Abstract

It is not uncommon for a couple to move to another state or country when a spouse’s new job pays enough to allow the other to become a stay at home parent. Nothing unique — unless you are a married same-sex couple who stand to lose health insurance and survivor benefits for the spouse and adopted children as well. In Europe and the United States, the analysis for granting same-sex couples the right to marry center on marriage as a fundamental right or as a right of equal protection, but does not consider the rights that carry with a marriage when moving. The Contract Clause of the U.S. Constitution, states that “no state shall…pass any …law impairing the obligation of contracts.” There is no equivalent Contracts Clause in the European Union regarding transferable contract rights between member states. From an originalist perspective, a Constitution should be analyzed using the “common sense meaning and definition of the document’s words at the time they were written.” From this perspective, this paper focuses on how federal and state interpretation of the Contract Clause could determine rights that exist when crossing a border. It suggests that similar analysis be applied to contract rights between member states of the European Union.