Revisiting State Marriage Recognition Provisions

• Publication year: 2003

38 Creighton L. Rev. 233. REVISITING STATE MARRIAGE RECOGNITION PROVISIONS

Creighton Law Review

Vol. 38

WILLIAM C. DUNCAN(fn*)

I. INTRODUCTION

In response to developments in Hawaii in 1993, where the state supreme court wielded a novel theory of sex discrimination to call into question the constitutionality of state marriage laws,(fn1) an increasing number of states have enacted legislation to specify that same-sex marriages contracted in other jurisdictions will not be recognized in those states.(fn2) In 1998, David Coolidge and I surveyed these marriage recognition laws.(fn3) That article described the passage of the thirty laws then in existence and briefly analyzed them. Much has occurred since then and the number of states with marriage recognition laws has increased slowly but steadily.

Section II of this article will describe the shift in the legal status of same-sex marriage since 1998. Section III will describe the marriage recognition laws enacted since then. Section IV will analyze the new laws and the issues surrounding them.

II. SHIFTING LEGAL CONTEXT

In early 1998, there had been two court decisions mandating the redefinition of marriage to include same-sex couples (later negated in popular votes). In response to the Hawaii Supreme Court's remand for a trial to determine whether the state of Hawaii could show a compelling reason to define marriage as the legal union of a man and a woman, a trial court ruled that the state had not met its burden and that therefore, same-sex couples must be allowed to marry.(fn4) In 1998, an Alaska trial court ruled that the state constitution's privacy provision included a fundamental right to choose one's life partner.(fn5) These decisions, especially the Hawaii case, were the major motivating factor in the efforts to that point to enact marriage recognition laws. In fact, after 1998 there was very little movement in the states to enact marriage recognition laws until the next major case to address the issue of same-sex marriage.

That decision was issued by the Vermont Supreme Court at the end of 1999.(fn6) In its decision, though, the court did not order the State to issue marriage licenses to same-sex couples. In fact, it held that the legislature can decide whether to redefine marriage or create a substantially similar option for same-sex couples.(fn7) The catch was that if the legislature did not respond, marriage licenses would issue to same-sex couples.(fn8) The legislature did respond, though, by creating civil unions - a new status that offered the benefits of marriage to same-sex couples under a different name.(fn9)

Perhaps the decision that brings the issue to a head, though, is from Massachusetts. In that case, the Massachusetts Supreme Judicial Court purported to analyze the constitutionality of that state's marriage law under rational basis review.(fn10) The decision, however, gives short shrift to the state's interest in marriage, painting them as "rooted in persistent prejudices against persons who are (or who are believed to be) homosexual."(fn11) As a result, the court created a new legal definition of marriage in Massachusetts: "the voluntary union of two persons as spouses, to the exclusion of all others."(fn12) Seeking to follow the example of the Vermont Legislature, the Massachusetts Senate President asked the Supreme Judicial Court if a "civil union" status for same-sex couples, identical in all but name to marriage, would satisfy the court. The answer was a resounding "no."(fn13)

The legal uncertainty created by the Massachusetts decision was further heightened in an April 2004 decision by an Oregon trial court.(fn14) The case was precipitated by the highly-publicized decision of Multnomah County, Oregon to issue marriage licenses to same-sex couples in contravention of state law.(fn15) Plaintiffs (the American Civil Liberties Union, Basic Rights Oregon and nine same-sex couples) sued the state of Oregon asking that (1) current marriage law be declared unconstitutional under state constitution and/or (2) the state register the marriages already performed in Oregon counties.(fn16) Under the Oregon Constitution's Article I, section 20, the court had to determine whether the plaintiffs had (1) been denied a "privilege" and (2) were members of a "true class" which is also a "suspect class."(fn17) The court accepted plaintiffs' argument that they were subject to sex discrimination because the benefits of marriage were denied them because of the sex of their partners and "[t]here are no intrinsic differences between the different genders that justify disparate treatment."(fn18) The court also held that the statute constituted "sexual orientation" discrimination because although the marriage law is neutral as to the predilections of individuals it has a disproportionate effect on same-sex couples who are denied the benefits of marriage.(fn19)

In creating a remedy, the court described the earlier decisions in Vermont and Massachusetts and decided it would follow Vermont's example because the two state constitutions are similar.(fn20) So, the court "allow[ed] the legislature until ninety days after the commencement of the next regular or special session, whichever comes first, to produce legislation that would balance the substantive rights of same-sex domestic partners with those of opposite-sex married couples or Multnomah County will be required to issue marriage licenses to same-sex couples to avoid further violating Article I, section 20."(fn21) On the second question of whether licenses already issued will be regis-tered, the court did not weigh the County's authority to issue the licenses but still ordered the State Registrar to "accept and register marriages that have been performed pursuant to ORS 432.405 [statute requiring filing of marriage records] thirty days after entry of judgement."(fn22) Only in the conclusion does the court enjoin Multnomah County from "further issuing marriage licenses to same-sex couples."(fn23)

To give some sense of the court's understanding of marriage, a particularly interesting passage in the conclusion might be noted. In it, the court says that the current marriage law "presently acts as a barrier to certain domestic partners and not to others."(fn24) The court also made clear that it expects the decision to be appealed.(fn25)

III. DEVELOPMENTS SINCE 1998

Although the rush of marriage recognition laws that extended from 1995-1998 slowed measurably after 1998, a number of significant developments have occurred. First, additional states have enacted marriage recognition laws, creating a large majority of states with such laws. Second, there has been a growing movement to amend state constitutions to prevent the recognition of same-sex marriages from other states.

A. MARRIAGE RECOGNITION STATUTES

Since 1998, seven states have enacted new marriage recognition statutes, either legislatively or by popular vote.

1. Louisiana

Although Louisiana law already provided that "[p]ersons of the same-sex may not contract marriage with each other"(fn26) legislators felt the need to clarify the state policy in regards to out-of-state marriages. In the 1999 legislative session, House Bill 1450 was proposed to add two new provisions to current law.(fn27) As originally introduced, the bill would have added one sentence to article 89 so that it would read:

A marriage between persons of the same-sex shall not be valid or recognized in this state for any purpose, even if contracted in a jurisdiction where permitted. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction that recognizes or validates such a marriage between persons of the same sex or any right or claim asserted as a result of the purported marriage.(fn28)

After amendments in the House Committee on Civil Law and Procedure, the bill was modified to create two new provisions in the Civil Code. The first added to article 89: "A purported marriage between persons of the same-sex contracted in another state shall be governed by the provisions of Title II of Book IV of the Civil Code."(fn29) It also added a new subsection to article 3520 of the Civil Code: "A purported marriage between persons of the same-sex violates a strong public policy of the state of Louisiana and such a marriage contracted in another state shall not be recognized in this state for any purpose, including the assertion of any right or claim as a result of the purported marriage."(fn30) As amended, the bill was approved unanimously by the Committee.(fn31) Within a month, it had been approved with votes of 95-0 by the state House and 32-0 by the state Senate.(fn32) The governor signed the bill on July 2, 1999.(fn33)

2. California

Repeated attempts to enact marriage recognition legislation in the California legislature had been unsuccessful before 1999,(fn34) including a 1996 bill that failed by one vote.(fn35) So, in 1998 California citizens began gathering signatures to support a ballot initiative that would define marriage and provide that same-sex marriages contracted in other jurisdictions would not be recognized in California.(fn36) In November 1998, 677,000 signatures were submitted to the California Secretary of State, of which at least 482,044 were valid (433,269 were needed).(fn37) When approved, the proposition was titled the "Definition of...