Fisher v. Fisher
250 N.Y. 313, 165 N.E. 460 (1929)

  • Mr. and Mrs. Fisher were on a steamship from England to New York. The captain of the boat performed a marriage ceremony.
  • A few years later, they broke up. Mr. Fisher denied that they were legally married.
    • Mr. Fisher was divorced, and under New York law at the time, he could not get remarried as long as his first wife was alive.
      • Btw, this law was to deter ‘loose women’ from trying to seduce away another woman’s husband.
  • The New York Supreme Court found that the marriage was legal and valid.
    • The New York Supreme Court likened a marriage to a contract. Contracts can be made verbally.
      • In this case, Mr. Fisher said, “I do,” that constitutes acceptance of a verbal contract.
    • The Court found that marriages performed in another State are legally recognized in New York, even if that marriage would not have been valid if performed in New York.
      • Therefore, it didn’t matter that Mr. Fisher’s marriage could not have been legally performed in New York.
    • The Court found that a Federal Statute permits sea captains to marry people (46 U.S.C.A. §201), and that therefore puts the marriage under the jurisdiction of Washington DC, not New York.
      • And under DC law, the couple could legally marry, so the marriage is valid.
  • The basic point of this case is that, although marriage is not considered to be a judgment, and is not subject to full faith and credit, unless the marriage is violative of strong State public policy, the marriage is recognized everywhere.
    • “Violative of strong public policy” is generally defined as something that would carry a criminal penalty.
      • It also is used by States to deny same-sex marriages performed in another State.