The lead story on television news on July 25 was the first gay marriages consecrated in the State of New York under its new statute. Hundreds of couples were married today, many from states as far away as California. No matter what your views may be on the subject, New York was overwhelmed with a sense of excitement about the newness of this institution.
But attorneys responsible for interpreting the law are left in a different state known as the State of Confusion. Six states have either “adopted” or “accepted” marriage among same sex couples. Forty-one states are openly hostile to this new institution. Most notable is California, which briefly accepted same sex marriage but then repudiated it in a public referendum. In California, only those marriages celebrated while same sex marriage was legal retain that character. The others, including those celebrated in New York today are probably not going to be recognized in their home state once the Californians return home. Moreover, under the Defense of Marriage Act, the United States government does not recognize these marriages, which means that a same sex couple cannot claim the benefits associated with federal retirement and social security laws.
If you are inclined to travel to New York, Connecticut, Massachusetts, New Hampshire, Vermont or Iowa in search of official recognition of a same sex relationship, you are welcome to do so. But once you step on the plane or drive across the border to another state the event you sought to preserve may have been lost. Because while the general proposition is that states should give full, faith and credit to the acts of other states, there is a corollary doctrine that states do not have to recognize laws that are inimical to their own public policy.
Clearly, many states have made it clear by statute that they endorse only those marriages contracted between men and women. In those states, it is not likely that an action for divorce between same sex couples will be afforded judicial recognition. Moreover, claims to own land as tenants by entireties (joint tenancy for married couples); to take property as a surviving spouse or to make claims under worker’s compensation laws will be ignored.
In Pennsylvania, if you want to assert rights against the spouse you married or formed a union with in another state, your rights are probably restricted to an action based on a contract. If land ownership is involved, the agreement has to be written. The euphoria associated with what has happened in the six states that recognize same sex unions does not seem to travel well. Upon return to Pennsylvania it may be wise to sit down with counsel who can describe what aspects of your relationship Pennsylvania will recognize and those it will not.
N.B. New Jersey has taken the position that it will recognize same sex marriages celebrated in states that permit it.