June 2012 Vol. 110 No. 8 THE REVIEW

The Constitutional Right to (Keep Your) Same-Sex Marriage

Steve Sanders

Same-sex marriage is now legal in six states, and tens of thousands of same-sex couples have already gotten married. Yet the vast majority of other states have adopted statutes or constitutional amendments banning same-sex marriage. These mini-defense of marriage acts not only forbid the creation of same-sex marriages; they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These nonrecognition laws effectively transform the marital parties into legal strangers, causing significant harms: property rights are potentially altered, spouses disinherited, children put at risk, and financial, medical, and personal plans and decisions thrown into turmoil.

In this Article, I argue that an individual who marries in her state of domicile and then migrates to a mini-defense of marriage act state has a significant liberty interest under the Fourteenth Amendment's Due Process Clause in the ongoing existence of her marriage. This liberty interest creates a right of marriage recognition that prevents another state from effectively divorcing her against her will by operation of law. The right of marriage recognition is conceptually and doctrinally distinguishable from the constitutional "right to marry." It is a neutral principle grounded in core Due Process Clause values: protection of reasonable expectations and of marital and family privacy, respect for established legal and social practices, and rejection of the idea that a state can sever a legal family relationship merely by operation of law. A mini-defense of marriage act state will, of course, have interests to be considered in refusing to recognize certain marriages. But under the intermediate form of scrutiny that is appropriate in these circumstances, those interests do not rise to a sufficiently important level to justify the nullification of migratory same-sex marriages.

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