State Interests in Marriage, Interstate Recognition, and Choice of Law

• Publication year: 2022

38 Creighton L. Rev. 337. STATE INTERESTS IN MARRIAGE, INTERSTATE RECOGNITION, AND CHOICE OF LAW

Creighton Law Review

Vol. 38

BRIAN H. BIX(fn*)

The Conference topic is the implication for interstate recognition of marriage of recent court decisions that have led to legally recognized same-sex marriages.(fn1) This article will approach the topic tangentially, considering more generally some of the issues relating to state regulation of marriage and family life. The article's initial focus will be on federalism, and how it interacts with domestic relations policy, bracketing for the moment both current family law doctrinal rules and constitutional constraints. Those latter concerns will then be brought in, showing how certain additional complications result. The article will then consider the ways in which recognizing party choice of law might respond to some - but by no means all - of the problems in this area.

One caveat: I do not purport to be an expert on constitutional issues or on conflict of laws, and I generally defer on such matters to those who are (including many at this Conference). The purpose of this article is more to raise certain analytical and policy considerations that underlie the current (and likely future) debates.

I. FEDERALISM, CONFLICT OF LAWS, AND NATIONAL CITIZENSHIP

A. FEDERALISM: EXPERIMENTATION, LOCAL CONTROL AND COMPETITION

A certain view of federalism seems a natural fit with the regulation of marriage and family life. This approach to federalism sees it as a means of simultaneously allowing local control and encouraging the development of alternative (and competing) approaches to a subject. It is a commonplace that different communities - including different communities within the United States today - have sharply different ideas about marriage and family. We would not be surprised to hear different attitudes expressed in New York City's Greenwich Village, suburban Minneapolis, and Provo, Utah. It would seem natural, if not inevitable, that the rules established for these different communities would be as distinctly different as the communities themselves.

This ties in with a second argument often made for federalism: that it encourages (or at least allows) states to act as "social laboratories."(fn2) If some communities have doubts about the claims being made about the positive or negative consequences of a proposal (whether it be recognizing same-sex marriage, allowing no-fault divorce, or changing the presumptions in custody cases), they can gain evidence on the matter from nearby communities that have tried the proposal (not that the "lessons" of real-world policies are always clear and uncontroversial: e.g., social scientists continue to debate what the effects have been of no-fault divorce and capital punishment, just to name two prominent examples).(fn3)

As a policy matter, there is much to be said for decisions made at a local level: it makes more sense to speak of the self-definition of a small group than that of a much larger group (geographically or numerically). It is far more likely that a township will closely share values and attitudes on cultural matters than an entire state. Additionally, the costs of such self-definition would be less. If a person or couple did not fit into a small community's self-definition, those excluded might only have to relocate a small distance away, in the next community. If the definition were statewide, the relocation to the next state would likely not be feasible for most people, given their work or family obligations.

However, the history of American family law (in particular, American marriage law) has been one of state control,(fn4) though one should also note some significant recent moves to federalize, directly or indi-rectly,(fn5) aspects of domestic regulation. This state-focus for American family law might be seen as a contingent matter, an accident of history, though there may be historians who argue differently. In any event, it would not have been entirely unworkable or contrary to the express language of the Constitution for domestic regulation to have been centered primarily at the national level or dispersed to the local level, rather than placed at the state level, as it has been. Locating lawmaking for marriage and divorce at the state level creates specific policy advantages and policy problems, which should be kept in mind when evaluating the options for interstate recognition of unusual marriage laws.

As federalism involves different governments being allowed to (and perhaps even encouraged to) develop different rules, one question within discussions of federalism is whether "competition" will ensue between the different governments, and what will be the consequences of such competition(fn6) - the extent to which federalism here might create a dynamic of either "a race to the top" (competition for the qualitatively best or most efficient rules, with no negative effects on third parties) or "a race to the bottom" (competition which leads to negative effects, as when states competing for employers do so in a way that decreases tax revenues for the state or that reduces protections for citizens, consumers or employees).(fn7)

Sometimes discussions of competitive federalism in marriage laws is offered in terms of the financial incentives for offering a legal regime that other states do not offer. Just as Nevada may have attracted some visitors by the speed and the ease with which marriage licenses and divorce judgments are granted,(fn8) so too Jennifer Brown long ago suggested that a state recognizing same-sex marriages might gain a tourist-based financial advantage from doing so.(fn9) The flip side of this sort of competition is a different sort of "race to the bottom," whereby the competition between jurisdictions creates negative consequences (or at least what are perceived by some to be negative consequences) for parties outside the lawmaking states.(fn10) Thus, Utah might consider it a negative externality of Massachusetts' decision to authorize same-sex marriages if same-sex couples from Utah go to marry in Massachusetts, and then return to Utah demanding recognition of the union.(fn11) However, it is important to note that Massachusetts has legal rules significantly limiting the out-of-state spillover effects of its same-sex marriages: under Massachusetts law, few out-of-state residents would qualify for a same-sex marriage license.(fn12) Similarly, in the context of divorce laws, some states have added long residency requirements (to the minimal jurisdictional requirement of domicile), in part to "avoiding officious intermeddling in matters in which another State has a paramount interest . . . ."(fn13) As will be discussed in Part II, the "competitive federalism" aspects of permitting party choice of law are significantly different.

B. CONSTITUTIONAL AND DOCTRINAL CONSTRAINTS

State policy-making in this area is, on one hand, constrained by constitutional limitations that encourage national citizenship,(fn14) and, on the other hand, both constrained and undermined by current rules and practices relating to conflict of laws.

The general rule - grounded primarily in principles of conflict of laws, only occasionally codified in state statutes, and usually not thought to have constitutional status - is that a marriage will be recognized if it was valid where contracted.(fn15) This means that a state's efforts to make marriage policy by restricting who can marry or by putting conditions on marriage can often be circumvented by the simple expedient of marrying in another state, and then having that out-of-state marriage recognized in-state.(fn16) There are some limits on this general principle, limits that restore some of the home state's authority. Under traditional conflict of laws rules, states have the right to refuse to recognize marriages celebrated in another state or country, if that marriage is contrary to the forum state's strong public policy.(fn17) Additionally, a handful of states have a "marriage evasion act," which works to refuse recognition to an out-of-state marriage if the couple went to another state with the purpose of evading the restrictions within the home state's marriage laws.(fn18) An inverse regulation, not allowing out-of-state residents to marry if the marriage would be void if contracted in the couple's home jurisdiction, is law in Massachusetts, and has played a role in recent debates about same-sex marriages in that state.(fn19) Such rules reflect the general principle that the moral case looks different: (1) for the recognition of marriages contracted elsewhere when the couples seeking recognition were marrying under their home state rules, and are now seeking recognition elsewhere only because career or family has required them to relocate; and (2) as against people who are seeking recognition of out-of-state marriages despite long-term connections to the forum state and the clear contrary policy of the forum state.(fn20)

Divorce can occur, as a matter of jurisdiction,(fn21) in any state in which one of the two spouses is domiciled, even if the current domicile state(s) do not coincide with where the couple was married or lived together.(fn22) Additionally, the practice of states applying their own divorce rules to cases before them, even if the cases involve marriages where the couples were married and lived almost...