The Constitutional Right to (Keep Your) Same-Sex Marriage

Same-sex marriage is now legal in six states, and tens of thousands of same-sex couples have already gotten married. Yet the vast majority of other states have adopted statutes or constitutional amendments banning same-sex marriage. These mini-defense of marriage acts 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 nonrecognition laws effectively transform the marital parties into legal strangers, causing significant harms: property rights are potentially altered, spouses disinherited, children put at risk, and financial, medical, and personal plans and decisions thrown into turmoil.In this Article, I argue that an individual who marries in her state of domicile and then migrates to a mini-defense of marriage act state has a significant liberty interest under the Fourteenth Amendment's Due Process Clause in the ongoing existence of her marriage. This liberty interest creates a right of marriage recognition that prevents another state from effectively divorcing her against her will by operation of law. The right of 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-defense of marriage act state will, of course, have interests to be considered in refusing to recognize certain marriages. But under the intermediate form of scrutiny that is appropriate in these circumstances, those interests do not rise to a sufficiently important level to justify the nullification of migratory same-sex marriages.IntroductionImagine that Helen and Jenny reside and marry in Iowa. Iowa is among the six states, plus the District of Columbia, where same-sex marriage is now legal.1 Now consider that more than 130,000 same-sex couples in the United States report being married,2 and that between 2 and 3 percent of Americans move to a different state each year3-meaning we could expect that at least 2,600 married same-sex couples may do so. And so imagine that Helen and Jenny pull up stakes and move to Indiana. Perhaps Helen's employer transfers her to Indianapolis or Jenny's elderly mom in Fort Wayne needs her closer by.Helen and Jenny now have a problem. Indiana law purports to declare their marriage "void" because it involves two members of the same sex.4 Indiana is among forty-one states that have adopted statutes or constitutional amendments banning same-sex marriage (typically called mini-defense of marriage acts, or "mini-DOMAs").5 The vast majority of mini-DOMAs not only forbid the creation of same-sex marriages but their statutory or constitutional language would also void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal.6 Even if they do not purport to actually void a marriage, these nonrecognition laws transform same-sex marital parties into complete legal strangers, with none of the customary rights or incidents of marriage, so long as they continue to live in the mini-DOMA state. For practical purposes, the parties have been divorced against their will by operation of law.We live in a highly mobile country, and so we can assume that many married same-sex couples have already changed states, or will do so, for jobs, education, family, and personal reasons. The question of "what happens to people in legally recognized same-sex relationships when they cross state lines" has received "far too little attention in the debates about gay rights."7 Nonrecognition laws are already disrupting lives, and it is reasonable to expect that they will become an increasingly serious issue in gay rights litigation, politics, and even the national employment marketplace. …