Obama: Marriage Benefits Should Cross State Lines

Jim Burroway

June 27th, 2013

One of the unsettled questions in light of yesterday’s DOMA ruling is whether a same-sex couple living in Pennsylvania (where there is no marriage equality in state law) but married in New York (where there is) is entitled to federal recognition of their marriage. President Barack Obama, speaking while on tour in Africa, has White House lawyers looking into the issue:

He says as president, he believes federal benefits should be granted to couples married in a state that recognizes gay marriage even if they move to a state that doesn’t.

Obama says he asked his lawyers to start evaluating how to update federal statutes to grant gay couples federal benefits even before the high court ruled.

Rep. Jerrold Nadler (D-NY) and Sen. Dianne Feinstein (D-CA) introduced the Respect for Marriage Act in their respective chambers yesterday, which would repeal the remaining provision of DOMA that allows states to ignore lawful same-sex marriages performed in other states. It would also explicitly clarify the question of whether Federal recognition of a marriage is dependent on the couple’s residency. While the measure enjoys bipartisan support, no movement is expected in the GOP-controlled House.

Sir Andrew

June 27th, 2013

I would have thought this matter was resolved by Article IV, the Full Faith and Credit section. Congress cannot wipe out the requirements and effects of this article without actually amending the Constitution. So what is the big question? And why does the President have to have someone “look” at it?

So you don’t have to find a copy of the document: Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

Steve

June 27th, 2013

Usually, federal law goes by the state of celebration. As it should be. Federal law needs to be uniform everywhere.

But for some idiotic reason, there are a few exceptions. For example the laws governing Social Security and VA benefits explicitly only recognize a marriage that is valid in the state of residence:

“In determining whether or not a person is or was the spouse of a veteran, their marriage shall be proven as valid for the purposes of all laws administered by the Secretary according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.”
— 38 USC §103(c)

Also 42 USC §416 (h)(2)(A)

This needs to be fixed.

As for the FFaCC. The Supreme Court long ago blew a giant hole in it and allows states to ignore laws they don’t like. Only court judgements are fully portable. It’s highly absurd of course and you can’t run a modern country like that, but it’s how it is.

Ryan

June 27th, 2013

Sir Andrew, Sec 2 of DOMA says that states are not required to recognize gay marriages in other states. Someone needs to bring a whole new challenge to get rid of that one, which will obviously take years. Similarly, repeal of DOMA or passage of any other pro marriage equality bill has no chance until the Democrats retake the House, so we’re looking at a long way off for now. On the plus side, the states with far and away the largest gay populations already have full equality.

Mark F.

June 27th, 2013

States have never been required to recognize any marriage performed in another state. The “full faith and credit clause” has never been applied to marriage.

Sir Andrew

June 27th, 2013

Yes, Ryan, I’m aware of that. My point is that they can’t simply change that section of the Constitution by writing a law; they need to actually amend the Constitution. There are several challenges to section 2 working their way through the courts. Hopefully this matter will be resolved quickly.

To Paul: Marriage is a civil contract and MUST be recognized in other states. I know of no instances where Full Faith and Credit would have been needed, though I can imagine a problem if interracial couples tried to move to the south prior to Loving v Virginia. If you have knowledge of any time that a marriage was not recognized in this way, I would be glad to know of it. This is an area of law where I have done no research.

Mark F.

June 27th, 2013

See this piece discussing the FFaCC:

http://www.volokh.com/2011/12/14/what-about-full-faith-and-credit/

Steve

June 27th, 2013

Or this:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=899385

It’s a misconception that the FFaCC applies to marriages or even all laws in general. There are plenty of holes in it. States may recognize most out-of-state marriages, but they don’t have to. It’s more of a courtesy and that they can’t be bothered in other cases.

Sure, it’s an extremely absurd situation, but it’s how the law is interpreted today.

Ben M

June 27th, 2013

First cousin marriage is an example of a mix of marriage laws in the US. In Colorado (my home state), we allow first cousin marriage. But if a couple in a first cousin that was legally married in Colorado moves to Arizona, for instance, they are no longer married under Arizona law.

Common-law marriage could also fall into this (though I believe that all states recognize common-law marriages, even if only 9 states allow them), if a state passes a law expressly forbidding common-law marriage.

Also, the Constitution gives Congress the express power to “prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

Mark F.

June 27th, 2013

In Wisconsin (my home state), it is illegal for a resident to travel out of state to enter into a marriage that would be illegal in Wisconsin (i.e. first cousin marriage.) But the state accepts first cousin marriages if you were married before becoming a resident.

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