In a very interesting decision (with implications for same-sex marriage), a Louisiana court has held that the state must recognize a foreign marriage between cousins despite the fact that such a marriage would be null and void in the statem The 1st Circuit Appeals court ruled that there is no strong public policy that would bar such a recognition. The case involved a divorce case where the East Baton Rouge Parish Family Court judge declined jurisdiction.
The unhappy couple were married in Iran. Like most nations, cousins can marry in Iran. Since it is a valid marriage in Iran, the court ruled that it should be treated as valid in Louisiana. For the opinion, click here.
Louisiana has always accepted jurisdiction in divorce cases to avoid “limping marriages:” Comment b to Article 3520 explains:
Based on the universally espoused policy of favoring the
validity of marriages if there is any reasonable basis for doing so
favor matrimonii this Article authorizes the validation of marriages
that are valid either in the state where contracted or in the state where
the spouses were first domiciled as husband and wife This ancient
policy of favor matrimonii and favor validatis is well entrenched in
the substantive law of every state of the United States This policy is
equally important at the multi state level where it is reenforced by the
policy of avoiding limping marriages This Article enunciates this
policy of validation and defines its limits These limits are co
extensive with the strong public policy of the state whose law is
applicable to the particular issue under Article 3519 “
This analysis come close to a full faith and credit decision, even though this is made directly on state law. For years, gay and lesbian couples have argued that, once marriages are recognized in states like Massachusetts, other states must recognize the marriages even if they do not allow same-sex marriage. I have always been skeptical of this argument, believing that courts would recognize a public policy exception to the full faith and credit obligations.
The lower court may have been more concerned with same-sex marriage than the marriage of cousins in rendering its decision. However, the appellate court’s emphasis on a lack of a “strong public policy” against marriage by cousins would preserve the objection on same-sex marriage. On the subject of same-sex marriage, the state has expressed a strong policy in opposition.
For the full story, click here.
This takes the “kissing cousins” concept to a new level. It will be interesting to see if this case is used when the inevitable challenges to gay marriages are made in court. I am a little surprised that there isn’t a strong public policy against cousins marrying each other when the opponents of gay marriage are numerous and very vocal.
I happen to be domiciled in Virginia, which is among 25 U.S. state jurisdictions which recognizes marriage between first cousins. Since Louisiana is compelled to recognize such marriages, what’s their excuse for trying to deny the marriages of international immigrant cousins?
I do not agree with Mr. Turley about the public policy exception to full faith and credit in the case of gay marriages. We now have warring public policies: equality for all adults in the fundamental right of pair marriage without discrimination on the basis of orientation v…. versus well, what, exactly? an unconstitutional favoring of a particular religious view? the desire of legislative bodies not to be offended, or to not give offense to their constituents?
In any case, I believe full faith and credit does apply to marriages contracted in any state with regard to all other states. I acknowledge that getting the U.S. Supreme Court, as presently constituted, to admit it is no more likely than getting that Court to agree that “In God We Trust” on our money is an unconstitutional establishment of religion which compels every citizen to proselytize for monotheism every time they pay in cash, as much as if they were handing out paper tracts on a street corner saying the same thing.
The principle of “plain meaning of the words” in statutory construction goes by the wayside when Scalia’s clique starts interpreting the Constitution.
Ankhorite,
I have to admit that I was not aware that there were that many states that allowed cousins to marry. Notwithstanding that fact, I do agree with Prof. Turley that this La. case may make it easier for the Supreme Court to agree to a full faith and credit argument in defense of any couple getting married. You are right however, about the Scalia crowd and their improper reading of the Constitution.
Hmmm…..I have a really good looking male cousin…I wonder what he’ll think if I ask him out!!
I’m kidding….
Hey different strokes for different folks.
I wonder what they’ll do about same sex cousins wanting to get married?
“Louisiana Court Recognizes Marriage Of Cousins: Gays and Goats To Follow?” http://bit.ly/bP5Cj
Chiki-chiki-bom-bom