The Possible Lingering Effects of Mini-DOMAs

• Author: Mark Strasser
• Position: Trustees Professor of Law at Capital University Law School
• Pages: 1-16

THE POSSIBLE LINGERING EFFECTS OF MINI-DOMAS

MARK STRASSER*

Numerous states amended their state constitutions to limit marriage to

one man and one woman.

1

Post-Obergefell,

2

such amendments are

unenforceable insofar as they preclude same-sex couples from marrying.

But many of the marriage amendments do more than limit who may marry

whom, and Obergefell likely does not speak to the constitutionality of most

of those limitations.

3

State courts continue to offer interpretations of the

limitations imposed by their respective marriage amendments, and those

interpretations could have important implications for the significant

percentage of individuals who are in committed relationships but never

marry.

States vary with respect to the marriage limitations incorporated within

their respective constitutions.

4

Some focus exclusively on who may marry

whom, while others in addition reserve certain benefits for married

couples.

5

The amendments limiting non-marital benefits often do not

specify which benefits are off-limits for the unmarried, which means that

non-marital couples and their families may be permanently barred from

enjoying certain as-yet-unspecified advantages that all families may need.

Some state constitutional amendments limit their focus to marriage,

specifying that only marriages between one man and one woman will be

recognized.

6

These amendments were intended to accomplish at least two

Copyright © 2019, Mark Strasser.

* Trustees Professor of Law at Capital University Law School.

1

See Scott Titshaw, The Reactionary Road to Free Love: How DOMA, State Marriage

Amendments, and Social Conservatives Under mine Traditional Marriage, 115 W. VA. L.

REV. 205, 248 (2012) (“Thirty states have passed constitutional amendments restricting

marriage to different-sex couples.”).

2

Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (holding that same-sex marriage bans

violate federal constitutional guarantees).

3

But cf. Petty v. Blount-Petty, 2017-Ohio-7035, 95 N.E.3d 729, at ¶ 23 (Ct. App.)

(suggesting that Obergefell invalidated the entire Ohio marriage amendment rather than that

the amendment was only unenforceable insofar as it precluded same-sex couples from

marrying).

4

See infra note 6.

5

Id.

6

See, e.g., ALASKA CONST. art. I, § 25 (“To be valid or recognized in this State, a

marriage may exist only between one man and one woman.”); ARIZ. CONST. art. XXX, § 1

(“Only a union of one man and one woman s hall be valid or recognized as a marriage in this

state.”); ARK. CONST. amend. LXXXIII, § 1 (“Marriag e consists only of the union of one

man and one woman.”); COLO. CONST. art. II, § 31 (“Only a union of one man and one

(continued)

680 CAPITAL UNIVERSITY LAW REVIEW [47:679

ends: (1) prevent same-sex couples from celebrating a marriage within the

state,

7

and (2) prevent the state from recognizing a same-sex marriage

validly celebrated in a different state.

8

The effects of such limitations should not be minimized. Same-sex

couples domiciled in a state with such an amendment would be unable to

marry within their home state. Further, their marriages would not be

recognized in the domicile even if celebrated in a state permitting such

marriages.

9

If a couple decided to celebrate a marriage elsewhere

notwithstanding their domicile’s refusal to recognize such a marriage,

certain federal benefits would be accorded to the couple whereas others

would not.

10

Consider those same-sex couples who married in accord with the law

of their domicile. They celebrated their unions in accord with the law of

the states of celebration and domicile, and thus would have the reasonable

expectation that their marriages would be treated as valid.

11

Yet, such

couples might nonetheless be deterred from accepting employment

opportunities in a state with an amendment precluding marriage

woman shall be valid or recognized as a marriage in this state.”); GA. CONST. art. I, § 4,

¶ I(a) (“This state shall recognize as marriage only the union of man and woman.”).

7

See, e.g., GA. CONST. art. I, § 4, ¶ I(a) (“Marriages between persons of the same sex

are prohibited in this state.”).

8

See ALA. CONST. amend. DCCLXXIV(e) (“The State of Alabama shall not recognize

as valid any marriage of parties of the same sex tha t occurr ed or was alleged to have

occurred as a result of the law of any jurisdiction regardless of whether a marriage license

was issued.”); MISS. CONST. art. XIV, § 263-A (“A marriage in another St ate or foreign

jurisdiction between persons of the same gender, regardless of when the marriage took

place, may not be recognized in this State and is voi d and unenforceable under the laws of

this State.”).

9

See Mark Strasser, The Legal Landscape Post-DOMA, 13 J. GENDER RACE & JUST.

153, 161 (2009) (discussing “the long-recognized power of the domicile at the time of the

marriage’s celebration to determine the marriage’s validity.”).

10

See Mallory Chatelain, Same-Sex Marriages Are Not Created Equal: United St ates v.

Windsor and Its Legal Aftermath in Louisiana, 75 LA. L. REV. 303, 317 (2014) (“[T]he

Internal Revenue Service chose to avoid these additional problems and complications by

implementing a state-of-celebration rule to govern same-sex marriage. Nevertheless, the

Social Security Administration continues to use a state-of-domicile rule in its post-Windsor

guidance on how same-sex marriage will be handled for federal married benefits

purposes.”).

11

Mark S trasser, Unity, Sovereignty, and the Interstate Recognition of Marriage, 102

W. VA. L. REV. 393, 393 (1999) (“Traditionally . . . a marriage valid in the states of

celebration and domicile at the time of the marriage is valid in all of the states.”).