States that outlaw Gay Marriage DO NOT have to recognize Civil Unions

[Strathos]

Was reading just now that some think civil unions will be "just as good" as marriage, but states that have outlawed gay marriage and define marriage as "between one man and one woman" can deny any civil union.

Not many people understand that.

[lynnertic]

1. I think that violates the Constitution.

I read here at DU that there's a clause in the Constitution that requires states to recognize the laws of other states... so for example 40 years ago an interracial marriage made in one state must be recognized by a second even if it's outlawed in the second state.

Can't remember the name of the clause. But it applies to contracts other than marriage contracts too.

[MNBrewer]

2. If that state does not have civil unions

how can it recognize civil unions of other states?

[lynnertic]

3. A civil union is still a contract isn't it?

And states have to recognize each other's contracts.

So a state would recognize the terms of the contract as written in the state where it was executed?

That's my guess.

[MNBrewer]

4. Well...maybe, maybe not

[Ms. Toad]

5. A civil union is a equivalent to contract between

three parties - the individuals forming the couple and the state in which the civil union was entered into. (It is not precisely a contract, but that is a good analogy.) It is about what the sponsoring state promises to the individuals in the couple, what the individuals in the couple promise to each other and to the state. Nothing any other state (or the Federal government) can do will alter that "contract."

BUT, no other state is a party to that contract (and neither is the federal government.) Under a contract theory, neither of those non-parties to the contract are obligated to fulfill the sponsoring state's promises to the couple.

Moving to another state kind of takes you out of the realm of contract theory. When you move to another state, it is not really the original "contract" that is being recognized - the couple is entitled to the benefits and obligations of the new state's marriage "contract." Estate laws, and community property ownership are two areas where marital rights vary considerably by state - so when you die, for example, how your estate is divided depends on the state of residence when you die - not the state of your original marriage "contract" if they happen to be different.

With Civil Unions, most states don't have civil unions. If the state you move to doesn't have a civil union, it is not obligated to create that legal status for you. You are still owed the state obligations from your sponsoring state (just because the new state doesn't recognize the contract, it doesn't make the the contract not exist). BUT the new state doesn't have to pick up those obligations when it has chosen not to offer that option to its own citizens. My guess is (and it hasn't been tested yet), that if you have a civil union in one state and move to a state that has civil unions you would be entitled to the benefits and obligations that go along with that legal status in the new state.

Bottom line, under contract theory you cannot draft someone (e.g. an unwilling state) to be a party to the contract. But, under constitutional law theories, if a state offers that same type of "contract," it cannot discriminate against anyone who has agreed anywhere to enter that "contract" (with that state or any other).

[MNBrewer]

6. Yup

:beer:

[Occulus]

13. You're drinking to states being able to weasel out of being required to give full faith and credit?

Really?

[MNBrewer]

14. Nope

:beer:

[lynnertic]

16. Thanks for this information.

:hi:

[Occulus]

12. Because it MUST.

Per the Constitution.

[Siyahamba]

8. DOMA

Unfortunately, the "Defense" of Marriage Act means that states do not have to recognize marriages performed in other states.

And, yes, DOMA is in itself unconstitutional.

[ksdemo]

7. Full faith and credit= recognizing the judgements, licences, etc. etc. of other states.

Basically,

marriages legal in California are going to be legal in Kansas. The issue of full faith and credit will find it's way to the Supreme Court, it'll be interesting how they'll rule on this. There is precedent for this to, interracial marriages illegal and against the state constitution were legal in those states if performed in a state where they were legal.

[jberryhill]

9. Ditto Cousin Marriages

I'm surprised nobody ever mentions that some states permit cousins to be married and other states do not. But, somehow, no state ever refuses to recognize a marriage between cousins performed in another state.

[Ms. Toad]

10. There are all sorts of distinctions as to who is permitted to marry

Age, consent by parents, and common law marriage are three other factors which vary from state to state. Yes, it is the same issue (and I believe all have been tested - usually at death, when two spouses claim inheritance - with the first spouse being from a marriage that was not formally terminated but which would not have been recognized by the state granting the second second marriage).

[Occulus]

11. The FUCK they don't

This needs to have been challenged for years now. Your assertions are blatantly against the wording of the Constitution's body:

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.

DOMA is Unconstitutional. If one State recognizes gay marriage, ALL STATES MUST. It's right there, in black and white.

[MNBrewer]

15. This part is there, too

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

[Ms. Toad]

17. There is a big difference between marriage and civil unions

Marriage exists everywhere - so whatever the state has established as the rights and responsibilities associated with marriage within its boundaries must be available to all married couples regardless of the state in which they were married. This has not been tested with respect to same gender marriages - but based on constitutional principles, you are correct with respect to marriages.

Civil Unions, however, are another matter because they do not exist everywhere. The full faith and credit clause does not require a state to create a legal status (and rights and responsibilities associated with that status) just because some other state has chosen to create that status. Your reasoning would apply within Vermont to Civil Unions created elsewhere - Vermont would be constitutionally required to grant the rights and privileges it offers to its own civilly unioned couples to any couple moving into the state having the same legal status. On the other hand, there are zero rights and responsibilities Ohio (for example) grants to its own civilly unioned couples (since that is not a legal status Ohio has chosen to create). Therefore, Vermont couples who have entered into a civil union who move to Ohio get the same rights and responsibilities as Ohio folks who have entered into a civil union in Ohio - ie zip, nada, zilch.

It might be a little clearer if you look at marriage, specifically.

Take a couple married in Ohio who moves to California. A certain set of rights and responsibilities apply to the couple while they reside in Ohio (the state in which they were married). One of those is the treatment of income. In Ohio, income legally belongs to the individual who earned it. When the couple moves to California, however, the rules that applied to them in Ohio no longer apply. Once they move to California (a community property state), each individual in the couple is legally entitled to 50% of everything the other earned (even though that was never part of their marriage "contract" with the state of Ohio).

Taking that a bit farther, Ohio's marriage rights and responsibilities stop at Ohio's border, but each new border crossed brings with it a new set of marriage laws which the married couple is entitled to recognition under. Same with Civil Unions - but in the case of Civil Unions, there is no new set of rights and responsibilities to pick up when most borders are crossed since most states do not have the status of Civil Unions. You only get a new set of rights and responsibilities when you cross the border into a state which has chosen to create such rights and responsibilities.