Despite the amazing progress with the federal government, the majority of states still don’t recognize same-sex marriages. And although Article IV of the United States Constitution says states should respect “public acts, records, and judicial proceedings of every other state,” the Supreme Court has long carved out a “public policy” exception to that rule. In short, a state doesn’t need to abide by or enforce the laws of another state, if the former had a public policy against such a law.

This exception came up in the marriage context when same-sex marriages first became legal in Massachusetts and couples tried marrying there and having it recognized in their home state. It also came up even earlier, when many states banned interracial marriages. However, the Court struck down all laws banning interracial marriages in its  Loving v. Virginia decision, thus overriding any public policy exception. The court did not take such a bold approach in Windsor.

Not all marriages treated equally

What bothers me most about the public policy exception to the Full Faith and Credit Clause is not all marriages are treated equally. For example, I can legally marry my first cousin, Angie, in Tennessee, move to Indiana (where I couldn’t marry Angie), and Indiana would still recognize us as a married couple while living there.  In other words, Indiana doesn’t mind if I marry my first cousin, as long as I don’t do it in their state.

One the other hand, I can’t marry Ben in Iowa, move to Indiana, and still have Indiana recognize our marriage when it comes to state benefits. I can’t quite rationalize why in Indiana would allow me marriage benefits if I married my first cousin but wouldn’t if I married Ben, considering I can’t enter into either marriage in Indiana. But I digress.

Know your rights

The bottom line is that legally married couples for federal purposes may still have limited rights and protections in their state of residence, if that state doesn’t recognize their marriage.  Same-sex couples who run into this added layer of complexity should know the rights and benefits they have as a family unit.  At the very least, these couples should have a will, trust, and durable power attorney for health care in order to preserve the property rights and decision making ability that are granted automatically in a valid marriage. Don’t know what those documents are? Keep reading….