The constitutional right to (keep your) same-sex marriage.

Author:Sanders, Steve
 
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Same-sex marriage is now legal in six states, and tens of thousands of same-sex couples have already gotten married. Yet the vast majority of other states have adopted statutes or constitutional amendments banning same-sex marriage. These mini-defense of marriage acts not only forbid the creation of same-sex marriages; they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These nonrecognition laws effectively transform the marital parties into legal strangers, causing significant harms: property rights are potentially altered, spouses disinherited, children put at risk, and financial, medical, and personal plans and decisions thrown into turmoil.

In this Article, I argue that an individual who marries in her state of domicile and then migrates to a mini-defense of marriage act state has a significant liberty interest under the Fourteenth Amendment' s Due Process Clause in the ongoing existence of her marriage. This liberty interest creates a right of marriage recognition that prevents another state from effectively divorcing her against her will by operation of law. The right of marriage recognition is conceptually and doctrinally distinguishable from the constitutional "right to marry." It is a neutral principle grounded in core Due Process Clause values: protection of reasonable expectations and of marital and family privacy, respect for established legal and social practices, and rejection of the idea that a state can sever a legal family relationship merely by operation of law. A mini-defense of marriage act state will of course, have interests to be considered in refusing to recognize certain marriages. But under the intermediate form of scrutiny that is appropriate in these circumstances, those interests do not rise to a sufficiently important level to justify the nullification of migratory same-sex marriages.

TABLE OF CONTENTS INTRODUCTION I. MARRIAGE AND FAMILY LAW: FROM LOCALISM TO LIBERTY A. Constitutional Protection for Marriage, Family, and Intimate Relationships B. State Regulation of Marriage II. MARRIAGE AND CONFLICT OF LAWS A. The Place of Celebration Rule B. The Public Policy Exception C. Nonrecognition of Same-Sex Marriages D. Same-Sex Marriage and the Limits of Conflicts Doctrine E. Conflict of Laws, State Interests, and Individual Rights III. DISTINGUISHING MARRIAGE CREATION FROM MARRIAGE RECOGNITION A. Affirmation Versus Interference B. Forcing the State to Justify Its Harm IV. MARRIAGE RECOGNITION UNDER THE DUE PROCESS CLAUSE A. The Appropriate Level of Scrutiny B. Due Process Principles Supporting a Right of Marriage Recognition 1. Reasonable Expectations and Reliance 2. Marital and Family Privacy 3. Respect for Settled Legal and Social Practices 4. Due Process in Its Most Basic Sense C. Assessing Countervailing State Interests 1. Traditional State Sovereignty over Family Law 2. Expressive and Channeling Interests 3. State Control Over Marital Incidents 4. Encouraging Heterosexual Procreation 5. Fairness to Long-Term Residents V. MARRIAGE RECOGNITION AND FEDERALISM CONCLUSION INTRODUCTION

Imagine that Helen and Jenny reside and marry in Iowa. Iowa is among the six states, plus the District of Columbia, where same-sex marriage is now legal. (1) Now consider that more than 130,000 same-sex couples in the United States report being married, (2) and that between 2 and 3 percent of Americans move to a different state each year (3)--meaning we could expect that at least 2,600 married same-sex couples may do so. And so imagine that Helen and Jenny pull up stakes and move to Indiana. Perhaps Helen's employer transfers her to Indianapolis or Jenny's elderly mom in Fort Wayne needs her closer by.

Helen and Jenny now have a problem. Indiana law purports to declare their marriage "void" because it involves two members of the same sex. (4) Indiana is among forty-one states that have adopted statutes or constitutional amendments banning same-sex marriage (typically called mini-defense of marriage acts, or "mini-DOMAs"). (5) The vast majority of mini-DOMAs not only forbid the creation of same-sex marriages but their statutory or constitutional language would also void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. (6) Even if they do not purport to actually void a marriage, these nonrecognition laws transform same-sex marital parties into complete legal strangers, with none of the customary rights or incidents of marriage, so long as they continue to live in the mini-DOMA state. For practical purposes, the parties have been divorced against their will by operation of law.

We live in a highly mobile country, and so we can assume that many married same-sex couples have already changed states, or will do so, for jobs, education, family, and personal reasons. The question of "what happens to people in legally recognized same-sex relationships when they cross state lines" has received "far too little attention in the debates about gay rights." (7) Nonrecognition laws are already disrupting lives, and it is reasonable to expect that they will become an increasingly serious issue in gay rights litigation, politics, and even the national employment marketplace. (8) (For example, major corporations are increasingly adopting gay-friendly policies, (9) but a married gay or lesbian worker might well balk at accepting a transfer to a state that purports to nullify her marriage.) (10)

Most legal scholars who think about this question would say that Helen and Jenny have a conflict of laws problem: they are collateral damage in a scheme of family law localism that says every state gets to control the definition of marriage within its borders. I maintain, by contrast, that couples like Helen and Jenny actually have a constitutional problem, one that requires a constitutional solution. And to be clear, the problem is not about their "right to marry"--after all, they already are married. Rather, the problem is about their right to remain married.

In this Article, I argue that an individual who legally marries in her state of domicile, (11) and then migrates to another state that becomes her new domicile, has a significant liberty interest under the Fourteenth Amendment's Due Process Clause in the ongoing existence of her marriage. This liberty interest creates a right of marriage recognition that prevents a mini-DOMA state from effectively divorcing her by operation of law. This right of marriage recognition is conceptually and doctrinally distinguishable from the constitutional "right to marry." (12) It is a neutral principle, grounded in core Due Process Clause values: protection of reasonable expectations and of marital and family privacy, respect for established legal and social practices, and rejection of the idea that a state can sever a legal family relationship or alter a legal status merely by operation of law. (13) Of course, this is not to deny that a mini-DOMA jurisdiction will believe that it possesses state inter interests that justify refusing to recognize certain marriages. (14) But under the intermediate form of scrutiny, which I argue is appropriate, (15) those interests are not sufficiently important to justify nullification of a migratory same-sex marriage.

Law favors stability in legal relationships, vindication of justified expectations, and preventing casual evasion of legal duties and responsibilities. For these reasons, every state adheres to a general rule that a marriage that was valid under the law of the place where it was celebrated should be recognized everywhere. (16) Current nonrecognition laws--most of them enacted in the last fifteen years as part of the political backlash against same-sex marriage--are a stark and arguably unprecedented departure from this rule. As a result, migratory same-sex couples face the prospect of wrenching disruption in their lives, loss of parental and property rights, and an array of other problems and indignities, large and small, that a rational legal regime should not tolerate. Justice O'Connor once observed that "[i]t is difficult to imagine a right more essential to the Nation as a whole than the right to establish residence in a new State." (17) And the Supreme Court almost seventy years ago described the idea that a person could simultaneously be married in one state and unmarried in another as "the most perplexing and distressing complication[] in the domestic relations of ... citizens." (18) Yet that is the situation many married same-sex couples face today.

Conflict of laws is the traditional legal home for interstate marriage recognition, and on a fair reading, mainstream conflicts doctrine frowns on the state of affairs that mini-DOMAs have created, because conflicts doctrine favors validating marriages by looking to the law of the place of celebration. But conflicts doctrine is powerless to do anything about the problem, because it lacks any external enforcement mechanisms. By contrast, the Constitution provides checks and limitations on state practices that invade personal rights. Thus, for a fairer and more rational solution to the marriage recognition problem, we should look to the Due Process Clause.

The Supreme Court declared marriage a fundamental right more than forty years ago. (19) The argument that the right to marry includes same-sex couples has been advanced in recent state and federal litigation, but the question is one that even many thoughtful supporters argue the Court should not and will not settle in the very near future. (20) A separate right of marriage recognition, if advanced in federal litigation, would alleviate an urgent problem while allowing the political and legal debates over same-sex marriage to continue. It would recognize, in a spirit of laboratories-of-democracy-style federalism, that states "should intensely compete...

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