Some Observations About Doma, Marriages, Civil Unions, and Domestic Partnerships

• Author: Mark Strasser
• Position: Professor of Law at Capital University Law School
• Pages: 363-386

Page 363

I Introduction

Vermont's recent recognition of civil unions has sparked interest in the comparative desirability of domestic partnerships, civil unions, and marriages. Each has its own benefits and drawbacks, and comparison is difficult both because the benefits and drawbacks are of different kinds, for example, material versus symbolic, and because what some may view as a benefit will be viewed by others as a drawback. Thus, some crave while others despise the symbolism of marriage. To make matters even more complicated, the cost-benefit analyses of these different types of relationships may vary greatly depending upon one's goals, for example, figuring out what would be the best arrangement for a particular couple, for couples with children, for dual-income couples, or for couples in general. Further, it may be important to decide whether part of one's analysis involves the likelihood of attaining legal recognition of the relationship under discussion. Although one relationship such as marriage might be thought preferable, its legal recognition might be thought sufficiently unlikely so that a less preferable but more attainable option such as domestic partnerships might be deemed more worthy of investments of time, energy, and money. Finally, much of the analysis may depend upon matters that are too difficult to predict, e.g., what society generally or, perhaps, the legal system in particular will be able or willing to countenance. While this article cannot resolve these issues, it can set out some of the advantages and disadvantages of these different arrangements.

II Marriage, Civil Unions, and Domestic Partnerships

Before comparing the benefits and drawbacks of the particular relationships at issue, it will be helpful to give a brief sketch of what each involves. At least as a general matter, the relationship with the greatest number of rights and obligations is marriage.¹ Were same-sex marriages legally recognized, individuals contracting such marriages wouldPage 364 presumably acquire the same rights and responsibilities as do individuals who contract different-sex marriages, at least as far as the rights and responsibilities afforded by the state are concerned.² As the Vermont Supreme Court has made clear, this includes a wide range of rights and obligations, including inheritance, insurance and workers' compensation rights, rights to bring actions in tort, rights to receive health care or to take part in health care decision-making,³ and duties of spousal or child support and property-sharing.⁴

A The Defense of Marriage Act

Federal benefits are a separate issue. Currently, the Defense of Marriage Act (hereinafter "DOMA")⁵ defines marriage for federal purposes as involving "one man and one woman"⁶ and thus the federal benefits that different-sex marital couples receive⁷ would not be available to same-sex marital couples until DOMA is either repealed or held unconstitutional.

DOMA's constitutionality has not yet been tested. It is difficult to say whether it would survive a constitutional challenge⁸ and thus difficult toPage 365 say whether same-sex couples would be entitled to the numerous federal benefits⁹ that the federal government affords different-sex marital couples were some state to recognize same-sex marriage. Arguably, Romer v. Evans¹⁰ has important implications for the constitutionality of DOMA¹¹ since the classification in DOMA, like the classification at issue in Romer, "has the peculiar property of imposing a broad and undifferentiated disability on a single named group. . . ."¹²

The Romer Court explained that because Amendment 2 was "at once too narrow and too broad,"¹³ it did not survive scrutiny under "the most deferential of standards,"¹⁴ which merely required that "the classification bear a rational relationship to an independent and legitimate legislative end. . . ."¹⁵ Additionally, Amendment 2 was unconstitutional because it "raise[d] the inevitable inference that the disadvantage imposed [was] born of animosity toward the class of persons affected."¹⁶ Indeed, Justice Scalia in his dissenting opinion seemed not to deny that there was animus but, instead, to suggest that the animus was constitutionally permissible.¹⁷

So, too, DOMA seems at once too narrow and too broad, since there is only one kind of marriage that will not be recognized by the federal government even if in fact it is recognized in a particular state. Further, DOMA raises the inevitable inference of animosity toward a particular group of people. Lest there be any doubt of that, one need only consult the Congressional Record to see why this Act was passed in the first place. Members of Congress made clear that they believed that gays, lesbians,Page 366 and bisexuals are not only immoral,¹⁸ but responsible for a whole host of the nation's ills.¹⁹

To understand why DOMA was such a mean-spirited enactment, it is necessary to understand some background law about the interstate recognition of marriage and divorce. It is sometimes suggested that a marriage validly celebrated in one state will be recognized in every state.²⁰ Yet, even a moment's reflection will make clear that this is not true even if one brackets the discussion of same-sex marriages and instead focuses on different-sex marriages. It has never been true in this country that a state would be forced to recognize a marriage of its own domiciliaries merely because the marriage was validly celebrated in another jurisdiction.

Before Loving v. Virginia²¹ was decided, individuals would marry a partner of another race in a jurisdiction where it was legal to do so, e.g., the District of Columbia, and then return to their domicile, e.g., Virginia, claiming that their marriage should be recognized by the state. Not only would the state not be bound by the Full Faith and Credit Clause²² to recognize the marriage, but the state might prosecute the couple for having tried to evade local law. Thus, the Loving court subjected Mildred Jeter and Richard Loving to criminal penalties for having sought to evade Virginia's anti-miscegenation law.²³ As a result, the couple was "sentenced to one year in jail; [although] the trial judge suspended thePage 367 sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years."²⁴

The state of Ohio, like each of the other states, determines the conditions under which its own domiciliaries can marry, and Ohio domiciliaries cannot force the state to recognize a marriage that is contrary to the strong public policy of the state by simply taking a plane and marrying in a jurisdiction permitting the marriage at issue. Suppose, for example, that an uncle and niece wish to marry. Ohio does not permit such marriages so the couple takes a plane to another jurisdiction that recognizes such unions, marries, and then comes back to Ohio, demanding that the marriage be recognized. The state would refuse to recognize the marriage, notwithstanding its having been validly celebrated in another jurisdiction.²⁵ However, the reason that the marriage would not be recognized is not simply that the couple would have been unable to have married in Ohio but, instead, because the state views that marriage as violating an important public policy of the state.

Suppose that the couple at issue had not been composed of an uncle and niece but, instead, of different-sex first cousins. They, too, are forbidden by law from marrying in Ohio so they, too, fly to another jurisdiction, marry, and then come back demanding that the state recognize their union. This time the state would recognize the marriage, notwithstanding that this couple also could not have contracted such a marriage within the state.²⁶

In each case, the validity of the marriage depends upon whether the marriage violates an important public policy of the state. Given that the state would decide to recognize the first-cousin but not the uncle-niece marriage,²⁷ the explanation could not be that the Full Faith and Credit Clause requires that the marriages be recognized since ex hypothesi the state would not have recognized the uncle-niece marriage. Rather, the explanation would be that the state's interest in promoting marriage was outweighed by the state's interest in preventing the kind of marriage at issue in one case but not in the other.

Different states have made different policy decisions with respect to which marriages are sufficiently offensive to public policy that their validity will not be recognized, notwithstanding their having been celebrated elsewhere. For example, some states refuse to recognize firstPage 368 cousin marriages at all;²⁸ some will not permit such marriages to be celebrated locally, but will recognize such marriages if validly celebrated in another jurisdiction;²⁹ others permit their celebration without restriction;³⁰ and still others permit their celebration only if one of the members of the couple is incapable of reproducing.³¹

State practices regarding first cousin marriages are of interest for a variety of reasons. First, they make clear that a marriage that cannot be contracted within the state may nonetheless be recognized if validly celebrated elsewhere.³² Precisely because marriage is thought to be "-an institution which is the foundation of the family and society, . . . without which there would be neither civilization nor progress,"³³ there is a marked tendency in the law to -sustain marriages, not to upset them.-³⁴ Thus, merely because a state has decided not to permit the celebration of same-sex marriages within the state does not mandate that the state will refuse to recognize those marriages validly celebrated elsewhere.

Second, differing treatments of...