If anyone is interested in digging further into the post-DOMA issue I mentioned yesterday — whether the federal government would have to recognize a marrage validly performed in New York if the couple actually lives in Arizona — I found a law review article about it.
The article is long, as most law review articles are, but basically, the answer is: nobody yet knows how this would work.
The article goes deep into the weeds about conflict of laws. (Yay civil procedure!) In short, the author says that either Congress or the federal courts should make a uniform rule: either (1) the federal government should recognize a same-sex marriage if it was valid where performed, or (2) the federal government should recognize a same-sex marriage if it is valid where the couple currently lives.
Just because there would be confusion does not mean DOMA section 3 should not be overturned. Conflict-of-laws issues come up in family law all the time. And at any rate, there will be confusion as long some states refuse to recognize legal same-sex marriages performed in other states.
How did states handle the bi-racial marriages? My own recollection is that bi-racial marriages were accepted, you just couldn’t hold the marriage in a state where that type of marriage was against the law. I mean, President Obama’s parents’ marriage was still illegal in many states when they got married.
I just wonder how the I.R.S. handled marriages that were illegal in some states. I assume the Federal “no-law against it” position took precedent over state laws.