Law School Discussion

Same-Sex Marriage/Massachusetts


Same-Sex Marriage/Massachusetts
« on: May 06, 2004, 09:02:56 AM »
My two cents - or whatever it might be worth.

When discussing same-sex marriage as a legal issue one must look to the Full Faith and Credit clause of the Constitution.  Massachusetts will begin marrying same-sex couples later this month.  There is a Massachusetts statute (M.G.L. c. 207 § 11) that states:  “No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.”  So the idea is that people cannot travel to Mass to be married if their domiciled state does not recognize same-sex marriage.

However, the Full Faith and Credit clause provides that other states must recognize the judgments, acts, etc. of sister states.  And, according to Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-77, when conflicts such as this arise between the Mass statute and the Constitution, the issue must be resolved in favor of the Constitution. 

Then there comes DOMA (Declaration of Marriage Act) which was passed in 1996 by Clinton...which basically tells the states that they do not have to recognize same-sex marriages under the FFC clause of the Constitution.  Although DOMA's constitutionality has never been challenged I believe it will be soon after Massachusetts starts marrying same-sex couples.  Many people feel that it is discriminatory in itself and/or Congress does not have the power to limit the scope of the FFC.

Anyway - there's a couple of different ways to look at the issue.  But, and it's a big "but"... don't put too much weight to my opinion...I haven't even applied to law school yet.  ::)


Re: Same-Sex Marriage/Massachusetts
« Reply #1 on: May 06, 2004, 10:04:24 AM »
OOPS...I meant this to be a reply to the same-sex marriage thread...not a new post.  Oh apologies.