Interest analysis in interjurisdictional marriage disputes.

• Author: Wolff, Tobias Barrington
• Position: Recognition and Enforcement of Same-Sex Marriage

INTRODUCTION

Gay and lesbian couples are now entering into legally authorized marriages for the first time in our nation's history. As has happened many times before when significant policy differences have emerged among the civil marriage laws of different jurisdictions, these newly married couples will inevitably move about the country, and state courts will have to decide whether, when, and for what purpose to give effect to their marriages when forum law would have prohibited the couples from marrying locally. The debate over this recognition problem is already fully joined. Thus far, however, that debate has most frequently been characterized by positions that are sweeping and unconditional. On one side, skeptics argue that the federal Defense of Marriage Act (1) and the public policy exception in choice-of-law analysis together grant states the power to disregard any marriage that contravenes local law. On the other side, advocates of recognition invoke an array of constitutional arguments--based upon equality principles, vested right theories, and claims about the privileges of citizenship--to contend that states may never exercise such a discriminatory and disruptive power against the marriages of gay couples. These are the lightning and thunder of legal analysis: categorical claims of state authority met with categorical claims of constitutional invalidity.

It is not surprising that a contentious issue would provoke a contentious debate, and this focus on broad questions of state power and constitutional principle is both necessary and appropriate--the more so in the wake of the Supreme Court's decision in Lawrence v. Texas, (2) which has fundamentally altered the reception that gay couples can expect when they assert constitutional claims. Many of the disputes that state courts will confront when married gay couples move and travel around the country, however, will not be resolved by the heat and noise of this debate. Until the Supreme Court of the United States is prepared to place its institutional capital behind a principle of fully equal treatment for gay and lesbian couples--as I believe it will, in time--those couples must be prepared to engage courts in a discussion about what is sensible and advisable, not merely what is mandatory or prohibited.

Among the most important elements in that discussion, and my focus in this Article, will be an examination of the range of interests that a state may assert in considering whether to give effect to a gay couple's marriage. That examination does require some attention to recent constitutional developments. While the Court has assiduously avoided any statement about the constitutional right of gay couples to marry in its recent decisions, it has nonetheless established principles that inform the range of interests that a state may legitimately assert as a basis for denying recognition to the validly celebrated marriages of those couples.

In the body of cases produced by past disputes over racially mixed marriages, consanguineous or incestuous relationships, marriages involving minors, and other contentious relationship categories, state courts have relied upon two primary rationales for refusing to give effect to marriages that have been validly celebrated in other jurisdictions: a desire to exclude certain sexual couplings or romantic relationships entirely from their borders; and a desire to express the moral disapproval with which the state regards the disputed relationship. Some courts have also hinted at a third rationale that functions as a corollary of sorts to the first two: a desire to dissuade couples in the disfavored relationship from migrating to the state in the first place. The legitimacy of each of these state interests, as applied to gay couples, is now in serious doubt. In Lawrence, the Court held that a state may not exclude gay sexuality or gay relationships from its borders. (3) In Romer v. Evans, (4) and also in Lawrence, the Court rejected moral disapproval, without more, as a basis for subjecting gay citizens to selectively disfavored treatment. (5) And in Saenz v. Roe, (6) the Court found that a state has no legitimate interest in seeking to dissuade a class of citizens from migrating to its territory by structuring its legal entitlements to make migration more difficult. (7) Together, these decisions have significantly altered the landscape for interest analysis in recognition cases.

It is not my purpose in this Article to argue that these decisions impose a constitutional duty upon states to give effect to the relationships of married gay couples. The interests described above are not the only ones that a state might attempt to rely upon in a recognition dispute. More broadly, as with Loving v. Virginia (8) (itself an interjurisdictional marriage dispute), it seems likely that a definitive constitutional ruling on recognition will have to wait until the federal courts are ready to rule on the underlying right of gay couples to marry in the first place. Whether that decision constitutes a flash of lightning or a low rumble of fading thunder when it arrives, it can and should be preceded by a body of subconstitutional rulings by state-court judges engaged in a good-faith attempt to determine what interests are legitimately in play in a recognition case and how those interests should be analyzed. It is my hope that this Article will serve to facilitate and sharpen that inquiry.

In Part I, I canvas a broad array of interjurisdictional marriage disputes and examine in detail the interests that state courts have offered in discussing whether and for what purpose to give effect to a marriage that runs contrary to local law. I train particular focus on the three interests described above and examine the constitutional status of an attempt to apply each of these rationales to a married gay couple in the wake of Lawrence, Romer, and Saenz. In Part II, I discuss the statutes and constitutional provisions that a majority of states have now enacted to ban marriage by same-sex couples. Many of these "mini Defense of Marriage Acts," as they are often called, have used broad language to declare that marriages between gay couples are "void." Even so, the impact that these provisions should have upon the marriages of gay couples who validly marry elsewhere and then travel or move to another state is a matter of legitimate dispute. In previous marriage controversies, courts have often required that the legislature make a clear and unmistakable statement of its intent to deny recognition to good-faith marriages performed out of state, even in the face of broad language declaring such marriages "absolutely void" when performed locally. Part II discusses the desirability of such a clear-statement rule, particularly in light of the newly constrained vocabulary of interests available to the states in seeking to deny recognition. Finally, in Part III, I place these recognition issues in a larger context by discussing the particular mode of subordination that characterizes most discrimination against gay people: the fantasy, perceptible even when it is left unspoken, that gay people and gay relationships will simply cease to exist if they are denied any type of social visibility or formal acknowledgment. The proper way to frame the analysis in a recognition dispute, I argue here, is to inquire into the most sensible way to treat the married gay and lesbian couples who will inevitably live within a jurisdiction, and not to perpetuate an unreal discussion about whether it is desirable for those couples to exist in the first place. If we expose and confront the fantasy that often obfuscates this common-sense observation, the analysis of state interests in a recognition dispute comes into even sharper focus.

1. STATE INTERESTS IN RECOGNITION DISPUTES

   1. Regulation of Intimate Conduct

      The central governmental interest that state courts have discussed in their analysis of interjurisdictional marriage disputes has been the regulation of intimate sexual conduct. In most jurisdictions, of course, marriage has been the exclusive avenue for noncriminal sexual activity for at least a portion of the state's history. In that broad sense, marriage laws have long operated in tandem with prohibitions on fornication or adultery to give an exclusive legitimacy to marital sex. More narrowly, when states have used their criminal laws to prohibit particular types of couples from engaging in any form of sexual intimacy within the jurisdiction, courts have frequently concluded that they must interpret their laws on the recognition of out-of-state marriages in harmony with that express public policy. Both in disputes where the court has granted some form of recognition to an out-of-state marriage and in disputes where the court has refused to give such a marriage any effect, the manner in which the request for recognition would implicate the regulation of sexual conduct within the jurisdiction has been the primary concern. Where giving effect to a nonconforming marriage would undermine a state's restrictions on sexual conduct, courts have usually concluded that they must deny such requests. Where giving effect to a marriage would not derogate from any conduct restriction, courts have often found that the state has no strong interest in denying recognition.

      This relationship between out-of-state marriages and regulation of sexual conduct has been given voice most directly in criminal prosecutions. When a couple marries in one jurisdiction, moves or returns to another jurisdiction where an intimate relationship between the two is forbidden, and then seeks to offer the marriage as a defense to a subsequent criminal prosecution, the clash between the asserted marital rights and the state's conduct restrictions is starkly presented. In most such cases, states have refused to recognize the marriage as an affirmative defense to the prosecution because doing so would...