Galois

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. 

Did al-Qaeda Secretly Want Same-Sex Unions?

Via The Republic of T. we learn that incoming Spanish Prime Minister Jose Zapatero will push for a bill to legalize marriage "equivalent" same-sex unions.  How long before Stanley Kurtz writes about how same-sex marriage causes terrorism?