May 24, 2007

Interstate Incest

by PG

I haven't read the ruling, but was interested by this description of a Suffolk County Superior Court's decision to deem New Yorkers who were not Massachusetts residents at the time of getting married in that state to be married nonetheless: "The ruling affects only a limited number of New York�s same-sex couples: those who married in Massachusetts between May 17, 2004, when that state authorized same-sex marriages, and July 6, 2006, when New York�s highest court rejected an effort to allow gay marriage." Such a limitation implies that plaintiffs who claim to have married in "good faith," thinking their marriages would be honored in New York, should indeed have those marriages honored, while those who married knowing that such marriages definitely were not recognized in their home state should not. It reminds me oddly of immunity for government officials in Section 1983 : if they're violating clearly established law, there is no immunity; if they have reason to think they are acting within the law, they get immunity from paying damages even if the court decides that they did violate someone's rights.

However, why New York should care what a Boston judge thinks is unclear. According to the NYTimes article, "The lawsuit challenged a decision by Mitt Romney, then the governor, that only those gay couples who lived or intended to live in Massachusetts, or those couples whose home state did not forbid same-sex marriage, could get married in Massachusetts." Sure, the marriages should be recognized if the spouses move to Massachusetts, but that certificate remains useless in New York. The article is slightly inaccurate about why this is so. "Last year, a judge ruled that only Rhode Island did not prohibit same-sex marriage, noting that New York�s highest court ruled on July 6 that it was not permitted." In Hernandez v. Robles, the Court of Appeals ruled that the state constitution did not require the legislature to recognize same-sex marriages, but that it was free either to permit or prohibit such, neither of which it has done. I suppose one could claim, as Judge Smith's majority opinion implied, that inasmuch as "New York's statutory law clearly limits marriage to opposite-sex couples" it actively prohibits it for same-sex couples, but I don't think the 1909 Domestic Relations laws can be read that broadly. Neither the text of the statute nor the intent of the writers -- unless someone wants to argue that the 1909 legislature foresaw same-sex marriage as a possibility -- prohibits same-sex marriages. As Smith himself notes, the law explicitly prohibited certain incestuous marriages and didn't even contemplate others like that between uncle and nephew.

Anyway, does anyone know what are various states' policies on recognizing marriages that would be incestuous or involve a minor in their own states? At least with the minor, presumably those marriages have to be recognized, or else it would have been useless for Matthew Koso and his then-14 year old bride to marry in Kansas and then come back to Nebraska. (Koso, incidentally, was released from prison earlier this month after serving a plea-bargained 15 months for statutory rape, and a duly embarrassed Kansas raised its minimum age to 15.) But what about the double first cousins, prohibited to marry under North Carolina law, who obtain a D.C. marriage license and bring it back to North Carolina? Nebraska prosecuted Koso for statutory rape that occurred before his marriage, but what if he'd married her in Kansas before having sex with her in Nebraska, and the cousins married in D.C. before having sex in North Carolina?

May 24, 2007 8:36 AM | TrackBack

I think there's a direct object missing from your first link sentence ("...deem New Yorkers..." what?).

Posted by: Tom T. at May 24, 2007 11:37 PM

Corrected, thanks for catching that.

Posted by: PG at May 25, 2007 11:21 AM
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