Same-sex marriage: refining the conflict of laws analysis.

• Author: Silberman, Linda
• Position: Recognition and Enforcement of Same-Sex Marriage

To be objective about the role of conflict of laws in the treatment of same-sex marriage, it is helpful to start with tolerance for the views of both sides in the substantive debate over whether to permit same-sex marriage. I begin with this observation because much of the writing about conflict of laws issues and the recognition of same-sex marriage is far from neutral on that issue. (1) Unless and until the Supreme Court determines that a prohibition on same-sex marriage is unconstitutional as a matter of federal law, it is within the prerogative of each individual state to determine what status to accord to same-sex couples who want to formalize their relationship and/or what rights should attach to such relationships. The view about same-sex marriage that is taken by a particular state (in the United States) or by a particular country reflects the set of values accepted in that community as determined through its own political processes, whether expressed in state constitutional amendments, statutes enacted by the legislature, or by judicial decisions declared in the courts. (2)

With respect to the United States as a whole, there is an argument that the entire question of marriage and divorce regulation should be subject to a uniform standard, perhaps best achieved at the federal level. (3) Some countries with federal systems do subject marriage and divorce regulation to national treatment. (4) Federal law on these issues would avoid many of the difficulties that arise when parties marry or divorce in one state and then move to another. If a national standard were in place, rights of the marital partners would not be affected by their movement across state lines. (5) Of course, the substance of any "national" standard could go either way in the debate over same-sex marriage. One possible interpretation of the present U.S. Constitution could result in preventing states from classifying marriage as a status reserved for persons of different sexes--that would in effect mean any state providing for the marital relationship would have to make it available to couples regardless of their sexual orientation and would establish a single uniform standard. (6) Alternatively, the recently proposed amendment to the U.S. Constitution--which failed to win the two-thirds majority necessary to pass the House and be submitted to the states for ratification--would have restricted marriage to one man and one woman. (7) Such an amendment also creates a national standard on marriage, but would prevent all same-sex marriages.

Pluralism in the United States has always made national consensus on a variety of family matters difficult. Long before the issue of same-sex marriage came to the fore, similar conflict-of-laws issues arose with respect to interracial marriages and the application of miscegenation statutes, (8) as well as over grounds for divorce and the ability to obtain migratory divorces. (9) Historically, issues of family law--marriage, divorce, and custody--have generally been left to the states to establish according to their own community norms. (10) Accordingly, the present landscape allows each state in the United States to make the choice about same-sex marriage (and civil unions and registered domestic partnerships, for that matter) for itself. (11) But because parties in marital relationships often act outside their community or move elsewhere and establish a new home base, other states must address the rights and obligations of the parties to a union that they may have prevented altogether. (12) This Essay offers a normative analysis for these conflict-of-laws issues in a fashion that I believe best reflects the needs and values of our federal system, giving genuine respect to the decision made in a relevant community about the desirability of permitting same-sex marriages.

1. THE EVASION SCENARIO

   The conflict-of-laws issues arise in a variety of different contexts. The "easiest" case for me is what I refer to as the "evasion" case. An evasion case arises in the following way: assume a state in the United States or elsewhere decides to authorize same-sex marriage--at one time it looked like this state might be Hawaii; (13) now it might be Massachusetts, (14) New York, (15) California, (16) or possibly one of the Canadian provinces. (17) A same-sex couple from another state that does not permit same-sex marriage--say Pennsylvania--travels to Massachusetts to get married and then returns home to Pennsylvania. How should one view the out-of-state marriage? If one brings a modern conflict-of-laws analysis to bear on this subject, the way to understand the law authorizing same-sex marriage is to view it as a social, moral, and political judgment that affects members of a particular community--i.e., those individuals who are and will be residing in Massachusetts. When a couple from Pennsylvania--that is, two Pennsylvanians who live in Pennsylvania and who will return to live in Pennsylvania--come to get married in Massachusetts, Massachusetts has little justification for extending its law to them. In conflict-of-laws terminology, Massachusetts has no interest in applying its law to this case. (18) In this situation, there is not only a question of the recognition of the marriage in Pennsylvania, but also whether the Massachusetts rule about same-sex marriage should or constitutionally even could extend to these individuals. The Supreme Court's decision in Phillips Petroleum & Co. v. Shutts (19) suggests that Massachusetts may be constitutionally disabled from applying its law in such a case since it has no policy justification for regulating the capacity of these parties to marry. If, however, same-sex marriage were permitted in the state where the parties were resident or domiciled--or even possibly if there were no impediment to such a marriage in that state--Massachusetts might have reason to extend the "courtesy" of a marriage ceremony to the couple because to do so would not infringe upon the interest of the other state.

   Some might argue that the long history and tradition of the "place of celebration" rule could be invoked to reject any argument that applying the law where the marriage takes place is unconstitutional, (20) but there have always been exceptions to the place of celebration rule that mirror similar interests expressed in laws prohibiting same-sex marriages at the state of the parties' domicile. (21) The lack of a justifiable "interest" (in conflicts terminology) by the state of celebration in extending its laws to cases of evasion was acknowledged in Goodridge v. Department of Public Health (22)--the recent Supreme Judicial Court of Massachusetts decision upholding same-sex marriage. In his concurring opinion, in a footnote that initially went unnoticed by some, Justice Greaney explained that the court's ruling requiring Massachusetts to license same-sex couples would be limited to Massachusetts residents; (23) Justice Greaney called attention to two state statutes that affected the impact of the holding. One statute prohibits the marriage of any party residing and continuing to reside in another jurisdiction, if such marriage would be void if contracted in such other jurisdiction, and declares any such marriage null and void. (24) A second statute requires the official issuing a marriage license to a nonresident to be satisfied that the person was "not prohibited from intermarrying by the laws of the jurisdiction where he or she resides." (25)

   Statutes of this kind reflect a respect by the proposed state of celebration for the genuine regulatory interests and values of the particular community of which the couple is a member. Interestingly, following the decision in Goodridge, the Attorney General of Massachusetts issued an order to municipal clerks in Massachusetts to refrain from issuing marriage licenses to same-sex couples from outside Massachusetts. (26) That order was challenged in subsequent litigation, claiming that this was an impermissible discriminatory enforcement scheme. (27) In rejecting the challenge, a Massachusetts trial court in Cote-Whitacre v. Department of Public Health noted that the instructions being given to the clerks addressed all marriage impediments--including impediments based on age, consanguinity or affinity, marital status or same-gender status--of couples who reside and intend to continue to reside in other states. (28) Nor was the court persuaded by the argument that it was only in the context of same-sex marriages that Massachusetts began to take interest in the out-of-state evasion marriages The enforcement in Massachusetts, held the court, was uniform and systematic. (29)

   Legislation dealing with the evasion of domiciliary marriage laws is not prevalent in the United States. The Uniform Law Commissioners did propose a Uniform Act on the subject, (30) but it was later withdrawn, having been adopted by only a very few states. (31) Nonetheless, a number of states do have some type of marriage-evasion provision in their statutes. (32) And in the marriage laws of many European countries, it is very common to find provisions to prevent marriages that evade the otherwise appropriate law. (33) In some countries the substantive requirements for contracting a marriage are determined for the parties by the law of their nationalities, or in some cases their habitual residences or domiciles. It is a common requirement that a foreign national or resident present a certificate from the state of origin showing that there are no impediments to the marriage according to the laws of that state. (34) In the specific context of the few countries that permit same-sex marriage, Belgium limits them to those situations where such marriages are allowed by the national law of each partner; (35) and the Netherlands only requires that one of the spouses be a citizen or resident of the Netherlands, but residency requires formal registration. (36) Several provinces in...