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Today is Tuesday, November 27, 2007


Foreign Same-Sex Marriages: The U.S. Impact

Jon Davidson of the Lambda Legal Education and Defense Fund responds to the question of possible U.S. recognition of marriages solemnized outside the U.S.

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, CA 90036

Related Stories:

Jul 17, 2002 - Premier Backs Same-Sex Marriages

Jul 12, 2002 - Court Ruling Favors Gay Marriage

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