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Andrew Koppelman - Same Sex, Different States When Same-Sex Marriages Cross State Lines

Andrew Koppelman - Same Sex, Different States When Same-Sex Marriages Cross State Lines

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Unformatted text preview: 4.4 ANDREW KOPPELMAN From Same Sex, Difi’erent States: When Same-Sex Marriages Cross State Lines Marriage confers legal obligations and benefits. Because different states have different laws regarding same-sex marriage, personal and legal problems arise. What does it mean legally when a same—sex couple are legally married in one state and then move to another that prohibits same-sex marriage? Only in the last few years have court cases involving inheritance, insurance, government benefits, adoption, and employment provided guidance for judges and juries to follow as they try to navigate these issues. In this piece, Koppelman argues that until these issues are fully settled, ambiguities will continue and affect people's well-being. If there is one thing that the people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom. —Justice Robert Jackson Americans are profoundly divided about same-sex marriage. . . . Each side now is striving for total victory. Proponents of same-sex marriage want a judicial declaration, preferably by the US Supreme Court, that recog- nition of same-sex marriage is constitutionally required. Opponents want a constitutional amendment banning any state from recognizing such mar- riages. Neither side is going to get its way soon; consensus on this emotional and divisive issue is a long way off. In the meantime, we need to find a way to live together. The consequence of our moral divisions need not be hysteria or chaos. If each state could confine its own answer within its own borders, so that, for instance, same—sex marriage stays in Massachusetts and other states do noth- ing to harm same—sex couples in Massachusetts, then we could easily live with our differences. Even the strongest opponents of same-sex marriage can tolerate the fact that it exists somewhere, even somewhere nearby. When Canada recognized same-sex marriage, no one in the United States called for military intervention. From Andrew Koppelman, Same Sex, Different Slates: When Same-Sex Marriages Cross State Lines (New Haven, CT: Yale University Press, 2006), Introduction. 140 From Same Sex, Different States I 141 But people move around. It’s easy to say that Utah and Massachusetts can each have their own rules. But sometimes it's not clear which state's rules should apply. Can Utah resi— dents get married on a weekend trip to Boston and then expect Utah to recog- nize the marriage? And what happens if someone from Massachusetts is hospitalized in Utah, and the hospital needs to know who is legally autho- rized to make the patient's medical decisions? We need to know where one state's laws end and another's begin. The disagreements over interstate recognition are almost as profound as those over the underlying marriage issue. Some think that recognition of same-sex marriage is demanded by the provision of the US Constitution that requires states to give " full faith and credit" to each other’s legal judgments. If that were true, then every state would have to recognize the same-sex mar- riage of any of its residents who can manage a day trip to Boston. Others think that states should adopt a blanket rule of nonrecognition, under which same-sex marriages would be void outside the jurisdiction that recognized them. But if this were the case, people in same-sex marriages could desert their dependents with impunity and, by crossing a border, free themselves of all obligations of marital property and child support. They could even marry other people without telling those people about their still—existing marriages. Both of these positions are wrong. Fortunately, well-established legal rules exist to help us navigate this thorny landscape. These rules are unfamiliar to many, but they are urgently relevant. . . . Federalism, a system in which differ- ent state laws can reflect different ideas of “the good life," is a classic Ameri— can idea. It can serve us well here. Choice oflaw is a body of legal doctrines that explain what a court should do when a problem involves the laws of more than one jurisdiction. It offers a set of fairly clear and workable rules, specifying the bounds of each state’s legitimate authority. And it offers a reasonable resolution of today's culture war over same-sex marriage. No choice of law cases have ever arisen in American law concerning same— SCX marriage because until recently no state had ever recognized such mar— riages. There have, however, been equally profound moral disagreements Concerning marriage. They have involved differences in state laws regarding incest (for example, marriages of first cousins), marriageable age, remarriage after divorce, and above all, interracial marriage (what its opponents called "miScegenation"). In none of these situations were states compelled to recog- nize other states' marriages. (Even when the Supreme Court struck down every law against interracial marriage in 1967, it did not do so on this basis. It held instead that such laws were unconstitutional because they were racially discriminatory.) But in none of these cases did the courts adopt a blanket rule of nonrecognition, either. \_ 142 I ANDREW KOPPELMAN The most revealing of these disagreements concerned interracial mar- riage. This issue involved an exceedingly strong public policy: the southern courts regarded marriages between blacks and whites as connections and alliances so unnatural that God and nature seem to forbid them."1 The stat- utes prohibiting such marriages were worded at least as strongly as those of the recent laws against same-sex marriage: they usually declared them "void" and ”prohibited" and punished their celebration with criminal penalties. Yet even in this charged context, the courts rejected the blanket rule of nonrecog- nition. In nearly every case that did not involve someone trying to evade their home state's laws, the southern courts recognized interracial marriages. The overriding policy was that interracial marriages could not be celebrated by the forbidding state's own residents. If each state could determine the marital sta- tus of its own residents, then it was possible for states with very different moral views to live together, and for individuals to know what their rights were. . . . [A] similar solution is the best way to find a truce in the war over same- sex marriage. Such marriages, when celebrated by people who make their home in Massachusetts, should be recognized everywhere those people happen to travel. But citizens of Utah should not be able to evade that state's marriage restrictions merely by spending a day in Massachusetts. 1 am not predicting what courts will do in these cases. There is not much case law in this area yet, and courts face pressures from many directions. It is impossible to know how they will respond to these pressures. But there is a right legal answer, and this book argues that courts ought to follow it. Here I will look at law, in H. L. A. Hart’s famous phrase, “from the internal point of view." Any set of rules, Hart writes, can be viewed from the “external” point of view of an observer who does not accept them and simply wants to understand how they affect other people's conduct. But judges are expected to consider rules from the point of view of "a member of the group which accepts and uses them as guides to conduct."2 Following the law means, in part, deciding like cases alike, by following relevant precedent when new cases arise. The system of precedent, Hart observes, can generate "a body of rules of which a vast num- ber, of both major and minor importance, are as determinate as any statutory rule."3 The relevant precedents here are cases involving interracial marriage. Courts should follow them. Whatever external political pressures courts may face, they will always. one hopes, feel some obligation to just do their jobs and follow the law. In the case of interstate recognition of same-sex marriage, if they follow the prece- dents that I describe here, then they would sometimes recognize these mar- riages. Again, this is not prediction: it is always possible for courts to disregard the law, and sometimes they will. All one can say in the face of such behavior is that courts should not act in a lawless fashion without powerful reasons, and that the opposition to same-sex marriage has not cited any reasons of that weight. From Same Sex, Different States I 143 Among the differences in state marriage laws, same-sex marriage is unique today in the degree of moral passion that it arouses. There have, however, been other times in American history when marriages of a certain kind pro- duced comparable revulsion in some quarters. If we are to learn anything from earlier cases, we must place ourselves in the shoes of earlier-judges. We have to give some weight to public policies that we either would repudiate (as with the ban on remarriage after divorce) or would endorse (as with the pro- hibition of marriage between cousins) with far less strength than was once assigned to them. The most useful such line of cases is that involving the most morally repellent of the public policies: the one against interracial mar- riage. Such marriages provide the best analogy to today’s controversy because they provoked more vehement antipathy than any other kind of marriage that states disagreed about. Moreover, these cases form a fairly consistent pattern, from which a set of rules can be drawn. If we suspend, for the sake of the argument, our objections to the substantive laws in question, we may find a certain wisdom in these rules. The Jim Crow judges were terribly wrong about many things, but they did understand the problem of moral pluralism in a federal system, and we can learn something important from the solutions that they devised. There is also value to this exercise precisely because these cases are so strange to us today. They compel readers to think about how to give weight to policies with which they have no sympathy. If you are reading this book, then you are probably already interested in the issue of same-sex marriage. You probably have an opinion about how this issue ought to be resolved. You may think that same«sex marriage is a moral imperative, or you may think that it is a moral abomination. On the other hand, I'm pretty sure I know what you think about laws against interracial marriage. People on both sides of the same-sex marriage issue agree that the miscegenation prohibition was immoral and unconstitutional. If you can put yourself in the situation of past courts that grappled with the issue, then you may find it somewhat less difficult to perform a similar exercise with respect to today's differing state interests regarding same-sex marriage. A federalist solution, in which different states are free to pursue different policies, offers something important to everyone. For people who oppose same—sex marriage, it offers security against the wholesale importation of institutions they find morally repugnant. Same-sex marriage can be confined to Massachusetts, for instance, and need not migrate elsewhere. For gay peo— ple, it offers relief from being national scapegoats. It is not in the interest of gays to make opponents of same—sex marriage feel that they must act aggres- sively in order to protect their local conceptions of marriage. At the end of that road is an amendment to the US Constitution banning same—sex marriage. The federalist answer cannot be a permanent one, of course. Sooner or later, one side will prevail in the culture wars over homosexuality. But it will take a while. (We took three hundred years to reach consensus on interracial 144 I ANDREW KOPPELMAN marriage.) In the meantime, people need to know what their rights are. And federalist reasoning, which presumes that radically differing moral views may each have their own legitimate field of operation, can remind us that people whom we think morally obtuse are nonetheless our fellow citizens. Mundane legal answers will not bring us to the promised land, but they may make our present abode more habitable. NOTES Epigraph. Estin v. Estin, 334 U.S. 541, 553 (1948) (Jackson, J., dissenting). 1. Kinney v. Commonwealth, 71 Va. (30 Gratt.) 858. 869 (1878). 2. H. L. A. Hart, The Concept ofLaw 89 (2d ed. 1994). 3. Id. at 135. 4.5 United States v. Windsor (2013) and Scalia’s Dissent A divided Supreme Court (5—4) struck down the Defense of Marriage Act (DOMA), which passed in 1996. DOMA denied federal government benefits to same-sex married couples, even for those lawfully married in their home states. The Supreme Court majority declared that DOMA violates the Fifth Amendment liberty protec— tions. A bitter dissent by Justice Scalia claims the court overreached in its attempt to override laws passed by democratically elected branches of government. Justice Kennedy delivered the opinion of the Court. Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the defini- tion of "spouse" as that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the constitutionality of this provision. The United States District Court and the Court of Appeals ruled that this portion of the statute is unconstitutional and ordered the United States to pay Wind- sor a refund. This Court granted Certiorari and now affirms the judgment in Windsor's favor. In 1996, as some States were beginning to consider the concept of same-sex marriage, and before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA), DOMA contains two operative sections: Section 2, which has not been challenged here, allows States to refuse to rec- Ognize same-sex marriages performed under the laws of other States. Section 3 is at issue here. It amends the Dictionary Act of the United States Code to provide a federal definition of "marriage" and “spouse.” Section 3 of DOMA provides as follows: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and From United States v. Windsor, S70 U.S. _ (2013). 145 ...
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