Beyond DOMA: choice of state law in federal statutes.

• Author: Baude, William
• Position: Defense of Marriage Act of 1996 - Introduction to IV. Choice of Law in Federal Legislation, p. 1371-1400

The Defense of Marriage Act (DOMA) has been abandoned by the executive and held unconstitutional by courts, so it is time to think about what will be left in its place. Federal law frequently asks whether a couple is married But marriage is primarily a creature of state law, and states differ as to who may marry. The federal government has no system for deciding what state's law governs a marriage, though more than a thousand legal provisions look to marital status, more than a hundred thousand same-sex couples report being married, and many of those marriages ultimately cross state lines. Unless a federal choice-of-law system is designed, DOMA 's demise will lead to chaos.

This Article argues that such a system can and should be designed Because the underlying choice-of-law problem is ultimately a problem of statutory interpretation, Congress can and should replace DOMA with a clear choice-of-law rule. Failing that, federal courts can and should develop a common law rule of their own--they are not (and should not be) bound by the Supreme Court's decision in Klaxon Co. v. Stentor Electric Manufacturing Co. The Article further argues that different institutions should solve the problem differently: If Congress acts, it should recognize all marriages that were valid in the state where they took place. If instead, the courts create a common law rule, they should recognize all marriages that are valid in the couple's domicile.

The implications of this argument run far beyond the demise of DOMA. In all areas of what is here called "interstitial law, "federal interpretive institutions can and should devise a set of choice-of-law rules for federal law that draws upon state law, and what set of rules is proper may well depend on who adopts them.

INTRODUCTION I. DOMA A. Section 3 B. DOMA's Possible Demise II. FIRST-ORDER CONFLICTS: MARRIAGE AND STATE CHOICE OF LAW A. Celebration v. Domicile B. Migratory and Visiting Marriages C. Resolving Conflicts of Law D. Full Faith and Credit III. SECOND-ORDER CONFLICTS: THE ROLE OF FEDERAL COURTS A. Avoiding the Problem B. Klaxon: State Law, State Choice of Law C. The Federal Common Law of Conflicts: State Law, Federal Choice of Law D. Borax: Federal Law, No Conflicts IV. CHOICE OF LAW IN FEDERAL LEGISLATION A. Choice of Law as Statutory Interpretation B. A Congressional Choice-of-Law Rule C. Regulatory Choice of Law V. FEDERAL CHOICE OF LAW IN THE FEDERAL COURTS A. Against Borax B. Against Klaxon C. The Legitimacy of a "Federal Common Law" Solution VI. CHOOSING LAW A. Statutory Rules for Marriage B. Common Law Rules for Marriage VII. BEYOND DOMA A. Interstitial Law B. Conflicts and Federalism CONCLUSION INTRODUCTION

The Defense of Marriage Act (DOMA) may be gone soon, and it is time to think about what will be left in its place. On February 23, 2011, Attorney General Eric Holder announced that the administration would no longer defend the constitutionality of section 3 of DOMA--which defines marriage, for purposes of federal law, to exclude same-sex couples--because "Section 3 of DOMA, as applied to legally married same-sex couples, ... is ... unconstitutional." (1) Holder explained that the administration would keep enforcing DOMA for now. But suppose that DOMA is indeed repealed or definitively invalidated. If so, federal law will no longer define marriage as being between one man and one woman. What will define marriage, and what will that definition be?

Under the Holder view, marriage will be defined by reference to state law, because "Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law." (2) This seems sensible enough. If DOMA is gone, state law is the logical place to turn to see whether a couple is validly married. But Holder did not specify which state's law is relevant, and the choice matters. Some states allow same-sex couples to marry; others do not. Some states recognize foreign same-sex marriages; others do not. There are many same-sex marriages, and many of them cross state lines: according to the last census, more than 130,000 same-sex couples describe themselves as married, (3) and every year at least 1.5% of the general population moves from one state to another. (4)

When a marriage crosses state lines--for example, when a same-sex couple marries in one state and later moves to another--it is not obvious which state's law should control. Should it be the place where the marriage was celebrated? Where the couple lived at the time? Where they live now? Something else? It turns out that there are several different approaches to answering this choice-of-law question, and it is not clear which one the administration expects courts to use. Amidst the heat and light generated by the administration's actions, the actual meaning of its position has been ignored.

This Article attempts to solve the question left open by the possible demise of DOMA, and thereby solve a much broader problem of federal choice of law: How should the federal government decide what state's law applies when a federal statute incorporates state law? Much has been written about state conflicts doctrines generally (what I call first-order conflicts) and conflicts over same-sex marriage specifically. But remarkably little has been written about the second-order conflicts problem of how the federal government should make choices among state laws. Henry Hart and Paul Mishkin discussed the general choice-of-law problem, but did not propose how to solve it. (5) More recent articles focus on one narrow slice of federal law, such as bankruptcy (6) or immigration, (7) or else fail to observe the serious choice-of-law problem in the first place. (8)

DOMA's possible demise provides occasion to examine this problem. Without DOMA, federal law will turn to state law to determine when a same-sex marriage is valid, forcing the federal courts to wade into the disputes over marriage and choice of law. Because of the large number of mobile same-sex marriages and federal laws that refer to marital status, those choice-of-law cases will be numerous. And because of the wide divergence in state marriage laws, those conflicts will be difficult to dodge.

I argue that the problem can be resolved. Ideally, the political branches would replace DOMA with a clear choice-of-law rule. But there is reason to doubt that will happen. Alternatively, federal courts can and should create a federal common law rule. I further argue that how these institutions should solve the choice-of-law problem depends on which institution does so. Congress should pass a law providing that a marriage is valid for purposes of federal law if it was valid in the state where it occurred. If Congress doesn't act, the courts should hold a couple to be married if the couple's home state does. The differing rules reflect the differing roles of these institutions.

This resolution goes beyond the marriage context. In proposing a solution to the DOMA problem, I aim to make two contributions to choice-of-law doctrine more broadly. Fifty years ago, Henry Hart asked:

When Congress does remit matters to state law.., does it have the power to say which state's law? If, as almost invariably happens, it has not said expressly which state law is to govern, should the federal courts work out a federal answer? Or should they leave it to the plaintiff, within the limits of the applicable venue and process requirements, to determine the answer for himself? (9) Hart lamented that "[t]his distinct and vital aspect of the problem of a federal law of conflict of state laws the Supreme Court has scarcely yet noticed." (10)

This Article attempts to answer those questions. Typically, they have been addressed as if they were an extension of the conflicts questions that arise in diversity jurisdiction. I argue that they are better understood as statutory interpretation questions, though they are still questions that borrow concepts from conflicts. From this framework, I argue that Congress can and should provide choice-of-law rules when it chooses to rely on state law. I further argue that if it does not, the federal courts should indeed "work out a federal answer" through a federal common law of conflicts, rather than turning to the law of the forum state. (Put in conflicts jargon, the argument is that the Klaxon rule (11) does not and should not be extended to federal question cases.) A further point is that institutional role matters. Congress solves conflicts problems differently than courts do because it is free to implement a broad range of policy goals through conflicts doctrine, while courts have a more limited role of filling in the gaps between Congress's choices.

All of these principles apply to all instances of what I call (following Hart) "interstitial law." Interstitial law is federal law that in turn relies upon concepts already created by state law, so called because of Hart's declaration that much of federal law is "interstitial law, assuming the existence of, and depending for its impact upon, the underlying bodies of state law." (12) While much of this Article focuses on federal statutes that rely upon marriage specifically, DOMA's demise is really just a case study. The framework established here will apply more broadly to the many other areas of interstitial law. The DOMA episode also provides a case study for the ability of conflicts to provide a stable set of rules as a backdrop for broader public law disputes--and the consequences when it fails to do so.

Parts I through III are largely descriptive. Part I introduces DOMA and shows that it could be invalidated or repealed while state bans on same-sex marriage remain. Part II discusses the different methods state courts have used for choosing what law governs a marriage (which I call first-order choice of law). Part III discusses the different second-order methods federal courts have used for choosing a state's law...