Galois

A Nation Divided

Some may point to Kansas having passed a constitutional amendment banning same-sex marriages and civil unions as a sign that the country is moving in one direction.  Others may point to a poll in New York or actions in the Connecticut General Assembly as a sign that the country is moving in another direction.  I take all that I have seen as a sign that the country is moving apart.  In the foreseeable future we will have some states which allow same-sex couples to marry, some states which allow them "full" civil unions, some states which allow them some limited domestic partnership, and some states which reject any formal recognition of same-sex couples.  I think that is a fact that we must all face.  To those who would reply that the Federal Marriage Amendment--excuse me, the newly entitled Marriage Protection Amendment--will change this state of affairs I would reply (1) it will not pass the Senate,  (2) even if it did we would still face many of the same issues with civil unions, and (3) even if it did we would still face many of the same issues with marriages performed in other nations.  So we can't avoid the question, we must decide how to best address it.  Let us consider some possibilities a state may take.

Option I -- Blanket Nonrecognition.  A state, say Kansas, could instruct its court and agencies to refuse to recognize same-sex marriages and any consequences thereof.  For example, if a Massachusetts or Vermont court issues some judgment based upon the existence of a same-sex marriage or civil union--say in a wrongful death suit or a divorce settlement--that judgment would be completely unenforceable in Kansas.  This extreme approach might be comparable to a state refusing to enforce an order based upon recognition of slavery.  The idea is that slavery is so morally repugnant that to give even indirect effect to its existence is taking part in the crime.  I don't doubt that a few may view same-sex marriage as such an evil, and DOMA would seem to permit this (although this permission to ignore sister state judgments seems like the most likely aspect of DOMA to be declared unconstitutional), but I must wonder if states really want to hold themselves out as a harbor for those fleeing justice.

Option II -- Respect Foreign Judgments But Never Recognize The Marriage Or Civil Union Directly.  The state could decide that it is willing to recognize judgments but not the marriage or civil union itself.  This is hardly any better with regards to providing a harbor for those fleeing justice.  Yes divorce judgments would need to be enforced, but who needs a divorce.  A person could take all the family assets and flee to Kansas and remarry without divorce.  Is this what people want?  Or a couple from Vermont is driving through Kansas when they get into an auto accident.  The hospitals in Kansas do not, by law, allow one spouse to make medical decisions for the other.  I hate to think about all the consequences if one spouse died, especially if they had a child.

Option III -- Recognize Foreign Marriage and Civil Unions For Some Purposes But Not Others.  Perhaps Kansas may refuse to recognize the marriage or civil union for its own tax purposes, and refuse to recognize it for governmental programs, but allow it for determining next of kin.  They might require that anyone entering into marriage in the state have obtained a divorce from any previous marriages including same-sex marriages and civil unions.  The more situations the legislature deals with, the more guidance the courts and agencies of the state have.  A state may even pass a marriage evasion law (which some states already have) that would declare invalid a marriage of its own residents who marry elsewhere to avoid the states restrictions and then return to the state.  This option requires the legislature to give some serious thought to why it is prohibiting same-sex marriage and weigh that against the interests of other states and thier residents who decide that same-sex couples may marry or obtain civil unions. 

Option IV -- Recognize Foreign Marriages as a Civil Union.  For states with civil unions or domestic partnerships, it seems reasonable to treat foreign same-sex marriages the same way they would treat domestic civil unions or partnerships.  A couple would be "married" in Massachusetts and "civilly united" in Vermont.   Similarly it would make sense for states with same-sex marriages to recognize "full" civil unions from other states as marriages.  (There would need to be some test, though, for determining whether a foreign civil union was "full"). 

Option V -- Recognize Foreign Marriages.  Some states refuse to perform marriages within a certain degree of consanguinity or affinity, and yet are willing to recognize them if performed elsewhere.  It could likewise make sense for a state to refuse to prohibit same-sex marriages but recognize them if performed elsewhere.  This would allow the state to put forth its view that only men and women should marry, and yet still recognize that other states may reach different views and recognize that reality. 

These are just a few options, and which a state pursues may depend on the purpose in prohibiting same-sex marriage in the first place.  If the issue is keeping uniformity with other state laws, then liberal recognition policies make a great deal of sense.  If the issue is maintaining the traditional definition of marriage, then it may make sense to establish full civil unions and recognize foreign marriages as such.  If the issue is a fear that allowing same-sex marriage would "send a message" that marriage has nothing to do with procreation, then one may ask whether the same message be sent merely by acknowledging that other states and nations do allow it.  It is hard for me to offer any advice on this matter because I don't see that message being sent in the first place, nor do I see any other harm in allowing same-sex marriages in the state itself.  Still, whatever one's views, this is a discussion states should have.  States which have civil unions should consider how to treat foreign marriages (and foreign civil unions).  Even states opposed to same-sex marriage and civil union should consider the issue carefully.  If they choose blanket nonrecognition it should be with full awareness of the implications of that choice, and not just as a visceral reaction to same-sex marriage. 

 

Bulletpoints of a Lost Post

This morning I had written a rather lengthy post concerning the Massachusetts "reverse evasion" law.  But I lost it.  I have neither the time nor patience to recreate the whole thing so here's what I remember saying recreated in quick bulletpoints.  Please forgive the laziness.

• I wrote in some detail about the law a few weeks ago.  Among other things I said out-of-state same-sex couples would generally be better off marrying in Canada, and I suspect the law itself is perfectly constitutional.
  
• From the Boston globe we have a story on Gov. Romney's latest actions to stop out-of-state same-sex marriages.  (This morning that was the latest, now the Globe has AG Reilly agreeing.)  Also a quick article on the role of race in the 1913 law.
  
• I agree with Romeny (for once) on quite a bit.  The law is valid and should be enforced.  I also agree with him when he said couples marrying contrary to said law are not hurting the commonwealth but are hurting themselves and their families by having a marriage of doubtful validity. 
  
• I would add that perjury and subornination of perjury are serious criminal offenses.
  
• I disagree wtih the Romney's characterization of the law as prohibiting marriage of all out-of-state couples.  The law specifically says the marriage may not be contracted if it would be "void" in their home jurisdiction.  Some states, like New York, Connecticut, and Rhode Island, do not say anything about same-sex marriages being void.  The Massachusetts law says nothing about requiring such marriages to be explicitly authorized in their home state.
  
• Thus I believe Stanley Kurtz is wrong when he says NY AG Spitzer's opinion implies the marriages "must be illegal" in Massachusetts.  Spitzer's opinion was that the legislature never authorized anyone to perform same-sex marriages in New York, but same-sex marriage was not on the list of void marriages under NY law.
  
• Likewise RI AG Lynch declared that  the only marriages deemed void under RI law were those that "involve bigamy, incest or mental incompetence, or marriages in which one or both parties never intended to be married."  Thus the Massachusetts law would not seem to apply to RI either.  Lynch  did not say the question of whether same-sex marriages were currently void was an open one.
  
• I agree with Justin Katz that legislators should not shirk thier duties just because a question is a difficult one and it is an election year.  I have been urging my CT legislators, for example, to uphold their oath to guarantee equal protection by passing a law explicitly allowing for same-sex marraige.  (I understand that they have their hand full in Hartford, though, with impeaching our governor.)
  
• It's worth mentioning, though, something Rep. Mike Lawlor (D-East Haven) said at the Quinnipiac Symposium on SSM in March.  He said the CT legislature was divided roughly one third for marriage equality, one third for some type of civil union, and one third for a DOMA.  No group was willing at the present to support  any of the alternatives so there was an understanding that they would  wait and see how things stand next session. 
  

Threre was more, but this is long enough as is.

CATO Forum

CATO has audio (with or without video) from a policy forum they hosted yesterday on same-sex marriage.  I was going to try to provide an outline of each speaker's arguments, but I would rather have people if they are interested just watch/listen to the forum directly.  I will only give a very brief introduction to the speakers here.  I also plan on commenting seperately, as I find the time, on a few particular issues that were raised at the forum.

The first speaker was Jonathan Rauch, author of Gay Marriage : Why It Is Good for Gays, Good for Straights, and Good for America.  I've mentioned that book and Rauch's arguments a number of times on these pages, most notably here.  His position is gay marriage would help gay couples, their children, the rest of society, and restore the institution of marriage itself.

Michael Greve is the director of the American Enterprise Institute's Federalism Project.    He explains is position well in this paper published last March.  His main concern is that the courts will strike down DOMA, or at least a state's mini-DOMA.  Thus he is pushing for a federal amendment that would (1) establish that there is no federal right to same-sex marriage, and (2) leave it to each state to decide issues pertaining to same-sex marriage. 

Genevieve Wood is the chief spokesperson for the Family Research Council.   She supports the Musgrave Amendment that would ban same-sex marriage throughout the United States.  The FRC has also said that an amendment also needs to ban the recognition of civil unions at any governmental level.  I'm gathering that they believe, as I do, that the Musgrave Amendment would indeed accomplish that. 

As noted, I will try to comment on a few particulars over the coming days. I did want to provide one quote from Rauch now, though, because it relates to something I wrote on Sunday.  During the Q&A portion of the forum Rauch noted that he had gotten that morning an e-mail from somebody saying that gay marriage was a part of the "me generation", that it was selfishly putting the needs of two people before the needs of society.  Rauch responded that anyone making such a contention should read the marriage vows.  He said:

[It] is the most noble and the least selfish promise two people can possibly make.  Gay marriage is the end of the gay liberation agenda.  It is the start--and really the culmination--of the gay responsibility agenda.

Policy and Law

On Wednesday I noted that the questions raised by David Frum concerning interstate recognition of Massachusetts marriages also apply in one form or another to the matter of recognition of Canadian marriages.  Some have commented that the Canadian situation is irrelevant because the concern is the Full Faith and Credit Clause of the US Constitution (Art IV, Sec 1).  While the question of whether FF&C would require interstate recognition of marriages is an interesting one--and I hope to explain soon why legal experts do not think it does--that was not my concern in that post nor do I believe it was Frum's in raising the question to begin with.  Frum did not mention FF&C at all.  Rather he said he raised his questions to "drive home" the following point:

Americans may live in states, but they conduct their financial and legal lives in a united country bound by interstate institutions.

Eugene Volokh had already noted that laws already vary across all 50 states and that there are methods in place for dealing with these conflicts of laws.  My point in that post was that we conduct our financial and legal lives across international borders as well as state borders.  And thus these same policy concerns will occur even with a national policy against same-sex marriage.  If Frum was concerned that nonrecognition of sister state marriages led to too many problematic situations, why wouldn't nonrecognition of marriages from our friendly neighbor to the North lead to the same situations?  I don't believe Frum was saying the problem was the Massachusetts marriages must be recognized and the Candadian marriages don't.  Rather I believe his point was that it is too difficult to not recognize the Massachusetts marriages in every situation.  There are at least some situations where people would insist the marriage be recognized.  I felt even stronger that this was Frum's point when he wrote in a follow up on Friday:

I’ve argued in this space that marriage long ago ceased to be a local institution – that the modern American economy and modern American government cannot cope with the possibility that two people can be married on one stretch of I-95 and unmarried an hour down the road.

With the modern international economy and NAFTA, though, why is it possible nevertheless to cope with the possibility of two people being married in Windsor, Ontario, but not across the bridge in Detroit, MI?  I'm not saying that, if necessary, we couldn't cope with not recognizing fully Canadian marriages, or Massachusetts marriages for that matter.  I think it would be much easier, and beneficial from a policy perspective, though, to recognize both.  And that brings me to a final point that Frum seems to have been making.  Frum claims he is also testing the good faith of certain SSM supporters.  He writes:

And we’re going to test something else too: the good faith of the proponents of same-sex marriage in a single state....My own prediction is that the forces pressing for same-sex marriage in Massachusetts will not long remain content with Volokh’s answers, theoretically credible though they might be. So long as the battle over the Federal Marriage Amendment rages, they’ll swear devotion to the doctrines of local self-determination. But those vows will quickly become inoperative.

I'm not sure if I'm one of these SSM proponents to which Frum refers, but I do want to be clear on my view.  I believe sister states should recognize Massachusetts (and Canadian) same-sex marriages as a matter of policy.  Of course I think they should also allow SSM in their own laws as a a matter of policy.  I do not think FF&C requires that these marriages be recognized under current law.  I believe not recognizing the marriages raises some due process and equal protection concerns, but again not marrying couples in the first place raises the same concerns.  I believe I have and will continue to act in good faith.  I'm curious, though, as a matter of policy what Frum thinks the answers to his questions should be.  I'm not asking what he thinks the law requires, but just as a matter of policy what he would like to see happen.  Who does he think should inherit the Florida condo?  Should the woman be able to marry someone else in Texas without first obtaining a divorce?  Should the man on vacation be told of what is happening with his spouse who had a stroke?  These questions will not go away just by adopting a national policy against SSM in the United States.  Canadians vacation in the US, own property in the US, and some will even move to the US to start a new life. 

Blame Canada

My last post  concerned some questions asked by David Frum concerning same-sex marriage and conflict of laws, as well as some answers provided by Eugene Volokh.  The questions generally concerned two people who married in Massachusetts and how that marriage would be treated by other states and by the federal government.  Frum believes his questions demonstrate why we need a  national solution to same-sex marriage.  I think recognizing same-sex marriage throughout the United States would be a wonderful thing and that it would provide better simpler answers to Frum's question.  Banning same-sex marriage throughout the United States, however, will not avoid Frum's questions.  That is because same-sex marriage is already legal elsewhere, for example, Canada.  So just replace Massachusetts with Ontario in Frum's questions and we will still be faced with the consequences that follow from not recognizing valid marriages.  Let's see the new eight questions:

1. An Ontario man buys a condo in Miami. He marries another Ontario man. The condo purchaser dies before he can write a new will. Who inherits the condo?
   
2. Two Ontario 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?
   
3. An Ontario man living in the United States is accused of stock fraud. The federal Securities and Exchange Commission subpoenas his spouse. The spouse claims marital privilege and refuses to answer the SEC’s questions. May the SEC compel him to answer anyway?
   
4. An Ontario woman marries another Ontario woman. The relationship sours. Without obtaining a divorce, she moves to Texas and marries a man. Has she committed bigamy?
   
5. Two married Ontario men are vacationing in the United States. 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?
   
6. A Massachusetts man marries a Canadian man in Ontario. Should the foreigner be entitled to US residency?
   
7. A Delaware family set up a trust for their son. The son moves to Ontario, marries a man, and then gets divorced. The trust is the son's only financial asset. Should Ontario take the trust into account while dividing up the couple’s possessions? If yes, what happens when the Delaware trustees refuse to comply?
   
8. An Ontario woman married to another woman wins a lawsuit against a California corporation. She dies before she can collect her debt. Her closest blood relative demands that the corporation pay the relative, not the surviving spouse. Who should get the money?
   

 

I think in all of these cases the United States or the particular state should recognize the marriage.  There are many good reasons for doing so, and I do not see what is to be gained by not recognizing the marriage.  In any case, though, those conflicts will occur regardless of whether same-sex marriage is allowed in Massachusetts.  So unless the US plans on invading Canada, this is something we are going to have to deal with.  And actually, at least for the time being, we are more likely to have deal with these scenarios arising from Canada.  That is because the general rule of law is that a marriage valid where celebrated is valid everywhere.  There are exceptions to this rule, and many states as well as the federal government have carved out an exception for same-sex marriages.  The rule does not depend, though, on whether that location was another state or another country.  It does matter, though, whether the marriage was valid where celebrated.  Ontario has no residency requirements, so a marriage there even between US citizens is going to be valid there.  Massachusetts, however, does have a reverse evasion law which says that a marriage contracted between people residing and intending to continue to reside in another jurisdiction is invalid if it would be "void" in that other jurisdiction.  So with such marriages we don't even have to look to the exceptions, it violates the general rule to begin with.  That is why GLAD is telling people in such situations that they would be better off marrying in Canada as opposed to Massachusetts.  There is still no guarantee that the marriage will be recognized, but it is hard to imagine a situation where the Massachusetts marriage would be recognized, but not the Canadian marriage. 

NOTE:  Fun coincidence.  As noted in the last post, Frum originally asked his questions on my last birthday.  The decision first legalizing same-sex marriage in Canada was delivered on my wife's last birthday.  Weird. 

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.

That 1913 Law

So there is a lot of questions lately about a Massachusetts law dating from 1913 that reads:

No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.

One question is whether said law is constitutional, but another question is what does it mean even if it is.  Gov. Romney believes that it means that Massachusetts may not marry non-resident same-sex couples from any other state, and any such marriages performed are null and void under Massachusetts law.  He believes this follows since, to his knowledge, same-sex marriage is not legal in any other state of the union.   He even sent out letters to the govenors and attorneys general of the other states asking them to inform him if his assumption about their laws was incorrect.  Based on this reading, Gov. Romney is asking town clerks to ask for proof of residency and to deny licenses to out-of-state gay couples (except those from Ontario, etc.). 

There are other interpretations of the law, though.  Attorney General Reilly expressed the opinion that the 1913 law only applies to couples from the 38 states that have passed DOMA legislation expressly prohibiting same-sex marriage.  That is his opinion would still allow same-sex couples from New York, Connecticut, and the like to marry in Massachusetts.  This is quite an important distinction, because for example, New York's Attorney General Spitzer has issued an opinion that while local New York officials should not issue licenses to same-sex couples, they should recognize those marriages lawfully entered into elsewhere.  We see here a rather dizzying scenario for determining whether the same-sex marriage of New York couples entered into in Massachusetts is valid.  It's valid in NY if it was lawful in MA, and it's lawful in MA as long as it would not be void if contracted in NY. 

GLAD's Mary Bonauto, the lead attorney in Goodridge, presents yet another view:

Ms. Bonauto said that at most, the law would prevent the marriage of couples from the roughly 20 states where laws specifically say that a same-sex marriage would be "void." She said it would not, for example, apply to states like Alabama or Michigan, where the law says a same-sex marriage is "invalid," or Illinois, where the law says same-sex marriages are "prohibited."

"I really think the governor's painting with far too broad a brush in his interpretation," Ms. Bonauto said. "In any law the precise language used matters a great deal."

So right now the biggest confusion in Massachusetts is whose view must the town clerks follow (at least for the time being).  Some clerks have indicated that they would continue to do things the way they always have.  That is they would just ask the applicants if there was any impediment to their marriage.  Oh the confusion.  Eventually there will be some court rulings on the subject, but who knows what will happen in the meantime.  GLAD is asking non-Massachusetts couples to adopt a wait-and-see approach and to not make any immediate plans until things get worked out.  They promise to keep their website updated with information as it becomes available.

And what about the underlying arguments about the law's constitutionality?  There has yet to be a case filed on the subject, so of course there have been no briefs filed on it either.  In interviews Ms. Bonauto has said the law raises some constitutional issues.  Prof. Laurence Tribe has also expressed this view.  So far I have seen two concerns raised.  One is that Massachusetts has no business enforcing the discriminatory laws of other states, and the second is that such a law would unfairly treat non-residents differently than residents in violation of the privleges and immunities clause.  My initial reaction, though, is that both concerns are rather weak.  The SJC found there was no rational basis for prohibiting SSM under Massachusetts law.  That does not mean that anoter state might not have a rational basis to prohibit it under their own laws.  Nor is it the place of the SJC to rule on how other states should interpret their own laws.  As for the P&I clause, while it has been applied to limit the ability of states to discriminate against non-residents in matters to applying their trade, or in medical or welfare matters, it has explicitly not applied to areas of domestic relations.  It seems to me that the Supreme Court case of Sosna v. Iowa (1975) is quite relevant.  That case held that Iowa could require a one-year residency period before a person could seek a divorce.  Particulary relevant from the opinion written by J. Rehnquist is the following (internal citations omitted):

Such a requirement additionally furthers the State's parallel interests both in avoiding officious intermeddling in matters in which another State has a paramount interest, and in minimizing the susceptibility of its own divorce decrees to collateral attack. A State such as Iowa may quite reasonably decide that it does not wish to become a divorce mill for unhappy spouses who have lived there as short a time as appellant had when she commenced her action in the state court after having long resided elsewhere. Until such time as Iowa is convinced that appellant intends to remain in the State, it lacks the "nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance."  Perhaps even more important, Iowa's interests extend beyond its borders and include the recognition of its divorce decrees by other States under the Full Faith and Credit Clause of the Constitution, Art. IV, 1. For that purpose, this Court has often stated that "judicial power to grant a divorce - jurisdiction, strictly speaking - is founded on domicil." 

Should Marriage Be Left To The States?

My short answer is "no", but let me explain.  Before answering what I think the situation should be, it is helpful to look at what the situation is.  Currently family law is a matter left to a great extent to the states.  States have the power to decide who may marry, the legal process required to do so, and what the legal consequences of that marriage are within the state.  In all these matters states differ from each other.  The state is limited in its actions, though, to the requirement  of its own constitution as well as the constitution of the United States. What those constitutions require is often a matter of great debate, but the ultimate judge is the state's highest court for matters pertaining to its own constitution, and the Supreme Court of the US for matters in the US Constitution.  In either case the constitution can be amended by a process laid out therein.  So, for example, the US has ruled that a state may not forbid interracial marriages, or forbid inmates from marrying (except under compelling reasons).  I am not aware of any argument claiming that the US Constitution currently forbids same-sex marriage, although there are arguments that it requires it either as matter of a fundamental right to marry, or as a matter of equal protection.  It has been noted that the federal government has banned polygamy, but I don't believe this is quite true.  The US Congress is ultimately responsible for the laws in DC and the territories.  It thus banned polygamy in Utah when Utah was a territory.  The Congress also the power to decide whether to admit a new state to the Union (both these powers are in Article IV, Sec. 3).  Thus Congress refused to admit Utah to the union unless it's state constitution perpetually forbade polygamy.  If Congres had thought it had the power to ban polygamy in the states, this would not have been necessary. 

There is also the issue of section 1 from the above Article IV which guarantee Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.   (Section 2 could also lead to some issues, but as it has been interpreted these issues seem minor).  Here is briefly my understanding of how the SCOTUS has interpreted that clause, based primarily on my reading from Andrew Koppelman's book (see left sidebar) which devotes all of chapter 5 to this subject.  Fulll Faith and Credit generally applies to judgements (assuming the original state had the proper jurisdiciton to make that judgement).  This extends to judgements of divorce.  It generally does not apply to statutes or to kinship status.  See for example this 1915 case of Hood v. McGehee where the court ruled a Lousiana adoption did not give the children rights to inherit Alabama land.  I do not believe the Supreme Court has explicitly addressed the issue of marriage recognition, but states have repeatedly refused to recognize marriages from sister states.  A lower federal court in 1879 in Ex parte Kinney also addressed this issue and confirmed that a state need to accept a sister state marriage.   That states generally do accept sister state marriages (and other foreign marriages) is a matter of local policy.  There are good reasons for generally accepting marriages.  That is why some states (like NY or CT) which do not have a policy against SSM are likely to fully recognize same-sex marriages from MA.  Now FFaC would, as I understand it, require that a state recognize a valid court judgement from another state even if it stemmed from a suit which depended on the existence of a same-sex marriage.  The guiding principle of FFaC seems to be that each state is sovreign and has the right to control the laws in its own state, but not those of another state.  Still, as we are one union, a state is required to take into consideration the interests of a sister state, in addition to its own interests, in deciding matters where both states have an interest.  Thus there seems to be almost no question that a state could, if it desired, invalidate the marriage of a couple which fled to another state, married, and then returned in order to evade the home state's marriage statutes.  The real grey area arises from a couple who legally resided and wed in a state where a marriage was legal, and subsequently moved to another state that had a strong policy against such marriages.  This issue did come up a number of times with regards to interracial marriages with results varying from state to state.

So my understanding of the current situation is that while a state does not need to recognize a same-sex marriage from Massachusetts for all purposes, (in particular if a couple evaded the state's statutes to marry), it would need to recognize it for some purposes (for example it would need to recognize a same-sex divorce decree).  All of this is assuming, for the sake of argument, that the state has some interest in denying recognition to same-sex marriages.  Of course, if the state had no such interest, it would probably be required to allow same-sex marriages in its own state because of equal protection and due process.  I personally believe even the weaker form of equal protection found in the US Constitution should require states to allow same-sex marriage, hence my short answer "no".  Whether the SCOTUS is likely to see things this way, I don't know. 

That being said, there are some questions that arise about whether things should be different.  For example, while marriage is currently generally left to the states, maybe this isn't such a good idea.  Maybe we should have one national marriage policy to avoid the confusion that arises from 50 different policies.  The same sort of argument can be made with regards to many issues besides marriage, and I generally agree.  I'm not a big fan of state sovreignity or states' rights and I wouldn't mind a constitutional amendment to change this situation.  There are some great things to be said for a federalist policy that allows for experimentation in the states, and local control, but in general I personally thinks these benefits are often outweighed by the benefits of a unified national policy.  I think Congress should have the power to set a national policy in matters whenever it feels it is justified.  That being said, this is not what the Federal Marriage Amendment (FMA) does.  Instead of giving Congress a broad power to set national policy, it not only limits this to the area of marriage, nor even only to the issue of same-sex marriage, but rather it sets the policy in one direction and codifies that policy in the constitution.  It does not give Conrgress the power to set national policy, but sets it for Congress.  And even then we would still have the problems of certain marriages being legal in one state and illegal in another state.   

Of course there are those that claim the FMA is needed because otherwise the SCOTUS will likely require SSM.  Once again, though, the FMA certainly does not narrowly address this concern.  An amendment which said something along the lines of "nothing in this constitution shall require same-sex marriages" would take care of that, while leaving the issue to each state.  I would of course oppose even this alternate amendment because not only do I believe the constitution does require it, I believe it should require it as well.  But at least then the FMA would be addressing the problem it claims to be addressing.  It also unclear to me why the issue needs to be addressed even before the courts rule.  If the harm of same-sex marriage is as claimed a long-term one of how our society views marriage, then it shouldn't matter if marriages were allowed for a short period if the subsequent "view" of marriage was quickly reestablished.  I should also note that most people do not support an amendment to correct every mistake they think the courts make.  I doubt there is anyone who agrees with every court decision.

What about the issue of stopping "judicial tyranny" even at the state level?  Well, not only do I naturally adamantly disagree that there is any judicial tyranny in  say the Massachusetts decision, but also that is an issue properly left to the commonwealth of Massachusetts.  The people of Massachusetts entrust their court to make decisions, including the proper interpretation of the commonwealth's constituition, even knowing that a majority will not always agree with every decision.  If the people are so outraged by what they view as a miscarriage of justice, they have the option of amending their constitution through a process they decided upon.  As I said, I'm not a big fan of the state as sovreign concept, but it's what we have right now.  Unless we are going to abandon that concept, it is up to the state to deal with matters of how their own constitution should be interpreted.  Other than prohibition (which many say in hindsight was a terrible idea) the only time we limit what a state can do within its own territory is when otherwise it would violate the right of an individual as a US citizen.

In summary, if I could write the constitution as I saw fit, states wouldn't have rights and marriage policy would be set by the federal government.  If we are going to leave marriage policy to the states, as the constitution currently does, I see no reason to carve out an exception for same-sex marriage.  States already have the requirement to provide equal protection in all of their laws including marriage, and I believe this would require same-sex marriage.  I have no problem with somebody pushing for an amendment to the constitution if they see a change as necessary.  I would hope the amendment would be narrowly tailored, though, to address the specific problem or problems it is designed to address. 

 

Let the States Decide?

I hope to write more in the very near future on the whole same-sex marriage and fedaralism issue being debated all over town.  I also hope soon to write about Jonathan Rauch's new book, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America, which I'm in the midst of reading (and enjoying) now.  I could not hold back, though, from commenting on David Blankenhorn's response to an article Rauch wrote in the Atlantic Monthly on the subject. [The article is "drawn" from the book, but not a direct excerpt] The article concludes:

If conservatives genuinely oppose same-sex marriage because they fear it would harm straight marriage, they should be willing to let states that want to try gay marriage do so. If, on the other hand, conservatives oppose same-sex marriage because they believe that it is immoral and wrong by definition, fine—but let them have the honesty to acknowledge that they are not fighting for the good of marriage so much as they are using marriage as a weapon in their fight against gays.

To which Blankenhorn responds:

Let me see if I understand. If I "genuinely" oppose SSM for legitimate reasons, having to do with children and marriage, then I may say so, provided that I confine my activities and comments to the state in which I live, and remain neutral or passive or accepting of "experimentation" regarding anything that happens in any of the courts or legislatures of any of the other states. But if I decline this piece of political-stratetic advice from Jonathan Rauch -- who, by the way, doesn't at all seem to be following it himself -- then that proves that I am "using" marriage as a weapon against gays.

Wow. Let me see if I can translate this argument into one sentence: If my opponents refuse to fight me on terms that I dictate, they are bigots. I'll give Jonathan Rauch this: it takes a lot of brass to make that argument.

I don't believe Blankenhorn does understand.  First of all, Rauch never said that anyone had to restrict their comments to a particular state.  (How would one do that anyway?)  As Blankenhorn noted, Rauch himself has written a book--the publication of which was not confined to DC--arguing why all states should allow gay couples to marry.  Rauch is merely stating that any state which decides to follow this course, should be allowed to do so if the concerns are policy concerns as opposed to moral concerns.  That is one who opposes SSM strictly on policy grounds should also oppose the Federal (anti-) Marriage Amendment.  [UPDATE:  I should emphasize that Rauch also firmly opposes a federal imposition of same-sex marriage.  He specifically tells the Supreme Court to "butt out"].  Nor does Rauch call anyone a bigot for believing same-sex marriage is immoral or wrong by definition.  On the contrary he called such a view "fine".  It was Blankenhorn who referred to such people as bigots. 

Why does Rauch refer to the distinciton between policy concerns and moral concerns?  As he explains well in the article, Rauch, like many people, believes that issues of policy are best left to the individual states.  Different states can experiment with different policies and we can see their effects.  For example, some people oppose school vouchers because they believe it will have a detrimental effect on children and their education.  They are free to--and should be encouraged to--explain their concerns and the detrimental effects they believe vouchers will have.  Still if some state wants to institute vouchers, this belief says they should be allowed to do so without calls for federal intervention.  Opponents might be concerned about how the children in that state will fare, but ultimately the decision belongs to that state.  On the bright side at least we will have more concrete evidence about the effects of vouchers.  (Although how that evidence should be interpreted would surely be debated).  If, on the other hand, one believes allowing same-sex marriage is morally wrong, one should strive to prevent it and/or abolish it everywhere it exists (including other countries).  For example, I don't believe any state should be allowed to "experiment with the policy" of slavery.  My concern, though, is not a policy one.  Likwise while I believe the policy reasons to support SSM are strong, I also believe people are being denied their civil rights and hence I personally would like to see recognized--and believe there already exists--a Constitutional right to marry a person of the same sex.  Do supporters of the FMA similarly believe there should be a Constitutional right to prevent a state from recognizing such marriages?

Senate Hearing on the FMA

So next Wednesday a subcommittee of the Senate Judiciary Committee will hold a hearing concerning amending the US Constitution to "defend" marriage.  If peolpe had any doubt about how subcommittee chair,  Jon Cornyn (R-TX), feels about this issue, it would be helpful to look at this hearing.  The title?  "Judicial Activism vs. Democracy: What are the National Implications of the Massachusetts Goodridge Decision and the Judicial Invalidation of Traditional Marriage Laws? "  The witnesses?

First there is Reverend Richard Richardson, the Director of Political Affairs for The Black Ministerial Alliance of Greater Boston.  The BMA is an orginization that has come out strongly against gay marriage and has pushed for an amendment to ban it in Massachusetts.  It's president said the decision was easy, "because our faith forces us to recognize something that is biblical and that our history has affirmed."

Next we have Pastor Daniel de Leon, Sr.  Pastor de Leon is on the board of advisors of the Alliance for Marriage.  That is the group that has been spearheading the efforts for a Federal Marriage Amendment.

Up third is the "Honorable" Jon Bruning, Attorney General of Nebraska.  This is the man who upon reacting to the court decision in Massachusetts said, "Does that mean you have to allow a man to marry his pet or a man to marry his chair?"

Finally we have Mrs. Maggie Gallagher, the President of the Institute for Marriage and Public Policy.  She is also a fierce advocate of the FMA.

I hope this is just a preliminary list and the subcommittee will actually call some witnesses whose lives will actually be deeply effected if the FMA is passed:  Individuals whose families would suddenly lose the protection of marriage;  childrens whose parents' marriages would become annulled; citizens who would be denied equal protection because they loved a person with the wrong genitals.