Interstate recognition of same-sex marriages and civil unions: a handbook for judges.

• Author: Koppelman, Andrew
• Position: Recognition and Enforcement of Same-Sex Marriage

If there is one thing that the people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom.

--Justice Robert Jackson (1)

Same-sex marriage is here. Massachusetts now recognizes such marriages, (2) and increasing numbers of same-sex couples have married. Other states have virtually the same status: Vermont and Connecticut recognize "civil unions," (3) and California recognizes "domestic partnerships" (4) that have virtually all the fights of marriage. (5) Are these statuses exportable? Will same-sex unions be recognized in other states? (6)

The answer should not be mysterious. There is a well-developed body of law on the question of whether and when to recognize extraterritorial marriages that are contrary to the forum's public policy. Assuming that courts decide to follow that law, (7) the answer is somewhat complex, but there are large areas of clarity. This Article will offer a short overview. (8)

The cases involving same-sex marriages that come before the courts fall into four categories. Each category presents different problems and requires a different analysis. Once courts have determined in which category a case belongs, the analysis should be straightforward.

The first category, "evasive" marriages, (9) includes cases in which parties have traveled out of their home state for the express purpose of evading that state's prohibition of their marriage and returned home immediately after being married. Such marriages will be invalid if they violate the strong public policy of the couple's home state. Discerning public policy will be easy in the forty states that have legislation on the books declaring that they will not recognize foreign same-sex marriages; in other states, the outcome will be uncertain and will turn on the details of local law.

The second category, "migratory" marriages, includes cases in which the parties did not intend to evade the law of any state when they married, but they contracted a marriage valid where they lived and subsequently moved to a state where their marriage was prohibited. An example would be a same-sex couple who were residents of Massachusetts when they married and who later moved to Pennsylvania. These are the hard cases, on which authority is sparse and conflicting. Absent a statutory ban on same-sex marriage, the state's public policy will not be clear enough to justify withholding recognition. Even if there is such a statute, the strength of the public policy it reflects will depend on which incident of marriage is at issue. Property claims arising out of a marriage cannot simply be annulled by the decision of one spouse to move to another state, and the marriage must be an impediment to the remarriage of either of the partners. Moreover, if the incident of marriage in question is one that could have been conferred by contract under the forum's law, such as the fight to make medical decisions for one's partner, then the state's policy cannot be offended by the mere fact that the couple took advantage of a legal shortcut to that fight created by another state's law.

The third category, and the one that most urgently demands clarity, is "visitor" marriages, in which a couple or a member of a couple is temporarily present in a state that does not recognize their marriages. Though there is little authority that addresses this precise question, such marriages should always be recognized, for all purposes. Any other result is inconsistent with the constitutional fight of citizens to travel.

The fourth category is "extraterritorial" cases, in which the parties have never lived within the state but the marriage is relevant to litigation conducted there. For example, after the death intestate of one spouse, the other may seek to inherit property that was located within the forum state. In these cases, there is clear authority in favor of recognition.

I. THE RELEVANCE OF THE MISCEGENATION (10) CASES

Unfortunately, before we can examine the relevant authority in this area, we must begin by clearing away some trash: legally irrelevant authority that is commonly thought to have some bearing on the question of marriage recognition. We must also, in deference to the political realities within which courts operate, disregard some very powerful arguments which, if accepted, moot the recognition question.

Many people have confusedly thought, and some still think, that the Full Faith and Credit Clause of the Constitution (11) requires states to recognize marriages from other states. But this has never been the law. The clause requires states only to recognize other states' judgments rendered after adversarial proceedings. (12) There is almost no authority for the proposition that full faith and credit applies to marriage, (13) and there is a great deal of authority to the contrary, indicating that states may decline to recognize foreign marriages when those marriages are contrary to the strong public policy of the forum state. (14)

Some have also thought that if the union is denominated a "civil union" or "domestic partnership" rather than a "marriage," it has a diminished right to extraterritorial recognition. This difference of label changes the analysis in two respects, which tend to cancel one another out. First, the general policy in favor of recognizing marriages may be thought to be weaker in this case. Second, the recent wave of legislation refusing to recognize same-sex marriages is of doubtful relevance here, since most of those statutes specifically refuse recognition only to same-sex marriages. (15) Opposition to legal recognition of same-sex relationships is far weaker than opposition to giving those relationships the label of marriage. (16) So it is unclear whether the recent statutes are or are not an obstacle to full recognition of Vermont civil unions. These considerations essentially cancel one another out, and the analysis goes through in much the same way that it would if the label "marriage" were used.

We must also disregard the powerful constitutional arguments in favor of universal recognition of same-sex marriage. I have argued in the past, (17) and continue to think, that the conflict of laws in this case is as illusory as the old conflict over the validity of interracial marriages, since a real conflict requires two valid, arguably applicable laws. However, it would be surprising if the federal courts were to impose same-sex marriage on the entire country, and the strength of the constitutional arguments for doing so does not change that fact. (18) The reality is that there is a choice-of-law issue. For purposes of this Article, then, I shall assume what I am confident is not true. (19)

Because different states have different rules concerning who may marry, the question of a marriage's validity may raise an issue of conflict of laws--that is to say, an issue in which a court must decide "whether or not and, if so, in what way, the answer to a legal question will be affected because the elements of the problem have contacts with more than one jurisdiction." (20) In conflicts cases, the "overwhelming tendency" (21) is to validate marriages, but the courts have frequently recited an exception in cases where recognition would violate the strong public policy of the forum state. (22)

This area of the law has become somewhat archaic, because the public policy exception to marriage recognition has been invoked primarily in three contexts: (23) polygamy, incest, and miscegenation. The first two were always misnomers to some extent. No state ever recognized polygamy. (24) Nor did any state ever violate "the core instances of the incest taboo by legalizing parent-child or sibling marriages; the incest cases involved marriages between first cousins, aunts and nephews, uncles and nieces, or even more remote relations." (25)

Interracial marriage aroused the strongest passions in the courts, whose "opinions can be arranged along a discomfort continuum, with polygamy being the least offensive, incest falling in the middle and miscegenation giving courts the greatest amount of consternation." (26) In 1967, the Supreme Court declared unconstitutional every miscegenation prohibition in the country, thereby eliminating any conflict of laws with respect to that issue. (27) Since that time, there has not been any comparably severe moral conflict among the states with respect to marriage. Until now.

Forty states have laws on the books declaring that they will not recognize foreign same-sex marriages and that such marriages are contrary to their public policy. (28) They present a significant obstacle to the recognition of same-sex marriages from Massachusetts. It is less clear whether most of these laws are even relevant to the recognition of civil unions from other states since almost all of them use the word "marriage" to describe what they are denying to same-sex couples. (29) Nonetheless, some of them have very strong language, describing same-sex marriages as "void" or "prohibited." (30) These provisions are widely understood as enacting a "blanket rule of nonrecognition, under which states would 'ignore marriage licenses granted to same-sex couples in other states.'" (31) Under the blanket nonrecognition rule, a state's courts would never recognize any same-sex union for any purpose whatsoever. Those who have proposed this rule do not seem to have understood just how unprecedented a measure they are proposing.

The closest historical analogue to the radical moral disagreement over same-sex relationships is the divide between those states that permitted and those that forbade marriage between whites and blacks. For this reason, the miscegenation cases deserve particularly close examination. Miscegenation prohibitions were in force as early as the 1660s, but only after the Civil War did they begin to function as a central sanction in the system of white supremacy. "At...