Beyond DOMA: choice of state law in federal statutes.

Author:Baude, William
Position:Defense of Marriage Act of 1996 - IV. Choice of Law in Federal Legislation A. Choice of Law as Statutory Interpretation through Conclusion, with footnotes, p. 1400-1430
 
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  1. Choice of Law as Statutory Interpretation

    To understand how to solve the problem created by DOMA's impending doom it helps to understand that it is, at bottom, a problem of federal statutory interpretation. Recall that DOMA operates by effectively amending a thousand different legal provisions that invoke marital status. (169) The federal government has no cause to "recognize" marital status--under state law or otherwise--in the abstract. It ascertains who is married only to the extent it is required to under another statutory or regulatory rule. Thus, with or without DOMA, interpreters must decide: who does this statute refer to when it refers to married couples?

    Federal courts "choose" state law as part of an answer to that statutory interpretation question. Aside from DOMA, the U.S. Code contains few clues about how to determine when a marriage is valid. By contrast, states have developed a thick body of law (both statutory and decisional) on the validity of marriages. So it is understandable that federal courts turn to state law to lend meaning to the federal law (and that the administration invoked state law as the backdrop governing same-sex marriage in the absence of DOMA). A choice-of-law rule is necessary for state law to completely resolve the meaning of the federal statute. Otherwise, as we have seen, a federal court will not know which state's law to apply when those laws differ in a relevant respect.

    Thus, what courts have been calling a choice-of-law problem when federal law incorporates state law categories is really just a two-part statutory-interpretation problem: Federal law contains an undefined term whose meaning is ordinarily a legal category. To figure out the meaning of that category, one must first decide whether state law is relevant, and if it is, which state's law. (This statutory interpretation problem can exist not only in the thousand statutes incorporating state marriage law, but whenever federal law incorporates state law.)

    Several things follow from understanding that this so-called choice-of-law problem is really a problem of statutory interpretation. One somewhat technical point is that state courts are equally bound by the federal choice-of-law rule--it travels with the federal statute. So, for example, if parties end up in state court litigating an ERISA question that turns on a couple's marital status, the court should not simply look to whether its own state's law would recognize the couple's marriage. It should decide which state's marriage law to use on the basis of federal interpretative principles. States should be following federal methods of statutory interpretation when interpreting federal statutes, (170) so they should follow the federal "choice-of-law" rule in such scenarios because it is simply a rule of statutory interpretation. (This is not to say, however, that states must do what their federal circuit does--just that they must follow federal law, however it is authoritatively derived.)

    Another technical implication is that it is not quite accurate to ask--as others have shorthanded it--whether Klaxon's choice-of-law rule applies in "federal question" cases. (171) A federal question is a basis for federal jurisdiction; there can be federal statutory interpretation questions even where there is no federal question jurisdiction. (172) The proper way to phrase the question is to ask whether Klaxon applies when interpreting a federal statute that relies upon state law--a scenario that usually, but not always, occurs in suits grounded in federal question jurisdiction.

    Finally, perhaps the most important implication is that Congress has total authority to solve the so-called choice-of-law problem. It is generally accepted that "definition of legislative terms must, as an original matter, be an incident of the legislative power," because Congress's power to decide what the statute says entails the power to do so through the use of definitions. (173) It follows that Congress can decide which states' laws are incorporated by its statutes, because those rules are simply a form of definition--of defining more precisely what Congress meant in referring to the state law term.

  2. A Congressional Choice-of-Law Rule

    I have just argued that congressional resolution of the choice-of-law problem is possible; it is also desirable. Congress should decide what law governs marriage for federal purposes. Such a provision could cut across all of the regulatory and statutory definitions and provide a uniform and predictable approach. For example, Congress might replace DOMA's definition of marriage with one saying that in determining the meaning of any law or regulation, the word "marriage" means a marriage that is recognized as valid in the state where the marriage was celebrated, or one that is recognized as valid in a state where one of the parties is domiciled.

    Congress has made such determinations on occasion. Veterans' benefits based on marriage, for example, are awarded "according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued." (174) Similarly, the Social Security Act provides that marital status determinations will be made by reference to the law of the parties' domicile. (175) Both of these statutes predate (and are partly eclipsed by) DOMA, but might apply again if it is repealed. (176) Congress should go further, providing a single, clear rule to regulate marriage wherever it interacts with the federal code.

    To Congress's credit, some of the more recent proposals to repeal DOMA would have provided a choice-of-law rule in its stead. The bills would have provided federal recognition for any marriage that was valid in the state where it was celebrated (or "in the case of a marriage entered into outside of any State," it would have been valid "if the marriage [was] valid in the place where entered into and the marriage could have been entered into in a State" (177)). Thus, these bills endorsed a strong version of the law of the place of celebration, with a very narrow public policy exception. Only a marriage from abroad is subject to the public policy exception, and only if that marriage would be unavailable to residents of every state in the union.

    Of course, those measures have not passed, but whatever one thinks of the substance of the proposed choice-of-law rules, Congress is the best institution to provide them. Congressional action provides a clear, stable, ex ante rule for determining a couple's marital status--whether on a statute-by-statute basis or across all statutes at once. (178) It can solve the marital choice-of-law problem for all areas of federal law. If one of the proposals passes, it will have plain democratic legitimacy. Congressional action could also have broader aspirations: For example, it could even try to eliminate all federal rules that turn on marital status. (179)

    All the same, it would be a mistake to count on congressional action. One can certainly imagine that after DOMA, the chaos that would reign in the federal courts would earn congressional attention. (180) But every generation apparently believes its circumstances are special and will move Congress to act. For example, it has been nearly twenty years since Michael Gottesman diagnosed state choice-of-law doctrines as "chaotic producers of waste and unfairness" and declared that it was "time for Congress to enact a statute or series of statutes declaring federal choice of law rules for categories of disputes that arise frequently in multistate contexts." (181) While Gottesman acknowledged "two hundred years of congressional inaction," (182) he argued that we were (in 1991) "nearing the critical moment at which past practice will be abandoned." (183) In particular, Gottesman thought that a rise in product liability cases against corporations would cause them to successfully lobby for uniform choice-of-law rules at least in that area. Yet that never happened. And if there has been no congressional action on a choice-of-law issue with such high economic stakes (and such powerful interests threatened), there is little reason to believe that same-sex marriage's interaction with federal law will be the cutting edge of legislative action.

    One possibility worth noting is that Congress could provide a choice-oflaw rule as a method of political subterfuge. Rather than providing a rule out of desire for stability, clarity, and interstate harmony, Congress might use choice of law to covertly further its own views on same-sex marriage. (184) For example, a Congress that wished to make marital benefits available to same-sex couples without great fuss might provide that marriage for federal purposes would be judged by the law of the place of celebration. Same-sex marriages will usually satisfy this requirement, because the couple will of course usually marry in a jurisdiction that permits them to. (185) Or alternatively, a Congress that was hostile to same-sex marriage might respond to DOMA's demise by enacting a more restrictive choice-of-law rule--perhaps one that would recognize same-sex marriage only if it was permitted by the law of the place of celebration and the law of both parties' domiciles, and perhaps any other interested state. If it is true that choice of law is of much lower salience than substantive law (as Congress's indifference to the former might imply), then meddling with a choice-of-law rule might provide a low-profile way for Congress to push federal policy in its preferred direction.

    In Part VI, I provide my own proposal for how Congress should act. Whether Congress will ultimately choose to do so--or act at all--is a prediction that is beyond the scope of this Article. Indeed, the expertise necessary to make that prediction probably lies in the domain of political strategy, not scholarly analysis. (186) I hope that it suffices to say that while...

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