Non-recognition of Same-sex Marriage Judgments Under Doma and the Constitution

• Publication year: 2003

38 Creighton L. Rev. 365. NON-RECOGNITION OF SAME-SEX MARRIAGE JUDGMENTS UNDER DOMA AND THE CONSTITUTION

Creighton Law Review

Vol. 38

LYNN D. WARDLE(fn*)

I. INTRODUCTION: THE POTENTIAL PLETHORA OF PEREGRINATING SAME-SEX MARRIAGE JUDGMENTS

A. THE OREGON SAME-SEX MARRIAGE JUDGMENT EXPORTED - A HYPOTHETICAL

In the spring of 2004, public officials in a number of communities in the United States began to issue marriage licenses to same-sex couples in defiance of state laws restricting marriage to male-female couples only. Over 4,000 marriage licenses were issued to same-sex couples in California alone before the state Supreme Court ordered a halt.(fn1) In Oregon it was reported that approximately 3,000 same-sex couples obtained marriage licenses in Multnomah County (the Port-land area) before a state court ordered county officials to stop issuing the licenses to same-sex couples.(fn2) Public officials in New Paltz, New York,(fn3) and Sandoval County, New Mexico,(fn4) also issued several dozen marriage licenses to same-sex couples before being stopped. Under more respectable circumstances (following two decisions of the Massachusetts Supreme Judicial Court explicitly legalizing same-sex marriage) an estimated 2,500 marriage licenses were issued to same-sex couples in Massachusetts in just one week in May.(fn5) It also has been reported that over one thousand American same-sex couples have been married in Canada since courts in Ontario, British Columbia and Quebec legalized same-sex marriage there.(fn6) Thus, over 10,000 American same-sex couples probably have recorded marriages somewhere under at least the "shadow" (if not the full "color") of law.

In contrast, there have been very few reported marriage judgments to date. One of the rare reported marriage judgments was Li v. Oregon, decided in Oregon in April, 2004.(fn7) While judgments declaring or treating a same-sex union as a marriage might be rendered in many different contexts,(fn8) the marriage judgment in Li resulted from a very unusual set of circumstances. The Oregon State Registrar refused to register the same-sex marriages performed under the marriage licenses issued to same-sex couples by renegade Multnomah County officials. Four same-sex couples who obtained marriage licenses in Multonomah County (along with five other same-sex couples with different claims) filed suit seeking, inter alia, a declaration that same-sex couples have the right to marry in Oregon, and seeking to compel the uncooperative State Registrar to officially register the same-sex marriages that had been performed under the marriage licenses that had been issued to same-sex couples. On April 20, 2004, the Honorable Frank L. Bearden, a state trial judge on the Circuit Court, in the Fourth Judicial District of Oregon (including Multnomah County, the Portland area) entered a judgment holding that the Oregon marriage law allowing only male-female couples to marry "impermissibly classif[ies] on the basis of sexual orientation, the repercussions of which deny same-sex couples certain substantive benefits," and, without mandating same-sex marriage, affirmed same-sex couples' "right to [marital] benefits, and . . . finding that alternative means should be provided to address this disparity."(fn9) Judge Bearden stayed his decision "until the Oregon Legislative Assembly . . . and the public have time for dialog and debate," and ordered "the legislature to evaluate the substantive rights afforded to married couples and to provide similar access to same-sex domestic partners."(fn10) Until the legislature had the opportunity to determine how to remedy the situation, Judge Bearden "enjoined [Multnomah County] from further issuing marriage licenses to same-sex couples. This ruling [was] made in order to allow both the Supreme Court and the legislature time to make reasoned decisions without being presented with a fait accompli more than already exists."(fn11) Judge Bearden "allow[ed] the legislature to come up with a remedy consistent with this judicial holding within ninety days of the commencement of the next legislative session or special session, whichever occurs first."(fn12)

That much of the Li decision was "old news." At least four other American courts had previously reached similar decisions, albeit two of those decisions were promptly overturned by state constitutional amendment, and in one of the other states a proposed constitutional amendment to overturn the decision is pending.(fn13) And, like Judge Bearden, courts in Vermont and Massachusetts also had tried to nudge or intimidate the legislature into acquiescing in and endorsing the controversial, judicially-mandated revolution in state marriage policy.

However, Judge Bearden went one step further than the earlier state court rulings because he actually entered a judgment holding that particular same-sex marriages were valid. On the claim seeking registration of same-sex marriages, he held that:

[F]ailing to register same-sex marriage licenses and solemnization certificates is a direct violation of the law. To the extent that the State Registrar's inaction affects property rights, health and survivorship benefits, etc., then Article I, section 20 requires acceptance and registering of the license and solemnization certificate. To the extent that rights and benefits are not dependent on registering the license and accompanying documents, the law nevertheless requires the State Registrar accept the record of a marriage performed in this state.(fn14)

Thus, holding that the same-sex marriages that had been performed were valid for purposes of state marriage registration, Judge Bearden ordered the State Registrar "to accept and register marriages that have been performed pursuant to ORS § 432.405 thirty days after entry of judgment,"(fn15) including those of the four Multnomah same-sex couples that obtained and used marriage licenses.

Putting aside a number of skeptical questions about Judge Bearden's creative analysis and order, his judgment in the Li case provides an example of a judicial judgment validating specific same-sex marriages of specific parties. If any of the plaintiff individuals or couples in Li who prevailed on their claim (that their same-sex marriage performed under a license issued by the renegade county clerk in Multnomah County was a valid marriage that had to be registered by the Oregon State Registrar) subsequently moved to another state and filed a suit demanding that their new state of residence recognize the Oregon judgment establishing the validity of the plaintiffs' same-sex marriage, that would be a claim for interstate recognition of a same-sex marriage judgment. However, forty states (including, ironically, Oregon which passed a state marriage amendment in November 2004) have enacted state Defense of Marriage Acts ("DOMAs") establishing that same-sex marriage will not be recognized in those jurisdictions. If one of the parties who prevailed in Li sought recognition or enforcement of the Oregon judgment in one of those states, that judgment recognition claim would arguably conflict with a prohibition in a law regarding judgment recognition that evidenced a strong local public policy.(fn16) Whether courts in those states with DOMA laws would have to recognize and enforce same-sex marriage judgments like the Li decision is the question this article addresses.

This article examines three questions regarding interstate recognition of same-sex marriage judgments: (1) does existing choice of law and Full Faith and Credit doctrine allow states to decline to recognize same-sex marriage judgments entered in sister states, (2) did Congress really intend in DOMA to allow states to decline to recognize sister-state same-sex marriage judgments, and (3) does the Full Faith and Credit Clause of the Constitution bar Congress from enacting legislation that allows states to decline to recognize sister-state same-sex marriage judgments? Part II of this article examines the question of interstate nonrecognition of same-sex marriage judgments under contemporary judgment recognition principles. Refusal to recognize or enforce sister state same-sex marriage judgments would appear to defy conventional principles of interstate judgment recognition. However, if some other recognition standard such as governmental interest analysis principles were applied to judgment recognition, the nonrecognition of same-sex marriage judgments might be justified in some cases (apart from any constitutional prohibition, considered sep-arately in Part IV). Congress could have selected the recognition laws of the second state, instead of the recognition laws of the rendering state, to define what "full faith and credit" means. Part III of this article considers whether nonrecognition of sister state same-sex marriage judgments is authorized under the the federal DOMA. There appears to be little room for doubt that Congress intended to allow each state, in appropriate circumstances, to decline to recognize or enforce sister state judgments treating same-sex relationships as marriages. Part IV of this article considers whether the Full Faith and Credit Clause of the Constitution is violated by the federal DOMA or by state courts acting thereunder to refuse recognition to sister state same-sex marriage judgments. It appears from the text, history, purpose, and precedents interpreting the Full Faith and Credit...