Same-sex marriage, conflict of laws, and the unconstitutional public policy exception.

• Author: Kramer, Larry

It finally happened. On Tuesday, December 3, 1996, a Honolulu judge struck down a Hawaiian law permitting only opposite-sex couples to marry, and Hawaii became the first state to recognize same-sex marriages.(1) Of course, the ruling hardly came as a surprise. The surprise had come three years earlier, when the Hawaii Supreme Court ruled in Baehr v. Lewin(2) that a restriction on same-sex marriage constituted sex discrimination under the state constitution and remanded to give the state an opportunity to show that its law served a compelling interest. Still, the trial court's finding that it did not brings a further degree of closure to one chapter in the same-sex marriage controversy: We can confidently predict that Hawaii will recognize same-sex marriages, for while the trial court stayed its mandate pending appeal, it is very unlikely that the decision will be overturned.

Now that a state has made same-sex marriages legal, the battleground for gay and lesbian couples shifts to other states -- eventually, perhaps, to persuade these states to follow Hawaii's lead; in the meantime, to get them to recognize the validity of same-sex marriages performed in Hawaii. But opponents of legally recognized marriages between same-sex partners have not been quiescent. On the contrary, horrified by the prospect that gay and lesbian couples might be able to marry in Hawaii and force other states to recognize their union fully and for all purposes, adversaries of same-sex marriage began a campaign to limit the effect of Hawaiian law almost as soon as Baehr was decided. Efforts were made to persuade state legislatures to adopt statutes explicitly declaring that same-sex marriages violate public policy and are void. These efforts succeeded in a number of states.(3)

The popular media raised questions about whether such laws were permissible or whether states would be required as a matter of full faith and credit to recognize marriages celebrated lawfully in Hawaii.(4) So opponents of gay and lesbian marriage went to Congress. They found a receptive audience, and Congress soon enacted the ironically named "Defense of Marriage Act" (DOMA), which permits states to refuse recognition to "any public act, record, or judicial proceeding of any other State ... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State."(5)

As same-sex couples begin making plans to get married in Hawaii, and as other states begin gearing up to deny their marriages any effect, some important questions arise. First, assuming that states are not required to permit same-sex marriage under their own laws, to what extent does the federal Constitution obligate them nevertheless to recognize such marriages if validly performed in Hawaii? Second, assuming that states sometimes are obligated to recognize Hawaiian marriages, can Congress relieve them of the obligation? As we will see, both questions are more complicated than partisans on either side of the issue seem to have realized.

Part I of this Article describes existing law. The traditional, and still usual, rule for interstate marriages is to uphold the validity of a marriage valid where it was celebrated. This "place of celebration" rule is then subject to a number of exceptions, most of which are narrowly construed. The vast majority of cases in which an exception is made are based on "public policy," among the hoariest of hoary conflicts doctrines. The availability of this exception appears to make DOMA unnecessary by making potential same-sex marriage problems easy from a conflict-of-laws perspective.

That is true, however, only if one accepts the law that allows states to make this exception. Part II, the heart of the Article, argues that the public policy doctrine ought to be deemed unconstitutional -- not just in same-sex marriage cases, mind you, but across the board.(6) The argument, in a nutshell, is that the Full Faith and Credit Clause prohibits states from selectively discriminating in choice of law based on judgments about the desirability or obnoxiousness of other states' policies. However much sense this exception makes in international law, where a case for it can still be made, it has no place in the American federal system.

Part II goes on to examine the implications of this understanding of full faith and credit for choice of law generally and for marriage in particular. These are significant, but hardly calamitous. For apart from "better law" analysis -- which permits courts to choose among conflicting laws by picking the one deemed to reflect more enlightened policy, and which, I conclude, should also be found unconstitutional -- modern approaches to choice of law are all carefully structured to avoid inquiries about whose law is preferable or superior as a substantive matter. Most choice-of-law doctrine would thus remain unaffected.

What my argument means for marriage law in particular depends on how states respond to this new constitutional regime. If the argument in Part II is right, states will find it difficult to refuse recognition to same-sex marriages celebrated lawfully in Hawaii without altering their existing choice-of-law rules for marriage generally. They will not lose the ability to adopt and enforce rules respecting which marriages are valid and which are not; Hawaii cannot, after all, dictate marriage law to the rest of the nation. They will, however, lose their ability to single out Hawaii law for nonrecognition through use of the public policy exception. Some states may respond by extending the place of celebration rule even to same-sex marriages celebrated in Hawaii. Others, however, may choose to adopt an alternative approach to choice of law: perhaps one of the modem approaches, like interest analysis, the Second Restatement, or comparative impairment. This is perfectly acceptable even though it may result in denying recognition to some same-sex marriages celebrated in Hawaii. The only limitation proposed here is that, whatever choice-of-law rule or approach a state adopts, it cannot alter its willingness to apply foreign law based solely on the substantive policy of the other state.

A state cannot do this, that is, unless Congress has the power to make an exception to full faith and credit and to authorize states to refuse recognition to same-sex marriages. Hence, DOMA may not be supererogatory after all. Part III therefore examines Congress's power to prescribe choice-of-law rules for states. Under the Effects Clause of Article IV, Congress is entitled to define how each state's law shall be treated by other states. It might follow that Congress can permit states to deny recognition to same-sex marriages on public policy grounds, in which case DOMA ends any remaining legal controversy (politics is another matter). But the limits of congressional power under the Effects Clause have never been examined, in part because Congress has never tested them. And the better interpretation is that Congress's power to create choice-of-law rules is not unlimited -- federal authorities have no more business authorizing a public policy exception than do states. DOMA is unconstitutional.

1. Existing Doctrine

   1. Choice of Law

      Before proceeding further, we need to understand the basic rules governing choice of law in marriage cases. To recapitulate the law in this area fully would take some time; no surprise really, since nothing in conflicts law is ever neat or tidy.(7) There are just too many states making independent decisions and too many different variations of each problem to consider. For present purposes, we can work with the following paradigmatic situation: A and B live in state X, which does not recognize their right to marry; they travel to Hawaii to get mar-ried, and immediately after the ceremony return home to resume their lives together. How would state X view their marriage?(8)

      As a general matter, every state recognizes the validity of a marriage valid where it was celebrated (i.e., where the marriage contract was made).(9) The place of celebration rule is not, of course, carved in stone or revealed from heaven. States do not have to follow it, and nothing in the Constitution precludes them from adopting a different rule (say, for example, applying the law where either or both of the parties are domiciled when they get married). A variety of considerations -- in particular, widely shared policies that favor validating marriages consummated in good faith and enabling partners to know with certainty whether their marriage is valid -- have led states to conclude that the best rule is one recognizing marriages legal where they were celebrated. This has long been the rule in every state of the United States,(10) and it continues to govern pretty much without regard for whether a state adheres to the traditional jurisdiction-selecting rules or opts for one of the fancier modem approaches.(11)

      Its general convenience notwithstanding, every state recognizes situations in which it abandons the place of celebration rule. Many states, for example, will recognize a marriage that is invalid in the state where it was celebrated if it is valid where the parties are domiciled.(12) Conversely, some states will refuse to recognize a marriage that is valid where it was celebrated if the partners went there solely to evade restrictions imposed in their domicile.(13) Surprisingly, this entirely reasonable exception is rarely used,(14) and its appearance often depends on how quickly a marriage is challenged and whether the challenger is one of the partners or some other interested party. Even where the rule against deliberate evasion is codified, courts have construed it narrowly and found ways to uphold most marriages.(15)

      By far the most common exception to the place of celebration rule is for marriages deemed contrary to the forum's strong public policy, and this again seems to be true regardless of how a...