Gay Marriage vs. Civil Partnership

[LeCharivari]

That is not true a marriage that is recognized in one state is recognized in all states, even if it is not legal in the state where they reside.

If one state says you can must be 18 to marry and the neighboring state says 16, you can cross the border and get married int he neighboring state and it's a done deal in the other state. You do have to meet whatever criteria that state has, such as residency, though.

Why do you think so many people run off to Las Vegas to get married?

I presume you and ProThai Expat are referring to my post #24 ... in which case:

Sorry, but that is NOT correct and my original post (#24) is correct and is supported by any number of references, statutes and the American Law Review (A.L.R.).

If, as in the example I cited, you marry a first cousin in a State where it is legal and the marriage is valid it is NOT necessarily recognised in "all states". It is recognised in some States where those States have so legislated but in other States with no such provision the marriages are void and not recognised and in some of those States sexual relations and/or cohabitation would be a criminal offense.

To be specific, such marriages are NOT recognised for those living in Arizona, Delaware, Illinois, Indiana, Kentucky, Mississippi, North Dakota, Utah, Washington and Wisconsin (and possibly other states which it would take me too long to check) and entering such a marriage to try to circumvent state laws can be an offence itself - and in most of those states such marriages are NOT recognised for out-of-state residents "passing through" either.

There are a number of statute references, but the most relevant (1) goes into considerable detail on the relevance of the "full faith and credit" clause, while the simplest (2) cites case law and the ALR:

The rule that marriages valid where contracted are valid everywhere breaks down completely when the marriage at issue is one which was contracted in evasion of the law of the state in which both parties are domiciled and if it is a marriage which the law of such domicile regards as incestuous or miscegenetic, even though it may not have been so regarded by the law of the state where the ceremony was performed. The state of the authorities with respect to incestuous marriages thus contracted is exhaustively considered in the A.L.R annotation 117 A.L.R. 186 (1938).

Arizona statute law Section 63-108, A.C.A. 1939 (A.R.S. § 25-112) also makes this clear:

Marriages valid by the laws of the place where contracted, are valid in this state; provided, that marriages solemnized in any other state or country by parties intending at the time to reside in this state shall have the same legal consequences and effect as if solemnized in this state, and parties residing in this state can not evade its laws as to marriage by going into another state or country for the solemnization of the marriage ceremony.

This is particularly important concerning the rights and definition of "next of kin" - since these marriages are not valid the supposed/ believed "spouse" is NOT the next of kin and this has been confirmed by state and federal Supreme Court rulings (3) where the "state-legal" next of kin has successfully contested a "state-illegal" spouse's right to inherit.

1: http://www.google.co.th/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CDEQFjAA&url=http%3A%2F%2Fwww.glad.org%2Fuploads%2Fdocs%2Fcases%2Fmiller-jenkins-v-miller-jenkins%2F2007-11-07-vermont-supreme-court-brief.pdf&ei=WwuBUq3LI8HTrQea5oGIDw&usg=AFQjCNFfvHcmfTinstE7ANSMuJeiLcmC-g&bvm=bv.56146854,d.bmk

2: http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=3692&context=mulr

3: http://www.leagle.com/decision/195717083Ariz87_1152

As far as the question of age is concerned it is largely moot, as all states now have THE SAME age requirement of 18, except Mississippi where it is 21. Anyone wanting to get married any younger than that needs parental consent and, in many states, a court order as well.

"Why do (I) think so many people run off to Las Vegas to get married?"

Either because they're misinformed or because there's no waiting period - first cousins and those under 18 without parental consent would have a wasted journey. http://www.wedinvegas.com/wedreq.html

[LeCharivari]

Scott: So right, its called the "full faith and credit" clause of the US Constitution. Each state is supposed to give"full faith and credit" to each other's laws.

However, in practice it often is not enforced as the laws of the rogue state will control until it is taken to a US Federal Court where it should be ruled unconstitutional, not by State Constitution, but by the US Constitution.

JT: Your question regarding "what happens to civil untions when a state adopts same sex marriage" was answered in California, I believe, when a state court ruled that the civil union, being by its own language "has the same rights as a marriage" that for all intents and purposes is a marriage and the court will treat the civil union as a marriage. Merger may be the concept.

I am sorry if I appear yet again to be correcting Americans about America, but I am afraid this is also incorrect .

Article 4 Section 1 (aka the "full faith and credit" clause) ONLY refers to "public acts, records, and judicial proceedings", NOT to legislation or public policy, and that anything beyond that is up to "the Congress":

"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"

SCOTUS has consistently ruled that the clause is limited in effect where one state's laws conflict with another's and that there is a very clear "public policy exception" which would seem to apply to same-sex marriage:

"While the purpose of that provision was to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states, the very nature of the federal union of states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. ....... we think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events."

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=306&invol=493

There have also been a number of reasonably definitive and authoritative reviews of the relevance of the clause specifically in a same-sex marriage context by acknowledged experts:

Although the Full Faith and Credit Clause is often assumed by the popular press and some legal commentators to impose a mandatory duty on states to recognize same-sex marriages validly celebrated in another state, this common assumption is clearly false. States have always retained the power to refuse to recognize some out-of-state marriages that violate their expressions of public policy. This has happened with, for example, marriages involving underage spouses or marriages that violate a state's consanguinity rules. Marriages do not stand on the same constitutional footing as litigated judgments. As a result, whether a state chooses to recognize a same-sex marriage celebrated in another state is a function of the recognizing state's law and its conflict-of-laws principles and not a matter of constitutional compulsion.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=899385

Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The "public policy doctrine," almost as old as this country's legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses.....

The assumption that there must be a single national definition of marriage --traditional or open-ended -- is mistaken and pernicious. It is mistaken because the existing constitutional framework has long accommodated differing marriage laws. This is an area where the slogan "states rights" not only works relatively well, but also has traditionally been left to do its job. We are familiar with the problems of integrating different marriage laws because for the last 200 years the issue has been left, fairly successfully, to the states. The assumption is pernicious because the winner-takes-all

attitude that it engenders now has social conservatives pushing us down the constitutional-amendment path. For those who see the matter in terms of gay rights, this would be a tragedy. But it would also be a tragedy for those who genuinely favor local autonomy, or even those of us who genuinely favor keeping the constitutional text uncluttered by unnecessary amendments.

http://www.law.yale.edu/news/4174.htm

[LeCharivari]

Scott: So right, its called the "full faith and credit" clause of the US Constitution. Each state is supposed to give"full faith and credit" to each other's laws.

However, in practice it often is not enforced as the laws of the rogue state will control until it is taken to a US Federal Court where it should be ruled unconstitutional, not by State Constitution, but by the US Constitution.

JT: Your question regarding "what happens to civil untions when a state adopts same sex marriage" was answered in California, I believe, when a state court ruled that the civil union, being by its own language "has the same rights as a marriage" that for all intents and purposes is a marriage and the court will treat the civil union as a marriage. Merger may be the concept.

Sorry, again, but any "question regarding "what happens to civil untions when a state adopts same sex marriage" has NOT been answered in California, but is up to individual states to legislate about (see above) and up to individual states to variously "convert" or "transform" civil unions already registered into marriages if or when they pass the appropriate legislation.

How civil unions are "treated" at state level is now irrelevant as it has been decided administratively at federal level (not by SCOTUS or by legislation) that civil unions, however they were originally intended at state level or judged by state courts, are NOT to be treated as a marriage at federal level and are consequently NOT "for all intents and purposes" the same as a marriage. This has particular relevance in Illinois, although it also applies in states where civil unions were only open to same-sex couples, as at the time when the civil unions were introduced those registering them were eligible for and granted a number of federal (IRS) rights which have now been either withdrawn or are no longer granted to anyone registering a civil union, so the Illinois Civil Unions are no longer what they were originally "sold" as.

Any question of whether civil unions were somehow rejected by gays in the US in favour of "any-sex" marriage is really rather a pointless one. They have never been asked nor polled in any way, I have never seen any sort of debate on this in the American "gay press" which would normally be expected, nor as far as I am aware since I have never seen any links to support the view nor have any ever been provided here was any rational consideration ever given to whether civil unions were a quicker transitional way to giving ALL American gays, regardless of where they lived or wanted to live, federal marriage rights prior to country-wide "any-sex" marriage approval. The administration simply made its choice for reasons which have never been made clear by anyone in a position to do anything other than speculate, and it has been accepted. As civil unions had received far less general opposition than any-sex marriage it is quite possible that this could have given many gays equal legal and financial rights earlier, but we will never know - although the time it takes for any-sex marriage to be approved country-wide will be some indication.

[Jingthing]

Who do you think supported ($$$$$$) the mainstream gay lobbying activist groups for decades now in their clear pursuit of same sex MARRIAGE equality?!?

Largely GAY Americans.

If that CLEARLY DEFINED goal wasn't very popular, MARRIAGE equality, do you think there would have been such massive and consistent support from gay Americans? The tactic was NO SECRET. It was all out there ... for decades now. If this approach was not popular and indeed strongly opposed, wouldn't gay Americans have started ALTERNATIVE lobbying groups to fight against that approach, do it differently, and support that different focus on CIVIL UNIONS tactic?

Of course they would have. But they didn't because there was no strong support for that approach. DUH!

What is the point here in promoting a doubt and a controversy that just isn't real.

Doing so is manufacturing a totally fake controversy which is made even more bizarre now that the WISDOM of the long term tactic of focusing on MARRIAGE equality is bearing such truly amazing fruits.

Not only in the RAPID success at the state levels, but of course the full federal recognition of the state marriages, and now the passing of ENDA in the Senate which is a clear sign that winning the marriage equality battle has become like a WAVE of influence for gay civil rights for Americans in future.

I guess for the nay sayers who didn't approve of the American focus on MARRIAGE equality might be feeling really cranky now that their dire predictions of what a horrible strategy it was are proving COMPLETELY WRONG. Success means something and the success has been incredible. Their arguments might still have SOME credibility if we were still looking at decades and decades of struggle. But we're not. In fact, any and all gay Americans can get FEDERAL marriage rights today, the fight left is at the state level.

Be clear again, obviously here speaking to the American specific issues. A civil union focused strategy likely makes good sense for many other countries, including Thailand. Every country has a different situation. There is not a universal best answer for every country. Yes, I think the American tactical choice was indeed the correct choice for the American situation. That's all.

Edited November 11, 2013 by Jingthing

[Scott]

You will have to give some legal examples of marriages not being upheld. The only ones I am aware of are those where the people married did not meet the legal requirements to marry in the state and thus the marriage could be nullified.

I am afraid you are wrong. Even mixed marriages, which were illegal in a state were recognized if it was a legal marriage in the state where it occurred.

I haven't read all the links, however, I note that the first one concerns DOMA, which has been struck down and where the discussion is about Parental Rights. I fail to see where a marriage was declared 'illegal' or dissolved.

[Jingthing]

You will have to give some legal examples of marriages not being upheld. The only ones I am aware of are those where the people married did not meet the legal requirements to marry in the state and thus the marriage could be nullified.

I am afraid you are wrong. Even mixed marriages, which were illegal in a state were recognized if it was a legal marriage in the state where it occurred.

That's interesting. I had a childhood friend half Asian half white who told me his parents had to move from redneck country because interracial marriage used to be illegal in some states to marry in the new state. I am not so certain they could have moved back to the redneck state and been OK or not. Long ago.

[Scott]

I had time to do a little bit quicker scan of the cases you presented. I am far from persuaded on your stand. In the first case, http://www.google.co....56146854,d.bmk it concerns a Civil Union, not a marriage. One of the discussions has been about the fact that states didn't need to recognize civil unions. Until recently the federal gov't didn't either.

The second case concerns a case in which people domiciled in a state left and were married abroad -- meaning outside the United States -- and the purpose of that was to avoid the law. The states do not have to honor a marriage from overseas. Even the federal gov't has limits on the contractual arrangement of marriages performed overseas, these include, bigamy and marriage for the purpose of immigration. If you have more than one spouse, you are excluded from resettlement in the US.

I have dealt with multiple marriages (Muslims) when working in refugee services, so I do know how the law works on that issue and it's pretty straight forward, they WILL NOT be resettled. We have had to get them legally divorced and then make sure all family members have some eligibility for resettlement and then once they are in the US, they are free to live however they want, but they cannot be married to more than one person.

Likewise, if you marry someone for the purpose of immigration, you will not be resettled. This situation raises its ugly head with many Asians who have arranged marriages. It also becomes an issue with people who have married a foreigner, taken them to the US, then divorced and married another foreigner -- good luck with the 2nd one getting a resettlement visa.

In the 3rd case, which is from 1957, so it is very, very dated, the issue was not one of marriage, per se, but of who was the right to be administrator of an estate. The laws in 1957 were a little different than they are today and to quote from the state law:

"The marriage of a person of Caucasian blood with a Negro, Mongolian, Malay or Hindu shall be null and void. The marriage between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters, of the one-half as well as the whole blood, and between uncles and nieces, aunts and nephews, and between first cousins, is prohibited and void."

A state can pass any law that it wants, but that doesn't mean that if it is challenged it will hold up. In all of these cases, an appeal to a District or to the Supreme Court might have a very different outcome. Unless it is appealed, however, a state law will stand.

A big question and concern prior to gay marriage were cases in which one spouse in a legally married (male/female) couple had a sex change, but did not divorce.

So a marriage in one state is recognized by other states. A marriage is still a contractual arrangement and if the basis of that contract was done illegally or with the intent to circumvent a law, then it may not be legal. There are cases where underage couples went to a neighboring state and married and when they returned to their home state, the marriage was annulled. (The proceedings were initiated by the family). The purpose of the leaving was to circumvent a law and they were not domiciled in the state. Even under these circumstances, courts in the past were hesitant to dissolve the marriage if it had been consummated.

[LeCharivari]

You will have to give some legal examples of marriages not being upheld. The only ones I am aware of are those where the people married did not meet the legal requirements to marry in the state and thus the marriage could be nullified.

I am afraid you are wrong. Even mixed marriages, which were illegal in a state were recognized if it was a legal marriage in the state where it occurred.

I haven't read all the links, however, I note that the first one concerns DOMA, which has been struck down and where the discussion is about Parental Rights. I fail to see where a marriage was declared 'illegal' or dissolved.

We're talking apples and oranges.

I am not talking about one State dissolving, annuling or nullifying a marriage from another State, or anything to do with immigration and re-settlement. I have never mentioned this as they are not relevant to my point or to post # 18 which I was responding to. I am simply talking about a marriage from one State having no validity and not being recognised in another State where it doesn't meet that State's legal requirements.

To quote from the judgement in my third link: Marriages performed outside the State which offend a strong public policy of the State of domicile will not be recognized as valid in the domiciliary State.

On the three cases/links I gave which you later question:

1: http://www.google.co....56146854,d.bmk

Yes, it concerned a Civil Union not a marriage and at the time some States and the federal government didn't recognise that, but the relevance is the court's view of the "full faith and credit clause".

2: http://scholarship.l...92&context=mulr

That this particular couple were married abroad was completely irrelevant to the judgement in the case.

3: http://www.leagle.co...7083Ariz87_1152

That a totally different law that had no bearing on that case (or the issues here) concerning inter-racial marriages has since been changed has no more relevance than any other laws that have since been changed.

In the first paragraph of the judgement in the link Judge J Smith Gibbons, the presiding Superior Court Judge, states: "The real issue presented on this appeal is whether a marriage between first cousins who are residents of and intend to live in Arizona is void or only voidable when solemnized in a state where such marriage is not prohibited by law." That seems rather different from your view that "the issue was not one of marriage, per se, but of who was the right to be administrator of an estate."

That the case is "very, very dated" hardly matters - the American Constitution and the "full faith and credit" clause are considerably more dated but that doesn't make them any less relevant.

I don't pretend to have any particular knowledge on the subject other than what I have read by those who are in a genuine position to know - I am simply presenting the facts concerning inter-state recognition of out-of-state marriages as they have been put by those in a far better position to know about them than I am. Those experts whom I have quoted and read all say that it is your view ( "That is not true a marriage that is recognized in one state is recognized in all states, even if it is not legal in the state where they reside"), and that of others such as ProThaiExpat, that is wrong.

[LeCharivari]

This really isn't "my stand".

The two links and quotes I gave in Post #33 are from two of the leading American legal experts on this. The second was by Professor Lea Brilmayer, America's leading expert on the subject who was asked to advise the Senate's Subcommittee on the Constitution, Civil Rights and Property Rights on interstate jurisdiction and the correct interpretation of the Constitution's Full Faith and Credit Clause in 2004, particularly where legality of out-of-state marriage was concerned .

Her view in that link ( http://www.law.yale.edu/news/4174.htm ) is unequivocal:

"Longstanding precedent from around the country holds that a State need not recognize a marriage entered into in another State with different marriage laws if those laws are contrary to strongly held local public policy."

I respectfully suggest that anyone who thinks that I am "wrong" reads that link or, if they have the time, the full text of her testimony before the Senate Subcommittee which goes into far more detail and specifics ( http://www.law.yale.edu/documents/pdf/News_&_Events/senatetestimony.pdf ), cites cases, judgements and statutes, and where she is equally unequivocal:

"The full faith and credit clause has never been understood to require recognition of marriages entered into in other States that are contrary to local "public policy". The "public policy" doctrine, which is well recognized in conflict of laws, frees a State from having to recognize decisions by other States that offend deeply held local values. One of the contexts in which it has proven particularly important is family law."

.

Edited November 12, 2013 by LeCharivari

[Scott]

I'll try to make it relatively simple to understand. A marriage in one state is recognized in all other states. If you have a marriage license, it will produce the same rights/responsibilities as any other marriage license from that state. Marriages are equal.

If someone wants to contest the validity of a marriage they must do so in a court. You have cited cases which have unusual circumstances and none which actually were appealed. Custody/visitation of a child, in one case, which was a Civil Union and where the court had to determine that one of the litigants was actually the parent -- something which does not happen in a marriage. If you are married you are the parent. Only a court order can change that.

With regard to estates, administration of estates, etc. there are lots of variables and a lot of legal encumbrances. Just ask people like Anna Nicole Smith (or her surviving daughter). Property and businesses may come with baggage that effect them legally. Again, a spouse is presumed to have certain rights and only a court of law can change that.

If you have a Civil Union in a state that doesn't recognize civil unions, you are in a whole different ball game and you will have to prove the legitimacy of your union and its legality before you are permitted even limited rights (such as visitation).

If you are married and your spouse is in a hospital and his/her family decide to deny you access, once you show your married, you will be given access (unless there is legal cause to prevent such as attempted murder, spousal abuse etc), but again these are decided by a court and someone has to show just cause why you should be denied those rights, not given those rights, as is the case in other Unions. You have the same rights as any other married person.

You may dig through a lot of laws, but do find those that have wound their way to the Supreme Court. The Anna Nicole Smith case did go to the Supreme Court by the way, but that was a very complex case. You might want to look at cases where a person had multiple marriages as well. Especially if one party had failed to divorce (bigamy) and this is not known to the spouse.

Marriage is similar to having a driving license. When you cross the state lines, you might not be considered legal to drive, but you can.

[LeCharivari]

I'll try to make it relatively simple to understand. A marriage in one state is recognized in all other states. If you have a marriage license, it will produce the same rights/responsibilities as any other marriage license from that state. Marriages are equal.

If someone wants to contest the validity of a marriage they must do so in a court. You have cited cases which have unusual circumstances and none which actually were appealed. Custody/visitation of a child, in one case, which was a Civil Union and where the court had to determine that one of the litigants was actually the parent -- something which does not happen in a marriage. If you are married you are the parent. Only a court order can change that.

With regard to estates, administration of estates, etc. there are lots of variables and a lot of legal encumbrances. Just ask people like Anna Nicole Smith (or her surviving daughter). Property and businesses may come with baggage that effect them legally. Again, a spouse is presumed to have certain rights and only a court of law can change that.

If you have a Civil Union in a state that doesn't recognize civil unions, you are in a whole different ball game and you will have to prove the legitimacy of your union and its legality before you are permitted even limited rights (such as visitation).

If you are married and your spouse is in a hospital and his/her family decide to deny you access, once you show your married, you will be given access (unless there is legal cause to prevent such as attempted murder, spousal abuse etc), but again these are decided by a court and someone has to show just cause why you should be denied those rights, not given those rights, as is the case in other Unions. You have the same rights as any other married person.

You may dig through a lot of laws, but do find those that have wound their way to the Supreme Court. The Anna Nicole Smith case did go to the Supreme Court by the way, but that was a very complex case. You might want to look at cases where a person had multiple marriages as well. Especially if one party had failed to divorce (bigamy) and this is not known to the spouse.

Marriage is similar to having a driving license. When you cross the state lines, you might not be considered legal to drive, but you can.

I'll try to make it equally simple. A marriage in one State is NOT recognized in any other State where it is "contrary to local public policy".

The SCOTUS view is unequivocal in the link I gave ( http://caselaw.lp.fi...l=306&invol=493 ) : "we think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.". Nothing has changed since to change that ruling/view.

The legal and constitutional situation is also described at length in the link I gave ( http://http://www.law.yale....tetestimony.pdf ) which is equally unequivocal and which was expert advice asked for and accepted by the US Senate, which is good enough for me even if you may not agree with it.

Every acknowledged authority I have read agrees with that, as do most who are not authoritative such as the dreaded Wiki. They may all be wrong and you may be right, but in the absence of any reference from any equal authority (or, on second thoughts, any qualified reference at all) to support "your stand" I think I'll go along with those who are recognized experts in this field.

[LeCharivari]

(edited)

Marriage is similar to having a driving license. When you cross the state lines, you might not be considered legal to drive, but you can.

There I agree with you, as the authorities in the links above also agree that "marriage is similar to having a driving license" and this is one of the examples regularly used, but you are using it incorrectly as any out-of-State license which does not meet local requirements is invalid (worthless) - just like some out-of-State marriages.

When you cross State lines with no license at all you can still "drive" physically, but you are breaking the law and can be arrested or charged. Similarly when you cross State lines with a license issued in one State it is only valid in some other States IF the driver meets THAT State's requirements (variously age, number and type of passengers/family, curfew/time of day, etc); anyone who doesn't meet those requirements but who shows what they think is their "valid" driving license from their home State can also be arrested or charged just as if they have no license at all.

The laws vary from State to State, but many apply additional restrictions to out-of-State drivers. One example is New York State:

NYS restricts driving privileges if:

• you are under the age of 18 and have an out-of-state driver license, or
• you are any age and you have an out-of-state learner permit.

You must obey the restrictions of both your home state and the NYS restrictions for learner permits or junior licenses in NYS.

http://www.dmv.ny.gov/license.htm (original "bold")

The only inter-state agreement is the Driver License Compact which (for most States) consolidates driving offences.

A marriage IS similar to a driving licence - one which is valid in one State may be worthless in another.

[LeCharivari]

(edited)

There are cases where underage couples went to a neighboring state and married and when they returned to their home state, the marriage was annulled. (The proceedings were initiated by the family). The purpose of the leaving was to circumvent a law and they were not domiciled in the state. Even under these circumstances, courts in the past were hesitant to dissolve the marriage if it had been consummated.

I may have misunderstood you in which case please correct me, but this seems to suggest that "the marriage was annulled" by their home state. As far as I am aware this is impossible as it would give one State authority over another, so the only circumstances in which this could happen would be if the marriage was annulled by the neighbouring (marrying) State.

To have the marriage annulled rather than for the couple to be divorced would mean that the marriage was invalid for some reason - the most likely being that parental consent was required and that it had not been given and the under age couple had falsified their documentation. In that case the marriage would not be valid in any State, including the one where it was registered, so this example has little relevance to inter-State marriage law.

A link may help to clarify this, if it is relevant.

[Scott]

A marriage does not have to have been illegal to be annulled. The biggest reason for annulments is because the Catholic Church doesn't recognize divorce. Dissolving a marriage depends on the laws, but if you are domiciled in a state, that state has jurisdiction to annul the marriage. The home state would probably be more amenable to annulling a marriage that didn't meet their legal requirements to begin with.

Years ago, one of the pivotal factors in allowing an annulment was whether the marriage had been consummated.

When I was young the age for marriage for a girl was 16 and for a boy it was 18. Girls could marry in that state at the age of 16 without parental consent. Boys, on the other hand, had to wait until they were 18 to marry without parental consent. (The overall age of majority was 18 for girls and 21 for males).

Now if two 17 year olds ran off to a neighboring state where at 17 they could marry and they met the residency requirement to marry (and that is a big ISSUE because often people are not legally residents of the state for quicky marriages and divorces) the marriage is legal in that state and would be recognized by all other states. The difficulty when they return to their home state is that one of them is not at the age of majority. So, you have two conflicting laws. One about marriage and one about what rights a parent may/may not have over legal affairs of a minor child.

States had to incorporate a lot of regulations into marriage laws, such as the automatic or presumed emancipation of a minor when they married.

If the two refused to go along with an annulment, then the court would have to decide based on the merits of the case. Most young people are impulsive and they probably don't have the resources to resist family pressure. But, if no one contests the marriage, it is legal and it is recognized. If they live in a different state until he turns 18, it will be legal.

In the US this is, in part, what I think JT has been talking about with regard to the situation between marriage and civil unions. There is a huge amount of legal precedent that exists and, although there are differences from state to state, there is an agreement about what a marriage means legally.

Getting anything in place that would provide the equality for civil unions in the 50 states that marriage does would be almost impossible and it would take many, many years. In part because of the religious involvement, when the word 'marriage' is invoked, it has additional strength. The words "What God hath joined together, let no man put asunder", resonates rather loudly in the US.

[LeCharivari]

A marriage does not have to have been illegal to be annulled. The biggest reason for annulments is because the Catholic Church doesn't recognize divorce. Dissolving a marriage depends on the laws, but if you are domiciled in a state, that state has jurisdiction to annul the marriage. The home state would probably be more amenable to annulling a marriage that didn't meet their legal requirements to begin with.

Years ago, one of the pivotal factors in allowing an annulment was whether the marriage had been consummated.

When I was young the age for marriage for a girl was 16 and for a boy it was 18. Girls could marry in that state at the age of 16 without parental consent. Boys, on the other hand, had to wait until they were 18 to marry without parental consent. (The overall age of majority was 18 for girls and 21 for males).

Now if two 17 year olds ran off to a neighboring state where at 17 they could marry and they met the residency requirement to marry (and that is a big ISSUE because often people are not legally residents of the state for quicky marriages and divorces) the marriage is legal in that state and would be recognized by all other states. The difficulty when they return to their home state is that one of them is not at the age of majority. So, you have two conflicting laws. One about marriage and one about what rights a parent may/may not have over legal affairs of a minor child.

States had to incorporate a lot of regulations into marriage laws, such as the automatic or presumed emancipation of a minor when they married.

If the two refused to go along with an annulment, then the court would have to decide based on the merits of the case. Most young people are impulsive and they probably don't have the resources to resist family pressure. But, if no one contests the marriage, it is legal and it is recognized. If they live in a different state until he turns 18, it will be legal.

In the US this is, in part, what I think JT has been talking about with regard to the situation between marriage and civil unions. There is a huge amount of legal precedent that exists and, although there are differences from state to state, there is an agreement about what a marriage means legally.

Getting anything in place that would provide the equality for civil unions in the 50 states that marriage does would be almost impossible and it would take many, many years. In part because of the religious involvement, when the word 'marriage' is invoked, it has additional strength. The words "What God hath joined together, let no man put asunder", resonates rather loudly in the US.

This could go on almost indefinitely, so I see little point in continuing to correct some of the supposed "facts" given in this thread after this post, so I'm backing out of this thread after this post.

"the Catholic Church doesn't recognize divorce"

Incorrect. The Catholic Church DOES recognize divorce and anyone who is divorced is still free to participate fully in the Church, receive the sacraments, etc. The problem comes only if they re-marry without a Decree of Invalidity, which is issued by a Church Tribunal (Church Court) and has NOTHING to do with civil annulments or divorce; without that they cannot re-marry in a Catholic Church or, technically, receive any sacraments.

"The biggest reason for annulments is because the Catholic Church doesn't recognize divorce."

Incorrect. The most prevalent grounds for civil annulments in the USA is fraud.

A civil annulment has as little relevance or meaning to the Catholic Church as a divorce. Civil divorces and annulments come under Civil Law, while the Catholic Church ONLY recognises Canon Law for the purposes of allowing someone who has been divorced to marry in the Church or to receive sacraments if they marry outside the Church. A Civil annulment would support an application for a Church Decree of Invalidity but it does not replace it, but a divorce serves a similar function and is equally acceptable. Some civil annulments on some grounds, such as those available in Nevada, would not support a Decree of Invalidity in any way.

While grounds for a Decree of Invalidity (for both spouses) are technically similar to some civil annulments, and grounds for an individual Decree are usually only abandonment or one spouse entering holy orders, Decrees of Invalidity are issued almost routinely in the US and well over 99% are approved.

The US has some 6% of the world's Catholics but 60% of the Church's Decrees of Invalidity, making them virtually a technicality in the American Catholic Church, but they have nothing to do with civil annulments.

"Years ago, one of the pivotal factors in allowing an annulment was whether the marriage had been consummated."

Incorrect. It still is one of the few generally accepted grounds for an annulment (and it still is grounds for a Decree of Invalidity) : "An annulment must be based on mental illness, fraud, forced consent, physical incapacity to consummate the marriage, lack of consent to underage marriage or bigamy", although a few States such as Nevada have far wider grounds similar to divorce.

"Now if two 17 year olds ran off to a neighboring state where at 17 they could marry and they met the residency requirement to marry ... the marriage is legal in that state and would be recognized by all other states."

Leaving aside the legality argument, there are now NO SUCH STATES - all States have a minimum age of 18, except Mississippi where it is 21 and Nebraska where it is 19.

"Getting anything in place that would provide the equality for civil unions in the 50 states that marriage does would be almost impossible and it would take many, many years."

Incorrect. The American legal system is based on common law, as the UK system is, not civil law like most of continental Europe, so it is based on precedent and judgement rather than legal codes; consequently a single judgement by a State Supreme Court that set the precedent that civil unions and marriage have the same legal status would apply across the State to ALL marriage laws, just as one by SCOTUS would across the US.

http://www.catholicculture.org/news/headlines/index.cfm?storyid=19447

http://www.usmarriagelaws.com/search/united_states/annulment_laws/

http://www.nolo.com/legal-encyclopedia/annulment-vs-divorce-30234.html

http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$DOMA9$$@TXDOM0A9+&LIST=LAW+&BROWSER=54724826+&TOKEN=46347301+&TARGET=VIEW

http://www.lasvegasannulment.us/qualifications.php

http://www.vatican.va/archive/ENG1104/__P3Y.HTM

http://www.catholicworldreport.com/Item/470/annulment_nation.aspx#.UoPJ2uLrMp8

http://www.expertlaw.com/library/family_law/annulment.html

http://legal-dictionary.thefreedictionary.com/annulment

http://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html

[Scott]

The topic is about Gay marriage and civil partnerships. One is recognized by all states and the other isn't. And yes we could go on forever because you continue to pick out individual laws from individual states that don't apply to a marriage. You also decide th cite cases from very far back, but then wish to argue about the age of majority.

Your knowledge of the US legal system is sorely lacking.

[LeCharivari]

The topic is about Gay marriage and civil partnerships. One is recognized by all states and the other isn't. And yes we could go on forever because you continue to pick out individual laws from individual states that don't apply to a marriage. You also decide th cite cases from very far back, but then wish to argue about the age of majority.

Your knowledge of the US legal system is sorely lacking.

DEFINITELY my final post in this thread.

Gay marriage is NOT "recognized by all states" - this is totally incorrect, unless the National Conference on State Legislatures is also wrong.

Same-sex marriage is legal in 14 States (15 including Hawaii), recognised federally, but prohibited and consequently NOT recognised 35 States (6 by statute, 29 by constitution). The National Conference of State Legislatures is definitive on that point: http://www.ncsl.org/research/human-services/same-sex-marriage-overview.aspx#1 and Section 2 of DOMA (upheld by the SCotUS ruling) confirmed their right to do so under the US Constitution if any such confirmation was necessary.

As 9 of the 29 States whose constitutions ban same-sex marriage do not ban civil unions, civil unions are no more (or less) "recognized" at State level but at least they are only prohibited in 26 States, not 35.

As I have already openly admitted, I have little personal knowledge of the US legal system and I have never claimed any. My "knowledge of the US legal system" is based entirely on that of the leading US experts such as those I have quoted, citing the exact same cases they do.

You disagree with them, as Jingthing apparently does. You may well be right and they may all be wrong, but since I have been unable to find even one qualified reference to support your view all I or anyone else in a similar position can do is compare their proven knowledge, experience, qualifications and recognition with yours and be influenced accordingly.

[Jingthing]

Oy vey! Scott was obviously saying that MARRIAGE in general is recognized in all states, which is true. Obviously not same sex marriage. This is so silly now. The gay civil rights battle in the U.S. is about marriage equality, not civil union equality. That's the way it is. After decades of struggle, it is now reaping very rapid SUCCESS. Again, there is no going back. Just try and find an actual visible American gay activist who is obsessed with the idea that the tactic SHOULD have been about civil unions, that the focus that WAS overwhelmingly supported was a mistake (as seems to be implied by a few NON-AMERICANS here). That's a serious challenge. I don't think anyone can find this animal. You DEFINITELY can't find such an American activist who will say NOW drop the successful marriage focus and REVERT to a civil union focus. All the passion on this forum over this NON-EXISTENT issue in the actual country we are talking about is really mental masturbation AT BEST.

Edited November 14, 2013 by Jingthing

[Jingthing]

DEFINITELY my final post in this thread.

...

Noted!

[Scott]

Thanks, JT, apparently not only is gay marriage a bad thing, but all marriages are bad and inherently unequal, at least according to some people.

Oh, and the analogy of a driver's license was just that, an analogy. A learner's permit is not a license. You can't usually get a learner's permit for a marriage.

[onthemoon]

In the US there is an obligation between states to acknowledge the marriage laws of other states (between men an women). If you get married in Alabama, you are married in Georgia as well. Due to the nature of the animosity that some states/regions have to same sex partnerships (with any label) it has always made sense in the US to push for full marriage equality. Then the final hurdle is simple. Force all the states to recognize the already officially sanctioned relationships. When DOMA was gutted it meant that the federal government was put in a situation that they have to give the same benefits to employees ...

The fight for equality is far from over in the US ..... but thankfully I do not live there

Sure, that problem exists in the US. Full legal equality means that they need to accept civil unions as equal to marriages. In fact, the words should be legally synonymous, and the only difference should be the religious annotation.

You say should but this issue that you seem to think is so important just is NOT important to the vast majority of gay people in the USA. It's already clear that 50 state marriage equality is inevitable and now there are only a FEW states left with ANY civil union laws (and before long there will be ZERO). I can assure you when the day comes of achieving 50 state marriage equality, any voices about something already OBSOLETE in the USA now, will be very very faint if even existing at all. Recently reading about New Jersey and their recent move from civil union to marriage, a commentator put it this way ... that the civil union stage was ASPIRATIONAL ... towards marriage. Sorry you don't like that but that is indeed the mainstream view in the USA, gay and straight. You can think 50 state marriage equality isn't good enough. I can assure you your diminishing that as not a real victory for EQUALITY will be seen as incoherent and strange by the vast majority of Americans. I'm serious. In the USA once marriage equality is achieved nationwide, the concept of U.S. civil unions will fade into NOTHINGNESS forever.

Honestly, I find your POV about the U.S. situation incoherent myself. To U.S. gay activists, it's actually kind of insulting. When we do reach this great goal that is taking decades and we WILL reach it, 50 state marriage equality, the idea that some people will say that doesn't represent real equality just seems really disrespectful to the struggle of so many people.

Again, in the U.S. you can get MARRIED at CITY HALL. No religion. Got that? That's called marriage and it is marriage, you can think of it as a civil marriage if you like, but that is the U.S. system and that is set in stone.

Your POV may indeed may perfect sense in some other countries, but in my view, it simply does not compute in the U.S. context today and NEVER will.

I am full-quoting, because the discussion moved on while I was away.

Firstly, I don't mean to be insulting. To the contrary, I see a cultural difference between the US and Europe.

In Europe, civil union. civil partnership is considered the future, while you state in the US it is becoming obsolete.

In Europe (I know this for a fact in Germany), a civil union is held at city hall, very much like a marriage. The wedding at church is just a beautiful party which many, but not all, straight people use to have. A religious person (pastor, priest, rabbi, imam etc) is not allowed to conduct a legal marriage. Europe (at least Germany) has a strict seperation of state and religion.

My POV is European, sure. I did not start this topic to only discuss the US. However, your contributions are welcome.

[Scott]

I think some of this is simply semantics. It will be interesting to see how the immigration and the Department of State handle civil unions. For example, people can immigrate who have never registered a marriage. If it is a traditional marriage and recognized as a marriage by the culture, it is considered to be legitimate.

If the EU is moving in a different direction regarding terminology, I think it will have to be accepted by other countries, provided they are acknowledging the legitimacy of gay relationships.

Once the federal gov't recognizes the legitimacy of gay relationships, the states are going to be hard pressed to deny rights. They can, but it is going to be a lot more difficult.

(And no, someone doesn't have to look up some obscure case where it wasn't).

[onthemoon]

I think some of this is simply semantics. It will be interesting to see how the immigration and the Department of State handle civil unions. For example, people can immigrate who have never registered a marriage. If it is a traditional marriage and recognized as a marriage by the culture, it is considered to be legitimate.

If the EU is moving in a different direction regarding terminology, I think it will have to be accepted by other countries, provided they are acknowledging the legitimacy of gay relationships.

Once the federal gov't recognizes the legitimacy of gay relationships, the states are going to be hard pressed to deny rights. They can, but it is going to be a lot more difficult.

(And no, someone doesn't have to look up some obscure case where it wasn't).

The US recognizes a traditional marriage? Such as, conducted by monks in Thailand without registration at the Amphur?

If that is true, a civil union conducted at a city hall in Europe should be treated at least equal.

Germany won't recognize the traditional marriage, only one that has been officially registered with the Amphur, or equivalent government authorities in other countries.

[Scott]

Yes, they will acknowledge a traditional marriage without paperwork. That are a few caveats to it though. People who could have/should have registered the marriage may have a problem. There are a lot of groups of people that are marginalized and registering a marriage isn't really possible or feasible. There are also tribal groups that historically don't register them.

A lot of the Hmong refugees (and those later admitted as immigrants), did not have marriage registration, in part because it had not been viewed as necessary and also because they were a disenfranchised group.

There is usually evidence that regardless of paperwork, it is a marriage.

[Scott]

Whether the US is going to treat a city hall, Civil Union the same as a marriage will be the litmus test. My guess is that they will. The State Department usually has a little bit bet understanding of how these things work and that the meaning, although different, may be equivalent. Sort of the Thai saying "Same, same, but different."

[onthemoon]

Yes, they will acknowledge a traditional marriage without paperwork. That are a few caveats to it though. People who could have/should have registered the marriage may have a problem. There are a lot of groups of people that are marginalized and registering a marriage isn't really possible or feasible. There are also tribal groups that historically don't register them.

A lot of the Hmong refugees (and those later admitted as immigrants), did not have marriage registration, in part because it had not been viewed as necessary and also because they were a disenfranchised group.

There is usually evidence that regardless of paperwork, it is a marriage.

Thanks for the clarification. It sounded a bit easy there for a moment...

[onthemoon]

Whether the US is going to treat a city hall, Civil Union the same as a marriage will be the litmus test. My guess is that they will. The State Department usually has a little bit bet understanding of how these things work and that the meaning, although different, may be equivalent. Sort of the Thai saying "Same, same, but different."

We are watching history in the making. My prediction (influenced by hope) is that they will accept civil unions and civil partnerships as equal to marriages. We will know in a few years, I guess.

[Jingthing]

Whether the US is going to treat a city hall, Civil Union the same as a marriage will be the litmus test. My guess is that they will. The State Department usually has a little bit bet understanding of how these things work and that the meaning, although different, may be equivalent. Sort of the Thai saying "Same, same, but different."

We are watching history in the making. My prediction (influenced by hope) is that they will accept civil unions and civil partnerships as equal to marriages. We will know in a few years, I guess.

You guys appear to be limiting your discussion to IMMIGRATION matters. As far as U.S. states civil unions being recognized as marriages federally, that is NOT going to happen and that is NOT a problem. 50 state marriage equality is progressing rapidly, U.S. state civil unions are rapidly fading, and any gay couple that really really wants it can get federally recognized gay marriage even if NOT residing in a marriage equality state. You see the DIFFERENCE in the issues, U.S. based vs. international?

[Scott]

Using immigration as an example is more a bell-weather situation than anything else. If the federal gov't decides that civil unions/partnerships are de facto marriages, it will hold a lot of weight in the courts. These issues are quite prominent in the area of immigration and they are also less politically visible, so places like the State Department can often make an informed decision based on the culture in place in another country. This can set a precedent.

Some counsel officers are a little more enlightened that others in a number of areas. The first time my partner applied for a visa to visit the US, he met almost none of the criteria, but the officer approved his application based on the existing relationship which overcame the presumption that he would remain in the US. There were other factors as well.

From what is being said here, it seems that EU civil unions are defacto marriages and that the differences between them are minor. A civil union in the EU sounds like a marriage in the US and should be viewed as such by the gov't, regardless of the type of paper on which it is recorded.

[Jingthing]

This is confusing TWO issues again. There is no indication whatsoever that there is or will be any trend to demand federal recognition of U.S. state CIVIL UNIONS equal to federal recognition of ALL U.S. performed marriages. The opposite actually! The fact of non recognition federally has been a strong argument to force the few remaining U.S. civil union states to UPGRADE to legal same sex marriage. (New Jersey.) The number of U.S. states with civil unions is approaching ZERO. The trend could not be more clear.