There's probably many cases in the pipeline, but I stumbled upon this one. A judge from a federal court recently ordered an Ohio official to recognize a same-sex marriage performed in Maryland on the plaintiff's death certificate. It's a temporary injunction, not a ruling, but it is still an interesting read with a lot of justification that we may see as this case or other similar cases move forward. It appears the language of the DOMA case that SCOTUS recently decided is weighing in pretty heavy on the decision to grant an injunction. It actually does not appear to be ruled on FF&C. Rather the court claims that Equal Protection is being denied when Ohio allows other marriages performed lawfully out of state to be recognized in Ohio, even if those marriages would not be allowed in Ohio. There are public policy exceptions which allow the states to limit the scope of Full Faith & Credit to various degrees, but what the court is saying is that when this public policy exception is used, it can't be done in a selective and bias way like this. In other words, although FF&C isn't necessarily required given a public policy exception, when FF&C is given to another states documents, Equal Protection requires that credit is given fairly in all similarly situated cases. A few quotes from the order itself:
It seems things may get interesting in a hurry. Seems like it's being tailored to challenge DOMA's Section 2.
Indeed. I've heard arguments made that restricting marriage as between a man and woman is not a demonstration of animus. For something that simply was, and was never challenged, this may certainly be the case. Until recent history it never really was challenged. But now we are seeing the flip side of things, where states are going out of there way to add restrictions that were not explicit before, where people are trying to take away rights that were granted for no identifiable legitimate state interest, where these restrictions often go against generations of precedent in a way to single out same-sex couples differently than opposite-sex couples, where laws are being crafted to prohibit adoption to "unmarried cohabitators" shortly after Lawrence v Texas would have allowed unmarried same-sex couples to adopt. More and more, marriage is being used as a tool to show animus towards homosexuals, while often trying not to explicitly say it out-right. The long story short of this is that states have the power to regulate and restrict marriage, but they need a legitimate state interest to justify the disparities that they implement. If a state is going to recognize opposite-sex marriages performed in other jurisdictions, even if those marriages go against that state's own laws, the burden of proof is on them to provide a legitimate state interest for why they must block one particular case (same-sex marriage) while allowing any other performed across state lines. A ruling like this would only apply to states which have a history of always recognizing marriages from other states, whether or not they conform to their own laws. Which I think is just about all of them. Not entirely sure though. But it seems like this case does have some teeth to it.
I concur. This was interesting: I would say 'displaying animosity out of one side of their mouth, while claiming there is none out the other.' Given that the bans being adopted don't actually do anything to forward the purported goals; that their only effect is to preserve a traditional definition seemingly for tradition's sake alone by excluding a class of people; that such exclusion seems not to align with any legitimate purpose of governing; we should suspect the purpose of the bans to be something other than what is claimed. And that purpose seems to be an expression of disapproval of same-sex coupling - especially directed toward gay men. The Court said something interesting in the DOMA case (though it would probably be looked upon as dicta since it was more explantory in nature than a holding concerning the law relevant to that case): If, as the Court says (and I deem this to be unquestioned), the treatment of marriage in the context of law is uniform for all married couples within each state, treating one group of marriages differently does indeed seem like an equal protection violation. I agree with your earlier post that the assertion of a public policy exemption is unlikely to succeed when applied so selectively. I don't think it's even necessary to apply a heightened level of scrutiny in examining this; it seems to me that it would fail even a rational basis test, and so no need really for the Court to dive into "full faith and credit". This could have implications for the challenges to the application of the Prop 8 ruling in California, seeking to limit recognition to a few counties. I doubt the Court would cite the DOMA ruling though in examining challenges; it would more likely look for precedent elsewhere in a more similar case dealing with state laws. Might be interesting to see if we can guess what those would be.
In a bit of irony, the Lockyer v. City and County of San Francisco case is packed full of statements about that state's constitutional requirement for the law to be uniform. One can't help but wonder if that will come back to bite the people trying to prevent Prop 8 from uniform enforcement in the state of California. Seems likely that other states would have similar requirements concerning the uniformity of law within the state. But I haven't found a federal case yet that examines this issue of uniformity in a state's marriage laws - most likely because it's a matter of state jurisdiction. One only gets there if the case was brought to federal court with claims of due process and equal protection violation, in which case uniformity of the state law would certainly take a back seat to the claims concerning federal protection of civil rights. So as you initially quoted, Romer is almost certainly going to be a player in this, a la the 9th Circuit's opinion in Hollingsworth v. Perry. The precedents cited won't necessarily be cases having to do directly with marriage (though of course Loving v. Virginia). It would still be cool to find where the court addresses uniformity in state law as part of examining the equal protection claims.
