Sunday, September 4, 2011

Sanders: "The Constitutional Right to (Keep Your) Same-sex Marriage: Why the Due Process Clause Protects Marriages That Cross State Lines, Even if Conflict of Laws Cannot"

Steve Sanders has posted "The Constitutional Right to (Keep Your) Same-sex Marriage:  Why the Due Process Clause Protects Marriages That Cross State Lines, Even if Conflict of Laws Cannot" on SSRN.  Here is the abstract: 

Same-sex marriage is legal in six states, and nearly 50,000 same-sex couples have already married. Yet 43 states have adopted statutes or constitutional amendments banning same-sex marriage (typically called mini defense of marriage acts, or “mini-DOMAs”), and the vast majority of these measures not only forbid the creation of same-sex marriages, they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These non-recognition laws effectively transform the marital parties into complete legal strangers to each other, with none of the customary rights or incidents of marriage. 

In this paper I argue that an individual who legally marries in her state of domicile, then migrates to another state, has a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of her marriage. This liberty interest creates a right of marriage recognition that prevents a mini-DOMA state from effectively divorcing her by operation of law. This right to marriage recognition is conceptually and doctrinally distinguishable from the constitutional “right to marry.” It is a neutral principle, grounded in core Due Process Clause values: protection of reasonable expectations and of marital and family privacy; respect for established legal and social practices; and rejection of the idea that a state can sever a legal family relationship merely by operation of law. A mini-DOMA state will, of course, have interests to be considered in refusing to recognize certain marriages. But under the intermediate form of scrutiny I explain is appropriate, those interests do not rise to a sufficiently important level to justify the nullification of a migratory same-sex marriage.

AC

http://lawprofessors.typepad.com/family_law/2011/09/sanders-the-constitutional-right-to-keep-your-same-sex-marriage-why-the-due-process-clause-protects-.html

Scholarship, Family Law | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef015435245155970c

Listed below are links to weblogs that reference Sanders: "The Constitutional Right to (Keep Your) Same-sex Marriage: Why the Due Process Clause Protects Marriages That Cross State Lines, Even if Conflict of Laws Cannot":

Comments

I stongly disagree. As of right now, DOMA is the law of the land and the same-sex marriage issue has been left largely untouched on the federal level. In other words, if a state government wants to deny marriage rights to same-sex couples and deny legal recognition of the marriage of an alien same-sex couple, then the state government has the legal authority to do exactly that.

Posted by: Divorce Attorneys Tulsa | Sep 5, 2011 4:49:15 PM

Recognition of same sex marriages across state lines is a hot button issue right now.

Posted by: Oklahoma City Divorce Attorneys | Sep 19, 2011 7:09:59 PM

Post a comment