The Washington Post finally featured a column today about the complex legal issues involved in whether other states will recognize same-sex marriages performed in Massachusetts. The column, by Yale law professor Lea Brilmeyer, is excellent. For some reason, the media and even the blogosphere seems to have focused little on this issue. I think part of it may be because many same-sex marriage advocates and many opponents want people to believe that states will be forced to recognize valid Massachusetts marriages. The advocates want to push this view in hopes of actually having those marriages recognized. The opponents want to push this view to press the need for a federal amendment to ban such marriages in all fifty states. Actually, as Brilmeyer’s column points out, it is well established that states are not required to recognize for all purposes marriages performed in other states which run counter to their own law. That states generally do recognize such marriages stems from policy concerns, and not constitutional requirements. While there may be some equal protection concerns about not recognizing same-sex marriages, such concerns would exists whether or not another state performs such marriages. Since I have yet to see much detail about this issue from other blogs, I thought I would explain what I’ve read on the subject. Most of what I will say comes from Andrew Koppelman’s The Gay Rights Question in Contemporary American Law which devotes the whole of chapter five to the question. In the comments I will provide a more detailed annotated list of sources for those interested in reading further.
One thing to be aware of is that the issue of recognizing controversial marriages performed in other states is not new. Courts have dealt with this issue because of differing marital laws with regards to first cousin marriage (which even today is valid in some states and not in others), remarriage after divorce, and interracial marriage, just to name a few circumstances. The case of interracial marriage is especially telling because many states were vehemently opposed to such marriages even going so far as to criminalize the act for those participating in and those performing interracial marriages. It was considered unnatural, against God’s law, and bound to destroy civilization. So was the policy in that case to recognize the marriage or not? Well, it depended on the situation. When we examine the issue more closely we will see that the situation should matter very much. Let’s start by examining the extremes.
First consider the case of a same-sex couple from Maine traveling to Massachusetts for a weekend. They get married there and return home to Maine where they try to file their state tax return as a married couple. We will call this the “evasion” scenario. Will Maine recognize this marriage? No. Maine does not recognize same-sex marriages and Massachusetts has no right to change Maine law. States would routinely refuse to recognize interracial marriages of its residents when they evaded state law by traveling to another state to get married. They have also refused to recognize first cousin marriages in such a situation. There is no reason to believe this would change when we consider same-sex marriages. This is especially true in those states that have specific marriage evasion statutes, but would likely also be the case in state that has made its opposition to SSM clear through some sort of mini-DOMA. A further obstacle in this case is a Massachusetts statute which invalidates marriages performed there if the couple evaded another state’s marriage laws to marry.
For the other extreme consider the case of a same-sex couple from Massachusetts who get married there and continue to live there. One day a drunk driver from Maine kills one of them. The grieving widow files a wrongful death suit and wins a judgment against the Maine driver. She seeks to have that judgment enforced in Maine. Will Maine recognize the judgment of the Massachusetts court even though it relied on a same-sex marriage? Almost assuredly, yes. Just as Massachusetts had no right to change Maine’s laws, Maine has no right to dictate to Massachusetts whether it should allow its residents to marry. Despite what DOMA says about a state not needing to give any effect to judicial proceedings recognizing same-sex marriage, the Full Faith and Credit clause has been understood to apply to contested legal judgments. There’s a good reason for that. Just as extradition keeps people from fleeing from one state to another to avoid paying for their crimes, Full Faith and Credit to judgments prevents this in the civil setting. Even if it were just a matter of Maine directly recognizing the marriage of Massachusetts residents (perhaps because they were spending a weekend holiday in Maine when something happened to one of them), it would be almost unheard of for Maine to not recognize this marriage. Even the states most opposed to interracial marriage would recognize them for inheritance purposes if the couple involved had never resided in said state. They respected other states’ rights to come to different conclusions on such a controversial issue. In fact the only rationale I can think of for completely refusing to recognize the right of Massachusetts to govern the marital relations of its own residents, is if a state had so much contempt for such a decision that merely respecting it would be evil. Such might be a rationale for not recognizing judgments based on slavery or those of a Nazi court. While a few extremists might compare same-sex marriage to the evil of slavery, I doubt most opponents of SSM would go so far.
Finally, let us consider the grey area in the middle. A same-sex couple from Massachusetts marries there, but later moves to Maine. Does there marriage end when they move? Maybe. A recent Maine statute says that a marriage that would not be valid if performed in Maine “is considered void if the parties take up residence in this State.” There is some precedence for this. The 1879 Texas Penal Code made it criminal for an interracial couple to live together in Texas, even if they were validly married while residing elsewhere. Some state judges took the view that just because a couple once lived elsewhere they shouldn’t have any more rights than other people who had always resided in a state. If a couple was going to do something that the citizens of a given state found obnoxious, they simply should not move to that state importing their evil. This was the view of dissenting judges in an 1877 North Carolina case (State v. Ross) and the prevailing opinion in an 1872 Tennessee case (State v. Bell). The opposing view was that because the couple had married in good faith in a state where it was perfectly legal, that decision by another state to allow the marriage ought to be respected.
As I’ve noted there have been plenty of cases of state courts invalidating a marriage validly performed in a sister state. From what I can tell nobody argued in those cases that Full Faith and Credit would require recognition. It was always a question of whether the court should recognize the marriage out of policy concerns. [Just to be clear, I’m not saying courts should set policy. The questions arose in cases where the policy of the state was unclear.] Even those court decisions which validated a sister state marriage would note the “public policy” exception to the general rule of validation. Koppelman does note one federal (district court) case which had to decide whether a marriage validly performed somewhere in the US has to be recognized elsewhere. That was the 1879 case Ex parte Kinney. It dealt with the case of an interracial couple evading Virginia law by marrying in DC and then returning to Virginia. (The evasion scenario we discussed earlier). Not only did the court rule that Virginia did not need to recognize the marriage, but noted that would still be the result even if the couple had lived elsewhere, married, and only subsequently moved to Virginia (the grey area scenario considered above). On the other hand, the court also referred to our second scenario. It said "that such a citizen would have a right of transit with his wife through Virginia, and of temporary stoppage, and of carrying on any business here not requiring residence, may be conceded, because these are privileges following a citizen of the United States…"
It seems almost certain then that Full Faith and Credit does not require one state to recognize for all purposes same-sex marriages performed elsewhere. The question remains, though, in what circumstances should they recognize them? Anyone who has read this blog knows that I feel states should always recognize same-sex marriages because I see many great reasons for doing so and I fail to understand the harm. One who takes the opposite view, though, should ask how much harm is done by recognizing the right of other states to reach different conclusions. Does it outweigh the interest of respecting the prerogative of those states to reach those conclusions?
Henson, Deborah “Will Same-Sex Marriages Be Recognized In Sister States?” 32 U. of Louisville J. of Fam. L. 551 (Summer, 1994)
This article was Ms. Henson’s LL.M. thesis at UC-Berkeley and provides an excellent detailed review of this issues and relevant case law involved here. It looks at past similar cases involving polygamy, incest, and interracial marriages. Ms. Henson argues that despite these cases invalidating sister-state marriages, changing attitudes should convince us that the policies against SSM should not be considered strong enough to avoid Full Faith and Credit. It seems to me, though, that if it’s not enough to avoid FF&C, it’s probably not enough to avoid equal protection either. If we assume, for the sake of argument, that states don’t have to perform same-sex marriages it is hard to see why they have to allow their marital laws to be circumvented by traveling to another state.
Cox, Barbara “Same-Sex Marriage and the Public Policy Exception in Choice-of-Law: Does It Really Exist?” 16 Quinnipiac L. Rev. 61 (1996)
This article was researched with, among others, Mary Bonauto, subsequently the lead attorney in Goodridge. Professor Cox notes that while courts have often mentioned the public policy exception, they rarely have used it. Even in the evasion cases in states with evasion statutes, state courts have sometimes validated a marriage. The trend is towards accepting the marriages, and thus for a court to switch directions now with same-sex marriage would be a sure sign of unconstitutional animus. The problem with that argument seems to me that, first of all, the courts never claimed they were required to accept such marriages. They just noted there were good policy reasons for doing so. The courts generally defer to the legislature on matters of policy. If, due to equal protection or liberty concerns, the legislature is not to be given as much deference in this matter it would also seem they would not be given as much deference in deciding not to perform the marriages in the first place. Secondly, the trend towards acceptance might just stem from a growing tolerance to types of marriages that were heretofore controversial. If same-sex marriages now are as controversial as such marriages used to be, there is reason to believe a state could refuse recognition in some scenarios.
Koppelman, Andrew “Same-Sex Marriage, Choice of Law, and Public Policy” 76 Tex. L. Rev. 921 (1998)
This is the law article from which the book chapter I referred to in the post was adapted. It provides a little more detail than the chapter, but in general I would recommend just getting the book. Koppelman believes in an equal protection argument for same-sex marriage, but also believes (believed?) the Supreme Court would be unlikely to agree in the near future [the book was written before Lawrence]. In any case, he notes that if the courts do accept such an argument there is no conflict-of-laws issue. So for the sake of argument, he assumes that this is a matter on which different states might reach different conclusions. He provides several ideas for possible choice-of-laws rules to govern and notes the advantages and disadvantages of each. He notes that it is fairly clear the Full Faith and Credit does not require recognition of sister-state marriages (although it would require recognition of judgments based on those marriages), but notes why from a policy perspective there is a lot to be said for recognizing them anyway, except in the evasion situation. For that case, what would be the point of having a law if anyone could avoid it for the price of a plane ticket?
Posted by: Galois | February 15, 2004 at 06:02 PM
Good post... however I was more concerned about the practical issues involved.
Until now there have only been a small number of marriages that were recognized in some states but not others and, except for inter-racial marriages (which were in an earlier and less litiginous time), participants in them were not usually backed by interest groups wished to get those marriages recognized nation wide.
What kinds of litigation can we expect if the California marriages are upheld and the couples involved travel, move to, or return to other states where gay marriages are not recognized?
For example, if a liberal city in a non-gay marriage state extends spousal benefits to the spouse(?) of one of its workers can unmarried heterosexual couples with members working for the city sue under equal protection laws?
What are the likely issues in inheritance? Can a hospital be prosecuted for releasing private medical information to the spouse(?)? What about divorces - can a gay couple married in San Francisco but living in another state get divorced? If so, what law would govern allocation of the assets? What would the impact be on child custody suits? If a member of a gay couple married(?) in California marries a member of the opposite sex in a state that does not recognize gay marriage can that person be prosecuted for bigamy?
I see an incredible tangle of litigation heading for us at warp speed if we have this kind of piecemeal approach to marriage.
Posted by: Michael Friedman | February 16, 2004 at 11:14 PM
Good point. I didn't address what litigation there may be. Many of the gay rights groups issued a joint statement after SSM became legal in Canada which included the following:
I think they would like to plan a careful strategy of picking certain test cases that are strong both legally and emotionally--for example in a state without a DOMA with a couple that has been together a long time, etc. Still, you can expect litigation from a number of situations. This isn't all bad, though. A body of law will continue to develop in each state.
I don't think the fact that Massachusetts will have legal marriages will effect the amount of litigation, though. Couples could go to Canada, get married, and face the same legal difficulties upon returning here.
I'm guessing that the response will vary. A city that offers a domestic partner registry will probably automatically grant such status to a married couple. Likewise for private employers that offer benefits to same-sex partners. It would be interesting to see if any employers stop giving benefits to unmarried sex-same partners and actually require marriage for same-sex and opposite-sex couples.
More and more countries are recognizing same-sex relationships and this legal tangle will arise regardless of what the relationship is called, or where it is established. We've already seen cases involving civil unions (mainly in terms of requesting a divorce) in other states. So far the results have been mixed. GA and CT refused to recognize them. An IA judge granted a divorce which caused quite a stir. Finally a NY judge has ruled that the civil union should be recongized for the purpose of a cause of action in a wrongful death suit.
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