Examining a Strand of the Public Policy Exception With Constitutional Underpinnings: How the Foreign Marriage Recognition Exception Affects the Interjurisdictional Recognition of Same-sex Marriage

• Publication year: 2003

38 Creighton L. Rev. 449. EXAMINING A STRAND OF THE PUBLIC POLICY EXCEPTION WITH CONSTITUTIONAL UNDERPINNINGS: HOW THE FOREIGN MARRIAGE RECOGNITION EXCEPTION AFFECTS THE INTERJURISDICTIONAL RECOGNITION OF SAME-SEX MARRIAGE

Creighton Law Review

Vol. 38

L. LYNN HOGUE(fn*)

The law has undergone a sea change since 1998 when Creighton Law School hosted a Symposium on Interjurisdictional Marriage Recognition. Prior to the federal Supreme Court's decriminalization of certain forms of non-marital sexual activity in Lawrence v. Texas,(fn1) states were free to criminalize sodomy under Bowers v. Hardwick.(fn2) Denying recognition to a foreign "marriage" grounded on activity which the forum state could treat as criminal, made application of the public policy exception straightforward and unexceptionable and obviated the necessity for any further exploration of the exception's constitutional underpinnings. Lawrence certainly compels reexamination of the position I took in my earlier article that, even in the absence of a statutory expression of state policy against the recognition of homo-sexual marriage, Bowers in and of itself would support a state court's conclusion that homosexual marriage would violate public policy.(fn3) The demise of Bowers undercuts this argument. It is fair to ask how much of my earlier analysis is touched by Lawrence.(fn4) The answer is, as will be seen, very little.

The Goodridge v. Department of Public Health(fn5) decision by the Supreme Judicial Court of Massachusetts - holding the exclusion of same-sex couples from access to civil marriage violated the Massachusetts constitution by failing to accord equal treatment to heterosexuals and homosexuals - has had numerous repercussions not only in Massachusetts, which is directly affected by the decision, but in sister states which fear that they may be compelled to recognize same-sex unions required by the judicial activism and provocative approach of the Massachusetts court. It is important to recognize, at the outset, that although Goodridge is a state decision, it may well jump the fence and create unwanted effects in sister states. All states currently enjoy protection from the federal Defense of Marriage Act ("DOMA")(fn6) which exempts sister states from according full faith and credit to same-sex marriages recognized in other states. In addition, states may have state constitutional and statutory barriers to recognizing same-sex marriages. For example, in Georgia, by statute, same-sex marriages are prohibited and void.(fn7) In November 2004, Georgians approved a state constitutional amendment defining as marriage only the union of man and woman.(fn8) Other states who want explicit barriers to same-sex marriage recognition are following a similar course.(fn9)

Many states follow a choice of law rule, known as the public policy doctrine, that allows court's to ignore or deny recognition to marriages that violate morals standard of the forum state.(fn10) These three legal barriers, state constitutional and statutory prohibitions on same-sex marriage, the DOMA, and the public policy doctrine, form the principal defenses a state has to recognizing an out-of-state marriage that it considers repugnant. The analysis here is confined to the more immediate problem posed by same-sex marriage because of the decision in the Goodridge case and ensuing activity in Massachusetts. It is not, however, beyond possibility that other forms of unconventional marriages equally odious to sister states will present themselves. Polygamy is an example. While some have rejected the idea that same-sex marriage recognition would eventually require the recognition of polygamy as well, an argument that William Eskridge of Yale Law School refers to as "a lavender herring,"(fn11) it appears more likely that a liberal emphasis on individual autonomy and choice in gratifications coupled with an assumed cultural equivalence of all moral structures will lead to pressures in that direction. Indeed, Sarah Gordon's discussion of the matter, which seems to assume that polygamy was a nineteenth-century phenomenon confined to Mormons, is belied by the campaign of contemporary Mormon schismatics for a return of polygamy.(fn12) Five states' constitutions include bans on polygamy.(fn13) Obviously, others could desire to take up the practice for other and even non-religious reasons as well. It is logical to ask whether there are any fresh options to deny recognition to out-of-state marriages that are offensive to forum state values.

Is there a constitutional backstop to the normative content to the public policy doctrine that may usefully apply to decisions about the sorts of relationships that should be legally recognized as marriages? Contemporary case law is sparse and cloaked in nineteenth-century moral and religious language that no longer resonates in our pluralistic, secular humanistic society irrespective of how closely it may in fact track widely held contemporary values. A quotation from the Reynolds decision upholding a federal restriction on polygamy in the Utah territory illustrates this nicely:

[in] most civilized nations, [marriage is] a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied Marriage, while from its very nature a sacred obligation, is nevertheless, in to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.(fn14)

Religious and moral sentiment cannot provide an adequate contemporary normative framework from which to divine public policy - at least not in a sufficiently robust way - to reject marriages repugnant to forum culture and values.

Some scholars have mounted pronatalist defenses of traditional marriage.(fn15) As fertility control through contraception, abortion on and techniques of fertility enhancement through artificial insemination and the like have become readily available to both married and unmarried persons, it is difficult to argue that having children has much of anything to do with marriage despite the acknowledged fact that a stable, dual-gendered, traditional family provides the best environment for nurturing children.(fn16) So what then of the public policy doctrine? One assumes it is alive and well despite all the changes wrought by Lawrence and Goodridge. For example, in testimony before the Senate on the proposed federal marriage amendment, Professor Lea Brilmayer of Yale Law School, in arguing against the idea that the federal Constitution's full faith and credit clause could compel the recognition of same-sex marriages, said, "there had not been a single case of a state being put in that position . . . . states ha[ve] long been able to refuse recognition of marriages between cousins and even recently divorced individuals."(fn17) Looking forward, however, it would seem advisable to seek a constitutional high ground if one exists. That is the goal of this essay.

Clearly, states remain free to invoke the public policy exception(fn18) to refuse recognition of odious foreign marriages considered violative of forum law. States can draw upon conventional sources of law - constitutional, statutory or common law - to define the content of their public policy and apply the public policy exception as a matter of choice of law. What will be seen, however, is that, beyond the powers available to state courts for enforcing their choice of law rules, the federal Constitution independently assures this role to state courts because of robust constitutional support for a "foreign marriage recognition exception," a legally distinct and constitutionally separate strand of the public policy exception in choice of law as applied to the question of marriage recognition.

I. THE ROLE OF FEDERALISM

Our government is one of dual sovereignty with powers divided between the national government and the states. Justice Kennedy describes it as follows:

[Federalism] was our Nation's own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.(fn19)

Recognition of federalism's respective national and state spheres does not resolve the question of how powers and responsibilities are allocated between them and that problem will not be explored further here. What is clear, however, is that a central tenant of federalism is the preservation of the field of domestic relations as the appropriate and historical province of States.(fn20)

II. THE CONSTITUTIONAL UNDERPINNINGS OF THE PUBLIC POLICY EXCEPTION AS IT RELATES THE "FOREIGN MARRIAGE RECOGNITION EXCEPTION"

In my earlier article, I...