http://www.wowvownow.com/gay-marriage-constitution/
Gay marriage question about the Laws and the Constitution.?
I’m not interested debating the right or wrong of gay marriage, just the legal question so objective answers are appreciated.
If gay couple gets married in California then moves to another state that prohibits gay marriage. The Defense of Marriage Act says states do not have to recognize marriages performed in other states. However the “Full Faith and Credit” clause of the Constitution appears to requires they do.
Doesn’t the Constitution take priority over any law that Congress passes? Doesn’t the US Constitution take priority over any state constitution.
It’s not that simple. The FFC clause is very weak. Plus it only works for recognition of judgments.
Here’s a good quote from Alaska Packers Assoc. v. industrial Acc. Comm’n (US 1935)
“A rigid and literal enforcement of the full faith and credit clause would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own.”
It is a complex question. I’m pretty sure that under “interest analysis”, a state which has an explicit ban on gay marriage presents a strong enough public policy to not recognize gay marriage. I’ll see if I can find a case on point.
Look into the NY Court of appeals case “Mertz v. Mertz (1936)”.
http://www.uniset.ca/other/pubpol/3NE2d597.html
It deals with a similar issue. Also look into the Restatement 2d “most significant relationship” test. It can be found in Section 6 and Section 145.
http://www.kentlaw.edu/perritt/conflicts/rest6.html
http://www.kentlaw.edu/perritt/conflicts/rest145.html
I’m still going to say no they don’t have to recognize it, especially where it’s expressly forbidden.
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