A Pair of Interesting Court Rulings on Marriage

A lot of attention has been paid to court rulings in Utah and New Mexico overturning those states’ bans on same-sex marriage, but there are a couple of other interesting court rulings in the last week that touch on the same issues in a more tangential way. In Ohio, a federal court ruled that the state must recognize a valid same-sex marriage performed in another state when issuing a death certificate if one of the spouses dies.

… [U]nder the Constitution of the United States, Ohio must recognize valid out-of-state marriages between same-sex couples on Ohio death certificates, just as Ohio recognizes all other out-of-state marriages, if valid in the state performed, and even if not authorized nor validly performed under Ohio law, such as marriages between first cousins, marriages of certain minors, and common law marriages.

That is, once you get married lawfully in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution. U.S. Const. amend. XIV, § 1.

Moreover, as this Court held in its initial Orders this summer and reaffirms today, by treating lawful same-sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins, marriages of certain minors, and common law marriages), Ohio law, as applied to these Plaintiffs, violates the United States Constitution’s guarantee of equal protection….

This does not invalidate Ohio’s ban on same-sex marriage in general, at least not yet. But it’s pretty obvious where the courts are going with this. In Indiana, a state court ruled that a marriage is not invalidated if one of the spouses changes genders:

In In re Marriage of Melanie Davis and Angela Summers, (IN App., Dec. 20, 2013), the Indiana Court of Appeals held that a marriage between a man and a woman that is valid when entered does not become void when one of the spouses is diagnosed with gender dysphoria and has his or her birth certificate amended to reflect a change in gender. Even though Indiana law bars same-sex marriage, this ban does not apply to a marriage that is valid in Indiana when entered.

In that case, Melanie Davis (nee David Paul Summers) filed for divorce but a court ruled that the marriage was automatically dissolved when Davis was granted a name change on her birth certificate because same-sex marriages are not recognized. I assume that paves the way for a genuine legal divorce.

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  • Johnny Vector

    Over in the land of the Cuttlefish, a couple of us were wondering (in rhyme or not) why the chosen legal theory always seems to be due process rather than full faith and credit. Any of the lawyers here have an explanation for why that is? Thanks.

  • abb3w

    I’m not a lawyer; but my guess is that it relates to how Due Process always binds the states, while Full Faith And Credit can be circumscribed by Congress proclaiming the “Effect Thereof” — EG, by the surviving DOMA section 2 saying “diddly-squat”.

  • gshelley

    Given, as quoted above Ohio recognizes child marriages and cousin marriages from out of state, they were always going to struggle to argue that same sex marriages were so much worse and that the government interest so much stronger, that they can be treated differently

  • Ben P

    Over in the land of the Cuttlefish, a couple of us were wondering (in rhyme or not) why the chosen legal theory always seems to be due process rather than full faith and credit. Any of the lawyers here have an explanation for why that is? Thanks.

    The short version is that legally it’s much easier to argue marriage is a fundamental right than it is to apply full faith and credit.

    The full faith and credit clause is really limited by caselaw. There is a very long standing exception in the case law stating that one state is not required to enforce the law of another state when it is against it’s own public policy.

    For example, in one of the primary cases that created the exception was Pacific Employers Insurance Company vs The Industrial Accident Commission of California, (1939) . In that case, a worker employed by a Massachusetts Company and who resided in Massachusetts had been injured while temporarily in California on business. A massachuetts court ruled Workers Compensation Insurance did not apply to that particular worker, and consequently the insurance carrier did not have to pay.

    The worker stayed in California and claimed Workers Compensation under California law (which he could do, because the accident happned in california, and California law required he be covered by workers comp).

    The insurance carrier argued that the Court in California was obligated to accept the Massachusett’s Court’s Decision under Full Faith and Credit. The Court (at this point full of Roosevelt appointees) said, no, in fact the California Court with proper jurisdiction was not obligated to follow Massachusetts law if it conflicited with public policy of the State of California, and because California had a public policy of strong Workers COmp protection, it was not obligated to honor a Massachusetts’ rule excluding this particular inworker.

    Marriage equality advocates certainly argue there is no rational public policy to support gay marriage bans, but “public policy” is a very squishy word. Full faith and credit was never used to overturn interacial marriages either, that required a Supreme Court ruling on equal protection grounds under Loving v Virginia.

    On the other hand, if marriage is a fundamental right. Due process and equal protection kick in, and it is very easy to say that one state is violating substantive due process rights by denying the validity of a marraige duly recognized in another state.

  • Ben P

    This is really just the beginning, unless and until there’s either (a) a supreme court decision setting down a rule on how this should work, or (b) a supreme court decision/statute requiring states to honor same sex marriages, there’s going to be a lot of these cases.

    Recognizing death certificates is minor as far as things go. Where this is going to get nasty is in child custody cases, and abuse/neglect cases.

    Suppose a child is removed from one parent because of abuse or neglect and put in foster care, and the other parent claims legal custody of the child due to a marrage recognized in one state, but not recognized where the child is removed. There are legal ways to handle it without referencing the marriage (For example my state allows relative custudy arrangements with “fictive kin” an unrelated adult that has a relationship with the child – i.e. more usually aunt sally who’s just mom’s old friend) but if someone were to want recogition, that would get messy fast.

  • @Ben P #4 – Many thanks for the exposition. The reliance on Due Process makes much more sense now.

  • Johnny Vector

    Thanks for the clear explanation, Ben. So at this point, it seems that all Full Faith and Credit does is prevent states from vindictively saying “Even though X is fine here, it doesn’t count for you because you’re a damned Hoosier!”, If they want to make something illegal that is legal in another state, then they can do that and just ignore the relevant judicial acts and proceedings of all other states? I mean, I see the desire to decide the original case that way, but it does seem to pretty effectively ignore that entire section of the constitution. Or am I over-generalizing from what you said?