Are foreign gay marriages recognized in the US?

[ad rian]

No, local courts are not bound to recognize judgements or orders of foreign courts if they violate the public policy of the local court. I think as of now, it is hard to imagine a court in the U.S., (although I seem to recall some counter example from Hawaii) that would not refuse to enforce the marriage on public policy grounds.

[trilingual]

If you can claim citizenship in a European country that recognizes gay marriages, you can always acquire that citizenship, marry your boyfriend in that country, and move there. It's probably not likely that the U.S. will recognize a right to sponsor one's same-sex partner for immigration (in the same way it permits the immigration of foreign heterosexual fiancés) any time in the foreseeable future. So for U.S. immigration purposes, getting married abroad to a same-sex partner probably will not be any help in getting him residency. Your boyfriend's actually probably better off pursuing the asylum claim if he comes from a country with a documented record of persecuting gay people.

 

Although a foreign marriage won't be recognized by the U.S. government for immigration purposes, it may be recognized for other purposes in Vermont, which is the only U.S. state that permits gay marriage, so far. I don't believe the question has been tested yet in Vermont, though. The legitimacy of foreign gay marriages also haven't been tested in the U.S. courts, as far as I know, so the jury is still out on them, so to speak. The U.S. does seem to recognize some foreign marriages that would be illegal and/or contrary to public policy in the U.S., at least for temporary visiting purposes. For example Muslims with multiple wives who accompany them are able to get visas to enter the U.S. for tourism, medical care, business, etc. An argument certainly could be made that if such "illegal" marriages are recognizable, then others, like same-sex ones, also should be.

 

The U.S. Supreme Court is going to take up the issue of state sodomy laws this term. Given the composition of the court, and it's execrable past record on this subject, I don't have much hope that they will finally rule such laws unconstitutional. If they do, that may help open the gates to legislation and litigation leading to the recognition of same-sex marriages in the U.S. (But it's precisely the fear of opening those gates that may result in the Supreme Court allowing the states to continue prohibiting and punishing consensual "sodomy.")

[ad rian]

>The legitimacy of

>foreign gay marriages also haven't been tested in the U.S.

>courts, as far as I know, so the jury is still out on them, so

>to speak. The U.S. does seem to recognize some foreign

>marriages that would be illegal and/or contrary to public

>policy in the U.S., at least for temporary visiting purposes.

>For example Muslims with multiple wives who accompany them are

>able to get visas to enter the U.S. for tourism, medical care,

>business, etc. An argument certainly could be made that if

>such "illegal" marriages are recognizable, then others, like

>same-sex ones, also should be.

 

This is called practising law without a license. Sorry, Tri again you opine about what you know absolutely nothing.

 

The fact that one is in a polygamous relationship would only implicate the U.S. court if it were somehow petitioned to recognize that union as in te facts posited by the initial post. Were that the case, it would more than likely be refused for public policy grounds. Whether seperate deportation proceedings or criminal (e.g. See Utah Mormon cases) is a separate question. At any rate, it is unlikely that any one entering the U.S. with multiple wives would specify their "additional" wives on a visa application, but were that to be the case it would probably be a matter of turning a blind eye on the theory that the U.S. action is not recognizing the multiple marriage for any U.S. purpose. As I said that is unlikely. This is different from the case where the marriage might involve an under age spouse (e.g. some arranged orthodox Jewish marriages performed in Isrsael), but again that in all likelihood would not be disclosed on the visa application.

[bluenix]

>This is called practising law without a license. Sorry, Tri

>again you opine about what you know absolutely nothing.

>

>The fact that one is in a polygamous relationship would only

>implicate the U.S. court if it were somehow petitioned to

>recognize that union as in te facts posited by the initial

>post. Were that the case, it would more than likely be

>refused for public policy grounds. Whether seperate

>deportation proceedings or criminal (e.g. See Utah Mormon

>cases) is a separate question. At any rate, it is unlikely

>that any one entering the U.S. with multiple wives would

>specify their "additional" wives on a visa application, but

>were that to be the case it would probably be a matter of

>turning a blind eye on the theory that the U.S. action is not

>recognizing the multiple marriage for any U.S. purpose. As I

>said that is unlikely. This is different from the case where

>the marriage might involve an under age spouse (e.g. some

>arranged orthodox Jewish marriages performed in Isrsael), but

>again that in all likelihood would not be disclosed on the

>visa application.

 

One of the more incoherent posts I've seen here in a while. It rivals... well, never mind.

 

Hard to understand why you pick on Trilingual. He's intelligent and expresses himself well. You, on the other hand, come across here like a puppy humping a leg: industry without issue.

[ad rian]

>One of the more incoherent posts I've seen here in a while.

>It rivals... well, never mind.

 

Sorry, you feel that way, but the bottom line is that what Tri wrote was nonsense pure and simple, but hey you have the right to the counsel of your choice. The bottom line is that the analogy he tried to draw does not apply. The sole issue is whether a court would recognize the foreign judgement, and his example simply does not raise that issue. I can't make it any simpler for you or for him.

[Guest Bitchboy]

The only interesting point ad rian makes, although it wasn't his intention I assume, is his managing to drag in an anti-Israel/Jewish reference once again. The fact that this person continues to walk around as one of us amazes me.

[Guest Pulsator]

No U.S. state allows same-sex partners to marry. Vermont allows us to form "civil unions," but the statute that authorizes that specifically says that civil unions are NOT marriages. So far, courts in two other states, Georgia and Connecticut, have made that point dramatically by refusing to recognize that people who had civil union ceremonies in Vermont were spouses, or were even related to each other.

 

Because of the Defense of Marriage Act, passed during the presidential election of 1996 as part of a deal between Democrats and Republicans to take the gay marriage issue off the table in that election, the federal government will not recognize any marriage between persons of the same sex, wherever performed, for any purpose of federal law, including immigration law.

 

At present, the only country in the world that actually has state-sanctioned same-sex marriages as a matter of affirmative legislation is the Netherlands, and one of the partners must be a Dutch citizen. Belgium is in the midst of legislating on same-sex marriage, and the Swiss government is considering it. Many other European countries now have some sort of recognized legal relationship for same-sex partners, but all fall short of complete marriage rights and status. In Hungary, same-sex couples can be recognized as common-law spouses for some legal purposes. And there were reports of a same-sex relationship being recognized in Fiji. But so far, only the Dutch have actual marriage, and the question whether a U.S. state court might recognize such a relationship under the doctrine of "comity" used in such international cases has not yet been litigated.

[ad rian]

>The only interesting point ad rian makes, although it wasn't

>his intention I assume, is his managing to drag in an

>anti-Israel/Jewish reference once again. The fact that this

>person continues to walk around as one of us amazes me.

 

But the act that I was responding to Tri's bringing in a totally false immigration analogy to polygamous Muslim marriages does not fill you with the same outrage? It is precisely that kind of hypocrisy that leads me to add balance. I just love you guys. Criticize Catholics and you are not anti-catholic! Criticize Muslims and you are not anti-Muslim! But criticize Jews and you are antimetic? Oiveh! The fact that a hypocrite like you continues to walk around as one of us amazes me.

[ad rian]

>and the question whether

>a U.S. state court might recognize such a relationship under

>the doctrine of "comity" used in such international cases has

>not yet been litigated.

 

Actually, when it comes to reciprocal enforcement of foreign judgements, it is well established that the forum court has a public policy exception. There are cases that have addressed similar issues relating and the public policy exception is routinely invoked. You are right that the point has not been litigated yet, but from a legal point of view, unfortuntely the answer is a foregone conclusion, unless of course there might be somejurisdiction here that might permit such marriages.

[Guest Bitchboy]

>>The only interesting point ad rian makes, although it

>wasn't

>>his intention I assume, is his managing to drag in an

>>anti-Israel/Jewish reference once again. The fact that

>this

>>person continues to walk around as one of us amazes me.

>

>But the act that I was responding to Tri's bringing in a

>totally false immigration analogy to polygamous Muslim

>marriages does not fill you with the same outrage? It is

>precisely that kind of hypocrisy that leads me to add balance.

> I just love you guys. Criticize Catholics and you are not

>anti-catholic! Criticize Muslims and you are not anti-Muslim!

> But criticize Jews and you are antimetic? Oiveh! The fact

>that a hypocrite like you continues to walk around as one of

>us amazes me.

>

>

Au contraire, hateful one, I am and have posted that I am "anti-catholic priest molestors who hide behind the skirts of authority." The feeling is even growing as I read more of the Boston debacle presently being released by that fraudulent Law dude. Next they will be filing for bankruptcy in order to stem the flow of new law suits. However, what I am not is a person who can't make a post without showing my hate and bias. You, apparently, need to take an innocuous thread, twist it to suit your purpose, and throw in your misspellings and contempt for Jews. And yes I am frightened that I walk around the same city as a person like you, an obvious time bomb ticking ... ticking ... ticking ... ticking. There are many people who post here I disagree with, but there are none more despicable than you.

[ad rian]

>And yes I am frightened that I walk around

>the same city as a person like you, an obvious time bomb

>ticking ... ticking ... ticking ... ticking. There are many

>people who post here I disagree with, but there are none more

>despicable than you.

 

If it is any comfort, the feeling is mutual!

[ad rian]

>However, what I am not is a

>person who can't make a post without showing my hate and bias.

 

Don't be so sure about that. Hubris is a sin!

[Guest]

>At present, the only country in the world that actually has

>state-sanctioned same-sex marriages as a matter of affirmative

>legislation is the Netherlands, and one of the partners must

>be a Dutch citizen. Belgium is in the midst of legislating on

>same-sex marriage, and the Swiss government is considering it.

 

Ah.... You ain't much if you ain't Dutch! :D

Isn't the Belgian bill just awaiting the King's signature? (I believe the King's signature is just a formality--there would be a revolt if he didn't sign legislation passed by the Belgian legislature!)

[trilingual]

>No U.S. state allows same-sex partners to marry. Vermont

>allows us to form "civil unions," but the statute that

>authorizes that specifically says that civil unions are NOT

>marriages.

 

Thanks, Pulsator, for restating some of the points I was trying to make more clearly! However, even though Vermont's statute says that civil unions aren't marriages, to the best of my knowledge the only difference between a marriage and a civil union in Vermont is the name. The rights and obligations of the partners/spouses are the same. Since Vermont now recognizes its own binding legal same-sex relationships, it would seem to me that its courts are likely to recognize similar relationships contracted in foreign jurisdictions (like next-door Canada, where gay marriage seems about to be recognized nationwide in the near future). As far as I know, though, the issue of the validity of foreign same-sex marriages/unions has not yet been tested in the Vermont courts.

 

I doubt that a court in any other state (except, perhaps, Hawaii) would recognize a foreign gay marriage at this stage of the game. The jury is still out, it seems to me, on whether states that don't permit gay marriage must recognize a Vermont civil union. The Constitution requires each state to recognize the official acts of the other states (that's why it isn't necessary for a heterosexual couple to get married over and over again every time they go from one state to the next in order to have their relationship legally recognized) EVEN IF THAT ACT ISN'T LEGAL OR DOESN'T EXIST IN EVERY STATE. For example, near cousins may marry in some states, but not in others. If such a couple can't marry in their home state, they can marry in one that does permit such marriages, and their marriage must be recognized by the state in which they live when they return home.

 

Years ago the Supreme Court forced states that didn't permit mixed-race marriages to recognize such marriages performed in states where they were legal. The issue of recognition of same-sex marriages hasn't reached the Supreme Court yet, but if it follows its previous decisions and the plain language of the Constitution, logically it would have to require states that don't permit same-sex marriages (or whatever they're called) to recognize such marriages or civil unions that are official acts of another state, like Vermont.

 

The Defense of Marriage Act (DOMA) is probably unconstitutional, too, because the federal government is also obligated to recognize the official acts of the states. In accordance with the Constitution, the federal government should recognize a Vermont civil union, which is now an official act of the state. That issue hasn't risen to the Supreme Court yet. Nor has the question of whether the Constitution requires a state like Georgia to recognize an official Vermont civil union.

 

Unfortunately, when it comes to issues dealing with gay rights, logic and the doctrine of stare decisis usually has gone out the window at the Supreme Court. In the infamous "Bowers v. Hardwick" decision the Court utterly ignored its own settled jurisprudence which established the constitutional right of privacy, even though it's hard to imagine anything more private than consensual sexual activity in a person's own home. For that reason I don't have much hope for any help from the Supreme Court in this area, and especially not if Bush gets a chance to pack the Court with even more ultra-conservative justices in the Scalia/Thompson mold. Surprises do happen, though, as in the Supreme Court's favorable decision a couple of years back concerning an attempt in Colorado to prohibit local jurisdictions from passing gay rights ordinances and attempting to revoke any that had already been enacted. Stay tuned, guys, because this drama is only starting to unfold. . .

[Guest Pulsator]

Good points, Trilingual.

But if you look into marriage recognition cases, you will see that courts rarely mention the Full Faith and Credit Clause in those cases, and more often seem to be relying on principles of comity. There is some dispute in the legal literature about whether a marriage falls within the scope of FFC.

I would hope that a Vermont court would recognize an overseas same-sex marriage from the Netherlands (or perhaps, any day now, from Belgium!), but one can't really be sure until it happens.

[Guest]

A few years ago, my sister told me that the Consul-general (of a certain European country where gay marriages are allowed) told her that we could claim citizenship of that country anytime we wanted to. That's because even though our parents naturalized as Americans, they never renounced their prior citizenship. My boyfriend is now here somewhat illegally, applying for asylum due to gay persecution. In case that doesn't go well, I'm wondering if we could get married in Europe and have the union recognized in the US...

[trilingual]

>Good points, Trilingual.

>But if you look into marriage recognition cases, you will see

>that courts rarely mention the Full Faith and Credit Clause in

>those cases, and more often seem to be relying on principles

>of comity. There is some dispute in the legal literature

>about whether a marriage falls within the scope of FFC.

 

Being an LSDO (Law School Drop Out) I thought Full Faith and Credit and comity were the same things, but I guess they aren't, exactly. FFC only applies the official acts of the states and is explicitly required by the Constitution, whereas comity is mutual recognition of the official acts of other states (including foreign ones) as a matter of custom, courtesy and convenience as long as the foreign official act doesn't violate U.S. law or public policy.

 

To put it more concretely, the U.S. (or one of the states) recognizing a Brazilian marriage would fall under comity, as I understand it. The U.S. (or one of the states) could refuse to recognize a polygamous marriage from a country that permits them, even though it's an official act of that country, on the grounds that such marriages are both illegal and against public policy in the U.S. Polygamous marriages cannot be performed in any U.S. state, so it's clear that they have no equivalent in this country. Of course, neither the U.S. nor the states are under any constitutional obligation to recognize the official acts of another country. On the other hand, now that at least one state recognizes and performs same-sex unions, it would appear to be hard to argue against the recognition of a foreign same-sex union on the basis of illegality or being against public policy, because that's obviously no longer the case across the board in the U.S., as it is with polygamous marriages which are uniformly illegal and against public policy everywhere in the U.S.

 

In the case of a marriage contracted within the U.S., the FFC clause would apply, as I understand it, because the marriage is an official act of a state which all other states and the federal government must honor as a Constitutional requirement. Without being familiar with the cases to which you refer, I don't know if the parties asserted the FFC clause. If they didn't, I think they should have! :-) The FFC clause on its face doesn't differentiate between kinds of official acts that must be recognized; it covers ALL official acts. Isn't that how it would have to be applied from the standpoint of a strict constructionist? The plain language of the clause is unequivocal and unambiguous, so what's there for a strict constructionist to interpet? (Of course, the present Supreme Court's "strict constructionists" are no such thing, but that's a whole other topic!)

 

Anyway, that's how it looks to this LSDO, but I'd be interested in hearing your views/explanations of the interplay between FFC and comity. I'd also be curious to know what argument there could be that a marriage or civil union conducted by an agent of the state (like a judge, justice of the peace, county clerk or a minister authorized to perform marriages), under a license issued by the state pursuant to state law, is anything other than an official act of the state.

[ad rian]

>Being an LSDO (Law School Drop Out) I thought Full Faith and

>Credit and comity were the same things, but I guess they

>aren't, exactly.

 

At last, on the eve of retirement, comes the crucial admission! Actually, when it comes to recognition and enforcement of foreign judgements it is indeed a question of comity, but courts have no obligation to defer when to so would offend the public policy of the forum/local country, and would not likely do so in this case. Sorry guys, if you want to succeed here, that is where the work will have to be done. "Pointe a la ligne" as the French would say.

[trilingual]

>At last, on the eve of retirement, comes the crucial

>admission!

 

Gee, if I understand my own posting correctly, I was asking for Pulsator's comments, and not Auntie Semitic's.

 

And what crucial admission? Does anyone (other than Auntie Semitic, who can infallibly perceive the exact opposite of the plain meaning of anything anyone posts here) discern any crucial admissions? Or care to comment on the interplay between FFC and comity?

[ad rian]

>And what crucial admission? Does anyone (other than Auntie

>Semitic, who can infallibly perceive the exact opposite of the

>plain meaning of anything anyone posts here) discern any

>crucial admissions?

 

Interesting edit job. I guess that explains why you failed out of law sschool. Did you not write this admission: ">Being an LSDO (Law School Drop Out) I thought Full Faith and >Credit and comity were the same things, but I guess they >aren't, exactly."? I ought to report you for unauthorized practice of law. Your post, Mr. Amateur lawyer was entirely irrelevant. I have given the answer as succinctly as possible several times now. Thanks for confirming that what ever law school failed you had some standards after all.

[Guest Pulsator]

Girls, girls, please stop with the hissy fits and accusations.

This is not an easy area of the law. As a law school graduate and a close observer of these issues, I can tell you that many federal and state legislators as well as some courts are quite confused about the differences between Full Faith and Credit and Comity, and when they apply and when they don't.

When the Defense of Marriage Act was pending before Congress, one of our leading constitutional scholars, Prof. Laurence Tribe of Harvard Law School,testified before the Judiciary Committee that Full Faith and Credit does not apply to the issue of marriage recognition. The 1993 Hawaii Supreme Court marriage decision and the spate of enactments of marriage non-recognition laws that were pass on the federal and state level generated numerous law review articles on this topic. The resulting consensus seems to be that Tribe was correct, and that the issuance of a marriage license is generally not considered to be the kind of thing that will receive any sort of automatic recognition under FFC. In addition, the Defense of Marriage Act, passed in 1996, specifically says that FFC does not apply to the issue of recognition of same-sex marriages (although some of us think the DOMA is unconstitutional, but it has yet to be tested in the courts because, as of now, there are no same-sex marriages performed by US states to which it would apply).

[ad rian]

>Girls, girls, please stop with the hissy fits and

>accusations.

>This is not an easy area of the law. As a law school

>graduate and a close observer of these issues, I can tell you

>that many federal and state legislators as well as some courts

>are quite confused about the differences between Full Faith

>and Credit and Comity, and when they apply and when they

>don't.

 

Well as an international lawyer, I'll tell you that I don't find this a difficult analytical question at all. Of course, that does not mean I accept my own conclusions with any joy.

[trilingual]

>When the Defense of Marriage Act was pending before Congress,

>one of our leading constitutional scholars, Prof. Laurence

>Tribe of Harvard Law School,testified before the Judiciary

>Committee that Full Faith and Credit does not apply to the

>issue of marriage recognition. The 1993 Hawaii Supreme Court

>marriage decision and the spate of enactments of marriage

>non-recognition laws that were pass on the federal and state

>level generated numerous law review articles on this topic.

>The resulting consensus seems to be that Tribe was correct,

>and that the issuance of a marriage license is generally not

>considered to be the kind of thing that will receive any sort

>of automatic recognition under FFC. In addition, the Defense

>of Marriage Act, passed in 1996, specifically says that FFC

>does not apply to the issue of recognition of same-sex

>marriages (although some of us think the DOMA is

>unconstitutional, but it has yet to be tested in the courts

>because, as of now, there are no same-sex marriages performed

 

Thanks, Pulsator! I wasn't aware of this. When even someone like Tribe finds that FFC doesn't apply to marriages, that's pretty depressing! However, I appreciate your clarifying where things currently seem to stand on the issue. But from what you've described, things don't bode well if the matter ever makes it to the Supreme Court. . .

>by US states to which it would apply).