Are my gay Canadian friends married or not?

November 5, 2008 7:26 PM

The shameful and shameless adoption of Prop 8, as discussed here, makes me wonder. What happens if a legally married gay couple from Canada moves to the US? Doesn't international law obligate us to recognize that marriage? What about a plural marriage from a muslim country that allows it?
posted by nax to society & culture (13 comments total)

Same-Sex Marriage: Canada, Europe and the United States:

Yet even if the Full Faith and Credit clause of the U.S. Constitution requires states to recognize same sex-partnerships, this applies only between states of the United States. States have much more freedom in deciding whether to recognize the laws, judgments and administrative decisions of other nations, and have always used this freedom in areas with strong political or moral elements. Thus, no state is required to recognize a same-sex marriage entered into in Canada, and even if one state recognizes it, other states might not be obliged to recognize this first state's decision.

posted by smackfu at 7:42 PM on November 5, 2008 [1 favorite]

What international law are you referring to? There is none relevant to this example.

The US is a patchwork of marriage "laws' which are state-governed, and none of those states runs its own immigration program. INS is all that matters and since the fed doesn't recognize same-sex marriage, the game ends there.

Why a same-sex married Canadian couple would even consider emigrating to the states is beyond me. It's one thing for gay Americans to battle their apartheid and another one entirely for somebody to take it on voluntarily.
posted by ethnomethodologist at 8:08 PM on November 5, 2008

Don't have any links to back this up, but I am dead certain the US does not recognize plural marriage conducted outside the US. Otherwise, muslim citizens of the US would be able to bring in multiple foreign women on spousal visas, which simply does not happen.
posted by BinGregory at 8:15 PM on November 5, 2008

Just to second ethnomethodolist, there is no international law about this kind of thing. I know Americans who married Malaysians in the US who had to be remarried back in Malaysia. Not registered, but remarried. And these were standard marriages of the monogamous, boy + girl variety. So it's very much a national or even state-level issue, not an international one.
posted by BinGregory at 8:36 PM on November 5, 2008

In the case of a plural marriage, only the first wife is considered a spouse by the INS.
posted by phoenixy at 8:39 PM on November 5, 2008

There is no such thing as international law.
posted by wfrgms at 8:45 PM on November 5, 2008

There's two things going on here: (1) if the US would recognize the marriage for immigration purposes, and (2) if wherever they end up would recognize it.

Gay couple from Canada thing

ethnomethodologist is partially right -- Our Immigration agency (first INS, now ICE) and the Ninth Circuit has determined that a homosexual marriage doesn't count in immigration decisions. See Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982). There's also a law saying that states don't have to recognize foreign same-sex marriages -- 28 USC section 1738C. I'm not 100% sure about the exact laws for the states that would recognize it, but NY and Mass. are safe bets, for example.


Plural marriage thing

BinGregory is right -- ICE has ruled that a bigamous marriage is against US public policy and thus the validity of a second marriage isn't recognized in immigration decisions (but the first marriage would). Matter of Darwish is a good case on this, 14 I. & N. Dec. 307 (B.I.A. 1973). I don't know of any states that would recognize this -- in fact, I know that NY has rejected it.
posted by lockestockbarrel at 9:13 PM on November 5, 2008

Here's the NY case I was looking for:

Same-sex marriage which was validly entered into under Canadian law was not void under New York law, even though Domestic Relations Law did not authorize same sex couples to marry in New York. See Beth R. v. Donna M., 19 Misc. 3d 724, 853 N.Y.S.2d 501 (Sup 2008).
posted by lockestockbarrel at 9:20 PM on November 5, 2008

Many of the more retrograde states have "baby DOMA" laws expressing the public policy of the state as not recognizing gay marriage. This defeats the default protection that foreign citizens have under the Full Faith & Credit clause.
posted by Saucy Intruder at 10:36 PM on November 5, 2008

Just as a general sketch:

1. There certainly is such a thing as international law, but it is not binding like our statutes and (more or less) our Constitution are. The principle of recognition of the official acts of other nations is called "comity", but it is subject to public policy exceptions.
2. Domestic institutions like marriage are properly handled by the states, and each state will have to determine, through its statutes or its judicial decisions, how to deal with state law issues of inheritance and divorce when dealing with a marriage legally contracted elsewhere. Full Faith and Credit is also subject to public policy limits.
3. The Federal government can adopt its own laws reflecting public policy, to govern in the Federal sphere, including taxation and immigration. Hence the Federal DOMA.
posted by yclipse at 4:25 AM on November 6, 2008

Thanks everyone. I had no idea that we were not obligated to recognize marriages from other countries. I'm speechless.
posted by nax at 6:46 AM on November 6, 2008

There is no such thing as international law.

This is a bit of an exaggeration. Expanding on yclipse's comment, there is a web of international treaties and agreements on many specific topics, which would qualify as "international law."
posted by JimN2TAW at 8:46 AM on November 6, 2008

Even Canada doesn't recognize plural marriage when it comes to immigration. It also doesn't recognize same-sex marriages performed in places where they're not recognized. This includes marriages performed in Canadian embassies/high commissions or consulates if such marriages are not legally valid in the host country.
posted by oaf at 11:30 AM on November 6, 2008