A NY Appellate court last week required that all public and private entities in the state are obligated to recognize a Canadian same-sex marriage (text of the decision here). As a general rule, NY courts recognize out of state marriages that would be illegal in NY unless NY law expressly prohibits such recognition or the marriage is against NY's public policy.
The Court ruled that no such law is on the books in NY because even though NY's Constitution does not require same-sex marriage, there is no legislation that denies recognition to out of state same-sex marriages. Moreover the public policy exception only applies to marriages that are "offensive to the public sense of morality to a degree regarded generally with abhorrence.”
I was wondering why the Defense of Marriage Act is inapplicable here, but apparently DOMA only applies to domestic marriages and does not include marriages from foreign countries that would usually be recognized on the basis of comity.
It's been a while since I studied these issues, but is there any serious legal argument that opposes recognition of these marriages? And if not, couldn't any gay couple go to Canada, get married, and then force NY to recognize their marriages? DOMA was designed to prevent people from going to states that allow same-sex marriage and then requiring their home state to affirm their marriage, but this seems to be a loophole.
More importantly, if the Court of Appeals affirms this judgment, could this become a major campaign issue? Opposition to same-sex marriage in 2004 was a major reason why Bush was re-elected, since social conservatives came out to vote on state constitutional amendments banning same-sex marriage. If DOMA doesn't protect those states from foreign marriages, are more legislation or amendments necessary to prevent same-sex marriages in those states? Could this propel the GOP into office in 08?