Out-of-State Civil Unions in Iowa After Varnum v. Brien: Why the State of Iowa Should Recognize Civil Unions as Marriages

• Author: Drew A. Cumings-Peterson
• Position: J.D. Candidate, The University of Iowa College of Law, 2011
• Pages: 297-329

Drew A. Cumings-Peterson. J.D. Candidate, The University of Iowa College of Law, 2011; B.A., The University of Iowa, 2008. While I accept full responsibility for my misstatements and omissions, I thank everyone who has helped me with this Note. I especially want to thank Professors Liebig, Sheerin, and Pettys for encouraging me during my first year; Professor Bohannan for giving me such useful feedback on my final draft; Cassie for making sure I stay happy and healthy; and the members of Volumes 95 and 96 of the Iowa Law Review for the hard work they have put into this Note.

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I Introduction

When the Iowa Supreme Court issued its decision in Varnum v. Brien invalidating an Iowa statute that restricted marriage to opposite-sex couples,¹ the country reacted with surprise.² For some, the fact that “all-American Iowa” was suddenly a haven for same-sex couples seemed to indicate a genuine shift in the national sentiment toward equal opportunities for same-sex couples.³ In the year since the decision, at least 2020 same-sex couples have married in Iowa.⁴ No matter where one falls on the political spectrum, however, the decision created peripheral issues regarding how to incorporate same-sex couples into a marital system that previously served only opposite-sex couples.⁵

Some scholars have expressed concern about how states like Iowa will treat out-of-state, same-sex marriages, civil unions, and domestic partnerships.⁶ The difficulty in deciding how to recognize same-sex marriage-like institutions from other states is a product of the number of different types of unions.⁷ Debate regarding where the public opinion fallsPage 300 on the issue of same-sex unions only adds to the complexity.⁸ Every week, politicians at the national and state level are considering adopting same-sex marriage, civil unions, or civil-union-like institutions.⁹ As a result of rapid change across the nation in the area of same-sex-marriage law, Iowa courts might soon have to decide what the U.S. Constitution requires of out-of-state recognition of any marriage, what the Federal Defense of Marriage Act (“DOMA”) requires,¹⁰ and, now, what Iowa law requires after Varnum.

The successive parts contextualize the issue of how Iowa should treat out-of-state unions by discussing federal and state law, analyzing Varnum, offering the options that other jurisdictions provide, and then suggesting how either Iowa courts or the Iowa Legislature should respond. Part II analyzes the background law to show that the Full Faith and Credit Clause does not require Iowa to recognize policy decisions of other states. Part II also argues that, while DOMA says states do not have to honor out-of-state, same-sex unions, Iowa law—that is, Iowa public policy—is the ultimate arbiter on this issue.

Parts III and IV focus on the more specific issues that Iowa will have to consider in terms of public policy. Part III uses the Varnum decision toPage 301 illustrate both what Iowa’s equal protection clause requires and what constitutional public-policy concerns are at stake when a state is determining how it should recognize out-of-state civil unions and domestic partnerships. Part IV helps contextualize the dilemma, showing that out-of-state recognition of same-sex unions is an issue partly because of the variety of rights and obligations that exist in different states’ definitions of same-sex unions.

Parts V and VI focus on this Note’s ultimate conclusion. Noting that federal law does not clearly answer the issue of how Iowa should recognize civil unions after Varnum, Part V discusses what other states have decided when addressing how to recognize out-of-state, same-sex unions, and then discusses the two options available to Iowa—treat civil unions as marriages or require couples with civil unions to obtain marriages. Part VI argues that Iowa should recognize out-of-state civil unions as marriages because this option most effectively reconciles the philosophies of pre-Varnum case law with the realities of modern, unprecedented issues regarding recognizing marriages from different states.

II Background Law

This Part provides the foundation for understanding why Iowa is basically free to decide how to recognize out-of-state, same-sex unions based on its own equal-protection and public-policy principles, given that federal law, namely the Full Faith and Credit Clause and DOMA, does not purport to limit Iowa’s ability to recognize these unions. Additionally, this Part discusses how Iowa recognized out-of-state marriages pre-Varnum.

A The Full Faith and Credit Clause

The U.S. Constitution requires that states give “Full Faith and Credit” to “the public Acts, Records, and judicial Proceedings of every other State.”¹¹ It goes on to give Congress power through the “Effects Clause” to define the manner in which states give other states’ final judgments and policy decisions full faith and credit.¹²

A constitutional distinction exists between final judgments and public policy. While the Supreme Court construes the Full Faith and Credit Clause to require a state to strictly adhere to a sister state’s final judgments, the Court distinguishes state public-policy initiatives and legislative acts from final judgments by providing much more leniency for the former.¹³ A finalPage 302 judgment occurs when a court decision affects only the parties to a lawsuit; state public-policy initiatives and laws are the statutory enactments that govern citizens outside of litigation.¹⁴

The final judgment–public policy distinction serves an important purpose. It preserves final judgments between individuals without compelling “a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.”¹⁵ The underlying idea is that while it is vital (for the unification of the several states) for courts to enforce judicial decrees between parties to an individual lawsuit, states are still sovereign and retain the ability—even under the Full Faith and Credit Clause—to decline to recognize foreign states’ statutes or public policies.¹⁶

Marriage is a legislative or policy act, subject to more leniency under state full-faith-and-credit decisions.¹⁷ If one state were free to decide the marital rights or status of all the citizens among the several states, it would incentivize each state to set the national marriage policy by being the first to legislate in the area, which would not respect the sovereignty of other individual states.¹⁸ The Framers did not want to compromise the sovereignty of states in such strict terms,¹⁹ and modern courts continue to respect that philosophy, at least as it applies to marriage.²⁰ Therefore, individual states are free to disregard the other states’ court decisions on marriage notwithstanding the dictates of the U.S. Constitution’s Full Faith and Credit Clause.

B Choice-of-Law Issues in Relation to Full Faith and Credit

The Full Faith and Credit Clause is part of the broader discussion of choice-of-law issues.²¹ While a forum state will usually recognize a marriagePage 303 from another jurisdiction if the marriage was valid in the state of its celebration, choice of law follows full-faith-and-credit analysis by giving state courts the option to decline to recognize a marriage for public-policy reasons.²² Iowa generally follows the Restatement (Second) of Conflict of Laws,²³ which says that a court will determine the validity of a marriage based on the local law of the state with the “most significant relationship to the spouses” and that only a strong public-policy exception will exempt a state from this rule.²⁴

While Iowa has not formally recognized a civil union (it would be unconstitutional to recognize civil unions as civil unions after Varnum²⁵ ), an Iowa district-court judge did recognize—pre-Varnum—a Vermont civil union for the purpose of providing one couple with an equitable divorce.²⁶ In an interview after his decision, Judge Neary said that Iowa courts cannot pretend civil unions do not exist: Iowans with civil unions need the opportunity to, at a minimum, “dissolve their civil union[]” to establish unequivocally—both for their own knowledge and for that of society—that they are legally separated.²⁷ After a political uproar at Judge Neary’s decision, he issued an amended opinion saying that he had the power to dissolve a civil union without officially recognizing a marriage.²⁸ His amended opinion stated that the two female parties to the lawsuit were nowPage 304 “single individuals with all the rights of an unmarried individual, including but not limited to, the right to marry.”²⁹ This was the first Iowa case to indicate that, at least in equity, the State of Iowa might not have a...