Gay and lesbian couples are flocking to Ontario courthouses after a Canadian appeals court recently struck down that province’s ban on same-sex marriages. The United States acknowledges Canadian marriages as legally valid. If a gay or lesbian American couple gets hitched north of the border, will their union be recognized back home?
Probably not, at least until the newlyweds pursue the matter through the courts. The United States recognizes most foreign marriages because of “comity,” the legal version of the Golden Rule. The principle holds that lawful conduct in one jurisdiction should be respected in another, lest travelers worry about their marriages being invalidated as they cross borders. But comity is more a custom than an obligation, and neither the states nor the federal government are compelled to extend the courtesy to every couple wed abroad. They can decline if the marriage in question violates a jurisdiction’s definition of an acceptable union—say, if the bride is below the age of consent, or if the couple are close blood relations. Or, in the case of same-sex marriages, if a local law explicitly defines marriage as a union between a man and a woman.
The latter stipulation is a key part of the Defense of Marriage Act (DOMA), signed by President Clinton in 1996. The law bars federal recognition of same-sex marriages, regardless of whether those unions are deemed legally valid in another country or even in an individual state. So, same-sex couples wed in Canada have no shot, for example, at being able to file their federal taxes jointly. In addition, 37 states have passed similarly worded legislation.
That leaves 13 states where Canadian same-sex unions may eventually be recognized, although gay couples would likely need to take legal action to earn full privileges—for example, by suing for family health benefits. If one state does yield, however, it will create an entirely new set of legal questions. States are bound by the Constitution’s full faith and credit clause to recognize the “public acts, records, and judicial proceedings” of one another. How the courts will weigh that clause against the state’s DOMA is anyone’s guess. Currently, several couples who’ve entered into civil unions in Vermont, the only state to permit such a marriagelike arrangement, are suing for recognition in their home states on full faith and credit grounds; none of the cases has yet been resolved.
Bonus Explainer: Canada is not the world’s first nation with a province that permits same-sex marriages. The Netherlands legalized such unions in 2001, although the country doesn’t make it easy for Americans to take advantage. One half of the couple must first establish residency, typically by living in Holland for at least four months.
