A Standard Form Approach to Same-sex Marriage

• Publication year: 2003

38 Creighton L. Rev. 309. A STANDARD FORM APPROACH TO SAME-SEX MARRIAGE

Creighton Law Review

Vol. 38

LARRY E. RIBSTEIN(fn*)

ABSTRACT

This paper attempts to find a path through the recent constitutional thicket regarding same-sex marriage by analogizing marriage to a business association. This analogy provides a way to evaluate the justifications for traditional rules banning same-sex marriage - specifically, by emphasizing the advantages of providing distinct standard forms for different types of relationships. Under this approach, the same-sex marriage prohibition might be justified by the need to preserve the precise boundaries of the marriage standard form. The business association analogy also highlights what is at stake in state laws prohibiting same-sex marriage, and therefore helps determine the appropriate burden to impose on defenders of the prohibition. Like business associations, the law of the state in which the marriage is celebrated generally governs the validity of a marriage. This offers the potential of allowing couples, including same-sex couples, to select not only from among the standard forms in a particular state, but also from the menus of standard forms offered by various states. This analysis helps assess the infringement on liberty involved in a state's prohibition of same-sex marriage. Moreover, as with business associations, permitting the interstate market for standard forms to operate would provide an evolutionary approach to marriage laws that is preferable to the Court's prematurely taking sides in the marriage debate.

INTRODUCTION

There is a bitter culture and legal war raging over same-sex marriage. Some see marriage as a moral foundation of our civilization and same-sex marriage as a profound threat to the stability of marriage. Others see same-sex marriage as the key battle in the war for gay rights. Still others may be agnostic about same-sex marriage, but see laws banning same-sex marriage as an unwarranted intrusion on liberty.(fn1) The courts have stirred the pot, most notably in the Massachu-setts cases of Goodridge v. Dept. of Public Health(fn2) ("Goodridge") and Opinion of the Justices to the Senate(fn3) ("OJS"), the Supreme Court's opinion in Lawrence v. Texas(fn4) ("Lawrence"), and a Washington lower court decision, Andersen v. King County.(fn5)

This paper attempts to find a path through the thicket of moral absolutes and legal complexity by analogizing marriage to a business association. The analogy is plausible because both are long-term relationships featuring rules on issues like formation, dissolution, and ownership of assets. Indeed, some marriages are business associations. Before gay marriage was allowed anywhere, gay couples were using LLCs.(fn6)

The business association analogy offers two insights that could assist in resolving the marriage wars. First, the analogy provides a way to evaluate the justifications for traditional rules banning same-sex marriage. Lawrence and Goodridge cast considerable doubt on traditional moral reasons for prohibiting same-sex marriage, and therefore increase the demand for a more pragmatic analysis. The business association analogy emphasizes the advantages of providing different sets of rules, or standard forms, for different types of relationships. It also focuses attention on the most important issue in the same-sex marriage debate - whether parties should be denied the right to use a standard form on the ground that it is inappropriate for their relationship. The challenge for the standard forms analysis is whether it can supply the sort of rationale for the same-sex marriage prohibition that the recent cases demand.

Second, the business association analogy highlights what is at stake in state laws prohibiting same-sex marriage, and therefore helps determine the appropriate burden to impose on defenders of the same-sex marriage prohibition. Marriages are like business associations not only because both lend themselves to multiple standard forms, but also because the validity of a marriage generally is governed by the law of the state in which the marriage is celebrated. This offers the potential of allowing couples to select not only from among the standard forms in a particular state, but also from the menus of standard forms offered by various states. Most importantly for present purposes, same-sex couples excluded from the standard forms in State A may be able to utilize the more liberal choice available in State B. The benefits of choice and experimentation, and the potential for ameliorating the costs of questionable restrictions, argue against judicially foreclosing the state process.

The article approaches these issues by presenting three views of marriage from the perspective of corporate law. Part I presents a non-constitutional analysis of marriage laws in the context of our federal system, drawing from my 2001 article with Frank Buckley on a choice-of-law approach to marriage.(fn7)

Part II introduces the constitutional framework that has become such an important part of the marriage debate. It shows how Lawrence and other recent cases demand refinement of the choice-of-law approach by undercutting the important moral justification for state restrictions on same-sex marriage.

Part III presents an alternative analysis that emphasizes the function of statutory standard forms and the potential application of a standard forms approach to marriage law. This Part shows that there is significant justification for separate marriage-type standard forms and some support for blocking same-sex couples, from using the specific marriage form.

Part IV discusses how the choice-of-law and standard forms analyses of Parts II and III illuminate the constitutional issues raised by same-sex marriage. The standard forms analysis shows that the notion of marriage as a "fundamental right" is unintelligible in light of the variety of legal packages the states are offering and can offer for ordering domestic relationships. The choice-of-law analysis suggests that, even if marriage is a fundamental right, it should be analyzed in the context of the national menu of domestic relationship statutes. This offers the important advantage over a constitutional resolution of the issue of providing an evolutionary and incremental approach to changing marriage law.

Part V contains concluding remarks, including some observations on the legal choices available in resolving the marriage debate.

I. CONTRACTUAL CHOICE OF LAW

My 2001 article with Frank Buckley proposed to analyze marriage from the perspective of contractual choice of law.(fn8) Like a corporation, whose internal governance is determined by the law of the state of incorporation, validity of a marriage is generally controlled by the law of the celebration state. It is also possible to use the analogy to an ordinary commercial contract. I found in an extensive study that choice-of-law clauses in commercial contracts are quite generally enforced.(fn9) Both of these articles, in turn, draw from my and Erin O'Hara's general economic and political insights on choice of law.(fn10)

A problem with this approach is that same-sex marriage might not be treated like other marriage for choice-of-law purposes. States might regard a foreign same-sex marriage as invalid because they do not recognize the status of marriage.(fn11) Non-enforcement of a sister state's celebration of the marriage might be consistent with the general conflict of laws "public policy" exception to enforcement of the laws of other states.(fn12) Prior to the constitutional cases discussed in Part II, it is unlikely that there were any constitutional constraints on states' non-recognition of foreign marriage.(fn13)

It is not clear how same-sex marriage ought to be treated from a choice of law perspective. One approach is to ask to what extent a rule of interstate recognition might impose costs in the enforcement state. This is a particularly complex problem when costs can include intangible effects. States might be thought to have a legitimate interest in defining norms and preferences.(fn14) On the other hand, restricting same-sex marriage denies social approval to a significant group of people.(fn15)

A choice-of-law rule that lets states deny local marriage but requires them to enforce foreign same-sex marriages for most purposes arguably is a useful compromise between the state and individual interests in prohibiting and in permitting same-sex marriage.(fn16) Prohibiting in-state marriage allows states to preserve their version of marriage-related norms. At the same time, enforcing out-of-state marriages for many purposes supports other states' policy on this issue.

Questions remain concerning which aspects of foreign marriage residence states should enforce. States clearly enforce family-type contracts such as ante-nuptial agreements.(fn17) It follows that they should be willing to provide and enforce statutory standard forms, including marriage, that have analogous provisions.(fn18) Therefore, it is necessary simply to determine the extent to which marriage is like an ordinary contract and enforce those aspects interstate. This would include contracting for control, division, acquisition, and disposition of community property, spousal support and post-divorce property division.(fn19) On the other hand, states would not have to recognize...