U.S. v. Windsor, Marriage Equality, and State Law: Considerations for Same-Sex Couples Who Travel or Reside Outside of Marriage Equality States **

The Supreme Court’s decision in U.S. v. Windsor was fantastic news for same-sex immigrant couples: their marriages are now valid for U.S. immigration purposes. United States Citizen (USC) spouses can finally petition for their same-sex noncitizen spouses, USC parents for their same-sex noncitizen married sons or daughters, and much more.

However, while the Windsor decision answered many questions regarding federal recognition of same-sex marriage, it also resulted in new questions regarding the application of the law in the majority of states that do not recognize same-sex marriage. Post-Windsor, will a valid same-sex marriage that took place in a jurisdiction that recognizes same sex marriage still be void in a state that does not?

For example, if a same-sex couple living in Washington (which recognizes same-sex marriage) crosses state lines into Oregon (which does not), does that valid marriage suddenly become void upon entry into Oregon and then suddenly valid again the second that couple crosses state lines back into Washington? At this point, the answer appears to depend on whether the marriage is being examined through the lens of federal or state law.

For immigration purposes, the Board of Immigration Appeals (BIA) recognizes the “place of celebration” rule, under which “the validity of a marriage is determined by the law of the State where the marriage was celebrated.” Matter of Lovo-Lara, 23 I. & N. Dec. 746, 753 (BIA 2005). However, under DOMA, regardless of what the state recognized, the federal government was barred from defining a same-sex union as a marriage.

Post-Windsor, the BIA has affirmed the place of celebration rule and lack of federal recognition is no longer an issue. Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA 2013). So if our couple was married in Washington State, Canada, or any other marriage equality jurisdiction, that marriage is valid for immigration and other federal purposes during the entirety of their travels. If our couple instead resides in Oregon and traveled to Washington or Canada to marry, their marriage will remain valid under federal law after their return to Oregon. Because no U.S. state with marriage equality maintains a residence requirement to marry there, our couple could theoretically enter a marriage equality state, obtain a marriage license, marry, and return to their home state all on the same day with a marriage valid under federal law.

However, regardless of the fact that the federal government will recognize the marriage as valid for its own purposes, for state law purposes, that marriage will be void in the majority of states that do not recognize same-sex marriage. One very relevant implication of this disparity is divorce. Because half of marriages end in divorce, and because state law governs divorce, this is a significant issue for married same-sex couples living in non- marriage equality states. Although their marriage may be federally valid, because it is void under state law, they may not be able to divorce there.Unlike with marriage, all states maintain residency requirements for divorce, with six months to a year being most common. Even Nevada, with the shortest residency requirement, still requires a period of six weeks.

The above discussion raises the question: Can a marriage recognized by both the jurisdiction of celebration and the federal government really be against the public policy of a state such that the Full Faith and Credit Clause of the U.S. Constitution does not demand recognition? Or are we left to resolve the issue through legislation? This conflict in applying federal and state law will no doubt continue to be litigated in the months and years to come.

**This blog was penned by Heather Fathali. Heather is a 3rd year law student at Seattle University School of Law who spends her spare time working with Greg Boos at Cascadia Cross-Border Law.