it pertains to domestic U.S. law. (This doesn't happen very often, but the other signatory of the treaty often gets upset when it does.) Likewise, a treaty that conflicts with a federal statute passed before the treaty was made, changes the earlier statute.

So, if the United States should enter into a treaty with Canada or the Netherlands to recognise their same sex marriages, that treaty will override the Defense of Marriage Act - but only as it pertains to the scope of the treaty. For example, if the treaty provides the United States shall recognise same-sex marriages performed in Canada between Canadian citizens, then the Defense of Marriage Act will not bar recognition of those marriages - but marriages performed in Canada between American citizens will still be subject to the Defense of Marriage Act and will not be recognised when the couple return home.

Now, if the American couple get married in Canada and then stay there for 10 or 20 years before coming back, they would probably have a good chance of their marriage then being recognised when they return on principles of equity. But this would be on a case by case basis; and by then it might all be a moot point anyway.

Law cf. Equity: It would take too long to fully explain the historical differences and evolution. To put it in a nutshell, there were two sets of courts in the United States until the early twentieth century - courts of law, and courts of equity. Physically, they eventually became the same courts and usually used the same judges, who sat as a court of law or a court of equity (also called 'chancery,' because of an historical connexion way back with the Lord Chancellor of England). The two systems were combined into one system in most states and at federal level in the years preceding World War II. Now, the same court can hear the same case as a case at law and a case in equity, whereas they used to be separate cases. (Delaware retains the old distinction, however, and two or three other states might still do likewise.)

A case at law seeks a legal remedy, usually damages (i.e., money). Sometimes, however, a legal remedy is not available or, occasionally, will make things worse. In that situation, an equitable remedy can be granted. For example, the faculty went on strike at Eastern Michigan University in the Fall of 1978. The university attempted to fulfill its contractual obligations to the students by using part-timers, non-union faculty, graduate assistants, department heads, deans, and so on, to meet classes. The president of the university then cancelled classes university-wide. A graduating senior in the College of Business (almost all non-union faculty) brought suit alleging the cancellation of classes was an impediment to his academic progress, potentially delayed his graduation and entry in the practice of a business, trade or profession, etc. The court held for the student, finding a university has no right to cancel classes merely because the faculty are on strike, because the students don't have a contract with individual faculty but with the body corporate that is the university. As long as the university attempted in good faith to meet its contractual obligations, it was fine; but the minute it acted to cancel classes, it breached the educational contract it had with its students. The court ordered the university to reopen and make restitution to the students.

The court presented the university with three options - one legal remedy and two equitable ones. The legal remedy (damages) was a proportionate refund of tuition for the week of cancelled classes. The equitable remedies (both forms of specific performance) were either to extend the semester by one week to make up for the week of lost instructional time, or to add sufficient time to each remaining class period to make up for the week of lost instructional time. The university opted for Door # 3.

Challenging Non-Recognition of Foreign (International) Marriages: Jon has suggested non-recognition of same-sex marriages performed in Canada or the Netherlands might be challenged on equal protection, due process or other constitutional grounds (except, of course, the full faith and credit clause, because it only applies within the United States). The problem here is that U.S. law does not apply outside of the United States. We tend to apply a variation on an ancient Israeli theme in applying our own law only to ourselves and within our borders.

Jewish Law provides, for example, that a Jew may not eat certain impermissible foods, or permissible foods prepared in an impermissible way. But it is perfect legal under Jewish Law to give that food to a non-Jew (provided it will cause no harm), because non-Jews are not bound by Jewish Law. So it is when dealing with foreign countries, we do not apply our legal principles to them, because non-Americans outside of the United States are not bound by American law in the same way that non-Jews are not bound by Jewish Law.

Thus, continuing with our food example, it is legal to export food that does not meet U.S. standards for consumption to foreign countries where it is fit for consumption under their law (unless it comes from Michigan), because our law does not apply to them.

Conversely, Canada and the State of Michigan - because Michigan's largest trading partner is the Province of Ontario, and vice-versa - do not permit export of food to foreign countries (or, in Michigan's case, to foreign countries or sister states) that is not legally fit for consumption within Canada or Michigan. But I digress.

The equal protection clause, for example, is in Section 1 of the Fourteenth Amendment, which applies to the states (but not to the federal government) and generally concerns American citizens. Otherwise, the equal protection clause applies to fundamental rights, and to suspect and quasi-suspect classes of persons (i.e., discrimination based on race, national origin, gender, and legitimacy of birth). So, absent a post-DOMA treaty provision, Canadian or Dutch citizens who were not also U.S. citizens or permanent residents probably would not be successful bringing a legal action under the equal protection clause, because the protections of the clause attach to American nationals and - more importantly - the marriages would have been performed outside of the United States. Equal protection under U.S. law and the laws of the several states does not extend to foreign law, and that probably includes marriages performed under foreign law.

If the actually moved to the United States and became citizens, or at least permanent residents, they might successful if they brought an action in equity. But cases made on equitable principles tend to be decided on a case by case basis because, in addition to showing there is no adequate remedy available at law, you must show a good reason why the court should do want you want it to do notwithstanding the law provides you with no remedy.

Re Cal. Family Code Sec. 308.5 (The Knight Initiative or Proposition 22): In addition to other theories, this statute is probably unconstitutional for lack of clarity. It reads: "Only marriage between a man and a woman is valid or recognised in California."

Is the statute limiting marriage to men and women, or is it limiting men and women to marriage? If it's doing the former, same sex marriages are not valid or recognised in California. If it's doing the latter, men and women can get married but they cannot form a domestic partnership or enter into a non-marital relationship contract - because only MARRIAGE between a man and a woman is valid; implying that the rest are not.

And by "marriage," does the statute mean marriage by any jurisdiction's definition or does it mean marriage as defined in Section 300 of the Family Code? If it means the latter, then California can no longer recognise common law marriages contracted in Texas, Iowa, and like states - because California defines marriage to require the issuance of a licence and solemnisation, neither of which is part of the common law contract of marriage (or it would not be a common law marriage).

Or does the statute mean all of the above? A statute can never mean something it does not say, but it can always mean everything it does say. And what this statute says is not clear.

Re the Defense of Marriage Act, Section Two: P.L. 106-199 Sec. 2, codified as 28 USC Sec. 1738C probably violates U.S. Const. Art. IV, Sec. 1, the full faith and credit clause, because it attempts to re-assign to the several states a power explicitly reserved to the Congress. "And the Congress may by general Laws prescribe the manner in which such Acts, Records and Proceedings shall be proved, and the effect thereof."

The language is permissive ("may"), so Congress is not required to act; and if Congress does not act, a state may do as it will. But if Congress acts, the general law must prescribe a manner of proof and an effect; and a state must follow that general law (or there would be no point to Congress passing it).

28 USC Sec. 1738 and 1739 were passed by Congress donkey's years ago, and require states to give the same effect to a sister state public record (e.g., marriage certificates) that it has by law or usage in the state that produced it; and also give directions on how to prove a sister state public record is well and truly a sister state public record.

28 USC Sec. 1738C prescribes no manner of proof, but since that question can default to pre-existing law (Secs. 1738 and 1739) the statute does not fail on that ground. But Sec. 1738C also prescribes no effect. Instead, it lets each state choose for itself whether and to what degree full faith and credit shall be extended. In other words, instead of Congress prescribing an effect, Congress has attempted to delegate its power to prescribe effect to the several states - when that power is explicitly given to Congress in the Constitution.

Since Congress can't do that, the statute must fail constitutional muster on that basis; in which case, the provisions of Secs. 1738 and 1739 must apply without impediment, and states must give the same effect to any other state's marriage certificate as it has by law or usage in that other state.

There is still the public policy exception to consider. The full faith and credit clause is interpreted to enforce comity between the states, not to permit one state's laws to overrule the laws of another state. So, if a state has a strong public policy interest against certain types of marriages, etc., it can still avoid giving full faith and credit to the public act, record or judicial proceeding.

Case in point: A woman in Boston used to work for a computer company there. When she left, she signed a covenant to not compete with her former employer for a certain period of time. She immediately went to work (via her computer, from Boston) with a California-based computer company. The former company filed suit in Massachusetts to enforce the covenant not to compete, and got a Massachusetts judgment in its favour. It then filed suit in California, asking the superior court in this state to enforce the Massachusetts judgment and direct the California company to fire the woman. The court in California refused to give full faith and credit to the Massachusetts judgment, because covenants not to compete are void as against public policy in the State of California.

So, even though parts of the Defense of Marriage Act are probably unconstitutional, a state can still refuse to recognise a same sex marriage from another state if it can show a strong public policy against such marriages.

BTW, the Defense of Marriage Act does not apply to Vermont civil unions. In order for a state to invoke the opt-out provision of 28 USC Sec. 1738C, the same sex relationship must be regarded and handled as the legal union of one man and one woman as husband and wife, under the law of the other state (in this case, Vermont). And the Vermont Civil Unions Act explicitly does not treat civil unions as marriages. So, 28 USC Sec. 1738C is not available to impede extension of full faith and credit to a Vermont civil union certificate, giving it the same effect as it has by law or usage in Vermont. Unfortunately, the public policy exception IS still available to do that.

State Recognition Otherwise: Because states can recognise marriages that the federal government does not, and vice-versa, a state could recognise a same sex marriage from the Netherlands or Canada. Whether a state would or wouldn't do so depends on that state's law. Most states will not recognise a same sex marriage on public policy grounds.

The Circumstances When Same Sex Marriage is Already Valid: In addition to the Netherlands and (pending appeal) Canada, same sex marriage is already valid and recognised in the United States, the United Kingdom, and around the world, under two very narrow circumstances.

1. When a couple marry as an opposite sex couple and one of the parties later undergoes gender/sex reassignment surgery, the marriage remains valid even if the state in which the couple reside now recognises the parties as a same sex couple. There is simply nothing in the law of any state that terminates a marriage by operation of law merely because one of the parties physically and legally changes sex.

2. When a same sex couple are legally an opposite sex couple, they may legally marry. Usually, one of the parties is a post-operative transsexual, and the parties live in a state (such as Texas, Kansas or Tennessee) that does not permit change of legal gender/sex. Notwithstanding they are physically a same sex couple, they may thus marry lawfully (as two women did in 2000) because they are LEGALLY an opposite sex couple in that state.

Things can get REALLY interesting when a couple who are legally a same sex couple in one state are an opposite sex couple in another state. This couple can legally marry in the other state, because they are legally an opposite sex couple there. Depending upon their home state's law, the marriage may be valid when they return home - because they were married in the other state as an opposite sex couple.

For example, Sec. 308 of the California Family Code provides all marriages validly performed outside of California are valid inside California - except where Sec. 308 is modified by Sec. 308.5, discussed above. But Sec. 308.5 does not establish which state's law determines whether the parties are a same sex couple or an opposite sex couple. The question must default to Sec. 308, under which the foreign state's law controls the determination. So, if a couple are married in Texas as an opposite sex couple and then return to California, the marriage will probably be recognised - certainly there's a good case for it - notwithstanding they are legally a same sex couple in California, because Sec. 308.5 does not address the question of whether California or Texas gender/sex classification law applies; and Sec. 308, without the impediment of Sec. 308.5, directs that opposite sex Texas marriage be valid and recognised in California.

Final Notes: The most important word in the foregoing is "probably." Because law touches upon every person, place, thing, and idea in the world, it is as vast and diverse as the world. Ultimately, the only certain answer to any legal question is "It depends" - on the facts and circumstances of the case, the legal and equitable principles of the jurisdiction, and so on. We can extrapolate a great deal from individual statutes and cases; from history and precedent; and from applying all that to various patterns of facts and circumstances; but it's all theory until the actual case is heard and decided.

Micheal T McLoughlin, D.Jur., M.A.


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