Indiana Law Review


Sister-State Recognition of Valid Same-Sex Marriages
Baehr v. Lewin-How Will It Play in Peoria?*

CandaceL. Sage**

Only twenty-five years ago . . . it was a crime for a black woman to marry a white
man. Perhaps twenty-five years from now we will find it just as incredible that two

people of the same sex were not entitled to legally commit themselves to each

other. Love and commitment are rare enough; it seems absurd to thwart them in

any guise.

Anna Quindlen 1

Introduction

Catherine and Dorothy live in Hawaii. They meet, fall in love, and decide to spend the

rest of their lives together. Wishing to formalize their private commitment to each other,

Catherine and Dorothy obtain a marriage license, and are wed on Waikiki beach. Among the
wedding guests are Steve and John, a couple who have flown in from California for the

occasion. Inspired by the ceremony, Steve and John also obtain a marriage license issued

by the State of Hawaii and are married in Hawaii before returning to the mainland. After

their wedding, Catherine and Dorothy inform their respective employers of their marriage.

Dorothy adds Catherine to her company's health care plan as her spouse, and they file ajoint

federal tax return at the end of the year. Although the preceding story is fictional, it

accurately portrays what may become legally achievable as a result of the groundbreaking

ruling in Baehr v. Lewin.
2

The Hawaii Supreme Court ruled in Baehr that the statute limiting marriage to opposite-

sex couples may violate the state's constitutional guarantee ofequal protection on the basis

of sex.
3 The court reinstated a lawsuit against the Hawaii Department of Health that was

instituted by same-sex couples who were seeking to marry. On remand, the state will be
required to show that continuing to deny same-sex couples marriage licenses is "justified by

compelling state interests."
4
The court declined to treat the case as a matter ofprivacy rights,

equal protection of homosexuals, or the right of same-sex couples to marry. Noting that

sexual orientation is irrelevant to the issue of same-sex marriage, the court observed that

"[p]arties to a same-sex marriage could theoretically be either homosexuals or

heterosexuals."
5 The issue is whether the "state's regulation of access to the status of

* Copyright 1994, Candace L. Sage. The express reproduction and distribution permission granted

on page viii of this issue does not apply to this Note.

** J.D. Candidate, 1995, Indiana University School of Law—Indianapolis; B.A., 1969, Indiana
University; M.A., 1971, Indiana University; M.S. in Management, 1987, Indiana Wesleyan University.

1

.

Anna Quindlen, Thinking Out Loud 35 ( 1 993).

2. 852 P.2d 44 (Haw. 1993).

3. See Haw. Const, art. I, § 5. This section provides: "No person shall be deprived of life, liberty or

property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment

of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or

ancestry."

4. Baehr, 852 P.2d at 67.

5. 7rf.at51n.il.



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INDIANA LAW REVIEW [Vol. 28:115

married persons, on the basis of the applicants' sex,"
6
denies same-sex couples the equal

protection of the laws. In other words, the question is whether allowing a man to marry a
woman, but not allowing a woman to marry a woman, is a form of sex discrimination.
Because the state's denial of access to marriage by same-sex couples is presumptively

unconstitutional, if the state fails to carry its substantial burden of showing a "compelling

state interest," same-sex marriages will be legally available in Hawaii.
7

What effect will be given to the legally-sanctioned marriages of the characters in the

scenario described at the beginning ofthis Note? IfCatherine and Dorothy remain in Hawaii,

they presumably will have full access to all the rights and obligations conferred upon married

persons. These rights include the right to any benefits extended to spouses by employers,

insurance companies, or other organizations; the right to the spouse's elective share of an

estate; the right to maintain a wrongful death action as the surviving spouse; and numerous

tax advantages. But what ifCatherine and Dorothy leave Hawaii and move to Illinois, Ohio,

Alabama, or any other state? Will the rights that they enjoy as married persons in Hawaii be

recognized in another state? What rights will Steve and John have upon their return to

California pursuant to their marriage in Hawaii? Will their marriage be recognized as valid

in California?

This Note explores the possible outcomes of validly-married same-sex couples seeking

recognition oftheir marriages from other states. Part I discusses state recognition of foreign

marriages and the public policy exception as traditionally applied to deny recognition. Part

II reviews the case history of the application of the public policy exception to marriages

involving incest, polygamy, nonage (marriages involving minors), and miscegeny (mixed-

race marriages). Part III discusses the prospective application ofthe public policy exception

to same-sex marriages. Finally, this Note briefly concludes by proposing the circumstances

under which same-sex marriages will be afforded recognition by sister states and by noting

the parallels between the struggle for acceptance of same-sex marriages and the struggle for

acceptance of mixed-race marriages.

I. Recognition of Foreign Marriages

A. The General Rule

In general, a marriage will be recognized as valid in any state if it is valid under the laws

of the state in which it is contracted.
8

If a marriage is valid where made, it is generally

recognized as valid in every otherjurisdiction.
9
Thus, the marriage ofA and B in State Xwill

be recognized in State K, with limited exceptions.
10

This rule applies regardless of the

domiciles of the parties. Consequently, if the general rule is followed, any marriage

contracted in Hawaii, valid under its laws, by parties residing either there or elsewhere, is

valid and recognizable in any other state.

Interstate recognition of marriages exists not merely as a matter of comity, but also

because public policy favors predictability, certainty, and uniformity of result in protecting

6. Id. at 60.

7. See supra note 4 and accompanying text.

8. 52 Am. Jur. 2d Marriage § 80 ( 1 970).

9. Loughran v. Loughran, 292 U.S. 2 1 6, 223 ( 1 934).

10. See infra subpart I.C.



1 994] RECOGNITION OF SAME-SEX MARRIAGE 1 1

7

the justified expectation ofthe parties." Ifthe marriage is recognized as valid, a couple who

has wed outside the forum state need not fear criminal sanctions being imposed for violation

of state laws prohibiting cohabitation or fornication. The legitimacy ofany children born to

the couple after the marriage is clearly established. The parties can rely on the property

rights that arise from their marital status to produce predictable results. The multiplicity of

rights, benefits, and obligations that are contingent upon the legal status ofmarriage depends

on the validity of the marriage in question.

In addition, recognition of sister-state marriages is favored for reasons of judicial

economy. Without such recognition, court dockets would be clogged with petitions to

determine the validity of marriages, especially in today's highly mobile society. The ability

ofa married couple to move from one state to another without disturbing the couple's marital

status or without forcing the couple to obtain ajudicial decree affirming that status supports

one of this country's basic freedoms-the unrestricted freedom of movement between and

among the states. Application ofthe rule also affords ease in the judicial determination of

validity when that question must be addressed by a court. The only issue to be resolved is

whether the marriage was valid according to the laws of the contracting state. No inquiry
into the effect ofdifferences between the laws ofthe contracting state and local marriage laws

is necessary.

B. Validation Statutes and Evasion Statutes

Some states have enacted validation statutes codifying the general rule that marriages

valid where contracted are valid in all other jurisdictions.
12

Although there are some

differences in language which may be significant, 13 the acts codify the general rule that

recognizes the validity of a marriage, "even if the parties to the marriage would not have

been permitted to marry in the state of their domicil."
14

However, some states have

engrafted, by judicial interpretation, a requirement that the marriage in question not violate

the public policy of the forum state.
15

Also, a question remains whether a state that has

enacted the Uniform Marriage and Divorce Act's validation statute will forego applying prior

11. See Restatement (Second) of Conflicts of Laws § 283 cmt. b (1969) [hereinafter

Restatement].

12. See, e.g., Cal. Fam. Code § 308 (West 1994); Idaho Code § 32-209 (1983); Kan. Stat. Ann. §

23-1 15 (1988); Ky. Rev. Stat. Ann. §402.040 (Michie/Bobbs-Merrill 1984); Neb. Rev. Stat. § 42-1 17(1988);

Unif. Marriage and Divorce Act § 210 (1973) (§210 adopted by Arizona, Colorado, Illinois, Minnesota,

Missouri, and Washington).

13. Most states use some slight variation on the language used in California's act ("A marriage contracted

outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid

in this state." Cal. Fam. Code § 308. (West 1994)). However, Kentucky's act is limited by its terms to residents

who marry out of state, leaving open the question of recognition for marriages performed out of state by non-

residents ("If any resident of this state marries in another state, the marriage shall be valid here if valid in the state

where solemnized." Ky. Rev. Stat. Ann. § 402.040. (Michie/Bobbs-Merrill 1984)).

14. Unif. Marriage and Divorce Act § 210 cmt.

15. See Estate of Loughmiller, 629 P.2d 156 (Kan. 1981) (exceptions to the statute if the marriage is

polygamous, incestuous, or prohibited by the state for public policy reasons); In re Takahashi's Estate, 129 P.2d

217 (Mont. 1942) (statute declaring miscegenic marriages null and void limits application of the validation statute).



1 1

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INDIANA LAW REVIEW [Vol. 28:115

authority decided under a previous act that codified exceptions.
16

Alternatively, other states have enacted evasion statutes to limit recognition of out-of-

state marriages by residents to those that would be valid under the laws of the forum. 17

Evasion statutes reflect the view, endorsed by the Restatement (Second) of Conflict of
Laws,

1
* that the marriage is subject to the policies ofthe state with the dominant interest in

the issue in question.
19 By enacting an evasion statute, a state asserts that its right to control

the marital status of its citizens extends beyond its geographic boundaries.20 By contrast,
some states have expressly refused to give extraterritorial effect to local state law.21 Enacting

an evasion statute also implies a state's strong interest in implementing its own policies and
its disregard for the policies of the contracting state.

22
But even in the absence of evasion

statutes, states have applied the exception to the general rule in order to invalidate marriages

that violate the public policy of the forum, particularly in cases where one or more of the

parties is a domiciliary of the forum.
23

C. The Public Policy Exception

Where a marriage made out of state contravenes a strong public policy of the forum, a

public policy exception allows the forum to refuse to recognize the marriage. Statutes that

declare certain marriages void or impose criminal sanctions on those attempting to contract

such marriages, as well as widely applied common law prohibitions (such as those against
incest and polygamy), are indicative of the strong public policy ofa state.

24 The strength of

a state's interest in implementing its policy choices is related to the methods by which the

state has indicated those choices. Statutes declaring a particular marriage void or criminal

are perhaps the strongest indicators. A critical element in applying the exception is the
domicile ofthe parties at the time the marriage was contracted. A state's interest in applying
its own policy choices is highest when both parties reside in the forum state and lowest when

neither party is a resident. When the domiciles ofthe parties are mixed, the results tend to
be mixed as well.

16. See Payne v. Payne, 214 P.2d 495 (Colo. 1950) (prior Colorado law excepted bigamous and

polygamous marriages from the operation of its validation statute).

17. E.g., Mass. Gen. Laws Ann. ch. 207, § 10 (West 1987); N.D. Cent. Code § 14-03-08 (1991); W.

Va. Code §48-1-17 (1992).

18. Restatement, supra note 11, § 283. Section 283 reads:

(1) The validity of a marriage will be determined by the local law of the state which, with respect to

the particular issue, has the most significant relationship to the spouses and the marriage under the

principles stated in § 6.

(2) A marriage which satisfies the requirements of the state where the marriage was contracted will

everywhere be recognized as valid unless it violates the strong public policy ofanother state which had

the most significant relationship to the spouses and the marriage at the time of the marriage.

19. Id. cmt. b.

20. State v. Tutty, 41 F. 753 (C.C.S.D. Ga. 1890).

2 1

.

See, e.g. , Stevenson v. Gray, 56 Ky. 193, 211(1 856) (statute prohibiting marriage between a nephew

and his uncle's widow did not invalidate the marriage, contracted out-of-state, between two Kentucky residents).

22. Id.

23. See infra Part II.

24. See generally 52 Am. Jur. 2d Marriage § 82 ( 1 970).



1 994] RECOGNITION OF SAME-SEX MARRIAGE 1 1

9

Analysis of the cases discussed in this Note indicates that the next consideration when

a marriage is challenged on public policy grounds is the nature of the prohibited conduct.

Whether a particular state will find a marriage invalid as contravening local public policy is

not readily predictable. In addition to the questions ofdomicile and the nature ofthe conduct,

the results ofapplying the exception frequently turn on whether the parties are both alive and

before the court or whether the marriage has terminated by the death of one or both of the

parties. The state's interest in enforcing its policy choices is highest when confronted with

affording a couple all the incidents that accrue to the marital state and is lowest when the

marriage has lost its vitality and only survivor rights are at stake.
25

Marriages that are incestuous (between parties in the direct line of consanguinity or

between closely-related collaterals, such as brothers and sisters) have been universally

refused recognition on the grounds that they are contrary to public policy.
26

Statutory

prohibitions against marriage between parties more remotely related, such as between an

uncle and his niece or between first cousins, have formed the basis for asserting the invalidity

ofa marriage by application ofthe exception.
27

Generally, analysis ofthe cases discussed in

this Note indicates that first-cousin marriages have been recognized as valid when at least

one of the parties was not a resident of the forum at the time the marriage was contracted.

When both parties are residents, a first-cousin marriage may violate a state's evasion statute
and thus be invalidated, even when only survivor rights were concerned.28 Marriages

between an uncle and his niece, being within a closer degree of consanguinity than first-

cousin marriages and prohibited in all states, have generated mixed results when the validity

of the marriage has been questioned, regardless of the vitality of the parties.
29

Polygamous marriages are also banned in all states as offensive to public policy.30

Although polygamous marriages of Native Americans have been recognized for all

purposes,
31
such marriages between domiciliaries of a foreign country have been recognized

only for purposes of succession.
32

Some states also apply the exception to marriages which violate state requirements
concerning the minimum age at which a party is permitted to contract a marriage. In the

cases reviewed in this Note where nonage was the issue, all the parties were living. Because

ofthe state's heightened interest in imposing its policy choices on living persons, it might be

expected that these cases would illustrate strict enforcement of nonage laws. However, in

many jurisdictions, the public policy ofthe state dictating the age of consent to marry is not

strong enough to justify invalidating a marriage where one of the parties is underage, even

when both parties are residents of the local forum.33

Before the Supreme Court struck down miscegeny laws as an unconstitutional

25. See generally Restatement, supra note 1 1, § 283 cmts. i-k.

26. 52 Am. Jur. 2d Marriage § 63 ( 1 970).

27. See infra subparts II. A. 1 and II. B. 1

.

28. See, e.g., In re Mortenson's Estate, 3 16 P.2d 1 106 (Ariz. 1957).

29. See, e.g., Campione v. Campione, 107 N.Y.S.2d 170 (N.Y. Sup. Ct. 1951); Catalano v. Catalano, 170

A.2d 726 (Conn. 1961).

30. 52 Am. Jur. 2d Marriage § 67 ( 1 970).

31. See, e.g., Hallowell v. Commons, 210 F. 793 (8th Cir. 1914), qff'd, 239 U.S. 506 (1916).

32. See infra subpart II.A.3.

33. See infra subparts II.A.2 and II. B.2.



1 20 INDIANA LAW REVIEW [Vol. 28:115

infringement of a "fundamental freedom,"
34
such laws were frequently the basis for refusal

to recognize out-of-state marriages for reasons of public policy. Generally, the strength of

the state's policy against miscegenic marriage was insufficient to require invalidation of the

marriage by extending its application to non-residents, regardless of the vitality of the

parties.
35 However, the policy was vigorously applied in refusing to recognize the

miscegenic marriage of forum residents, even when the issue was succession.36

The public policy exception is likely to be invoked to invalidate same-sex marriages

when couples seek recognition oftheir Hawaiian marriages in other states. Although some

courts have recognized certain rights of same-sex couples, such as the right to adopt the

partner's child
37
and the right to retain an apartment lease as a qualified surviving "family"

member upon the tenant's death,38 no court in the United States has recognized the rights of

same-sex couples to occupy the marital status.
39 A logical implication of this failure is that

courts will tend to resist efforts to extend recognition of valid same-sex marriages by

applying the public policy exception. Whether same-sex couples can resist invalidation of

their marriages on public policy grounds will depend on the same factors used in applying

the exception to incestuous, polygamous, underage, and miscegenic marriages: the domiciles

ofthe parties at the time the marriage was contracted; the strength ofthe policy as evidenced

by statutes prohibiting the conduct in question and by judicial interpretation of the measure

and extent of that strength; and the vitality of the parties to the marriage.

II. History of the Application of the Public Policy Exception

A. Both Parties Domiciliaries ofthe Contracting Forum

1. Incest.—One reported case addressed the issue of whether to recognize a marriage
between persons within the degree of consanguinity which the laws of the non-contracting

state declared incestuous. In Garcia v. Garcia,
40
the parties were first cousins and were both

citizens and residents of California when they married there.41 Upholding the lower court's

dismissal of an action for annulment, the Supreme Court of South Dakota refused to give

extraterritorial effect to its own laws, which declared marriages between cousins void and

subject to criminal prosecution.
42 The court held that the marriage, "valid in the state where

it was contracted, is to be regarded as valid in this state."
43

It noted that South Dakota

marriage law "cannot properly be held to apply to marriages contracted in other states, legal

and valid where contracted, and where, as in this state, there is no provision in our Code

authorizing our courts to declare such marriage legally contracted in another state void in this

34. Loving v. Virginia, 388 U.S. 1,12 (1967).

35. See infra subpart II.A.4.

36. See infra subpart II. B. 3.

37. See In re Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993).

38. See Braschi v. Stahl Assoc. Co., 543 N.E.2d 49 (N.Y. 1989).

39. See infra subpart III.B.

40. 127N.W. 586 (S.D. 1910).

41. /</.at587.

42. Id. at 589.

43. Id.

I



1 994] RECOGNITION OF SAME-SEX MARRIAGE 1 2

1

state."
44

The court's acceptance of the applicability of the rule in this case was based on two

factors: (1) the marriage was not against "the generally accepted opinions of Christendom"

(not being within the direct line ofconsanguinity or between brothers and sisters); and (2)

the legislature had not provided that such marriages in other states might be declared void

by the courts of South Dakota.
45 The question remains, then, whether a same-sex marriage

would be invalidated on the basis that it was either against the "opinions of Christendom"

or against a legislative enactment authorizing such invalidation. As to the former, it is

unlikely that a court would wish to incur an Establishment Clause
46
challenge by basing its

decision on so-called "Christian" principles. The latter situation (a statute giving

extraterritorial effect by authorizing invalidation) provides a possible avenue for avoiding

recognition ofsame-sex marriages. However, no American court has invalidated a marriage

which was validly contracted in another American state by parties domiciled there.
47

2. Underage.—Courts have refused to invalidate marriages contracted outside the
forum because the parties were underage. A New York appellate court declined to hear an
action to annul a marriage, validly contracted between residents of the British West Indies

in their place of domicile, upon the parties becoming residents ofNew York.48 In affirming
the lower court's dismissal on jurisdictional grounds, the appellate court held that New York
courts:

have no power to annul and declare invalid ab initio a marriage contracted in

another state or country between two actual bona fide residents, and citizens or

subjects, ofsuch state or country, when the marriage was by the laws of such state

or country valid when and where it was performed.
49

Similarly, an Ohio appellate court refused to invalidate a marriage performed in Pennsylvania

between two of its residents, one ofwhom was underage, because Pennsylvania courts would
not have invalidated the marriage on the grounds of nonage.

50

3. Polygamy.—The cases addressing the issue ofpolygamy without exception involve
parties validly married in foreign countries (no American state permits a polygamous union).

In actions regarding the descent of property, courts have granted the right of succession to

surviving spouses of a polygamous marriage. As noted by a California appellate court, the

public policy ofthe state in prohibiting polygamous marriages would apply only ifthe parties

attempted to cohabit within the state and such policy would not be affected by dividing the

decedent's estate between his surviving wives.
51

Polygamous marriages of foreign nationals, however, have been held invalid when the

parties are living. A New York court held that a Nigerian national could not raise, as a

44. Id.

45. Id.

46. U.S. Const, amend. I ("Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof. . . .").

47. Restatement, supra note 1 1, § 283 Reporter's Note cmts. j-k.

48. Simmons v. Simmons, 203 N.Y.S. 215 (NY. App. Div. 1924).

49. Id. at 220.

50. Abbott v. Industrial Comm'n, 74 N.E.2d 625, 628 (Ohio Ct. App. 1946).

51. In re Dalip Singh Bir's Estate, 1 88 P.2d 499, 502 (Cal. Ct. App. 1 948).



1 22 INDIANA LAW REVIEW [Vol. 28:115

defense to the charge of second-degree rape, his marriage to the complainant, whom he
claimed as his "'second' or 'junior' wife."

52 The defendant was already legally married to

another at the time of his "marriage" to the complainant in Nigeria, which allows

polygamous marriages. Citing a statutory provision declaring a bigamous marriage

"absolutely void," the court declared that "a polygamous marriage legally consummated in

a foreign country will be held invalid in New York."53

Application of the public policy exception to same-sex marriage by analogy to

polygamous marriages is unlikely, given that the polygamy exception applies exclusively to

residents of foreign countries. The analogy fails when applied to a valid same-sex marriage

contracted in the United States by U.S. citizens.

4. Miscegeny.—In applying the public policy exception to cases involving miscegeny,
the courts have uniformly recognized out-of-state marriages for purposes ofgranting the right

to succession.
54 The Supreme Court of Florida found inapplicable an antimiscegenic

provision in the state constitution and antimiscegenic statutes, and refused to invalidate a

mixed-race marriage so as to prevent the surviving spouse from inheriting property in

Florida, a state in which the marriage would have been invalid.
55 The couple were both

residents of Kansas when they married there, and had remained in Kansas until the death of

the wife.
56

Similarly, the Supreme Court of Louisiana was asked to invalidate the Spanish marriage

in Havana of a mixed-race couple, which would have prevented legitimization of their

daughter, born while the couple was unmarried and living in Louisiana, and prevented her

inheritance of her father's estate.
57

However, the court refused, noting that Louisiana law,

which prohibited miscegenic marriages, applied "to parties living in Louisiana who had

anywhere contracted the kind of marriage not permitted by its policy," and "would not have

recognized as valid in Louisiana the marriage ofCaballero in Havana."
58 The Supreme Court

ofMississippi also limited the reach of its antimiscegenic laws to parties living in Mississippi

when it recognized the marriage in Illinois of Illinois residents "to the extent only of

permitting one of the parties thereto to inherit from the other property in Mississippi."
59

The Supreme Court of California, however, fully accepted the validity of a miscegenic

marriage, prohibited under California law, validly contracted in Utah by Utah residents who

subsequently moved to California.60 Although the case involved intestate succession, the

court indicated that all the incidents of marriage would be recognized in California. The

court cited a state statute which provided that "all marriages contracted without the State,

which would be valid by the laws ofthe country in which the same were contracted, shall be

52. People v. Ezeonu, 588 N.Y.S.2d 1 16, 1 18 (N.Y. Sup. Ct. 1992).

53. Id. at 117.

54. See. e.g.. Whittington v. McCaskill, 61 So. 236 (Fla. 1913); Caballero v. Executor, 24 La. Ann. 573

(1872); Miller v. Lucks, 36 So. 2d 140 (Miss. 1948); Pearson v. Pearson, 51 Cal. 120(1875).

55. Whittington, 61 So. at 237.

56. Id. at 236.

57. Caballero, 24 La. Ann. at 575.

58. Id.

59. Miller v. Lucks, 36 So. 2d 140, 142 (Miss. 1948).

60. Pearson v. Pearson, 5 1 Cal. 1 20, 1 25 ( 1 875).



1 994] RECOGNITION OF SAME-SEX MARRIAGE 1 23

valid in all courts and places within the State."
61 By stating the rule that "[t]he validity of a

marriage (except it be polygamous or incestuous) is to be tested by the law of the place

where it is celebrated,"
62

the court implied that it would recognize for all purposes the

miscegenic marriage of living persons.

Results were mixed when courts were asked to invalidate out-of-state marriages and

hold cohabiting couples liable for violating local antimiscegenic statutes.
63 The Tennessee

Supreme Court in Bell held that it was an indictable offense for a man to live in Tennessee

with his wife, whom he validly married in Mississippi, in violation ofthe antimiscegenic laws
of Tennessee.

64 The court limited the applicability of the rule that "a marriage good in the

place where made . . . shall be good everywhere" to recognition of out-of-state marriages

where only the ceremonial formalities differed from the forum.
65

Stating that "[e]ach State

. . . cannot be subjected to the recognition ofa fact or act contravening its public policy and

against good morals, as lawful, because it was made or existed in a State having no

prohibition against it or even permitting it,"
66

the court placed miscegeny on par with

polygamy, incest between parent and child, and incest between siblings as being "revolting"

and "unnatural."
67

However, the Supreme Court ofNorth Carolina refused to find a couple, validly married

in South Carolina, guilty of fornication and adultery.
68

Even though the law of North

Carolina prohibited miscegenic marriages, the court found that it was "compelled to say that

this marriage being valid in the State where the parties were bona fide domiciled at the time

of the contract must be regarded as subsisting after their immigration here."
69

The court

reasoned that affording sister-state recognition of validly contracted marriages promotes

uniformity of laws and avoids numerous inconveniences, and that those advantages

outweighed the difficulty of subjecting the people ofNorth Carolina to "the bad example of

an unnatural and immoral but lawful cohabitation."
70

Unlike the Tennessee court in Bell, the

North Carolina court refused to treat miscegeny as analogous to incest and polygamy.
71

It

characterized polygamous marriages, and incestuous marriages in the direct line and between

nearest collaterals, as the few cases that all states agree are invalid, but noted that beyond

those cases, differences exist among the states as to which marriages are permitted. 72 Even

though "revolting" to North Carolinians, valid marriages performed in another state between

residents of that state would be recognized in North Carolina "under obligations of comity

to our sister States."
73

61. Id.

62. Id.

63. See, e.g., State v. Bell, 66 Tenn. 9 (1872); State v. Ross, 76 N.C. 242 (1877).

64. Bell, 66 Tenn. at 11.

65. Id. at 10.

66. Id. at 10-11.

67. Id. at 11.

68. State v. Ross, 76 N.C. 242, 247 ( 1 877).

69. Id.

70. Id.

71. Id. at 246.

72. Id.

73. Id. at 246-47.



1 24 INDIANA LAW REVIEW [Vol. 28:115

B. One or Both Parties Domiciliaries ofthe Local Forum

I. Incest.—In 1981, the Supreme Court ofKansas was faced with reconciling a Kansas
statute that declared first cousin marriages "incestuous and absolutely void" with its

validating statute in determining whether to recognize a Colorado marriage between a

Kansas resident and an Oklahoma resident who returned to live in Kansas.74 The court found
the marriage valid, basing its decision on the following: (1) it could not find "that a first

cousin marriage validly contracted elsewhere is odious to the public policy of this state,"

noting that sexual intercourse between first cousins was not within the statute prohibiting

incest; (2) Kansas did not have an evasion statute; and (3) there was no precedent for voiding

a marriage as an evasion of Kansas law.
75

Michigan courts have limited the applicability of its prohibition against first cousin

marriages to those solemnized in that state,
76
even recognizing such marriages when the

Michigan residents went out of state to avoid its prohibitions.
77
The Supreme Court ofOhio

recognized the validity of a marriage between one of its citizens and his first cousin in her

place of domicile, Massachusetts.
78

In order to avoid a Massachusetts evasion law which

would have invalidated the marriage, the Ohio court had to decide the question of whether

a marriage between first cousins was void ab initio in Ohio.
79

Based on the absence of a

statute expressly declaring such marriages void and the absence ofcriminal sanctions against

sexual relations between first cousins, the court found that first cousin marriages were not

void ab initio in Ohio. Because the Massachusetts marriage was valid, the court recognized

the marriage in Ohio.
80

Recognizing the validity of an Italian marriage between a New York resident and his
Italian niece, a New York court stated that, although a marriage between an uncle and a niece
is incestuous and void under New York law, the prohibition applied only to marriages
performed in that state.

81
While stating the rule that "marriages, legal where performed, will

be recognized in New York unless repugnant to the laws of nature," the court noted that
uncle-niece marriages were legal in New York prior to 1 893 and presently were "not
universally condemned."

82 The implication is that uncle-niece marriages are not "repugnant

to the laws of nature."
83

Evasion statutes have been invoked to invalidate incestuous marriages where at least one

party is a resident ofthe forum. The Supreme Court ofArizona, applying an evasion statute,

did not recognize the marriage of two of its residents for the purposes of intestate

succession.
84 The couple, who were first cousins, had been validly married in New Mexico

74. Estate of Loughmiller, 629 P.2d 1 56, 1 58 (Kan. 1 98 1 ).

75. Id. at 161.

76. See Toth v. Toth, 2 1 2 N.W.2d 8 1 2, 8 1 3 (Mich. Ct. App. 1 973).

77. See In re Miller's Estate, 214 N.W. 428 (Mich. 1927).

78. Mazzolini v. Mazzolini, 155 N.E.2d 206 (Ohio 1958).

79. Id. at 208.

80. Id. at 208-09.

81. Campione v. Campione, 107 N.Y.S.2d 170, 171 (N.Y. Sup. Ct. 1951).

82. Id.

83. Id.

84. In re Mortenson's Estate, 316 P.2d 1 106, 1 108 (Ariz. 1957).



994] RECOGNITION OF SAME-SEX MARRIAGE 1 25

and then returned to Arizona to live. A Connecticut court similarly used an evasion statute
to deny the validity ofa marriage contracted in Italy between one of its citizens and his Italian

niece.
85 The court based its finding that an uncle-niece marriage was against the strong

public policy of the state on the state's long-standing statutory prohibition against such

marriages and its imposition of criminal penalties "for such kindred to either marry or

carnally know each other."86 The dissent criticized the majority's denial of survivor's rights,

finding the widow "innocent of any intent to violate [Connecticut] laws."87 The dissent

would have sustained annulling the marriage only if it was clear that the parties married

outside the state to avoid its laws.
88

Similarly, a New Jersey court denied full recognition of an Italian marriage between a
New Jersey resident and his Italian niece.89 Because the intention of the parties at the time
ofthe marriage was to reside in New Jersey, the court found that the validity of the marriage
should be determined by New Jersey, not Italian, law.90 The court held that recognition of
the marriage as valid would be contrary to the public policy of the state as evidenced by its

statutes that declared uncle-niece marriages absolutely void and subject to criminal

sanctions.
91

2. Underage.—Modern courts are more willing to apply the doctrine of comity and
recognize out-of-state marriages in nonage cases than in cases involving incest or miscegeny.

Generally, such marriages are voidable by statute, not void ab initio.
92

Absent an action by

one of the parties, courts have upheld the validity of marriages by underage residents, even

when contracted out-of-state to evade local age requirements.93 The Supreme Court of

Arkansas agreed with a trial court's finding that the Mississippi marriage oftwo Arkansas

residents, who were both underage by Arkansas law, was valid.94 The court found "no strong

public policy in this state requiring the courts to declare that marriages such as the one

involved here are void ab initio." Similarly, a New Jersey court recognized the Maryland
marriage of two New Jersey residents as valid until annulled, even though "the juveniles
were married in Maryland to evade [the] New Jersey statute."95

The Tennessee Supreme Court applied Georgia law to validate the marriage of two of

its residents, one ofwhom was underage by Tennessee standards.96 In denying the petition
for annulment by the wife's father, the court noted that the public policy ofthe state regarding

85. Catalano v. Catalano, 1 70 A.2d 726, 728 (Conn. 1 96 1 ).

86. Id.

87. Id. at 731.

88. Id. at 731-32.

89. Bucca v. State, 128 A.2d 506, 511 (N.J. Super. Ct. Ch. Div. 1957).

90. /ty. at 5 1 0.

91. Id. at 510-1 1. Compare, Campione v. Campione, 107 N.Y.S. 2d 70 (N.Y. Sup. Ct. 1951), discussed

supra at notes 81-83 and accompanying text.

92. Wilkins v. Zelichowski, 140 A.2d 65 (N.J. 1958); Mitchell v. Mitchell, 1 17 N.Y.S. 671 (N.Y. Sup.

Ct. 1909).

93. State v. Graves, 307 S.W.2d 545 (Ark. 1957); In re State in Interest of I., 173 A.2d 457 (N.J. Juv.

&Dom. Rel. Ct. 1961).

94. Graves, 307 S.W.2d at 547.

95. In re I., 173 A.2dat460.

96. Keith v. Pack, 1 87 S. W.2d 6 1 8 (Tenn. 1 945).



126 INDIANA LAW REVIEW [Vol. 28:1 15

underage marriages, as evidenced by its statutes, provided for discretionary annulment of

such marriages, unlike miscegenic marriages, which were void by statue.
97

Kentucky's

highest court held underage marriages to be voidable only ifthey were contracted in the state,

reaching this result on the basis of its validating statute.
98 The court found that underage

marriages were not against the public policy ofKentucky as such marriages could be ratified

by later cohabitation and were declared by statute to be merely voidable, not void.99

An early nonage case applied local law to annul the out-of-state marriage of two of its
citizens.

100 The Supreme Court ofOklahoma refused to consider the validity of a marriage

between Oklahoma residents, one ofwhom was underage, under the law ofArkansas, where
it had been contracted.

101
Invoking the state's sovereign right to determine the status of its

citizens, the court applied Oklahoma law to affirm the lower court's annulment of the

marriage.
102

3. Miscegeny.—With one exception, courts have applied the public policy exception
vigorously to invalidate miscegenic marriages where at least one ofthe parties was domiciled

in the forum state. In Medway v. Needham, 103 the exceptional case, a couple residing in
Massachusetts was married in Rhode Island where miscegenic marriages were not

prohibited, then returned to Massachusetts to live. The Massachusetts Supreme Court

refused to give extraterritorial effect to its laws, which prohibited miscegenic marriages and

declared them void.
104

In finding that miscegenic marriages could be declared void only "if

contracted within this state,"
105

the court reasoned that the avoidance of "extreme

inconveniences and cruelty"
106

required recognition of marriages contracted outside the

forum. The court distinguished the application ofthe public policy exception to cases, such

as incest, "which would tend to outrage the principles and feelings of all civilized nations,"

from the toleration ofmarriages, such as miscegenic marriages, "which are prohibited merely

on account ofpolitical expediency."
107 The precedential effect ofMedway, however, carried

little weight, especially after Massachusetts enacted an evasion statute that would have

dictated a different result.
108

The strongest assertion of the public policy exception to invalidate out-of-state

97. Id. at 619.

98. Mangrum v. Mangrum, 220 S.W.2d 406, 408 (Ky. 1949).

99. Id.

100. Ross v. Bryant, 217 P. 364 (Okla. 1923).

101. Mat 365.

102. Id. at 366.

103. 16 Mass. 157, 158(1819).

104. Id. at 159.

105. Id.

106. Id. at 160.

107. Id. at 161.

1 08. State v. Kennedy, 76 N.C. 25 1 , 253 ( 1 877). In reviewing precedent on the recognition of marriages

contracted out-of-state by in-state residents, the Kennedy court noted that after the decision in Medway,

Massachusetts enacted legislation to "extend her law prescribing incapacities for contracting marriage over her own

citizens who contract marriage in other countries by whose law no such incapacities exist"; i.e., an evasion statute.

Since the decision in Medway was based on the absence of any ability to give extraterritorial effect to its own laws,

the presence of an evasion statute would have overcome this deficiency.



1 994] RECOGNITION OF SAME-SEX MARRIAGE 1 27

marriages occurred when courts applied the principle to miscegenic marriages. In refusing

to allow the right ofsuccession to the surviving spouse ofa miscegenic marriage ofLouisiana

residents, the Supreme Court of Louisiana concluded:

Whatever validity might be attached in France to the singular marriage contract,

and subsequent unnatural alliance there celebrated between the plaintiff and the

deceased testatrix, it is plain that, under the facts in evidence, the Courts of

Louisiana cannot give effect to these acts, without sanctioning an evasion of the

laws, and setting at naught the deliberate policy ofthe State.
109

The same North Carolina court that gave full recognition to an out-of-state miscegenic

marriage ofnon-residents
110

later affirmed the conviction oftwo of its residents on charges

offornication and adultery.
111 The couple's marriage, which was validly contracted in South

Carolina and which would have been a defense to the charges, was not recognized by the

court, based upon the North Carolina law, which declared miscegenic marriages void.
112 The

court distinguished the rule that the place of contracting governs the formalities of the

marriage from the rule that the place of domicile determines the capacity of its citizens to

marry: "[W]hen the law ofNorth Carolina declares that all marriages between negroes and

white persons shall be void, this is a personal incapacity which follows the parties wherever

they go so long as they remain domiciled in North Carolina."
113

The Supreme Court ofVirginia refused to recognize the miscegenic marriage oftwo of

its residents, validly contracted in the District of Columbia, for the purposes of legitimizing

the offspring ofthe parties and thereby allowing the children to recover a legacy.
1 14

Refusing

to consider the applicability ofstatutes that legitimized the issue ofparents who subsequently

married and those ofa marriage deemed null at law, the court based its decision upon the rule

that the place of domicile determines the personal capacity of its residents to marry.
115 As

pointed out by the dissent, the legitimizing statutes had been applied to hold legitimate the

children of a bigamous marriage
116

(the only other grounds, besides miscegeny, which

rendered a marriage absolutely void under Virginia law).
117

However, the decision implies

that the majority considered miscegeny the more serious offense.

In 1890, a federal circuit court in Georgia found no constitutional impediment to the

state ofGeorgia's indictment, on charges offornication, ofa Georgia couple who had left the

state to contract a valid marriage in the District of Columbia, then returned to Georgia to

reside.
118 The court reviewed the state's antimiscegenation and evasion statutes and found

both to be proper exercises ofthe state's authority to regulate marriages.
119 As in the other

109. Dupre v. Boulard's Executor, 10 La. Ann. 411,412 (1855).

110. State v. Ross, 76 N.C. 242 (1877). See supra notes 68-73 and accompanying text.

111. Kennedy, 76 N.C. at 253.

112. Id. at 252.

113. Id.

1 14. Greenhow v. James' Executor, 80 Va. 636, 638-39 (1885).

115. Mat 641.
1 16. Id. at 649.

117. Mat 646.
1 18. State v. Tutty, 41 F. 753 (C.C.S.D. Ga. 1890).

119. Id. at 762-63.



1 28 INDIANA LAW REVIEW [Vol. 28:115

cases, the circuit court distinguished between the rule recognizing foreign marriages where

the form and ceremony differed from local law and the rule that such marriages are void if

against the public policy of the state of domicile.
120

The Supreme Court of Oklahoma ruled that the surviving spouse of a miscegenic

marriage had inherited no property rights from his deceased spouse because the marriage

was void under Oklahoma law. 121 Since both parties were Oklahoma residents before and

after their marriage was contracted in Arkansas, the court refused to recognize the validity

of the marriage because it was made in evasion of Oklahoma's antimiscegenation statute. 122

The Supreme Court ofMontana also refused to recognize a miscegenic marriage, finding that

it had been made in order to evade local law. 123 Montana's statute, which declared

miscegenic marriages "utterly null and void," extended its reach to apply to such marriages

contracted elsewhere by Montana residents. 124 Because the deceased husband was a

Japanese national and a resident ofMontana at the time ofthe marriage, the court refused to

recognize his spouse as the surviving widow.
125

The cases discussed above indicate a strong willingness by the courts to invalidate the

miscegenic marriages of state residents. Given that prior to 1967, there was a split of

opinion among the states as to the propriety of such marriages, 126 the consistency of results

in refusing to recognize miscegenic marriages is noteworthy. With one exception,
127

the

courts ignored the policy choices ofthe states in which the marriages were validly contracted.

In contrast, the split ofopinion among the states as to the propriety of first-cousin marriages

did not generate the same consistency of results. 128 Rather, courts were more willing to

accept the policy choices of the contracting forum in recognizing out-of-state first-cousin

marriages, even though such marriages were prohibited as incestuous by local law.

Proponents of recognition of out-of-state same-sex marriages should take note of the

contrast in the results ofapplying the public policy exception to miscegenic and first-cousin

marriages of local domiciliaries. Proponents could argue that the same deference given to

the policy choices of sister states regarding first-cousin marriages should be given to policy

choices of sister states regarding same-sex marriages. Opponents could be placed in the

embarrassing position of appealing to the authority of courts that enforced the miscegeny

prohibitions that were declared unconstitutional more than a quarter century ago.

III. Same Sex of Parties as a Public Policy Exception

Resistance to the recognition of valid same-sex marriages depends on successfully

establishing that the public policy ofthe state contravenes such recognition. Evidence of a

120. Id. at 761-62.

121. Eggers v. Olson, 231 P. 483, 486 (Okla. 1924).

122. A/, at 485.

123. In re Takahashi's Estate, 129 P.2d 217, 222 (Mont. 1942).

124. Id. at 219.

125. Id. at 222.

126. Loving v. Virginia, 388 U.S. 1, 6 n.5 (1967).

1 27

.

See Medway v. Needham, 1 6 Mass. 157(1819), discussed supra at notes 1 04-08 and accompanying

text.

1 28. See supra subpart II. B. 1

.



1 994] RECOGNITION OF SAME-SEX MARRIAGE 1 29

state's public policy regarding same-sex marriages may be adduced from the presence or

absence of state statutory prohibitions and from state decisional authority on the subject.

Other factors that indicate the strength of a state's public policy against same-sex marriage

are state constitutional provisions and court decisions on matters related to the incidents of

marriage where the couple is of the same sex. In regard to the latter, such matters as child

custody decisions and visitation rights, adoption, division ofproperty, and rights ofsurvivors

may be instructive.

A. Statutory Prohibitions

Statutory prohibitions regarding same-sex marriages may be in the form of a statute

limiting the term "marriage" to parties ofthe opposite sex. The limitation may be express129

or implied.
130 The absence of same-sex marriages from the list of those prohibited by the

state may bolster the argument that the policy of the state is insufficient to require
invalidation of such marriages.

131 To counter the attachment of significance to the absence

ofsame-sex marriages from the list ofstatutory prohibitions, an argument could be made that

since marriage, by definition, contemplates that the parties are ofthe opposite sex, an explicit

prohibition would be superfluous. Overcoming this objection would require the court to

eschew acceptance of the circular argument that marriage is limited to a union between a

man and a woman because marriage is a union between a man and a woman. 132

The existence of sodomy statutes may be used as evidence of a state's public policy

against same-sex marriage. The implication is that a same-sex marriage necessarily includes

homosexual activity of the type prohibited by statute. Twenty-one states currently have

active sodomy statutes, four ofwhich limit the prohibition to persons ofthe same sex. 133 The

difficulty in using the existence of a sodomy statute as evidence of a state's public policy

against same-sex marriage is threefold.

1 29. E.g. , the Uniform Act clearly defines the limitation: "Marriage is a personal relationship between a man

and a woman " Unif. Marriage and Divorce Act § 201 (1973). Ohio's statute states the limitation more

ambiguously: "Male persons . . . and female persons . . . may be joined in marriage." Ohio Rev. Code Ann. §

3101.01 (Anderson 1989 & Supp. 1993). The ambiguity arises because, by using the plural, one might read the
statute to mean "male persons may bejoined and female persons may bejoined." However, an Ohio court construed

the statute to permit marriage "only between members ofthe opposite sex." Gajovski v. Gajovski, 610 N.E.2d 43 1,

433 (Ohio Ct. App. 1991).

130. E.g., the Hawaii statute implies the limitation, stating: "The man does not at the time have any lawful

wife living and that the woman does not at the time have any lawful husband living." Haw. Rev. Stat. § 572-1(3)

(1993) (emphasis added).

131. Although the Uniform Act clearly limits the term "marriage" to "a man and a woman" (supra note

1 30), it does not include as a prohibited marriage one in which the parties are ofthe same sex. Unif. Marriage and

Divorce Act § 207 (1973).

132. See Baehr v. Lewin, 852 P.2d 44, 61, discussed supra at notes 2-7 and accompanying text, which

characterized similar reasoning as "circular and unpersuasive."

133. The states in which sodomy is prohibited, regardless of the sex of the participants are Alabama,

Arizona, Florida, Georgia, Idaho, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Montana, North

Carolina, Oklahoma, Rhode Island, South Carolina, Utah, and Virginia; the states which prohibit sodomy only

between persons ofthe same sex are Arkansas, Kansas, Missouri, and Tennessee. Sodomy Statutes, The Lambda

Update (Lambda Legal Def. and Educ. Fund, New York, N.Y.), Spring 1993, at 17.



130 INDIANA LAW REVIEW [Vol. 28:1 15

First, such use assumes that the parties to a same-sex marriage are homosexual. As the
Supreme Court of Hawaii indicated in Baehr, the sexual orientation of the parties is

irrelevant to the issue of same-sex marriage.
134

Because the parties to a same-sex marriage

may be heterosexual, the existence ofa sodomy statute does not provide cogent evidence of
a state's public policy concerning same-sex marriage.

Secondly, sodomy statutes merely proscribe certain types of sexual behavior between

unmarried participants.
135

Thus, in a state prohibiting sodomy regardless ofthe sex ofthe

participants, the sodomy statute is no more indicative of public policy against same-sex

marriage than it is of public policy against opposite-sex marriage. The intent of the statute

is to proscribe certain sexual activity between unmarried individuals, not to proscribe sexual

activity between persons married to each other.

Thirdly, use of a sodomy statute as evidence ofa state's public policy against same-sex

marriage assumes that the parties will necessarily engage in sexual activity. Because it is

neither assumed nor required that sexual activity will occur between parties to an opposite-

sex marriage,
136

it is illogical to make a similar assumption or impose a similar requirement

on the parties to a same-sex marriage. Consequently, a statute prohibiting certain acts would

shed little light on the subject ofa state's public policy regarding the status between parties

who may or may not commit those acts. In sum, the existence of a sodomy statute has no
relevance in determining a state's public policy regarding same-sex marriage.

B. Case History ofSame-Sex Marriage

Until the Baehr decision, the outcome ofcases addressing questions regarding same-sex

marriage was consistently unfavorable to the parties seeking to assert the right to marry.

Cases challenging the state's refusal to issue marriage licenses to same-sex couples (Baker

v. Nelson,
137

Jones v. Hallahan,
m

and Singer v. Hara139) were uniformly decided in favor

of the state's right to deny those couples the right to occupy the marital status.
140 The

relevance ofthese decisions to the issue ofapplying the public policy exception to invalidate

a same-sex marriage is questionable. In all three cases, the question presented was not

whether the public policy ofthe state prohibited recognition of a same-sex marriage validly

contracted out-of-state, but whether state law authorized issuance of marriage licenses to

same-sex couples. A similar distinction can be made between a court deciding that first-

1 34. Baehr, 852 P.2d at 5 1 n. 1 1 , discussed supra at notes 2-7 and accompanying text.

135. E.g., Utah Code Ann. § 76-5-406 (1990 & Supp. 1993). This section reads, in part: "An act of .

.

. sodomy ... is without consent of the victim [if] ... (7) the actor knows that the victim submits or participates

because the victim erroneously believes that the actor is the victim's spouse . . . ." In other words, the crime of

sodomy is not committed if the participants are each other's spouse.

1 36. The only area in the marriage statutes where sexual activity is mentioned is when an annulment ofthe

marriage is sought because one party "lacks the physical capacity to consummate the marriage by sexual

intercourse, and at the time the marriage was solemnized the other party did not know of the incapacity." Unif.

Marriage and Divorce Act § 208(a)(2) (1973).

137. 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972).

138. 501 S.W.2d 588 (Ky. 1973).

139. 522 P.2d 1 1 87 (Wash. Ct. App. 1 974).

140. For an in-depth analysis of Baker, Jones, and Singer, see Otis R. Damslet, Note, Same-Sex Marriage,

10 N.Y. L. Sch. J. Hum. Rts. 555, Parts III-A, III-B, and III-C (1993).



1 994] RECOGNITION OF SAME-SEX MARRIAGE 1 3

1

cousin marriages are not authorized by state law, yet deciding to recognize a first-cousin

marriage validly contracted elsewhere. The narrower and more pertinent question is whether

a state, which has found that its own statutes prohibit same-sex marriage, will give

extraterritorial effect to that local prohibition. The precedential value of these decisions is

that the question ofwhether same-sex marriages are prohibited locally has been answered.

The courts in those states, like the courts in others, will still be required to answer choice-of-

law questions, determine the strength of the public policy supporting the prohibition, and

decide whether state policy choices should be enforced by invalidating the marriages.

Two cases have addressed the question of the validity of a same-sex marriage. In
Anonymous v. Anonymous, a New York court declared that the marriage ceremony in Texas
between a New York male resident and a male who appeared to be female (and who was
presumably a resident ofTexas) was a nullity.

141 The court did not consider Texas law, but

based its decision on the assertions that "[t]he law makes no provision for a 'marriage'

between persons of the same sex" and that "[mjarriage is and always has been a contract

between a man and a woman."142 Apparently, the court assumed these assertions were

universal truths, thereby obviating the need to consult Texas law. Since that assumption

could not be made when faced with a same-sex marriage contracted in a state which

recognized such marriages, that case is inapposite for the question at hand.

In Adams v. Howerton, the Ninth Circuit held that the marriage of two males in

Colorado did not qualify one ofthe parties to be the "spouse" ofthe other for immigration

purposes.
143

Finding it unnecessary to determine the validity of the Colorado marriage, the

court determined that "Congress intended that only partners in heterosexual marriages be

considered spouses"
144

under an immigration law provision granting preferential admission

treatment to spouses. This conclusion was based upon two factors: (1) Congress did not

indicate an intent to enlarge the meaning of the term "marriage" to include same-sex

marriages, and (2) provisions excluding homosexuals were part ofthe same immigration act,

implying an inconsistency if homosexuals were then accorded preferential treatment as

spouses. In regard to the first factor, the court's reasoning is flawed in that it merely

reiterates the circular argument that the term "marriage" does not include relationships

between two persons ofthe same sex because two persons ofthe same sex cannot marry. As

to the second factor, the court erroneously assumes that homosexuality is a prerequisite of

same-sex marriage. As noted in Baehr, the sexual orientation of the parties is irrelevant to

a same-sex marriage.
145

A New York court refused to allow the surviving partner ofa homosexual relationship
to claim spousal rights against his partner's will.

146
Asserting that the only reason he and the

decedent were not married was "because marriage license clerks in New York state will not
issue licenses to persons of the same sex," 147 the surviving partner argued that the denial

141. 325 N.Y.S.2d 499, 501 (N.Y. Sup. Ct. 1971).

142. Id. at 500.

143. 673 F.2d 1036 (9th Cir. 1982), cert, denied, 458 U.S. 1111 (1982).

144. Id. at 1041.

145. Baehr, 852 P.2d at 5 1 n. 1 1, discussed supra at notes 2-7 and accompanying text.

146. In re Estate of Cooper, 564 N.Y.S.2d 684 (N.Y. Sur. Ct. 1990), qffd, 592 N.Y.S.2d 797 (N.Y. App.

Div. 1993), appeal dismissed, 82 N.Y.2d 801 (N.Y. 1993).

147. Id. at 685, quoting appellant's petition.



1 32 INDIANA LAW REVIEW [Vol. 28:115

deprived him ofhis constitutional guarantee ofequal protection ofthe law. 148 The court held

that "persons ofthe same sex have no constitutional rights to enter into a marriage with each

other."
149

Because the surviving partner did not contend that he and the decedent were

married to each other, the precedential value of this decision suffers from the same

limitations as those ofBaker, Jones, and Singer?
50 The decision that a same-sex marriage

cannot be entered into in New York is not dispositive of the issue of the validity of such
marriages entered into elsewhere.

C. State Constitutional Provisions

The heart ofthe Baehr decision is that the state statute restricting marriage to opposite-

sex couples may violate the equal protection provision of the state constitution. 151 The
Hawaii Constitution specifically bans discrimination on the basis of sex, as do the

constitutions of several other states.
152

In states that have constitutional provisions similar

to Hawaii's, such provisions may provide a definitive answer to the question of discerning
the public policy ofthe state with respect to same-sex marriage. A constitutional provision
that prohibits an abridgment of rights on the basis of sex is a public policy statement of

sufficient strength to abrogate any legislative enactments expressing a contrary policy.

Consequently, in a state having such a provision, invalidation of a same-sex marriage by

application ofthe public policy exception may be avoided by urging that the state constitution

would be violated by allowing a man to marry a woman yet prohibiting a woman from
marrying a woman.

Singer, however, is contrary authority.
153 The Washington Supreme Court held that the

148. See U.S. Const, amend. XIV, §1.

149. In re Estate ofCooper, 564 N.Y.S.2d at 685.

1 50. See discussion supra at notes 1 38-40 and accompanying text.

151. See Baehr v. Lew in, 852 P.2d 44, discussed supra at text accompanying notes 2-7.

1 52. See Colo. Const, art. II, § 29 ("Equality of rights under the law shall not be denied or abridged by

the state ofColorado or any of its political subdivisions on account ofsex."); Conn. Const, art. I, § 20 ("No person

shall be denied the equal protection ofthe law nor be subjected to . . . discrimination in the exercise or enjoyment

of his or her civil or political rights because of . . . sex "); III. Const, art. I, § 18 ("The equal protection of the

laws shall not be denied or abridged on account of sex by the State or its units of local government and school

districts."); La. Const, art. I, § 3 ("No law shall arbitrarily, capriciously, or unreasonably discriminate against a

person because of birth, age, sex, culture, physical condition, or political ideas or affiliations."); Mass. Const, art.

I ("Equality under the law shall not be denied or abridged because of sex . . . ."); Md. Const. D. of R. art. 46

("Equality of rights under the law shall not be abridged or denied because of sex."); Pa. Const, art. I, § 28

("Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because

ofthe sex of the individual."); R.I. Const, art. I, § 2 ("No person shall be . . . denied equal protection of the laws.

No otherwise qualified person shall, solely by reason of race, gender or handicap be subject to discrimination by the

state, its agents or any person or entity doing business with the state."); Tex. Const, art. I, § 3a ("Equality under

the law shall not be denied or abridged because of sex . . . ."); Utah Const, art. IV, § 1 ("Both male and female

citizens of this State shall enjoy equally all civil, political and religious rights and privileges."); Wyo. Const, art.

VI, § 1 ("Both male and female citizens of this state shall equally enjoy all civil, political and religious rights and

privileges.").

1 53. Singer v. Hara, 522 P.2d 1 1 87 (Wash. Ct. App. 1974), discussed supra at text accompanying note

140.



1 994] RECOGNITION OF SAME-SEX MARRIAGE 133

state's equal rights amendment "does not require the state to authorize same-sex

marriage."
154

Although this holding does not support the proposition that invalidating out-of-

state same-sex marriages would violate the state's constitutional guarantee of equal rights

regardless of sex, neither does it support the proposition that invalidation is mandated by

state policy.

Other state constitutional provisions may also be helpful in avoiding invalidation on

public policy grounds.
155 A provision that prohibits the granting of privileges or immunities

to one citizen or class ofcitizens that is not granted to all citizens supports the argument that

states violate their constitutional mandates in recognizing the marriages of opposite-sex

couples while denying the same privilege to same-sex couples.

It might prove quite difficult, however, to appeal to state constitutional provisions to

avoid invalidation ifthey are similar to provisions in the United States Constitution. Baker
156

is authority for the proposition that state denial ofmarriage licenses to same-sex couples is

not violative of the First, Eighth, Ninth, or Fourteenth Amendments of the United States

Constitution.
157 The United States Supreme Court dismissed the appeal from the Minnesota

court's decision in Baker for want of a substantial federal question.
158

Because such a

dismissal operates as a holding that the constitutional challenge was rejected, 159 Baker

remains good authority that there is no constitutional impediment on the federal level to

prohibit same-sex marriages.

Conclusion

If the subsequent decision in Baehr ends Hawaii's restriction of marriage to opposite-

sex couples, same-sex couples will marry in Hawaii and will seek recognition of their

marriages in other states. Because it is generally believed that a same-sex marriage implies

that the parties are homosexual, and because "[p]olls about gays suggest that Americans are

most tolerant of sexual differences when they don't have to confront them,"160 it is almost

154. Id. at 1195.

155. See Ariz. Const, art. II, § 13 ("No law shall be enacted granting to any citizen, class of citizens or

corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong

to all citizens or corporations."); Cal. Const, art. I, § 7(b) ("A citizen or class of citizens may not be granted

privileges or immunities not granted on the same terms to all citizens."); Ind. Const, art. I, § 23 ("The General

Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms,

shall not equally belong to all citizens."); Iowa Const, art. I, § 6 ("[T]he General Assembly shall not grant to any

citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all

citizens.").

156. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed 409 U.S. 810 (1972). See

discussion accompanying supra note 138.

1 57. Id. at 1 87. Baker argued that the Ninth Amendment guaranteed a fundamental right to marry that, by

application of the Fourteenth Amendment, could not be restricted. Further, Baker contended that the Due Process

and Equal Protection Clauses of the Fourteenth Amendment were offended by the state's restriction of marriage to

only opposite-sex couples. Baker's First and Eighth Amendment challenges were dismissed by the court without

discussion.

158. Id.

159. Hicks v. Miranda, 422 U.S. 332, 344 (1975).

1 60. The Power and the Pride, Newsweek, June 2 1 , 1 993, at 60.



134 INDIANA LAW REVIEW [Vol. 28:115

certain that the visibility attendant to seeking recognition will encounter resistance. Whether

same-sex couples can overcome such resistance will depend on whether choice-of-law issues

and issues regarding the public policy exception to recognition of valid marriages are

resolved in their favor.

Assuming a decision favorable to the plaintiffs in Baehr, same-sex couples who reside
in Hawaii when they marry will probably be afforded recognition oftheir marriages in other

states. Other couples, who are domiciled outside of Hawaii when they marry there, will
probably generate a patchwork of decisions when they seek recognition—some of those
marriages will be recognized, but others will be invalidated. The uncertainty ofresults would

fuel an inexorable march to the door of the United States Supreme Court, much as the

miscegeny decisions did a generation ago.
161

In Justice Warren's words, "The freedom to marry has long been recognized as one of

the vital personal rights essential to the orderly pursuit of happiness by free men."
162

For

those free men (and women) long denied this right, the Hawaii Supreme Court has

courageously cracked open the access door. Only after the legal battles have been fought will

we know whether other state courts can match its courage.

161 . Loving v. Virginia, 388 U.S. 1 (1967), discussed supra at note 34 and accompanying text.

162. Id. at 12.