Riddle me federalism

David Frum ponders implications of the same-sex marriage divide:

1) A man from an SSM state buys a condo in a non-SSM state. He marries another man back home—but he dies before he can write a will. Who inherits the condo?

2) Two women from an SSM state marry. One of them becomes pregnant. The couple splits up, and the woman who bore the child moves to a non-SSM state. The other woman sues for visitation rights. What should the state’s courts do?

3) A man in an SSM is accused of stock fraud. The federal Securities and Exchange Commission subpoenas his spouse. The spouse claims marital privilege and refuses to answer the SEC’s questions. May the SEC compel him to answer anyway?

4) Two women marry in an SSM state. The relationship sours. Without obtaining a divorce, one of the women moves to a non-SSM state and marries a man. Has she committed bigamy?

5) Two married men are vacationing in another state. One of them has a stroke. The hospital concludes he will never recover. Local law requires the hospital to ask the next of kin whether to maintain life support. Whom should it ask?

6) A man from an SSM state marries a foreign visitor of the same sex. Should the foreigner be entitled to U.S. residency? What if the foreign man has also adopted the American man's child?

7) A family in a non-SSM state sets up a trust for their son. The son moves to an SSM state, marries a man, and then gets divorced. The trust is the son's only financial asset. Should the courts of the SSM state take the trust into account when dividing up the couple’s assets? If yes, what happens when the trustees back in the non-SSM state refuse to comply?

8) A woman married to another woman wins a lawsuit against a corporation in a non-SSM state. The successful plaintiff dies without a will before she can collect her debt. Her closest blood relative demands that the corporation pay the relative, not the surviving spouse. Who gets the money?

I think it'll be much simpler once Democrats get around to repealing DOMA. I actually think DOMA is already unconstitutional per the Full Faith and Credit Clause. But once DOMA is repealed then it'll be easier for the courts to figure out how to apply the clause and whether there should be a 'public policy exception' for any of the above issues.

Here's Wikipedia:

The Full Faith and Credit Clause has been noted for its application involving orders of protection, for which the clause was expounded upon by the Violence Against Women Act; child support, for which the enforcement of the clause was spelled out in the Federal Full Faith and Credit for Child Support Orders Act (28 U.S.C. § 1738B); and its possible application to same-sex marriage, civil union, and domestic partnership laws and cases, as well as the Defense of Marriage Act (DOMA) and the proposed Federal Marriage Amendment. The clause has been the chief constitutional basis for challenges to the DOMA.

As of early 2004, 39 states have passed their own laws and constitutional amendments, sometimes called "mini DOMAs," which restrict marriage to opposite-sex couples. Most of these "mini DOMAs" explicitly prohibit the state from honoring same-sex marriages performed in other jurisdictions.

Supreme Court Justice Antonin Scalia stated in his dissenting opinion to the Lawrence v. Texas decision that he feared application of the Full Faith and Credit Clause to the majority's decision in that case might destroy "the structure... that has permitted a distinction to be made between heterosexual and homosexual unions." If Scalia's dissenting opinion holds true, the majority ruling could potentially negate the DOMA and create a legal situation in which all states might eventually be obliged to recognize same-sex marriages performed in Massachusetts, Iowa, Vermont, or Connecticut.

In August 2007, a federal appeals court held that, "Oklahoma's adoption amendment is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples."^[15]

For more information on how the Full Faith and Credit provisions of DOMA affect SSMs, here's an article by a Pennsylvania law professor. It was written before California Prop 8, but the analysis definitely applies to the four equal marriage states we have today.