Local Law Blogs

Defense of Marriage Act

The Defense of Marriage Act is important for several reasons other than the fact that it defines marriage as between one man and one woman for the purposes of federal law.  One is that the Defense of Marriage Act specifically permits states the option of recognizing the union of a same-sex couple that is defined as a “marriage” under the laws of another state.  This is the opposite of the general rule that a state must recognize and give effect to marriages legally performed in other states pursuant to the Full Faith and Credit Clause of the United States Constitution.

The effect of the Full Faith and Credit Clause exception to gay marriages and civil unions is that, if a gay couple who were married in a state such as Massachusetts or Connecticut, were joined by civil union in New Jersey or Vermont relocate or travel to a state that elects not to recognize their union, the couple loses the rights and privileges granted to them based upon their marriage. Thus is it imperative that they take additional steps to ensure continuation of those rights and privileges to the utmost extent possible in this scenario.  The best way to do this is to consult with an attorney regarding how wills, trusts, and power of attorney may provide additional protection when living or traveling in a state that does not recognize gay marriage or civil unions.

Full post as published by New Jersey Law Blog on January 12, 2009 (boomark / email).