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Posted by eric_k_johnson on December 17, 2010
I recently received an inquiry that I found interesting from a divorce and family law practitioner standpoint.
If a gay couple is legally and lawfully married in a state that allows gay marriage1, can that marriage be annulled in a state that does not recognize gay marriage (like Utah)? This is an interesting question. Utah Code §§ 30-1-2, 30-1-17, and 30-3-17.1 provide, respectively:
30-1-2. Marriages prohibited and void.
The following marriages are prohibited and declared void:
(1) when there is a husband or wife living, from whom the person marrying has not been divorced;
(2) when the male or female is under 18 years of age unless consent is obtained as provided in Section 30-1-9;
(3) when the male or female is under 14 years of age or, beginning May 3, 1999, when the male or female is under 16 years of age at the time the parties attempt to enter into the marriage; however, exceptions may be made for a person 15 years of age, under conditions set in accordance with Section 30-1-9;
(4) between a divorced person and any person other than the one from whom the divorce was secured until the divorce decree becomes absolute, and, if an appeal is taken, until after the affirmance of the decree; and
(5) between persons of the same sex.
Action to determine validity of marriage — Judgment of validity or annulment.
When there is doubt as to the validity of a marriage, either party may, in a court of equity in a county where either party is domiciled, demand its avoidance or affirmance, but when one of the parties was under the age of consent at the time of the marriage, the other party, being of proper age, shall have no such proceeding for that cause against the party under age. The judgment in the action shall either declare the marriage valid or annulled and shall be conclusive upon all persons concerned with the marriage.
30-1-17.1. Annulment — Grounds for.
A marriage may be annulled for any of the following causes existing at the time of the marriage:
(1) When the marriage is prohibited or void under Title 30, Chapter 1.
(2) Upon grounds existing at common law.
To that end, Article I, Section 29 of the Utah Constitution provides:
(1) Marriage consists only of the legal union between a man and a woman.
(2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.
According to Andrew Koppelman, a law professor at Northwestern University and the author of The Gay Rights Question in Contemporary American Law, “No state has ever been required by the full faith and credit clause to recognize any marriage they didn’t want to.” This issue first arose with regard to interracial marriage. Until the Supreme Court struck down all laws banning interracial marriage in 1967, a number of states banned interracial marriage and did not accept interracial marriage licenses issued in other states.2
There has been much speculation on the clause’s possible application to same-sex marriage, civil union, and domestic partnership laws and cases, as well as the 1996 Defense of Marriage Act (DOMA) and the proposed Federal Marriage Amendment. Between 1996 and 2004, 39 states passed their own laws and constitutional amendments, sometimes called “mini DOMAs,” which define marriage as consisting solely of opposite-sex couples. Most of these “mini DOMAs” explicitly prohibit the state from honoring same-sex marriages performed in other states and countries. Conversely, several states have legalized same-sex marriage, either legislatively or by state supreme court judgment.
The United States Supreme Court has not ruled on how (if at all) these laws are affected by the Full Faith and Credit Clause. However, in August 2007, a federal appeals court held that the clause did require Oklahoma to recognize adoptions by same-sex couples which were finalized in other states.
So the big question is whether Utah courts feel that they must give full faith and credit to a marriage that was legally performed in a state that recognizes same-sex marriage but is not legal in Utah.
A secondary question is whether the same-sex married partners agree to seeking an annulment, or whether one of the couple would contest the action.
1 According to Wikipedia:
Same-sex marriages are currently granted by five of the 50 states, the federal district, and one Indian tribe:
In Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C., marriages for same-sex couples are legal and currently performed.
The Coquille Indian Tribe in Oregon also grants same-sex marriage.
State which previously granted same-sex marriage licenses:
In California, same-sex marriages were performed between June 16, 2008, and November 4, 2008, after the California Supreme Court held the statutes limiting marriage to opposite-sex couples violated the state constitution; however, the California electorate then approved California Proposition 8, a voter initiative that made the ban part of California’s constitution. The California Supreme Court upheld the voter-approved constitutional ban in Strauss v. Horton, 207 P.3d 48 (Cal. 2009), holding that same-sex couples have all the rights of heterosexual couples, except the right to the “designation” of marriage and that such a holding does not violate California’s privacy, equal protection, or due process laws.[1] Proposition 8 then was challenged in federal court in Perry v. Schwarzenegger. On August 4, 2010, a federal judge ruled that California’s ban on same-sex marriage was unconstitutional,[2][3] and stayed his ruling.[4][5] On August 12, 2010, he ruled that marriages could resume on August 18, 2010, but the United States Court of Appeals for the Ninth Circuit stayed the ruling pending appeal.[6][7]
States which recognize same-sex marriage but have not granted same-sex marriage licenses:
In New York, Rhode Island, and Maryland, same-sex marriages are recognized, but not performed.
2 http://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause
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