What just happened re: DOMA

[Ms. Toad]

44. That is really not clear.

And precisely why I thought they would dodge the question.

Under traditional analysis, you are correct. Marriage is determined by the legality when and where it was entered into.

But the case explicitly hinged on New York law which is the resident state, not the marrying state - and, most significantly, a state in which the marriage was NOT recognized at the time it was created, but which later recognized it (and under traditional analysis, New York's later actions would have zero impact on whether Edie Windsor's marriage was legally recognized by the Federal Government or not).

It is not at all clear that if New York had never recognized same gender marriage that Edie Windsor would have won.

So, go through the analysis in the brief (or even just the excerpts above) and substitute a resident state (say Ohio - which refuses to recognize same gender marriages) for New York with a couple who goes to Iowa (the equivalent of Canada) to marry. Canada plays NO role in the Court analysis - so it is not clear that Iowa would play any role in a similar analysis for a resident state like Ohio which has chosen NOT to grant recognition to same gender marriage. Because half of the analysis was all about New York's (the resident state) right to choose - and Ohio has made a different choice.