Same-Sex Marriage & Conflict of
Laws
Hilary Habib
April 22, 2013
What’s the Problem?: Recap
• There is no uniform rule for same-sex marriage in the U.S.
• Courts vary in conflict of law approaches to same-sex marriage.
They disagree on whether or not to recognize SS marriages that
were celebrated in other states. They also vary their opinions
depending on whether a case is based on an evasive, visitor, or
migratory marriage.
• First Restatement: Marriages that are licensed in one state will be
recognized as long as the marriage is valid where it was initially
celebrated (Rule of Celebration). Exception for incestuous,
polygamous, or “abhorrent” marriages. (RST Section 121)
• Second Restatement: The validity of a marriage is determined by a
state that has the most significant relationship to the marriage.
(Significant Relationship Test). (RST Section 283)
– Note public policy exception
2nd RST Public Policy Exception
• States can (and have) refuse to acknowledge same-sex marriage
because it is “distasteful.”
– Judges have used their states’ prohibition on same-sex marriage to
show that the exception applies.
• The exception allows the judiciary to be overzealous on banning
same-sex marriages in ANY case (migratory, evasive, etc.)
– Provides a substitute for analysis.
• Scholars and judges have been wary and critical of the public policy
exception, and highlight its potential problems.
• If judges use the public policy exception to void marriages, innocent
parties could be denied the basic rights of marriage, and the
parties’ expectations will be violated.
Public Policy Exception: Unconstitutional?
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Stanford Law Dean Larry Kramer argues that the public policy exception
violates the Full Faith and Credit Clause because states cannot “selectively
discriminate” against certain laws based on their view of other states’ policies.
The Full Faith and Credit Clause requires states to protect "public acts, records,
and judicial proceedings of every other state.”
However, states should not lose their discretion to pick choice-of-law systems
or choose their own law after an interest analysis.
The exception should be inapplicable in all circumstances.
SS Marriage implications if the PP exception is improper:
– There would be no selective discrimination against marriages based on
content of other state laws.
– However, may use a modern conflict of laws analysis to circumvent the PP
exception and still invalidate the marriage.
– Because FFC is also applicable to the legislatures, a state could not enact a
non-content based marriage evasion statute only to SS marriages. It also
could not enact rules that discriminated against the validity of SS
marriage.
Recent Cases
• Miller-Jenkins v. Miller Jenkins (VT 2008): Child custody case. Couple
married in VT, separated, and biological mother of child moved to VA (did
not recognize SS marriage). Non-biological mother sued for custody in VT.
– VT followed the Second Restatement and analyzed where the
“grouping of contacts” were.
– Since the only contact VA had with the marriage was when one
partner moved there, the contacts to VA were not strong enough to
use VA law.
– Scholars argue that this Second RST approach produces a higher
predictability of results in most SS marriage disputes.
• Martinez v. County of Monroe (NY 2008): SS couple married in Canada,
moved to NY. Applied for marital health benefits in NY.
– At the time, NY did not allow SS marriage.
– Regardless, the Court recognized the marriage. Notable because it
was the first time the NY Court recognized an out of state SS marriage
that could not have been solemnized in the state.
Divorce Cases: Divergent Approaches
Christiansen v. Christiansen (WY 2011): SS couple married in Canada, domiciled in WY
sought divorce in WY.
– Court: Marriages celebrated outside of WY are still valid unless for public
policy reasons.
– Distinguished recognizing SS marriage for limited purpose of divorce v.
recognizing it as an ongoing relationship.
– WY prohibits same-sex marriage by statute (mini DOMA).
In re Marriage of J. B. and H.B. (TX 2010): SS couple married in MA, domiciled in TX
and sought divorce in TX.
– Court: Found that because TX prohibits SS marriage via a Super DOMA, it did
not have subject matter jurisdiction to divorce the couple.
– This is the problem with current SS marriage cases: There is a lack of cohesion
in conflict of law rules amongst the sates.
– TX’s state constitution was amended to prohibit same-sex marriage. (Super
DOMA: denies all forms of recognition to same-sex marriage couples).
– Possible explanation for divergent results: Mini DOMA v. Super DOMA
Other Notable Recent SS Marriage Cases
Port v. Cowan (MD 2012): Court found that SS marriage was not “repugnant” to MD’s
public policy, although it was not legal in MD.
– Public policy is an “amorphous legal concept” and “should only be used to
prohibit injuries to the public good.”
– Elucidated the inconsistences in MD laws regarding SS couples.
• Although MD characterizes as marriage only being between a man and a
woman, it has laws that gives SS couples substantial benefits like in health
plans and estate cases.
– MD legalized SS marriage in 2013.
Suramer v. Ellstrom (AZ 2012): A same-sex couple married in Canada requested a
divorce in AZ.
– Trial Court: Because AZ does not recognize SS marriage, there was nothing to
annul.
– COA: Because marriage is adverse to AZ’s public policy, the marriage could be
annulled.
– The rationale was that granting a request to invalidate a same-sex marriage is
consistent with AZ’s policy against SS marriage.
– AZ: Has a constitutional mini DOMA
Other Notable Recent SS Marriage
Cases
Lewis v. NY Dept. of Civil Service (NY 2008):
• Dept. of Civil Service began to give benefits to spouses of
employees in same-sex marriages, if the marriage was valid
where celebrated
– Individuals sued, stating this was an “unlawful disbursement of
public funds.”
– Under Martinez v. Monroe, NY precedent allows for the
recognition of same-sex marriages.
– Lewis notably reiterates the public policy exception and states
the marriage recognition rule doesn’t apply when (1) there is a
legislative intent to void a marriage in another jx; (2) a marriage
is abhorrent to PP (incest, polygamy).
– Because none of those exceptions applied here, the benefits to
same-sex couples were upheld.
Preliminary Survey Trends
9 States legalized same-sex marriage
10 states have statutory mini DOMAs
– More likely to uphold a migratory/visitor SS marriage
10 states have constitutional mini DOMAs
– Mixed results
– Note research bias
20 states have super DOMAs
– Least likely to recognize migratory/visitor marriages
– Child custody case exception “best interests”
Prospective Solutions: Limiting
Marriage Licenses
• Scholar Linda Silberman suggests that same-sex marriage
licenses should be limited to (1) residents of a state or (2)
people who reside in another state where same-sex marriage
is legal.
– This would eradicate the problem of evasive same-sex marriages.
– Many European countries have followed this approach with success.
• In migratory marriage cases, she argues that the law used to
determine if a SS marriage is valid is the law of domicile or
residence of the parties at the time of marriage.
– This would most likely be the state that has the most significant
connection to the parties (RST Second).
– Would provide for “predictability and consistent party expectations.”
– Doesn’t address visitor marriage cases.
Prospective Solutions: Neutral Choice
of Law Method
• Scholar Scott Fruehwald: A court should identify the “legal
relations” created by the states whose laws apply.
– This analysis must be in-depth. Judges should look at legislative intent
of laws, such as if laws were intended to apply intrastate.
• If the judge cannot determine the intent, examine the law’s purpose.
• This analysis is most applicable in visitor cases.
– When there is a true conflict, apply the state’s law that’s most closely
connected.
– Under this approach, in evasive marriages, the domicile state has the
closest connection to the couple, so the marriage won’t be upheld.
– Migratory marriages should be upheld because the couple’s new
domicile had no interest in the marriage at the time of celebration.
– Because this approach is both content and forum neutral, it will
uphold parties’ expectations.
– It will respect interests of the states, since a couple’s domicile usually
has the most substantial interest in regulating a marriage.
Prospective Solutions: My Approach
• Silberman’s suggestion to limit marriage licenses is unnecessary.
• Fruehwald’s method of having courts do an in-depth analysis of the “legal
relations” from the states to the marriage would be too taxing on the
courts, and could lead to inconsistencies in visitor marriage cases.
• Instead, courts should impart a blanket rule of only recognizing same-sex
migratory marriages and visitor marriages.
– Recognizing evasive marriages would create a slippery slope of
individuals rushing to other states to evade their state’s law.
– Parties should be able to enter into a legal marriage and have their
expectations of the benefits and rights of that marriage upheld.
– If not, it could impede parties’ rights to move or travel to another
state.
– This rule should ideally be implemented by federal legislation.
• Mini and super DOMAs should be invalidated under the EPC.
– Harder to invalidate under the DPC.