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May 10, 2004

SSM and Conflict of Laws

On my birthday this past year David Frum asked Andrew Sullivan eight questions concerning federal or sister state recognition of Massachusetts marriages between people of the same sex. Sullivan answered briefly noting that while a few "legal incidents" of marriage of Massachusetts residents might be given recognition by courts in other states, the marriages would probably not be fully recognized as things stand, but that the Masssachusetts couple would be no worse off than had they not been able to marry at all. He also noted that such was the situation when some states had anit-miscegenation laws as well. Last week, Eugene Volokh answered Frum's questions in more detail, but here is his basic summary:

These are interesting issues, but not that different from other issues that the legal system has had to deal with before, and not tremendously hard to resolve. The existence of the issues doesn't show that somehow Massachusetts law would interfere with the public policy of other states, nor does it show that somehow the resulting system would be unworkable. To the extent that it disserves anyone, it would disserve the Massachusetts same-sex couples -- but it wouldn't make them any worse off than they are now, without any marriage rights at all.

While I agree with Volokh's basic summary, I think there are some interesting issues in the details that are worth addressing.

1) A Massachusetts man buys a condo in Miami. He marries another Massachusetts man. The condo purchaser dies before he can write a new will. Who inherits the condo?

Volokh notes it is up to Florida to determine this issue as they have jurisdiction over the condo. And if they have a DOMA they are unlikely to respect Massachusetts law on this matter, so the marriage would be ignored and the man's other next-of-kin would probably inherit. Florida does have a marriage protection act that is particularly harsh. It says same-sex marriages are not recognized for any purpose, nor may the state even give effect to any foreign judicial proceeding which itself recognizes such a marriage or claim arising from such a marriage. This law would seem to say that if a perosn brought a wrongful death suit in Massachusetts based upon the Massachusetts marriage of Massachusetts domiciliaries, that judgement could not be enforced at all in Florida. Florida is setting up a safe haven for people to flee Massachusetts justice. I would think that this would raise serious constitutional concerns. The rationale behind Florida's act then is not to assert it's own legitimate interests, but rather to declare Massachusetts law repugnant. Andrew Koppelman calls this this "odious statutes" rationale for a public policy exception, and believes that it is illegitimate and "irreconcilable with basic principles of federalism." (Koppelman relies heavlily upon a 1992 article by Douglas Laycock, "Equal Citizens of Equal and Territorial States: THe Constitutional Foundations of Choice of Law" 92 Colum. L. Rev. 249). As Koppelman summarizes (p. 106):

A state may legitimately assert its right to govern itself as it sees fit; it may occasionally refuse to enforce the law of foreign tyrannies; but it may not legitimately denounce and attempt to impede other states' efforts to govern themselves.

Now in this particular case, Florida does have an interest in the condo, because it is real property in Florida, but the statute as a whole is so overreaching that it might be stricken completely (as in, for example Romer). This could leave the court to decide this as a matter of common law. In that case there is precedent for the widower to inherit. In Whittington v. McCaskill 65 Fla. 162 (Fla. 1913) a similar situation arose. At the time Florida constitutionally prohibited interracial marriages, and by statute made such marriages criminal with penalties of up to ten years in prison. Elizabeth Anderson had owned a lot in Pensacola, Florida before moving to Kansas wherein she married a white man, W.J. Grooms. After she passed away, there was an argument over who should inherit the Pensacola lot, her mother or her spouse. The decivise question was whether the Kansas marriage was valid for these purposes in Florida. The court saw no reason to invalidate the marriage seeing as neither spouse resided in Florida at the time of the marriage, nor subsequent to the marriage, nor did they leave Florida for the purpose of evading the law. There was nothing to be gained by not recognizing the marriage under those circumstances. A similar case arose in California in 1948 with regards to a man from India by the name of Dalip Singh Bir. He had two wives back in India. After he died, the courts were trying to figure out how to divide his estate. Initially a trial court ruled that the second marriage could not be recognized because it would violate the strong public policy of the state of California against polygamous marriages. The appellate court ruled that while California had a strong policy interest in preventing a man from cohabiting with two wives in California, no such interest existed with regards to matters of descent of property. Now I fail to see how Florida has even an interest in prohibiting same-sex marriage in its own state with its own residents, but it would seem that they have even less interest in refusing to recognize a Massachusetts marriage in which the couple never resided in Florida. In short it seems to me that this particular "marriage protection act" is bound to be challenged by the widower under as unconstitutional under at least three sections of Article I of the Florida Constitution (italics added for emphasis).

SECTION 2. Basic rights.--All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property....

SECTION 9. Due process.--No person shall be deprived of life, liberty or property without due process of law...

SECTION 23. Right of privacy.-- Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein...

It seems the widower can make a good case that if he were a woman he would have inherited the condo. And the goal of the law in this case should be to determine what the deceased would have wanted, which seems likely to be that his spouse should inherit. What interests will Florida assert for why it should be otherwise?

(2) Two Massachusetts women marry. One of them becomes pregnant. The couple split up, and the woman who bore the child moves to Connecticut. The other woman sues for visitation rights. What should the Connecticut courts do?

Volokh says that under Connecticut law, the other woman would probably not be a parent of the child. I don't think this is nearly so clear as Volokh states. It is unclear from Frum's question when exactly the birth mother moved to Connecticut. If it was after the other woman was established as a parent under Massachusetts law, I doubt Connecticut would refuse to recognize that relationship, especially as the Connecticut legislature has explicitly authorized second-parent adoption. The 1915 Supreme Court case of Hood v. McGehee in which the court ruled a Lousiana adoption did not give the children rights to inherit Alabama land, does seem to imply Connecticut would not be required to recognize the parentage, but it seems unlikely that Connecticut would choose to take this path. I disagree with Volokh that this case would be like the case of a step-parent who is not a legal a parent even under Massachusetts law. And if Connecticut would have recognized an adoption, but ends up not recongizing the parental relationship due to the marriage, then people are worse off than had Massachusetts not recognized the marriage in the first place. (For in that case the couple most likely would have gone through with the adoption).

4) A Massachusetts woman marries another Massachusetts woman. The relationship sours. Without obtaining a divorce, she moves to Texas and marries a man. Has she committed bigamy?

Volokh says no, because the first marriage is not recognized under Texas law. That would seem to be a defense to bigamy charges in Texas, but seeing as the Texas marriage is recognized in Massachusetts she would seem to have committed bigamy under Massachusetts law. Could Massachusetts seek extradition?

[UPDATE: In a comment to this post at Three Years of Hell, Mike J. notes that the Massachusetts law against bigamy would seem to require that the Texas couple subsequently cohabit in Massachusetts. I should have realized that. Massachusetts can't make something done entirely in Texas a crime. Another interesting question is would Massachusetts recognize the Texas marriage for any purpose. These issues actually have come up quite a bit historically. In some states it was illegal for a divorcee to remarry during the lifetime of an exspouse (especially under certain circumstances). Such people would sometimes move to another state where such remarriage was legal and remarry there.]

5) Two married Massachusetts 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 continue treatment. Whom should it ask?

This case is rather like the first one. Here Frum leaves the vacation state unmentioned. I would just turn to Koppelman again quoting from the Restatement (Second) of Conflict of Laws:

[s]o far as is known, no marriages have been held invalid....except by application of the law of a State where at least one of the spouses was domiciled at the time of marriage and where both made their home thereafter.

Seeing as the couple never resided in the vacation state, it be remarkable for the State to refuse to recognize the marriage for this purpose.

6) A Massachusetts man marries a foreign visitor to the United States. Should the foreigner be entitled to US residency?

I agree with Volokh that current law would not recognize the marriage for these purposes. As to whether it should, well that's a matter of opinion. I personally strongly support the Permanent Partners Immigration Act.

I agree with Volokh on questions three, seven, and eight so I won't bother repeating them here.

01:16 PM in Federalism and the FMA | Permalink

Comments

Posted by: jc | November 02, 2007 at 10:27 PM

Posted by: jc | November 02, 2007 at 10:28 PM

Posted by: jc | November 02, 2007 at 10:28 PM

Posted by: jc | November 02, 2007 at 10:29 PM

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Galois

A mathematician's thoughts on same-sex marriage, election methods, politics, and more and little else of late.

Recent Posts

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Books Relevant to Same-Sex Marriage

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May 10, 2004

SSM and Conflict of Laws

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June 2005

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