Washington, DC, USA. As thousands of gay couples across the country prepare to marry in California next week, many states are girding for a surge of complex and politically charged legal challenges as newlyweds return to their home states.

 

“Because California is so much more populous than Massachusetts (which has allowed same-sex marriage since 2004), and it welcomes people from every jurisdiction, there will be far more couples moving or returning to the other 49,” said William Araiza, a professor at Loyola Law School in Los Angeles. “Many more states will have to deal with the legal fallout.”

 

Legal challenges could crop up immediately, Georgetown University law professor Nancy Hunter said. For example, a couple from Kansas could travel to California to wed and have a car accident in Colorado on the way home. Hospital visitation and authority to make critical medical decisions for a spouse likely would become an issue in a state that prohibits gay unions.

 

“We’ll see more cases arise cumulatively over the next five years as couples relocate and spouses get sick, die or seek divorce,” Hunter said. “Each state is going to have to address these issues as they come up. It’s uncharted legal territory.”

 

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Forty-one states have statutes prohibiting gay marriage; 24 of those also have constitutional bans. Three other states have constitutional bans, but no state laws. Seven of the states that prohibit marriage offer same-sex couples marriage alternatives.

 

Massachusetts and California are the only states that allow same-sex marriage.

 

Whether a state decides to recognize any of the rights of California marriages will depend on its own interpretation of those state laws, said Brian Moulton of the Human Rights Campaign, a national gay-rights activist group.

 

Neither California nor Massachusetts marriages are recognized by the federal government, which excludes same-sex couples from about 1,100 rights and responsibilities — including federal income tax breaks and Social Security benefits.

 

The1996 federal law prohibiting gay marriage — the Defense of Marriage Act (DOMA) — also gives states authority to refuse to recognize marriages from other states.

 

“It is precisely these legal complexities that make the whole marriage issue so frustrating,” Moulton said. “When you have such a range of state laws and a very mobile society, and the federal marriage ban layered on top of that, it inevitably leads to lots of questions.”

 

While traditional state marriage laws convey hundreds of rights and responsibilities, legal experts predict the most common cases to arise in this situation will involve property settlements and child custody, inheritance, health benefits and pensions, hospital visitation and medical decision-making, domestic violence and spousal immunity from testifying in criminal cases.

 

When California’s high court legalized same-sex matrimony last month, New York’s Democratic Gov. David Paterson already had decided the state would recognize out-of-state marriages. Rhode Island Attorney General Patrick Lynch came to the same conclusion in 2007.

 

Both states already have several hundred residents who married in Massachusetts and Canada and neither state legally prohibits same-sex unions, although New York’s high court has ruled it is not a guaranteed right. Even so, the question of honoring gay marriages has been controversial.

 

But in states that ban gay marriage, the situation is likely to be stickier.

 

Attorneys general from Alaska, Colorado, Florida, Idaho, Michigan, Nebraska, South Carolina, South Dakota and Utah were so worried about potential legal complications they asked California to postpone marrying gay couples until after the November elections when voters will have a chance to overturn the court’s ruling. The states’ request and other legal challenges were denied June 5, making California nuptials open to all comers starting June 17.

 

In a May 30 letter, Utah Attorney General Mark Shurtleff wrote for the other states in seeking to avoid “premature, unnecessary, unnecessarily difficult, and therefore unduly burdensome litigation” resulting from weddings involving out-of-state couples.

He said the states “would simply shoulder that burden without comment if it were not for the prospect that in a little more than five months, the legal meaning of marriage in California may return to ‘the union of a man and a woman.’”

 

So far, the number of out-of-state legal challenges arising from Massachusetts marriages has been minimal because shortly after the first weddings were performed in May 2004, then-Gov. Mitt Romney directed state agencies to stop issuing licenses to couples from states that prohibit gay marriage, which left only New York, Rhode Island and New Mexico. New York gay couples were no longer allowed marry in Massachusetts as of July 6, 2006, when New York's high court ruled the state constitution does not guarantee same-sex couples the right to marry.

 

Romney invoked a 1913 law enacted in only a handful of states to prevent couples from crossing state lines to avoid statutes in the South that forbade interracial marriages. The law — challenged by gay couples in neighboring states — was upheld by the state Supreme Judicial Court in 2006. According to the court, Massachusetts "has a significant interest in not meddling in matters in which another state, the one where a couple actually resides, has a paramount interest."

 

Although California is offering marriage licenses to non-residents, it is “not asking other states to legalize gay marriage,” said Andrew Koppelman, Northwestern University law professor and author of a recent book, Same Sex, Different States. But, he said, the U.S. Constitution and common law will require states to recognize at least some of the rights and benefits of matrimony in certain situations.

 

A state’s likelihood of honoring out-of-state gay marriages depends on its existing laws on the issue. Forty-one states have so-called Defense of Marriage Acts (DOMAs) that ban same-sex marriage, and in most states the statutes also prohibit recognition of marriages from other jurisdictions. Twenty-seven states also have constitutional amendments barring same-sex nuptials.

 

Among the states that prohibit gay marriage, seven allow alternatives:

In states with marriage alternatives, legal recognition of marital rights should present few problems, because most or all of the same rights already are afforded same-sex couples, legal experts say.

(New Hampshire’s attorney general Kelly Ayotte initially joined the group of states seeking postponement of California’s marriage law, but withdrew a day later indicating the issue was moot since the state already recognizes same-sex marital rights.)

 

But even in states with laws that prohibit gay marriages and offer no alternatives, Koppelman and others say constitutional protections and other state and federal laws likely would trump gay marriage bans in certain situations.

 

For example, if a spouse empties a joint bank account in California and absconds to Utah with the marital property, courts are not likely to forgive the crime because same-sex marriage is not legal in the state, Koppelman said. Similarly, a spouse who leaves the state with a child to escape a joint custody ruling or one who relocates to avoid child support payments is not likely to find immunity in any state, he said. In general, states are prevented from becoming havens for people who try to escape obligations to their spouses and children.

 

However, the federal DOMA allows states to reject same-sex marriages from other states for any reason. Otherwise, the so-called full-faith and credit provisions of the U.S. Constitution requires states to honor other states' statutes and judicial rulings unless they are considered "abhorrent" to their own state policies, legal experts say.

 

“The closest legal analogy to gay marriage recognition we have is to look back at the history of anti-miscegenation laws,” said Georgetown University’s Hunter.

 

In the 1960s, even states with mandatory segregation honored the rights of interracial couples who married in another state and traveled through or migrated to the South where laws barred such marriages, she said.

 

Most states have a history of recognizing marriages that conflict with their own, except in cases that involve incest and polygamy, legal experts say.

 

In cases of unforeseen circumstances — such as couples traveling through or migrating to a state that prohibits gay marriage — state courts are likely to decide in favor of marriage recognition, Koppelman said. But when a couple from a state that bans gay marriage goes to California to marry and comes back to their home state and demands marital rights, states are less likely to be sympathetic. Couples who evade their home state laws by marrying in another state will encounter the most resistance, he predicted.

 

Paterson invoked New York’s history of accepting marriages from elsewhere in directing state agencies last month to honor same-sex marriages. He cited a February 2008 New York appellate court decision, for example, in which the court directed a community college to provide health benefits to the same-sex spouse of an employee who wed in Canada.

 

Despite the recent case history and other supporting legal precedence, New York lawmakers have sued the governor for violating the state’s separation of powers requirements by setting policy without legislative consent.

 

In 2007, Rhode Island’s Lynch recommended a state university recognize the Massachusetts wedding of one of its employees and provide spousal health and pension benefits. Later in the year, the state’s highest court took the opposite approach by refusing to grant a divorce to a couple who married in Massachusetts.

 

Since then, Lynch has written other opinions urging state acceptance of same-sex marriages, and government agencies have followed his advice. “This is a real issue. It is about real people, real rights and benefits that are basic. I’m not saying it is parallel to race issues, but it is the current human rights issue of our time,” Lynch said.

 

Click the image to learn more about same-sex policies in all 50 US states: PDF (252KB). You can find a great deal of information on same-sex marriage on a variety of websites.

The nonpartisan National Conference of State Legislatures offers background information.

Wikipedia, the free online encyclopedia, offers background and state-by-state timelines.

The Human Rights Campaign, the nation's largest gay rights advocacy group, has a Marriage Center webpage.

DomaWatch.org, a project of Alliance Defense Fund, a conservative Christian organization based in Scottsdale, Ariz., tracks same-sex marriage litigation and legislation.

The Washington D.C.-based Family Research Council, a conservative lobbying group opposed to same-sex marriage, has a Marriage and Family webpage.

 

 

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