Larry Kramer, Same-sex Marriage, and the Politics of Legal Scholarship

• Publication year: 2003

38 Creighton L. Rev. 533. LARRY KRAMER, SAME-SEX MARRIAGE, AND THE POLITICS OF LEGAL SCHOLARSHIP

Creighton Law Review

Vol. 38

EARL M. MALTZ(fn*)

The Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health(fn1) has once again brought the Full Faith and Credit Clause into the public eye. With same-sex marriage legalized in Massachusetts, one can confidently predict that same-sex couples married in that state will attempt to use the clause to require other states to recognize their unions. In making their arguments, they will no doubt rely heavily upon Dean Larry Kramer's well-known article entitled Same Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exemption ("Same-Sex Marriage").(fn2) Published in the wake of the Hawaii Supreme Court's short-lived decision in Baehr v. Lewin,(fn3) this article is by all accounts the most prominent defense of the view that states are required by the Full Faith and Credit Clause to recognize same-sex marriages legally solemnized in other states. Kramer's analysis has already been trenchantly criticized by scholars such as Patrick J. Borchers(fn4) and Richard S. Meyers.(fn5) I want to take a different tack, however, first highlighting the shortcomings of Kramer's treatment of the Full Faith and Credit Clause, and then placing the article in political context.

From a purely structural perspective, Same Sex Marriage is in many ways typical of advocacy scholarship more generally. Kramer begins his argument by asserting that his problem is not specifically with the rules governing the recognition of same-sex marriage per se, but rather that he has a more "neutral" objection to a broader doctrine - the view that a court may constitutionally refuse to enforce the law of another state simply because that law is inconsistent with the strong public policy of the enforcing state.(fn6) He then argues that this view is not only consistent with existing law, but is actually the best reading of existing Supreme Court precedent(fn7) - particularly, Hughes v. Fetter(fn8) and Broderick v. Rosner.(fn9) Finally, he argues that holding the public policy exception unconstitutional would require states to recognize same-sex marriages from other states, but would not greatly disturb other aspects of existing choice of law doctrine.(fn10)

Kramer's analysis can be attacked from a variety of different perspectives. First, his characterization of the import of Hughes and Rosner is questionable at best. Admittedly, in both cases, the Court invoked the Full Faith and Credit Clause to limit the ability of a state to apply its own law in cases with multistate elements. However, by their terms, neither holding casts doubt on the public policy exception generally.

Hughes arose from a prosaic automobile accident in the state of Illinois. The plaintiff brought the action in Wisconsin state court, seeking to recover damages for the death of a person killed in the accident. The basis of his claim was the Illinois wrongful death act. The Wisconsin courts, however, refused to entertain this action, concluding that the Wisconsin wrongful death statute "establishes a local public policy against Wisconsin courts entertaining suits brought under the wrongful death act of other states."(fn11) The Supreme Court reversed, holding that "Wisconsin's statutory policy which excludes this Illinois cause of action is forbidden by the national policy of the Full Faith and Credit Clause."(fn12) At the same time, the Court explicitly distinguished Hughes from cases in which the forum had substantive objections to the law of the other state, noting that:

[Wisconsin] has no real feeling of antagonism against wrongful death suits in general . . . . The present case is not one where Wisconsin, having entertained appellant's lawsuit, chose to apply its own law instead of Illinois' statute to measure the substantive rights involved. This distinguishes the present case from those where we have said that '[p]rima facie every state is entitled to enforce in its own courts its own statutes, lawfully enacted.'(fn13)

Rosner provides no greater support for Kramer's thesis. That case revolved around the efforts of the New York state Superintendent of Banks to assess shareholders of a New York bank to pay debts in-curred by the bank itself. The Superintendent of Banks brought an action in New Jersey state court to enforce such liabilities against a group of New Jersey shareholders in the New York bank. The New Jersey courts, however, dismissed the action, noting that New Jersey law prohibited state courts from taking jurisdiction over law suits designed to pierce the corporate veil. The Supreme Court reversed, holding that the Full Faith and Credit Clause required the New Jersey courts to entertain the cause of action to enforce the assessment.

Once again, however, the language of the decision clearly indicates that Rosner is inapposite to the issue of interstate recognition of same-sex marriages. In Rosner, Justice Brandeis analogized the assessment by the Superintendent to a judicial decision imposing liability on the shareholders.(fn14) The jurisprudence of the Full Faith and Credit Clause makes a sharp distinction between such decisions on the one hand and state laws on the other. Generally, states are required to enforce decisions reached by the courts of other states.(fn15) By contrast, as the Court recognized in Hughes, they are typically not required to adopt the laws of another state in reaching their decisions.(fn16) Only the latter cases implicate the public policy exception - the target of Kramer's attack.

To be fair, Kramer does not contend that Hughes and Rosner directly hold that the use of the public policy exception is unconstitutional; instead, he simply describes the cases as "groping toward a principle that makes considerable sense in its own right."(fn17) Moreover, the fact that his characterization of the import of Hughes and Rosner might be viewed by some as unpersuasive, absurd, or even delusional does not distinguish Same Sex Marriage from other scholarship of this genre. Indeed, the very essence of advocacy scholarship is often the "creative"...