By Tobias B. Wolff | Contact
Tobias Barrington Wolff is a Professor of Law at the University of Pennsylvania Law School.
He writes and teaches in the fields of Civil Procedure, Constitutional Law, and Conflict of Laws.
He began his teaching career at the University of California, Davis Law School and has been a visiting professor at Stanford and Northwestern Law Schools.
Before entering academia, Wolff was a litigator at the firm of Paul, Weiss, Rifkind, Wharton & Garrison in New York and served as a judicial clerk for Judges Betty Binns Fletcher and William Norris, both of the Ninth Circuit Courtof Appeals.
Professor Wolff has also worked as a civilrights attorney for over ten years and has participated in gay rights cases around the country, including marriage and relationship rights litigation in Alaska, California, Hawai’i, Iowa, New York, and New Mexico and litigation over the U.S. military’s Don’t Ask, Don’t Tell policy in the First and Ninth Circuit Courts of Appeals.
Since the state of California will now marry same sex couples from any state, it is important to investigate how other states will treat those marriages.
I write here exclusively in my personal capacity as a scholar and civil rights lawyer. And, in the interest of full disclosure, I should mention that I wrote and submitted one of the Constitutional Law briefs to the California Supreme Court on behalf of the California couples in the marriage case, as I did on behalf of Iowa couples in the case currently pending before the Iowa Supreme Court, and that I have consulted behind the scenes on other cases involving these issues, always on behalf of the couples.
The key points that it is important for our community to understand, and to educate the public about, are the following:
> First, this is not the first time that states have had different policies on contentious questions about civil marriage and who can get married under state law. Far from it. States have figured out sensible ways to handle these policy differences in the past, and they can do so again.
> Second, while repealing the “full faith and credit” portions of the Defense of Marriage Act is very important for a number of reasons, it will not have the dramatic and far-reaching effect of “imposing” same-sex marriage upon other states, as many on both sides of the debate often assume.
THE DECISION OF THE CALIFORNIA SUPREME COURT
The decision of the California Supreme Court contains three important rulings:
(1) Discrimination against gay men and lesbians is presumptively unconstitutional, in the same way that discrimination based upon race and sex or gender is presumptively unconstitutional;
(2) The fundamental right to marry under state law is protected by the constitution and is equally applicable to same-sex couples; and
(3) California failed to show that its laws excluding same-sex couples from marriage could satisfy the constitutional scrutiny demanded by these equality and fundamental rights principles, and so those laws are unconstitutional.
As many people have remarked, these holdings are immensely significant for reasons that go beyond the issue of marriage. The California Supreme Court is one of the most respected courts in the country and is fairly conservative on many issues, with six of the seven members having been appointed by Republican governors.
With this ruling, it is the first state supreme court to hold that antigay discrimination is inherently constitutionally suspect (i.e. that it provokes “strict scrutiny”), and the first to recognize the fundamental right to marry as one that includes same-sex couples.
These rulings are based exclusively on the California Constitution, not the U.S. Constitution, so they apply only to the laws of California and they cannot be appealed to the Supreme Court of the United States. However, it is safe to assume that the California ruling will draw attention to the interstate question in a way that the Massachusetts ruling has not, both because California is so much larger than Massachusetts and because California does not have a law like the one in Massachusetts that prevents out-of-state couples from marrying when the marriage would be prohibited in their home states.
MARRIAGE ACROSS STATE LINES
With the decisions in California and Massachusetts — and the possibility of similar rulings in Iowa and Connecticut and possible legislative reform in New York, New Jersey and Vermont — there will likely be significant differences in state laws relating to civil marriage around the country for some time to come. Some states will expressly permit same-sex couples to marry (California, Massachusetts, perhaps others), some states will expressly recognize the out-of-state marriages of same-sex couples even if the couples cannot marry locally (New Hampshire, by statute; New York, by court ruling and executive action), and many states will continue to have less sympathetic or even hostile policies toward married couples.
Courts in the United States have been dealing with this type of problem for close to two hundred years. Contrary to many public discussions and news reports, the current disagreements over civil marriage for same-sex couples do not represent the first time that significant differences have arisen between the marriage laws of the various states. Laws relating to interracial marriage (anti-miscegenation laws), marriages between people related by blood (particularly uncles and nieces or first cousins), certain marriages following divorce, and marriages involving teenagers have at times varied enormously in the United States and produced sharp differences of opinion among the states. The basic set of problems that can arise when different states have different policies on civil marriage is an old one, and courts have been working out sensible solutions to those problems for a long time.
THE “RECOGNITION” OF A CIVIL MARRIAGE
First off, it is important to say a few words about what it means for one state to “recognize” a marriage from another. There are a lot of different situations in which a couple might ask to have their civil marriage recognized under the law. These situations may have very different legal implications.
The strongest claim a married couple can make to have their marriage “recognized” is when they have a judgment, issued by a court, that entitles them to something — money from an insurance company on a claim, for example, or a particular custodial arrangement with their kids. Under the principle of full faith and credit, states have always operated under a powerful obligation to give effect to court judgments from other states. This is true even when the law that the court applied in deciding a lawsuit is one that other states disagree with. Thus, if a court resolves a dispute involving a marriage between a particular set of parties in one state, and then another state is asked to give effect to the resulting judgment (for example, by ordering an unwilling party to pay up on a damages award), state number two is not allowed to disregard the judgment simply because it disagrees with the marriage laws from state number one. Where judgments issued by courts are concerned, the obligation for every state to respect the judgments of every other state is a mandatory one and applies almost without exception.
When there aren’t any court judgments involved — which is frequently the case — the situation is very different. Often, a couple seeking to have their marriage “recognized” is merely interacting with the legal system in some way and wants to be treated as a married couple. If one spouse passes away, the surviving spouse may want to make claims on the estate based upon the fact that they were married, or he might want to have the marriage recognized for purposes of confirming custody over the children. If a state gives favored treatment to married spouses in its tax laws, or in its health, insurance and retirement benefits for public employees, a couple may want to have their marriage recognized for purposes of participating in those programs. Historically, couples sometimes even had to ask that their marriage be recognized as a defense to a criminal prosecution, where a state was going after one or both of them for illegal fornication. (Following the Supreme Court’s decision in Lawrence v. Texas, such prosecutions are happily a thing of the past, at least in the civilian world.)
When a couple asks a court to recognize their marriage in this type of situation, the analysis has always been very different. A marriage is not the same thing as a court judgment. The mere fact that a couple has been married in one state has never been treated as something that is entitled to the kind of mandatory legal enforcement that judgments receive in our legal system. Rather, courts have always treated the recognition of out-of-state marriages as a matter of public policy, and various factors have influenced the decisions that states have made about recognizing an out-of-state marriage that could not have been entered into locally.
Some states have taken a very liberal view, deciding that, if a marriage was valid and legal in the place where it was celebrated, then it should always be treated as valid and legal. California has embraced that policy since the early part of the twentieth century, for example (with the exception of marriages between same-sex couples, until the recent decision).
Other states have used a more case-by-case analysis. For example, suppose that a couple lives in a state where they cannot get married, but there are other states in the country where they could. Suppose that the couple travels to one of those other states, gets married, then returns to their home state to continue living, all with the express purpose of evading the restriction that prevents them from marrying in their home state. In states that use a case-by-case analysis, this kind of “evasive” marriage has been treated less sympathetically.
Finally, all of the various approaches to these marriage questions have generally been qualified by a “public policy” exception. Even if a state court might otherwise be inclined to recognize an out-of-state marriage under whatever rules it applies, most courts have still reserved the right to make an exception if the marriage would violate their state’s strongly held public policies. This public policy exception does not apply to judgments issued by courts. In fact, the Supreme Court recently made it very clear that even sharp differences in public policy do not give one state the right to escape the obligation to enforce another state’s judgment. But the public policy exception has long been invoked by courts in marriage disputes that don’t involve prior court judgments, like the health insurance examples described above.
In the current discussions about marriage for same-sex couples, a few distinguished commentators have taken the position that the public policy exception should be rejected altogether. Larry Kramer at Stanford has argued that the public policy exception is inconsistent with the principles of full faith and credit. Joseph Singer at Harvard has gone further, arguing that states should always be required to recognize a marriage if that marriage was valid in the place where it was celebrated. Evan Wolfson, the influential lawyer and advocate, has taken a position similar to Joe Singer’s. But, whether these commentators are right or wrong, this is the minority position, at least for now. Most scholars and commentators in the field of Conflict of Laws — the area of law that deals with this kind of dispute across state lines — agree that states should have the power to decline to give effect to an out-of-state marriage that is inconsistent with local laws, whether because that marriage violates public policy, because it was the result of a couple deliberately evading local marriage laws, or for some other reason.
My own work in this field, for those who are interested, has focused on the particular reasons that states have given in the past for declining to recognize an out-of-state marriage and the need to revisit some of those reasons in light of recent decisions by the U.S. Supreme Court that have held that certain forms of discrimination, criminalization, or moral disapproval are unconstitutional, particularly with respect to gay people and gay couples. Even if one starts from the assumption that a state can deny same-sex couples the right to marry — and one has to start from that assumption for purposes of this kind of discussion; otherwise, the couples could get married in their home state and there would be nothing to discuss — I have argued that, following these recent developments, many of the reasons that states have relied upon in the past for denying effect to a couple’s marriage are no longer applicable, and that a proper analysis should lead many states to give effect to a same-sex couple’s marriage as a matter of good public policy, even if they are not mandated to do so. For those who are really interested, I have developed these arguments in a scholarly article that can be downloaded here.
> When a court in one state issues a judgment in a lawsuit, including a lawsuit that somehow involves a marriage — an award on an insurance or wrongful death claim, or the resolution of a custody dispute — full faith and credit has always required other states to give effect to that judgment, almost without exception.
> When there are no court judgments involved, and a couple has simply gotten married and wants another state to recognize that marriage for some reason — the probate of an estate, or equal participation in a public employer’s health, insurance and retirement benefits — the situation is more complicated. These questions have always been treated as a matter of policy for the states to decide, rather than as a matter of mandatory obligation. Some states have taken a liberal attitude toward such recognition, while others have employed a more case-by-case analysis.
> Historically, states have reserved the right to apply an exception for reasons of public policy when they are asked to recognize an out-of-state marriage, even if their normal rules would otherwise indicate that the marriage should be given effect. But that public policy exception has never been available where judgments by courts are involved.
THE “MINI DEFENSE OF MARRIAGE ACT” THAT STATES HAVE PASSED
Since the 1993 decision by the Hawai’i Supreme Court that placed these issues on the map, many states have enacted statutes or state constitutional amendments that prohibit same-sex couples from marrying. These provisions are often referred to as “mini-DOMAs.” When discussing what validity a same-sex couple’s marriage will have as they travel around the country, many commentators assume that these mini-DOMA provisions automatically indicate that a state will refuse to recognize an out-of-state marriage, for any purpose. That assumption is not always correct.
As noted above, state courts have long recognized that a state can refuse to recognize an out-of-state marriage when that marriage violates local public policy. But many states have been cautious in applying that exception. In particular, some courts have said that they will not deny effect to a marriage that was validly performed in another state unless their own legislature has made it unmistakably clear that it desires that result. Even where a legislature has spoken in very strong terms about its policy against allowing certain couples to marry inside the state — for example, by saying that a marriage between first cousins is prohibited and would be considered “absolutely void” — some courts have found that they should not apply that policy to out-of-state marriages unless the legislature has told them to do so explicitly.
As people frequently note, a large number number of states have enacted mini-DOMA provisions that prohibit marriage by same-sex couples, either as statutes or as state constitutional amendments. But only about two thirds of those provisions expressly address the question of out-of-state marriages. In states where the legislature has not addressed out-of-state marriages in their mini-DOMA provisions — and, of course, in states that have no such provisions at all — courts might recognize the marriages of same-sex couples on a case-by-case basis, even if those couples could not marry in the state in the first place.
Still, it is important not to understate the impact of these mini-DOMA provisions. Even at the height of one of our most contentious disputes over marriage laws in the United States — the fight over interracial marriage — few states took the view that they would always refuse to recognize an interracial marriage. Even hostile states were open to the possibility, for example, that an interracial couple who legally married in another state where they once lived, and then relocated or travelled to a hostile state, might still be entitled to have their marriage recognized for at least some purposes (like the probate of an estate). In comparison, the level of legal hostility toward the marriages of same-sex couples — with some states refusing even to recognize the marriage for purposes of allowing the couple to get a divorce when their relationship comes to an end — has been remarkable. Some of these mini-DOMA provisions lock that legal hostility into the state constitution.
> The mini-DOMA provisions that about forty states have now enacted pose serious obstacles to the recognition of a same-sex couple’s marriage, but only about two thirds of those provisions actually make it clear that the recognition of such a marriage from out of state would violate public policy. In the rest of the states (and in those with no mini-DOMA at all), courts have more leeway to make sensible and fair decisions.
THE FEDERAL DEFENSE OF MARRIAGE ACT
Onto this complex but fairly stable legal landscape, the federal Defense of Marriage Act was imposed in 1996. At the time of its enactment, DOMA was sold to the Congress, the President, and the American people as a necessary move to “protect” objecting states from being forced to recognize the marriages of same-sex couples performed in other jurisdictions. This was not true, and never has been. Putting to one side for the moment questions of fairness, sensible policy, and principles of equal protection, it has long been clear that states have the authority to deny recognition to an out-of-state marriage based on a public policy objection. (Once again, respected scholars like Kramer and Singer, and respected advocates like Evan Wolfson, have argued that the public policy exception should be categorically rejected. Those views remain in the minority, at least for now.) If states are concerned about the prospect that they will be compelled by California, Massachusetts, or some other state to recognize the marriages of same-sex couples, those concerns have always been misplaced. States did not need the federal Defense of Marriage Act for that. If DOMA were repealed in its entirety tomorrow, States would possess the same power that they have always had to refuse to recognize out-of-state marriages on public-policy grounds.
Some commentators, understanding this fact, have turned the argument around, suggesting that repealing the full faith and credit portion of DOMA would not accomplish anything and is unimportant. (DOMA also has a section that prohibits the federal government from extending equal federal benefits to same-sex couples who are married, civilly united or domestically partnered under state law. Everyone acknowledges the significance of repealing that portion of the law.) This view — that repealing the full faith and credit portion of DOMA would do nothing and is unimportant — is also wrong. Although the states do have the power to deny recognition to the out-of-state marriages of same-sex couples with or without DOMA, the full faith and credit portions of DOMA harm LGBT people in at least three important ways.
> First. The language of DOMA purports to give states the ability to deny recognition not just to the marriages and civil unions of same-sex couples (which states could do anyway), but also to any court judgment “respecting” the marriage or union of a same-sex couple, or respecting a right or claim arising out of that relationship. Recall the important distinction discussed above between a court judgment and a marriage. Unlike the ordinary recognition question, states have a mandatory obligation, subject to very few exceptions, to give effect to judgments rendered by courts in other states around the country. For the first time in the history of the United States, the Defense of Marriage Act takes one class of people — same-sex couples — and says that courts may simply disregard judgments rendered by courts in other states when those judgments are in some way based upon the couple’s relationship. So, if an insurance company is ordered to pay a claim on a policy, or a reckless driver is ordered to pay a damages award, or a court issues a ruling on custody or support, DOMA now gives hostile states the unprecedented power to ignore those out-of-state judgments altogether. The potential for harm and disruption that this provision of DOMA inflicts upon the families, the finances, and the stability of same-sex couples is severe.
Most state legislatures have no idea that DOMA gives them this kind of power, and most people certainly did not have this important issue in mind when DOMA was enacted. For example, I recently testified before the Judiciary Committee of the Pennsylvania Senate about the possible effects of a mini-DOMA constitutional amendment that they were considering. In my testimony, one of the things I discussed was the impact of the federal DOMA on the enforceability of court judgments. The legislators were astonished. No one had ever explained to them that the federal DOMA gave them such a dangerous power. (My testimony wasn’t good enough to stop the proposed amendment in Judiciary, but our strong allies in the Senate and our champions in the advocacy community succeeded in scuttling the amendment later in the process.)
> Second. DOMA encourages states to avoid any kind of serious analysis when they are presented with a recognition question. While the states have never had a mandatory obligation to recognize the relationship of an out-of-state couple when that couple could not marry locally, states have often chosen to extend such recognition as a matter of sensible policy nonetheless. As the discussion above explains, these are complicated issues. Recognition questions arise in all kinds of different situations. There are many circumstances in which a state might decide that it is good public policy to recognize a couple’s marriage, even if the couple would not have been allowed to marry under local state laws. State courts have been using careful analysis to work out sensible answers to these questions for a long time. In enacting DOMA, however, Congress sent a powerful signal to the states that they should not ask questions about what constitutes good and sensible policy when it comes to same-sex couples. Rather, Congress invited the states to give over-simplified answers, exercising a blanket prerogative to reject same-sex relationships for all purposes. DOMA, in other words, validates and encourages the states to treat same-sex couples with legal hostility.
> Third. The full faith and credit provisions of DOMA are a gratuitous affront to the dignity of 10,000,000+ LGBT Americans. Never before, in the history of the Republic, has Congress singled out one class of citizens and proclaimed that their relationships would be treated with hostility in interstate relations. To be clear: For the first eighty years of the Republic, people of African descent were enslaved, and they were denied the rights of citizenship under the Dred Scott decision even when they were free. This is a fact that we should never forget when talking about the historic treatment of classes of people. But once African-Americans were recognized as citizens under the Thirteenth and Fourteenth Amendments, and the issue of interracial marriage arose and became sharply contested, even the long American history of racial animus did not lead Congress to single out interracial relationships for the kind of discriminatory treatment in interstate relations that DOMA affords to same-sex couples. In this important respect, DOMA represents an unprecedented affront.
> The states never needed DOMA in order to refuse recognition to out-of-state marriages between same-sex couples. If they are bound and determined to refuse to give any recognition to those relationships, they already have the power to do that, and repealing DOMA in its entirety will not change that fact.
> Repealing DOMA remains vitally important, however, for the statute places in jeopardy all court judgments that are based upon the existence of a same-sex relationship. Authorizing states to refuse to enforce this one class of out-of-state judgments — something that has never been done in the history of the U.S. — disrupts family and financial relationships and encourages irresponsible behavior.
> DOMA also has the effect of encouraging states to avoid the kind of serious analysis that marriage recognition disputes require. There are many situations in which it makes sense for a state to recognize the relationship of a same-sex couple, even if the state would not allow the couple to marry in the first place. States have an obligation to analyze those situations carefully. DOMA validates and encourages states to treat these couples with hostility, and it represents a particular type of affront to one class of citizens that is unprecedented in federal law.
I hope that this short primer is a valuable contribution to the discussion of these important issues.