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"Same-Sex Marriage Raises Legal Questions"--A Commentary by Prof. Lea Brilmayer


(This essay was originally published in the February 15, 2004; edition of the Washington Post. Professor Brilmayer also participated in an online discussion of some of the issues raised by this article. It is available at washingtonpost.com.)

Same-Sex Marriage Raises Legal Questions
By Lea Brilmayer, Howard M. Holtzmann Professor of International Law

The news that gay and lesbian couples will be able to apply for marriage licenses and marry legally in Massachusetts starting May 17 pits the rights of states to formulate their own family law policies against their conflicting obligations to recognize legal relationships entered into in other states. Consider what will happen to two women who marry in Massachusetts and then return to, or later move to, another state that does not allow two women, or two men, to get a license. Does Massachusetts law fix their rights, or do their rights depend on the laws where they live?

The practical implications of this question are enormous. Can the lesbian couple get divorced in their new state if their relationship breaks up? If not, then by what legal process would they divide their property? What would it mean to the rights of any children involved if the marriage falls apart after the family settles in another state? If one spouse dies, does the other automatically inherit her property? Are they married or single for purposes of tax laws? In answering any of these questions, it may well matter whether the two were long-term residents of Massachusetts at the time of the marriage or whether they had gone to the Bay State with the sole intention of evading their own state's more restrictive law.

Even if Massachusetts goes ahead with a controversial state constitutional amendment that would end same-sex marriage there in 2006 or later, what will happen to couples who marry in the meantime? Whatever one thinks about the morality of the underlying issue, it hardly seems possible to announce retroactively that children born to or adopted by the couple have overnight become legally illegitimate. But then, that result is no worse than having children's status change back and forth between legitimate and illegitimate as their families drive across the country. And yet that is the direction in which we seem to be headed, given that 38 states have already stated that they don't intend to respect the legal validity of marriages entered into elsewhere.

These questions are new and largely unresolved, and yet their answers will depend on the application of a legal principle, known as "conflict of laws," that is as old as American law itself. Conflict of laws deals with the overlapping and sometimes conflicting rights and obligations created by the 50 states and by the federal government. It comes into play when a court decision or legislation announced in one state (or in a foreign country) must be recognized in other jurisdictions.

The central guiding principle in resolving such questions derives from Article IV of the Constitution, which says that each state must give "full faith and credit" to the "public acts, records, and judicial proceedings" of the others. With the full faith and credit clause, the drafters of the constitution tried to reconcile the desire for diversity (different states should be allowed to choose different laws) with mutual respect for differences of opinion (sister states should respect each other's choices).

But there is no clear definition of how much deference the "full faith and credit" clause requires. The states are not required to obey everything the others do. Supreme Court decisions suggest that states have some latitude to exercise their own judgment and to consider their own laws and mores in deciding whether a sister state's decisions have to be enforced, but the extent to which they can do this is unclear. The Constitution gives Congress power to legislate on the subject. But mostly it has been left for the state and federal courts, not Congress, to figure out.

Almost since the beginning, the Supreme Court's interpretations of the clause have been peppered with exceptions to the generalized requirement of mutual respect. For example, the clause has never much applied to legislation. It has been applied almost exclusively to judicial decisions: As a general matter, judgments announced in one state are strictly enforceable in all the others; state legislation is not.

People tend to assume that a marriage is like a court judgment; if it's valid in the place where it is celebrated, it has to be honored everywhere. This doesn't necessarily follow. From the rather unromantic position of a conflict of laws specialist, celebrating a marriage is something halfway between signing a contract to buy a car and applying for a driver's license. If you enter into a contract or are granted a driver's license in one state, then other states will probably respect it. But they needn't, constitutionally, and sometimes they don't. Such disregard for sister state decisions wreaks havoc with the principle of respect for decisions made by other states, not to mention the practical needs of the people involved who want their legal rights to be steady and predictable.

If states care about legal certainty and mutual respect, they give full faith and credit to the decisions of other states even without any constitutional compulsion -- as well they should. If they don't care, in particular because they are hostile to the public policy of the other state, the Constitution lets them override existing legal relationships by applying their own law. Over and over, the Supreme Court has recognized that many different states can have simultaneous conflicting policies regarding the same transaction or legal relationship. Then, which law applies to settle legal disputes turns largely on the random happenstance of which state's courts happen to hear the case. For same-sex marriage, what that is likely to mean is that if a marital dispute is heard in a Massachusetts court, one result will follow; if it is heard in Ohio -- where the state legislature, in response to the Massachusetts decision, took a particularly strong stance this month against same-sex marriage -- expect the opposite.

The uncertainty is probably greater in family law than any other area; everyone agrees that certainty is important for commercial relationships, but states are less likely to defer to other states when dealing with sensitive questions about marrying and raising families. States are willing to ignore marriages entered into in another state by couples who are trying to avoid their home state's restrictive marriage laws, or marriages that the a state considers fundamentally objectionable and therefore invalid. I have no doubt that the same pattern will follow with same-sex marriages.

A prime historical example -- one that will surely make opponents of same sex marriage uncomfortable -- is marriage between people of different races. As recently as the 1930s, it was generally understood in the (white) legal community that interracial marriages might be considered "odious" and that it would be understandable if other states chose not to enforce them. Indeed, many pressing social issues have been fought out on the battleground of conflict of laws. In the 19th century the issue was slavery and the status of slaves taken temporarily to the north; the question was framed in terms of whether a "contract" enforceable in one state had to be honored in others. Back then the liberal position was to be opposed to recognizing other states' contracts. A hundred years later, a burning issue was divorce, and whether an unhappy spouse might travel to Nevada (the only state in the country with lenient divorce laws) to dissolve the union.

Marriages, in other words, have not been treated as automatically recognized by other states. Its opponents fear that same-sex marriages will have to be respected all over the country. That is completely unrealistic. In fact, nationwide enforceability is less real now than ever, as a result of the most recent federal statute on the subject. Passed in 1996, the Defense of Marriage Act (DOMA) specifies that no state has to recognize a same-sex marriage entered into in another state. Dozens of state legislatures have leaped on the bandwagon, taking advantage of this invitation by providing, with state DOMAs, that their states will not recognize same-sex marriages from places like Massachusetts.

But for some opponents of same-sex marriage, even the federal and state DOMAs are not reassurance enough. Some of these people worry that the federal law may someday be invalidated as inconsistent with the full faith and credit clause. That's why they seek an amendment to the U.S. Constitution. But the law is probably not unconstitutional. (Granted, that is not a very high recommendation.) Even if constitutional, it is a silly law, motivated by nothing but political grandstanding. That's not a defect that can be cured by enacting it into the Constitution. President Bush would be well advised to shelve his election-year proposals for a constitutional amendment.

There are far more nuanced methods for reconciling diversity and uniformity of laws in this country than a constitutional provision. For example, decades ago, when Nevada's divorce law was the most lenient in the country and was creating problems for other states, the Supreme Court came up with a solution that was quickly nicknamed "divisible divorce." Nevada could dissolve a marriage but could not decide rights to property or child custody without the absent spouse's participation. So, after getting a divorce in Reno, the husband (as it usually was) had to then go home and decide the future of the children and the property in the courts of the marital domicile.

That wasn't intellectually tidy, certainly, but when confronted by burning social issues the Supreme Court has rarely thrown itself upon its sword for the sake of intellectual tidiness. If faced with parallel issues from same-sex marriage, the Supreme Court would probably craft a similar solution. And it would do so without the need for a cumbersome new statute or constitutional amendment. One can only hope that it will do so with greater concern for the rights and interests of the couples themselves, and their innocent children, than the states that are so quick to take a stand against the same-sex marriages that may soon be entered into in Massachusetts and beyond.


Lea Brilmayer is the Howard Holtzmann Professor of International Law at Yale Law School, and the author of several books on conflict of laws issues.