SSM AND CONFLICT OF LAWS: From the Washington Post

The news that gay and lesbian couples will be able to apply for marriage licenses and marry legally in Massachusetts starting May 17 pits the rights of states to formulate their own family law policies against their conflicting obligations to recognize legal relationships entered into in other states. Consider what will happen to two women who marry in Massachusetts and then return to, or later move to, another state that does not allow two women, or two men, to get a license. Does Massachusetts law fix their rights, or do their rights depend on the laws where they live?

The practical implications of this question are enormous. Can the lesbian couple get divorced in their new state if their relationship breaks up? If not, then by what legal process would they divide their property? What would it mean to the rights of any children involved if the marriage falls apart after the family settles in another state? If one spouse dies, does the other automatically inherit her property? Are they married or single for purposes of tax laws? In answering any of these questions, it may well matter whether the two were long-term residents of Massachusetts at the time of the marriage or whether they had gone to the Bay State with the sole intention of evading their own state's more restrictive law.

Even if Massachusetts goes ahead with a controversial state constitutional amendment that would end same-sex marriage there in 2006 or later, what will happen to couples who marry in the meantime? Whatever one thinks about the morality of the underlying issue, it hardly seems possible to announce retroactively that children born to or adopted by the couple have overnight become legally illegitimate. But then, that result is no worse than having children's status change back and forth between legitimate and illegitimate as their families drive across the country. And yet that is the direction in which we seem to be headed, given that 38 states have already stated that they don't intend to respect the legal validity of marriages entered into elsewhere.

These questions are new and largely unresolved, and yet their answers will depend on the application of a legal principle, known as "conflict of laws," that is as old as American law itself. Conflict of laws deals with the overlapping and sometimes conflicting rights and obligations created by the 50 states and by the federal government. It comes into play when a court decision or legislation announced in one state (or in a foreign country) must be recognized in other jurisdictions. ...

Almost since the beginning, the Supreme Court's interpretations of the [full faith and credit] clause have been peppered with exceptions to the generalized requirement of mutual respect.

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posted by Eve at 4:20 PM | link

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