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EDITORIAL: A SHORT CRITIQUE OF THE "DEFENSE OF MARRIAGE ACT"
© 1996 National Legal Research Group, Inc.
I. INTRODUCTION.
In 1993, the Hawaii Supreme Court decided the case of Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, reconsideration granted in part, 74 Haw. 650, 875 P.2d 225 (1993). In this case, three same-sex couples applied for marriage licenses. When the Department of Health denied their applications on the basis of Haw. Rev. Stat. 572-1 (1993), which directs a clerk to issue a marriage license only to a man and a woman, the couples filed a complaint for declaratory judgment. The circuit court entered a judgment for the defendant on the pleadings, and the plaintiffs appealed.
The Supreme Court of Hawaii held that the Hawaii Constitution does not grant to persons of the same sex a "fundamental right" to marry. The statute restricting the marital relation to persons of the opposite sex, however, established a sex-based classification that was subject to a strict-scrutiny test in order to survive an equal protection challenge under article I, 5 of the Hawaii Constitution. The Hawaii Supreme Court thus vacated the circuit court's order and remanded the case back to the circuit court for further proceedings at which the state would have to show a compelling state interest that justified the sex-based classification. See also Shahar v. Bowers, 70 F.3d 1218 (11th Cir. 1995) (where employment offer made by Georgia's Attorney General was withdrawn when it learned of prospective employee's plans for homosexual marriage, strict scrutiny was applicable to employee's claim of violation of right of intimate association).
The Hawaii Supreme Court was careful to point out that it had not held that there is a civil right to a same-sex marriage, and it had not held that the statute restricting marriage to persons of the opposite sex was unconstitutional. All it had held was that the statute, on its face, denied same-sex couples access to the marital status and concomitant rights and benefits, thus implicating the equal protection clause of the Hawaii Constitution. Thus, a trial was necessary to determine the state's compelling interest in establishing such a sex-based classification. (In a related proceeding, the Hawaii Supreme Court denied the right of three clergy members of the Church of Latter-Day Saints and the Church of Latter-Day Saints itself to intervene as defendants. Baehr v. Miike, 80 Haw. 341, 910 P.2d 112 (1996).)
In response to the Hawaii court's actions, legislation called the "Defense of Marriage Act" was introduced in the United States Congress. The Act was introduced amidst a great deal of political furor, and this furor has tended to obscure sound legal analysis of what the Act would actually accomplish. The purpose of this article is to restore balance to the debate over the bill's enactment by objectively discussing the effect of its provisions.
It is important to note that this article will not discuss whether it is constitutionally required or even advisable for a state to allow a same-sex marriage within its own borders. It is generally recognized that a state, in its sovereign function, has the authority to regulate the marriage relationship and the power to determine the requisites of a valid marriage contract. SeeZablocki v. Redhail, 434 U.S. 374, 392 (1978) (Stewart, J., concurring) (state legislation that burdens an individual's right to marry is subject to strict scrutiny; states can and may prohibit marriage for such "compelling" reasons as consanguinity, immature age, presence of venereal disease, and prevention of bigamy). Based on this sovereign function, many states have held that they need not issue marriage licenses to same-sex partners. E.g., Weaver v. G.D. Searle & Co., 558 F. Supp. 720 (N.D. Ala. 1983); Alaska Attorney General Opinion No. 663-95-0451 (1995); Arkansas Attorney General Opinion No. 95-062 (1995); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995); Kansas Attorney General Opinion No. 77-248 (1977); Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky. 1973); Maine Attorney General Opinion No. 84-28 (1984); Jennings v. Jennings, 20 Md. App. 369, 315 A.2d 816, 820 (1974); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 185-86 (1971), appeal dismissed, 409 U.S. 810 (1972); Nebraska Attorney General Opinion No. 113 (1977); M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204, 208 (App. Div. 1976); In re Estate of Cooper, 187 A.D.2d 128, 592 N.Y.S.2d 797, 799-800 (1993); Gajovski v. Gajovski, 81 Ohio App. 3d 11, 610 N.E.2d 431, 433 (1991); DeSanto v. Barnsley, 328 Pa. Super. 181, 476 A.2d 952, 955-96 (1984); South Carolina Attorney General Opinion (1976); Slayton v. State, 633 S.W.2d 934, 937 (Tex. Crim. App. 1982); Singer v. Hara, 11 Wash. App. 247, 522 P.2d 1187, 1191 (1974). See generally Annot., "Marriage Between Persons of the Same Sex," 63 A.L.R.3d 1199 (1975).
This article will not consider whether these decisions are sound or unsound. Rather, this article will discuss whether, once a state has determined that it will issue a marriage license to a same-sex couple, the United States Congress can permit the other states to deny full faith and credit to the marriage in question. See alsoSage, "Sister-State Recognition of Valid Same-Sex Marriages," 28 Ind. L. Rev. 115 (1995); Cox, "Same-Sex Marriage and Choice of Law," 1994 Wis. L. Rev. 1033 (1994). The article will conclude that the states already have this power and that the proposed Defense of Marriage Act is unnecessary. It will further conclude that if the Supreme Court were to break from tradition and hold that there is no "public policy" exception to the Full Faith and Credit Clause, then the Defense of Marriage Act is unconstitutional on its face. The United States Congress cannot legislate a way around the Full Faith and Credit Clause if it is, indeed, absolute.
II. OPERATIVE PROVISIONS OF THE PROPOSED DEFENSE OF MARRIAGE ACT.
The proposed Defense of Marriage Act has two major provisions. First, the Act would deny federal recognition to same-sex marriages for federal benefits, including Social Security benefits, military benefits, federal tax benefits, and immigration. See Adams v. Howerton, 673 F.2d 1036 (9th Cir.) (whether or not valid under state law, marriage of two males would not confer spousal status under Federal Immigration Act), cert. denied, 458 U.S. 1111 (1982). This provision thus denies to the states their historical prerogative to define the institution of marriage, an unprecedented assumption of federal power in a field which is traditionally left to state law. See Griswold v. Connecticut, 381 U.S. 479 (1965) (marriage is a state-conferred legal status, the existence of which gives rise to rights and benefits reserved for that particular relationship).
Second, in the more discussed provision, the Act provides that a state does not have to recognize a same-sex marriage entered into in another state if such recognition would violate the fundamental public policy of the recognizing state. Since existing law already mandates this result, this second provision in the Act is essentially inconsequential. Indeed, bills that seek to deny recognition to foreign-state same-sex marriages on the basis of public policy have been introduced in 34 states. These bills were enacted in 10 states, were withdrawn, defeated, or killed in 17 states, and are pending in 7 states. E.g., Tennessee Senate Bill 2305; Utah Code Ann. 30-1-4 (1996); see G. Rotello, "To Have and To Hold," The Nation, Vol. 262, No. 25, p. 16 (June 24, 1996); H. Reske, "A Matter of Full Faith," ABA Journal, Vol. 82, No. 7, p. 32 (July 1996).
III. THE AUTHORITY GRANTED BY THE PROPOSED DEFENSE OF MARRIAGE ACT IS ALREADY PRESENT IN EXISTING LAW.
As a general rule, all states require the recognition of marriages contracted in another state so long as the law of the state where the marriage was contracted recognizes the marriage as valid. Stated otherwise, the validity of a marriage is determined by the law of the place where the marriage is contracted; if the marriage is valid in the contracting state, it is valid in other states. Loughran v. Loughran, 292 U.S. 216, 231 (1934); see, e.g., Acuna v. Sullivan, 765 F. Supp. 510 (E.D. Ark. 1991); Matter of Estate of Hendrickson, 248 Kan. 72, 805 P.2d 20 (1991); Yun v. Yun, 908 S.W.2d 787 (Mo. Ct. App. 1995); Bogardi v. Bogardi, 249 Neb. 154, 542 N.W.2d 417 (1996); Copeland v. Stone, 842 P.2d 754 (Okla. 1992). See generally 2 H. Clark, The Law of Domestic Relations in the United States 2.3 at 96 (2d ed. 1987).
This principle has most often been applied by states that do not recognize common-law marriages to recognize a common-law marriage contracted in a state that does recognize common-law marriages. E.g., Brisett v. Sykes, 313 Ark. 515, 855 S.W.2d 330 (1993); People v. Badgett, 10 Cal. 4th 330, 41 Cal. Rptr. 2d 635 (1995); Compagnoni v. Compagnoni, 591 So. 2d 1080 (Fla. DCA 1991); In re Marriage of Mosher, 243 Ill. App. 3d 97, 612 N.E.2d 838 (1993); Blaw-Knox Construction Equipment Co. v. Morris, 88 Md. App. 655, 596 A.2d 679 (1991); Carpenter v. Carpenter, 208 A.D.2d 882, 617 N.Y.S.2d 903 (1994); Rogers v. Sullivan, 795 F. Supp. 761 (E.D.N.C. 1992); In re Estate of Glover, 882 S.W.2d 789 (Tenn. Ct. App. 1994); Peffley-Warner v. Bowen, 113 Wash. 2d 243, 778 P.2d 1022 (1989); Matter of Estate of Foster, 180 W. Va. 250, 376 S.E.2d 144 (1988).
The public policy underlying this rule is that the law favors predictability, certainty, and uniformity of result in protecting the justified expectations of the parties. See Restatement (Second) of Conflict of Laws 283 comment b (1971). Thus, if the marriage is valid in the state where performed, a couple who later moves to another state need not fear prosecution for cohabitation or fornication, and the legitimacy of the children is clearly established. In furtherance of this public policy, many states have enacted "validation" statutes codifying this general rule. See Uniform Marriage and Divorce Act 210, 9A U.L.A. 176 (1987).
Despite the basic rule that a marriage valid where contracted is valid everywhere, the courts and validation statutes have universally recognized a number of exceptions, which may be condensed and simply stated as follows: A marriage valid where contracted will nevertheless not be recognized as valid in the forum state if such recognition would be contrary to a strong public policy of the forum state. Restatement (Second) of Conflict of Laws 283(2) comment f (1971) (marriage valid where contracted will be recognized as valid everywhere unless it violates the strong public policy of another state which has the most significant relationship to the spouses of the marriage); e.g., Fattibene v. Fattibene, 183 Conn. 433, 441 A.2d 3 (1981) (Connecticut need not recognize marriage that violates strong public policy of state); In re Estate of Loughmiller, 229 Kan. 584, 629 P.2d 156 (1981) (listing exceptions to validation statute, including marriage that is polygamous, incestuous, or prohibited by the state for public policy reason); K. v. K., 90 Misc. 2d 183, 393 N.Y.S.2d 534 (Fam. Ct. 1977) (court called upon to decide whether law of Poland, which requires civil ceremony in addition to religious ceremony, was repugnant to law of New York); Kelderhaus v. Kelderhaus, 21 Va. App. 721, 467 S.E.2d 303 (1996) (general statement that marriage's validity is to be determined by law of state where marriage took place, unless result would be repugnant to Virginia public policy).
There are three commonly recognized categories of marriages contracted in another state that will not be recognized in the forum state. First, marriages that are contracted by domiciliaries of the forum state in another state for the express purpose of evading the law of the forum state are deemed invalid. E.g., Loughran v. Loughran, 292 U.S. 216 (1934) (marriage entered into in Florida, in violation of D.C. prohibition against remarriage within certain amount of time after prior divorce, invalid in D.C.); Barbosa-Johnson v. Johnson, 174 Ariz. 567, 851 P.2d 866 (Ct. App. 1993) (appellate court holding that evidence did not sustain finding that parties had married in Puerto Rico for the purpose of evading the law of Arizona). See generally Uniform Marriage Evasion Act, 9 U.L.A. 480 (1942) (N.B.: The Uniform Marriage Evasion Act is superseded by the Uniform Marriage and Divorce Act, and was officially withdrawn from consideration by the drafters in 1943).
Second, states have refused to recognize marriages that are solemnized in sister states when the parties are of a level of sanguinity that is forbidden in the forum state. E.g., McMorrow v. Schweiker, 561 F. Supp. 584 (D.N.J. 1982) (rule recognizing foreign marriages does not apply to incestuous marriages); Catalano v. Catalano, 148 Conn. 288, 170 A.2d 726 (1961); In re May's Estate, 305 N.Y. 486, 114 N.E.2d 14 (1953).
Third, states have refused to recognize marriages that are solemnized in sister states when the parties are not deemed of sufficient age to marry, as determined in the forum state. E.g., Wilkins v. Zelchowski, 26 N.J. 370, 140 A.2d 65 (1958).
Given this strong tradition of a state's right to refuse to recognize a marriage validly contracted in another state if that marriage would offend the fundamental public policy of the state, there appears to be no reason for enactment of the Defense of Marriage Act. The states already have the ability to refuse to recognize a same-sex marriage should they so choose. A state's public policy regarding same-sex marriages may be adduced from the presence or absence of both statutory prohibitions and decisional authority regarding same-sex marriages. E.g., Uniform Marriage and Divorce Act 201, 9A U.L.A. 170 (1987) (defining marriage as a personal relationship between a man and a woman). Thus, federal legislation granting them a power they already have is unnecessary.
IV. THE PROPOSED DEFENSE OF MARRIAGE ACT IS UNCONSTITUTIONAL ON ITS FACE.
Since the Full Faith and Credit Clause is absolute on its face, it is possible to argue that the Clause admits of no general "public policy" exception. See Hirson v. United Stores Corp., 263 A.D.2d 646, 34 N.Y.S.2d 122, aff'd, 289 N.Y. 564, 43 N.E.2d 712 (1942) (as a general principle, local policy may not override the constitutional requirement of full faith and credit). Seegenerally 16A Am. Jur. 2d "Constitutional Law" 866-867 (1979). If this position is correct, then the proposed Defense of Marriage Act is not superfluous. It is, however, unconstitutional on its face because Congress cannot legislate an exception to the Full Faith and Credit Clause. Such legislation is not only in excess of its power, it is in derogation of the very states' rights that such legislation ostensibly protects.
The federal Constitution protects state sovereignty by limiting what the federal government may do, i.e., by defining the federal government's "enumerated powers." The Constitution does not delegate to the United States the power to create a categorical exception to the Full Faith and Credit Clause, thereby inviting states to disregard the official acts of other states. Rather, the Full Faith and Credit Clause empowers Congress to enact general laws and to prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Simply stated then, the Full Faith and Credit Clause does not allow Congress to decree that a state action which is disfavored by Congress on substantive grounds may be disregarded by states that share the congressional viewpoint. Taken to its logical extreme, were Congress to have the power it deems it has by proposing the Defense of Marriage Act, Congress could next declare that one state need not recognize a no-fault divorce of a sister state, or need not recognize a punitive damages award in excess of $100,000. Obviously, Congress could not enact such legislation. See Williams v. North Carolina, 325 U.S. 226 (1945); Cook v. Cook, 342 U.S. 126 (1951) (divorces in one state must be honored in another state). The "unifying" aspect of the Full Faith and Credit Clause would forever be undermined, and a state's authority to make a final, respected judgment would be forever extinguished. Milwaukee County v. M.E. White Co., 296 U.S. 268 (1935) (the very purpose of the Full Faith and Credit Clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore the obligations created under the laws of a sister state, and to make the states an integral part of a single nation); see alsoMagnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943) (describing the Full Faith and Credit Clause as a nationally unifying force).
Indeed, even the United States Supreme Court recently recognized that the anti-gay animus of the majority is not sufficient to make a class of citizens strangers to the law. Romer v. Evans, 64 U.S.L.W. 4353 (U.S. May 20, 1996).
Therefore, if there is no public policy exception to the Full Faith and Credit Clause, the Defense of Marriage Act is not consonant with states' rights, because it is an act of Congress in excess of its constitutional authority.
V. CONCLUSION.
The authority given to the states by the proposed Defense of Marriage Act is an authority which the states already possess. Moreover, the entire purpose of the proposed Act is to limit the Full Faith and Credit Clause in a manner which is inconsistent with both the text and the spirit of the Full Faith and Credit Clause. For both of these reasons, the proposed Act should be rejected by Congress.
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