Full faith and credit and same sex marriage
Volokh, Eugene
VOLOKH at law.ucla.edu
Sun Feb 22 21:58:11 PST 2004
As a matter of black letter law, I doubt that it would. But there's
been a good deal of talk recently about how the Court, when deciding whether
to reconsider constitutional doctrine, should look to the judgments of
legislative bodies -- and especially the Congress. Some of that talk has
actually come from some of the Justices.
If that's so, then the enactment of DOMA might push the Court in some
measure to (1) keep the no-need-to-recognize-out-of-state-marriages /
OK-to-reject-out-of-state-decisions-on-public-policy grounds rules, if they
are indeed the current rules, rather than deciding that changed
circumstances warrant changing the rules, or (2) adopt these as rules, if
they aren't now the current rules, rather than deciding to keep whatever the
current rules might be. I'm not sure that a majority of the Court would be
swayed by Congressional judgment on the matter; perhaps the majority would
say "We'll stick with the precedents, or with our own views, regardless of
what Congress says." But it might take only a few Justices' deference to
Congress (even if it isn't complete deference) to let DOMA make a practical
difference, even if theory it shouldn't make a black-letter law difference.
Eugene
-----Original Message-----
From: Marty Lederman [mailto:marty.lederman at comcast.net]
Sent: Sunday, February 22, 2004 6:30 PM
To: krooseve at law.upenn.edu; Earl Maltz
Cc: conlawprof at lists.ucla.edu
Subject: Re: Full faith and credit and same sex marriage
It's been quite a while since I read the Larry Kramer and Andy Koppelman
articles on DOMA, so I apologize in advance if the answer to this is
obvious:
Is there anyone out there, on either side of this constitutional debate, who
believes that the federal DOMA changes the constitutional analysis in the
case of a state that declines on "public policy" grounds to recognize an
out-of-state marriage? That is to say, is there anyone who believes a
nonrecognition state would violate the Constitution absent DOMA, but who
also believes that DOMA legitmates the state's nonrecognition (or otherwise
eliminates what would otherwise be a constitutional problem)?
Thanks in advance.
----- Original Message -----
From: < <mailto:krooseve at law.upenn.edu> krooseve at law.upenn.edu>
To: "Earl Maltz" < <mailto:emaltz at crab.rutgers.edu> emaltz at crab.rutgers.edu>
Cc: < <mailto:conlawprof at lists.ucla.edu> conlawprof at lists.ucla.edu>
Sent: Sunday, February 22, 2004 8:25 PM
Subject: Re: Full faith and credit and same sex marriage
> I didn't mean to make a categorical assertion, and I don't believe I
> did. I said:
>
> Differences between state marriage laws thus have the possibility to
> create significant interstate tensions. But this is not an unfamiliar
> problem. State laws already diverge - differences in the minimum age
> for marriage are common, as are differences in the treatment of first
> cousins. Generally speaking, states respect marriages that are valid in
> the state where they were celebrated. They retain some freedom to
> depart from this rule, but that freedom is limited by the Constitution.
>
> Then I went on to discuss the possibility that states might be required
> to recognize same-sex marriages and to point out that DOMA obviated the
> need for a federal constitutional amendment to prevent this. Sorry if
> you read this as a categorical assertion--I certainly agree that
> current doctrine recognizes the public policy exception. Personally, I
> don't think the public policy doctrine makes much sense, for
> essentially the reasons Larry Kramer asserts, but that wasn't my
> focus. The point of the article was to discuss the ways in which the
> federal Constitution already accommodates the tensions between state
> sovereignty and national obligations, and for that purpose it seemed
> best to entertain the fear that states might be forced to recognize
> marriages they did not wish to--which was presumably the motivation for
> that part of DOMA that lifts any such obligation.
>
> Kermit Roosevelt
>
> Quoting Earl Maltz < <mailto:emaltz at crab.rutgers.edu>
emaltz at crab.rutgers.edu>:
>
> > Sometime I forget how much I can get on line. I have now taken
> > another
> > look at Larry's article, and found that I was not entirely fair.
> > while he
> > does indeed rely heavily on Hughes and another, even older case which
> > also
> > involved the denial of a forum, he does allude briefly to current law
> > and
> > recognizes that he is advocating a substantial change in the law.
> >
> > In any event, as they said on The Weakest Link, its votes that count
> > and he
> > doesn't have one. In the absence of a radical change in doctrine,
> > state
> > would not be required to recognize same sex marriages from other
> > states
> > under current law.
> >
> > At 03:30 PM 2/22/2004 -0500, Earl Maltz wrote:
> > >That certainly is the standard citation. However, when I read the
> > piece
> > >several years ago, I found it completely unpersuasive. My
> > recollection
> > >(subject to being corrected by Larry, of course) is that the article
> > did
> > >not discuss Hague; instead, it relied heavily on Hughes v. Fetter,
> > >which was by its terms was concerned only with the obligation to
> > provide
> > >a forum in a case where the substantive law of the two states was
> > the
> > >same. Moreover, Justice Black EXPLICITLY stated that the case had
> > no
> > >application to a situation where the two states had different
> > >policies. Finally, the decision predated Hague by 30 years, and
> > thus, to
> > >the extent that it is inconsistent with Hague and its progeny, has
> > been
> > >modified or overruled sub silentio.
> > >
> > >So the question recurs: what case authority does an expert have for
> >
> > >stating without qualification that the unadorned Full Faith and
> > Credit
> > >Credit Clause requires recognition of same sex marriage if the
> > marriage is
> > >valid where celebration.
> > >
> > >At 02:04 PM 2/22/2004 -0500, you wrote:
> > >>I think the standard citation would be Larry Kramer, Same-Sex
> > Marriage,
> > >>Conflict of Laws, and the Unconstitutional Public Policy Exception,
> > 106
> > >>Yale L.J. 1965 (1997).
> > >>
> > >>Conkle, Daniel O. wrote:
> > >>>
> > >>>I, too, would welcome a response to Earl's question. In
> > preparation for
> > >>>an informal talk to a local service club last week, I did a bit
> > of
> > >>>research, which seemed to confirm Earl's view. My research
> > further
> > >>>suggested that states, as a matter of conflict of laws, in fact
> > >>>generally recognize a marriage from another state if the marriage
> > was
> > >>>valid under the law of that state, but they have refused to honor
> > the
> > >>>marriage if it is against the "strong public policy" of the forum
> > state.
> > >>>Anyway, my tentative conclusion was that from a legal point of
> > view, the
> > >>>federal DOMA provision addressing full faith and credit was an
> > >>>"abundance of caution" statute for those who oppose the
> > "portability" of
> > >>>same-sex marriage. (Conversely, the various state-law DOMAs might
> > have
> > >>>more significance in defeating portability by confirming or
> > indicating
> > >>>the state's "strong public policy" against same-sex marriage.)
> > But I
> > >>>can't claim any particular expertise on these issues, and I did
> > not
> > >>>conduct anything like exhaustive research. So, I'll simply
> > second
> > >>>Earl's question.
> > >>>
> > >>>Dan Conkle
> > >>>
> > >>>-----Original Message-----
> > >>>From:
> > >>>< <mailto:conlawprof-bounces at lists.ucla.edu>conlawprof>
mailto:conlawprof-bounces at lists.ucla.edu>conlawprof-
> <mailto:bounces at lists.ucla.edu> bounces at lists.ucla.edu
> > >>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl
> > Maltz
> > >>>Sent: Sunday, February 22, 2004 12:50 PM
> > >>>To: < <mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu>
mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu
> > >>>Subject: Full faith and credit and same sex marriage
> > >>>
> > >>>In today's Philadelphia Inquirer, Kermit Roosevelt asserts
> > categorically
> > >>>
> > >>>that, in the absence of Doma, states would be constitutionally
> > required
> > >>>to
> > >>>recognize same sex marriages solemnized in states in which they
> > were
> > >>>legal. I've seen this argument in law review articles as well,
> > and I
> > >>>always have the same question: Since marriage is a contract and
> > not a
> > >>>judgment, why aren't states generally free not to recognize such
> > unions
> > >>>;under the rule of Allstate v. Hague? Can anyone cite me to an S.
> > Ct.
> > >>>case
> > >>>to the contrary?
> > >>>
> > >>>
> > >>>_______________________________________________
> > >>>To post, send message to
> > >>>< <mailto:Conlawprof at lists.ucla.edu>Conlawprof at lists.ucla.edu>
mailto:Conlawprof at lists.ucla.edu>Conlawprof at lists.ucla.edu
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> > >>>
> > >>>_______________________________________________
> > >>>To post, send message to
> > >>>< <mailto:Conlawprof at lists.ucla.edu>Conlawprof at lists.ucla.edu>
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