California and out of state SSM's

Steve Sanders stevesan at
Tue Oct 13 17:32:19 PDT 2009

California will recognize same-sex marriages that were performed in other
states while such marriages were legal in California between June 16, 2008,
and November 5, 2008.  See
<>  However, the
out of state marriages will not be recognized as "marriages," but rather as
"unions," providing "the same legal protections that would otherwise be
available to couples that enter into civil unions or domestic partnerships
By giving an arguably second-class status to newly arrived transplants from
other states, does this violate the privileges and immunities clause as
interpreted by Saenz v. Roe?  If a state doesn't allow its own citizens to
get married, newly arrived out of staters don't have any argument that
they're being treated less well than the state's own citizens.  But here,
the state's own citizens got "marriages" between June 16, 2008, and November
5, 2008, while the relationships of the new arrivals will be downgraded from
the marriages they got in their old domiciles, to "unions."  "Unions" are
what California same-sex couples now get after having failed to win the
right to full marriage.  
Does it matter that the California Supreme Court poo-pooed the difference?
What happens if these couples later move to a third state?  Do they bring
with them a "marriage" or a "union"? Common law conflicts doctrine gives
states wide latitude to regulate marriage.  But must such latitude give way
to a constitutional command that a state treat new citizens in the same way
it treats its old citizens?

Steve Sanders 

Attorney, Supreme Court and appellate practice group, Mayer Brown LLP,

Co-editor,  <> Sexual Orientation
and the Law Blog

Adjunct faculty, University of Michigan Law School (Winter term 2010)

Email:  <mailto:stevesan at> stevesan at

Personal home page:  <>


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