December 21, 2012
In November, I wrote about how the Supreme Court’s affirmation of U.S. v. Windsor (Windsor v. U.S. before the Supreme Court agreed to review it) would lead to the demise of all state laws banning same-sex marriage.
This would be the case regardless of whether the Court explicitly held (either in Windsor or in Prop 8 challenge Hollingsworth v. Perry) that the Fourteenth Amendment prohibited such state laws or merely struck down DOMA’s Section 3 more narrowly.
The Court strikes down Section 3 by finding that federal laws that discriminate on the basis of sexual orientation fail either intermediate scrutiny or rational basis “with teeth.”
Once that precedent is set, the nation will see a wave of legal challenges to DOMA’s Section 2 – which allows states to bypass the Constitution’s Full Faith and Credit Clause and refuse to recognize same-sex marriages from other states.
These challenges will almost certainly succeed, and with Section 2 gone, states will be forced to recognize same-sex marriages solemnized in any one of the nine states in which the practice is legal.
Should any state refuse to recognize an out-of-state same-sex marriage – an extremely likely possibility – that state could expect a legal challenge in response.
Of course, because of Williams v. North Carolina (among other rulings), a case decided by the Supreme Court on December 21, 1942, any such challenges should quickly be resolved in the respective plaintiff’s favor.
Williams dealt not with interstate marriage but interstate divorce.
The case started as criminal convictions against O. B. Williams and Lillie Shaver Hendrix for violations of state laws against “bigamous cohabitation.”
These convictions arose not because the two sought to have more than one spouse, but because of how they divorced their previous spouses.
In May of 1940, Williams and Hendrix, then residents of North Carolina, both flew out to Las Vegas, Nevada; on June 26, 1940, each filed for divorce in Nevada.
Since the residency requirement in Nevada was only six weeks, and both Williams and Hendrix met this requirement, Nevada granted both divorces; the two then married one another.
However, upon returning to North Carolina (which they did almost immediately after getting hitched), the pair was charged with the crime of bigamy.
The state claimed that, since neither of the defendants’ spouses in North Carolina were present for the Nevada divorce proceedings, Nevada had no personal jurisdiction over Williams’ and Hendrix’s respective spouses, no jurisdiction to hear the divorce proceedings, and the Nevada divorce judgments were therefore invalid.
The Supreme Court disagreed, finding that, so long as the procedural and jurisdictional requirements of the state granting the divorce were met, every other state must recognize that divorce.
The determined prosecutor from North Carolina was undeterred; he brought another bigamy charge against Williams two years later, a case which again made it to the U.S. Supreme Court.
In Williams part II, though, Williams wasn’t so lucky: the state claimed this time that Williams failed to meet Nevada’s domiciliary requirements – not only that a party seeking divorce live in the state for at least six weeks prior to filing, but also that he or she intend to remain living in the state indefinitely.
Based on the evidence presented at trial that Williams and Hendrix were living in a mobile home park during their brief stint in Vegas and that the pair returned to North Carolina as soon as they were married, the trial court found that the two had no intention of living in Nevada “indefinitely;” as such, the Supreme Court upheld Williams’ conviction.
However, Williams II is still in line with Williams I: if a court judgment within one state was duly entered, it must be recognized by every other state in the U.S.
If this rule were applied to same-sex marriages, it’s clear how the practice would be legalized (or, at least recognized) nationwide in the absence of DOMA’s Section 2:
As long as a same-sex marriage was granted in accordance with the laws of one state, then, under the principles found in Williams, every other state in the Union must recognize that marriage.