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There are currently a number of states which permit same-sex marriage, and others which outright prohibit and refuse to recognize it. The latter laws are currently being challenged in courts all over the country, under the Windsor decision.

However, there's a compromise position I haven't heard anyone espousing, and I'm wondering whether it would be legal under current SCOTUS precedent.

Specifically, can a state pass a law saying that they will not issue same-sex marriage licenses, but will recognize those from other states? That would be the position of the dark grey color in the map on this wikipedia page (which currently has no states in that color).

  • Just to note: I'm fully aware that until these issues get addressed by either Congress or SCOTUS there's no authoritative answer. I'm just looking for interpretations of the current law. – Bobson Jan 17 '14 at 17:23
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    "other [states] which outright prohibit and refuse to recognize it [...] there is a compromise position" I am not sure that it qualifies as a compromise. Perhaps the republicans in the north could have compromised with the southern Democrats over the CRA of 1964. The southern Democrats would agree to not give blacks marriage licenses to whites but would recognize northern interracial marriages. – user1873 Jan 17 '14 at 21:46
  • SCOTUS has no precedent. They refused to rule on Section 2 of DOMA, so it is odd to speak of those marriage defense laws being challenged by the Windsor decision. I don't see why a state couldn't decide to recognise SSM even though they won't issue them, didn't NM decide to do that for divorce court? Fining residents for performing actions that are legal in another jurisdiction seems wrong, but the US government does that with flying to Thailand to have sex with underage prostitutes. – user1873 Jan 17 '14 at 22:19
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    Probably not. Then there would be no point in SSM being illegal... – Shahar Jan 17 '14 at 22:53
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    @user1873 - I use "compromise" in the sense of "neither A nor B, but with some of each". I'm not using it in the sense of "people agreed to a position no one was happy with". – Bobson Jan 18 '14 at 23:34
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The answer is probably not, but to answer with certainty that would require a Supreme Court decision.

There are two clauses of the Constitution relevant here. The first is Article 4's full faith and credit clause, which requires states to recognize the "public acts, records, and judicial proceedings" of any other state. The courts have not yet ruled definitively about whether this requires states to recognize other states' marriages. Courts have arrived at different decisions regarding the Full Faith and Credit clause's applicability to marriage licenses and family law, but if a state did recognize another state's marriage license, the issue would be irrelevant. A state that recognized another state's marriage license could not face Constitutional challenges on the Full Faith and Credit Clause.

However, it could face challenges on Fourteenth Amendment grounds. The 14th Amendment requires that states guarantee their citizens equal protection under the law. Laws discriminating against homosexual marriage would likely be ruled unconstitutional on the grounds that they violate the guarantee of equal protection.

Though the Supreme Court has not ruled regarding state laws regarding homosexual marriage, the Supreme Court did rule in United States v. Windsor that the Federal government had to recognize same sex marriages (though it did not require that states hand out same sex marriage licenses) because the Fifth Amendment guarantees equal protection under the law. The Fifth Amendment necessitates that the Federal government provide citizens equal protection under the law, and the Supreme Court found that that prevented the federal government from discriminating against homosexual marriages. The Fourteenth Amendment necessitates that states provide citizens equal protection under the law, so the same logic makes it unconstitutional for states to refuse to recognize homosexual marriages.

That's not just my logic. Though the Supreme Court has yet to rule on the issue of whether state governments can refuse to recognize homosexual marriages, many lower courts have. Judges in Utah and Oklahoma have recently ruled those states' bans on same sex marriage unconstitutional on Fourteenth Amendment grounds. The same logic was also used to overturn bans on same sex marriage in New Jersey, California, and elsewhere. So we can reasonably conclude that, though your proposed law would not face challenges on Full Faith and Credit grounds, it would on Fourteenth Amendment grounds.

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    "in United States v. Windsor that the Federal government had to recognize same sex marriages because the Fifth Amendment guarantees equal protection under the law," that isn't at all what SCOTUS ruled. They specifically refused to rule on Section 2 of DOMA. What they did rules, is that in states that do recognise same-sex marriages, the federal government has to treat them equally. – user1873 Jan 19 '14 at 1:44
  • I don't see a distinction between those things. I said that the federal government had to recognize those marriages, not that the states had to allow them based on that ruling. I made the distinction between the impact of US v. Windsor, which did not require the states to issue same sex marriage licenses, and rulings based on the 14th amendment, which did, but if you feel that didn't sufficiently clarify, I can further clarify that difference in my answer just a moment. – Avi Jan 19 '14 at 3:35
  • There is a difference between, "the federal government has to recognize same-sex marriages," and "the federal government has to recognize same-sex marriages in states that recognize same-sex marriages." (Don't you see that?) From the Windsor decision, "Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States." – user1873 Jan 19 '14 at 4:19
  • I don't think your edit helps. The federal government under the Equal Protection clause wouldn't force a state to recognize or issue same-sex licenses. It would be like saying that because prostitution is legal in Nevada that other states have to offer brothel licenses. – user1873 Jan 19 '14 at 4:24
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    @Shahar That is true, but the courts found (and you can read the arguments in the US v. Windsor and proposition 8 cases) that the fact that homosexuals couldn't reproduce wasn't a reason to ban gay marriage, whereas (presuming this went to court) they would likely find that the probably production of genetically defective offspring was. That is their logic. You are free to argue that homosexuals inability to reproduce with each other constitutes a "rational basis" for denying homosexuals the right to marry, but the court heard that argument and rejected it. – Avi Jan 20 '14 at 5:11

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