When is a Same-Sex Marriage Legal? Full Faith and Credit and Sex Determination

21 Pages Posted: 4 Oct 2004


When the conversation turns to same-sex marriage, the array of opinions on the complex constitutional, state, and federal issues implicated in the same-sex marriage debate are numerous and diverse. One of the major recurring debates is the constitutionality of banning same-sex marriages or refusing to recognize a same-sex marriage performed in a sister state. Before we can conclude whether same-sex marriages must be recognized in a sister state under the full faith and credit clause, or whether the Defense of Marriage Act (DOMA) is constitutional and protects sister states from having to recognize such out-of-state same-sex marriages, we must first establish what constitutes a same-sex marriage. To determine whether a marriage is an opposite sex heterosexual relationship or a same-sex homosexual union, we must first decide how to define the terms "man" and "woman." Because states rely on different factors to determine legal sex, a marriage involving a transgendered spouse could be considered an illegal homosexual union in some states and a legal heterosexual marriage in other states. This article analyzes these contradictory approaches to sex determination and their implications for the same-sex marriage debate. The article starts by describing transgendered conditions and sets the stage for understanding the legal factors that a state could use to determine sex for purposes of marriage. It then provides a description of the recent cases involving transgendered marriages and exposes the conundrum that will develop as different states apply different rules to determine sex. It continues with an analysis of the full faith and credit implications of a state sanctioned amendment to the sex designated on a transsexual's birth certificate. Finally, it concludes that the current patchwork quilt approach to determining a person's legal sex, and consequently the validity of her marriage, raises full faith and credit issues that courts must fully address.

Keywords: Full Faith and Credit, marriage, same-sex marriage, transsexual, intersexual, transgendered, constitutional law

Suggested Citation

Greenberg, Julie A., When is a Same-Sex Marriage Legal? Full Faith and Credit and Sex Determination. Available at SSRN: https://ssrn.com/abstract=598941

Julie A. Greenberg (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States
619-961-4245 (Phone)

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