To Be or Not To Be: Married, that is
By Hawaii State Senator Will Espero
The local newspapers have reported on Maui couples flying to California to get married now that same-sex marriage is legal there. Some constituents have called to ask whether Hawaii will recognize these California marriages when the couples return.
It’s a constitutional issue revolving around a provision referred to as the Full Faith and Credit Clause. The basic principle here is that one state should honor court judgments entered in another state, giving the same credit, validity, and effect to the judgment that it had in the issuing state. The same recognition, however, does not apply to laws made by state legislatures. Every state is its own sovereign and is entitled to its own statutes. Hawaii laws govern Hawaii; California’s laws govern California, and as one professor put it, “never the twain shall meet.”
So where does marriage fit? The basic expectation under our government structure is that marriages performed in one state will be recognized in another. This is called the “celebration” rule: a marriage is valid in all states if it was valid in the state where the marriage was performed, with two exceptions. One is if a state has a specific statute denying the validity of the marriage in question, or two, if the state’s public policy is strongly against such recognition.
One example of these two exceptions is “marriage evasion statutes.” If a state prohibits a marriage and the couple goes to another state which permits it and gets married there, upon returning home, their marriage is void and will not be recognized in their home state. For example, if a state prohibits marriage of a girl under the age of 16, and a 15 year old girl elopes in another state, upon returning home, that marriage is void, and the husband can be prosecuted for statutory rape.
A second type of law is a state version of the federal Defense of Marriage Act, which reserves the right to refuse to recognize a same-sex marriage of another state.
The marital exception to the Full Faith and Credit Clause has repeatedly been upheld in courts throughout the nation, confirming and protecting states’ rights both to set out their own rules regarding what constitutes a valid marriage and to refuse to recognize marriages performed legally elsewhere that do not conform to their own requirements. Court rulings have not been limited to the same sex marriage issue. Other objections include marriage between relatives, minimum age requirements, and marriages that followed too soon after a prior divorce.
Hawaii’s laws satisfy both the specific statute and public policy exceptions to the celebration rule. Hawaii’s statutes declared the state’s public policy that marriage is between a man and a woman. When the law was challenged in court, opponents of same-sex marriage led the successful effort to get a constitutional amendment declaring that the Legislature had the power to reserve marriage to opposite-sex couples. The Hawaii Supreme Court upheld the statute limiting marriage to unions between a man and a woman in light of the marriage amendment, saying the amendment took the statute “out of the ambit of the equal protection clause.”
For those of you who enjoy scholarly discussions on the Constitution, here it is. The preferred method for determining the applicable law is to ask the extent of contact between the forum (home) state and the parties, and the parties with the other state (where the marriage was performed). Under this means for determining which state’s law prevails, the state with the most contacts is the state whose laws govern the situation. Since the Hawaii couple resides in Hawaii but only got married in California, California has nominal contact, Hawaii has greater contact, and Hawaii’s law governs. Even under this analysis, the outcome is the same: the same-sex couple’s marriage is invalid once they return to Hawaii because our state does not recognize same-sex marriage.
Senator Will Espero represents the 20th Senatorial District (Waipahu, Ewa, Ewa Beach and West Loch) on the Island of Oahu. He also serves as the Chair of the Senate’s Public Safety Committee.
The tremendous assistance of Dr. Howard H. Schweber, Professor of Constitutional Law and Professor of Government and Political Science, University of Wisconsin, in preparing this article is gratefully appreciated.