Gay Rights After SCOTUS: Complexities of ‘Federal Marriage Law’

This column is really about an arcane, complex, and salient concept called "choice of law." If you've ever signed or read almost any kind of contract, there is usually a provision that states, "this contract will be interpreted according to the laws of the State of Smith." That's a choice of law provision; the parties have literally chosen a state's law to govern their relationship with one another.

NycCouples seeking to marry can choose law to the extent that they can go somewhere that recognizes gay marriage. By coming to New York City, for example, a Dallas, Texas, couple is choosing New York law to govern their marital relationship.

So, in a world without DOMA, which makes the choice of law question moot, what will the federal government do? The general rule is the marriages are recognized in the state of celebration, or the state the couple signed the marriage license, even if they reside somewhere else.

Some people argue that all states should recognize same-sex marriages performed in other states because the Constitution, specifically the Full Faith and Credit Clause, requires the states to recognize the "the public acts, records, and judicial proceedings, of every other state." But a marriage license is not a judicial proceeding and although it could be considered a "record," courts have generally not required other states to give binding recognition under the Full Faith and Credit Clause to similar documents, such as a pharmacist's, dentist's, or a lawyer's license.

That means that the Constitution isn't going to be much help coming up with a clear choice of law rule in a post-DOMA world. We could rely on the common law default rule that marriages are recognized by the federal government based on the laws of the state of celebration. But the common law rule has exceptions — big ones — that make life impossibly difficult for gay couples to move from one state to another when those state gay marriage laws differ. For some moves — say, from New York to New Mexico — there is no problem because whereas New Mexico may not be a freedom to marry state, it will recognize out of state gay marriages. But for other moves — say, from Massachusetts to Utah — the public policy exception to out-of-state marriage recognition takes Utah off the map as a viable destination for gay couples.

This raises questions of social justice and fairness, but also constitutional rights. You have a right to move, and states that ban gay marriage and refuse to recognize out-of-state marriages put an effective burden on gay would-be new residents. In Saenz v. Roe (1999), for example, the Supreme Court held, in part, that those who leave one state and become permanent residents of another state have a right to be treated equally to native born citizens of that state. That holding is not cabined by a mover's sexual orientation: a gay person isn't entitled to be treated like any other gay person in his new state, but rather he is entitled to treated equally to any other person in his new state. That could apply to marriage discrimination, as well.

CapitolOf course, Congress could step in and solve the complexity problem. The Respect for Marriage Act (ROMA), for example, would codify the following rule:

For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

This is a pretty good rule and a good one for the gay community. The rule would make domestic marriages valid for federal purposes if the marriages were valid in the state of celebration. Notably, that's almost always the case: you go to a state to get married specifically because that state would recognize your marriage as valid. What's more, it has the added benefit of being simple, easy to implement, and plain to understand.

Short of this kind of Congressional action — which, by the way, is unlikely, given the makeup of the House and the long decades that have passed without Congress taking any action to mop up the messy patchwork of choice of law rules when it comes to marriage — the post-DOMA world will be a tangled web of common law rules that will be subject to future litigation. There are no simple answers to the next questions. The IRS may interpret the tax and bankruptcy codes to define marriage based on state of celebration, but that rule can be challenged. Immigration authorities may interpret the rule differently, based on contradictory case law coming out of the spousal visa context, though, as attorney Lavi Soloway has argued, the celebration rule is the stronger argument.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


  1. says

    How ? what ? when? why ? All the answers are for the Supremes to decide.

    A lot of articles and written and many questions are asked; and the answer is we are not sure until the Supremes have their rulings.

  2. Billy says

    How are cousin marriages treated when cousins who marry in a state that allow such marriages, move to a state that does not allow such marriages. Shouldn’t same-sex marriages be treated like those?

  3. K in VA says

    You need to add in text for marriage in foreign jurisdictions as well. Unquestionably, marriages in Canada or Spain or in any of the other enlightened countries should be recognized, but where? How? When not?

  4. Eric Payne says

    Within the last decade, there was a case from Texas concerning marriage law (I’m sorry. I’ve forgotten the case name, don’t have access to Westlaw, and the search parameters are so vague, Google returns hundreds of pages of hits).

    Texas passed a law voiding the divorce settlements of Texas residents who were divorced elsewhere, even if the person, now living in Texas, was living someplace else when they divorced. The new law was seen as a way for wealthy men to avoid paying spousal/child support to out-of-state ex-wives and family.

    The law was struck down, citing FF&C.

    If FF&C is the overriding priniple in divorce law (a judicial proceeding), wouldn’t that indicate it is also overriding in civil marriage, as the very first requirement to obtain a divorce is having a duly issued marriage license?

  5. Peter says

    They (The Supreme Court) are probably waiting for their last day on the docket until they release their rulings so then they can get the hell out of Dodge in a hurry!

  6. Chuckles says

    There are already rules in place to determine if a marriage is valid for one federal purpose or another. So we have a starting point. SSMs will be recognized based on celebration for the military and for immigration. The place of domicile will control for IRS and Social Security. VA benefits? Not sure. Federal employee benefits? Dunno. There will be many questions, but the answers will begin with: this is how we do it and have been doing it for decades. For don’t face choice of law here on the spot for the first time. It’s come up before, cause different-sex marriage can get complicated as well, and we have procedures *already in place* for either place of celebration or domicile.

    One can wonder about what the administration can do in the short term to make the system more equitable in the absence of legislation, but talking about choice of law is way off the point. The law done already been chose and not consistently. So we start with current practice and see what’s doable.

    The real question is: what makes for a smart lawsuit? What’s a case we can win? What’s a case that will make a great public argument? The answer to each of those isn’t necessarily the same, but I bet the folks at GLAD are on it….or maybe not cause New England is covered. Lambda and the ACLU then. And there will be lots of ill-advised cases brought for sure.

  7. JStevens says

    The Saenz argument is interesting, but likely riddled with problems. Denying marriage benefits to gay couples who move to Utah, using your example, does not treat those gay couples differently than gay couples who are native born citizens of Utah. I think the burden on travel argument is interesting, but not because of the native born citizen versus new resident dichotomy. Utah already treats its native born citizens different with respect to marriage and sexual orientation. That case relied on the privileges and immunities clause and pertained to the right of a newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same state. Without a doubt, here, gay couples in Utah who are native do not have a right to marriage, so why would gay married couples who move there enjoy a right native born gay couples do not? It would be appropriate in cases where a state like New York recognized all marriages, gay or otherwise, within its own state, but then refused to allow non-native born New Yorkers to move there and marry and receive those benefits. That just isn’t the case with your example.

  8. RWG says

    I worry about the simple act of driving cross-country with my spouse. As we travel from state to state we are married, become strangers and then are married again. What happens if we have a road accident in a “strangers” state? Do I get treated as a married person who had a problem while traveling through, or am I told I am no longer a married man while I recover in their state? Before we get to the questions about residence, we need to settle if we stay married just driving from state to state on vacation.

  9. Hey Darlin' says

    If the Supreme Court doesn’t issue a sweeping verdict then it will cause a series of never ending court battles. Just to be essentially recognized as equal to other legally married citizens. There WILL be many many court cases triggered by a limited ruling. They could save a lot of time and money that could be well placed on national debt. Gay marriage is here and it’s expanding every day, get used to it. I’ve gotten used to a lot in my life but I will not sit down for gay marriage and the benefits I miss out on every day.

  10. Rich says

    Can a couple married in a state that permits it go to a court in that state and get a declaratory judgment of their civil status? If they did, would their marriage be universally valid under the Full Faith and Credit clause?

  11. says

    Federal law is obliged to recognize marriages which are valid in the place of performance…….that’s part of private international law.

    And such marriages are valid in the place of performance if they comply with local jurisdiction as to formalities and provided the parties have CAPACITY by the laws of their respective domiciles.
    So a Mass. guy can marry a Dutch guy in either Mass. or the Netherlands….they both have capacity !

    Federal Law must recognise such marriages or we Foreigners won’t recognise your USA marriages…’s the Comity of Nations…..I suppose that’s the equivalent of your “full faith and credit” convention/clause (?).
    I don’t think it could be Constitutional for your Federal System not to recognize gay marriages contracted validly in the Netherlands. Such non-recognition would breach all international conventions on recognition.
    Even the Hague and Dublin Conventions of Child Abduction would be undermined.

  12. says

    @ K in VA:

    I agree that the issue of Recognition of Foreign marriages is a vast, complex, entangled issue.

    But the USA must comply with Private International Law. In other words if you want foreign countries to enforce your contractual arrangements then the USA must do likewise about our contractual marriages.

    So Play Ball !

  13. JStevens says

    @JackFknTwist: Your argument is a practical one, not a constitutional one. The Supreme Court will not be ruling on any basis in international law, I assure you.

    @Rich – interesting notion, but I’m fairly certain this comes up in other family law contexts and states often ignore the judgments of other state courts in those proceedings (e.g., custody battles, divorce settlements, etc.).

  14. says

    @ JStevens :
    My argument on the Comity of Nations Principle is surely on all fours with the US clause of “full
    faith and credit”.
    If “full faith and credit” is required by Constitutional Law, then the principles of the comity of nations in accepting each others’ contracts should also be required by US Constitutional Law.

  15. ikhneumon says

    Like @Billy, I would like to see the laws pertaining to first cousin marriages explored further. They seem to be the closest analogue we currently have to same-sex marriage in the U.S. (recognized by some states, permitted with certain limitations in others, banned by still others).

  16. JStevens says

    @JackFknTwist: the full faith and credit clause expressly applies to states and has nothign to do with international comity. I understand your point from a principle perspective, but the reality is the Constitution has nothing to do with that. Even examined as a “living document,” I doubt there are many scholars who would think the Constitution requires the United States give full faith and credit to the laws of other nations? Does this mean we give comity to the laws relating to marriage in Saudi Arabia? Or nations that allows bigamy?

  17. mike says

    K in VA- my husband & I married in Toronto in 2003. We moved to CA in 2006 and got a domestic partnership which in CA has all state level marriage rights. When marriage for gay couples was legal during the summer of ’08 we didn’t marry again because as of June 16, 2008 our Canadian marriage was recognised. Besides, CA doesn’t allow legally married couples to get a CA marriage licence because they’re already married. I know because we checked just to make sure we didn’t need to do so. I’m sure all of this varies from state to state which only confuses matters further.

  18. Don says

    We anticipate becoming legally married here in Mexico, after 32 years together. Our US residence state doesn’t recognize SSM. If DOMA is struck down, where does that leave us in terms of federal benefits, e.g. SS, inheritance taxes, hospital visitation and powers? Any one with a clue?

  19. Andre says

    So then… As an Aussie citizen in complicated bi-national, bi-curious couple, would a Marriage celebrated in the state of Washington mean that this Aussie could get a spousal Visa?

  20. Beebs says

    Where do you keep your crystal ball Ari? And most gays thought they’d only need to pick the color scheme for the reception. Going steady is more fun. It keeps the sex life alive. These marriage clingers are creepy.

  21. jpeckjr says

    When I moved from one state to another, I had to get a new driver’s license. So what would stop a state from passing a law that says a married couple moving there has to get a new marriage license, has to pay a fee and fill out a form to have their marriage recognized in their new state? Is full faith and credit enough, or does the state marriage law have to specify which states’ licenses it will recognize? Language like this: “With regard to recognition of marriages solemnized in other states, the State of Smith recognizes such marriages with the exception of those solemnized in the following states . . . ” It would have to apply to all married couples from those states or risk an equal protection challenge.

  22. Bill says

    @jpeckjr: what would definitely stop that from happening is (a) fear of voter wrath, (b) the complexity of handling the case where someone refuses to be married in that state but is still
    married in another state, and (c) corporate anger as potential employees refuse to move there.

    Introduce a bill like that, and you’d have trouble being elected to the lowly position of dog catcher.

  23. Bill says

    One thing not being discussed very much: if the Supreme Court rules on the basis of standing that the case should never have been appealed to the 9th circuit court, that leaves Judge Walker’s decision intact. The problem is that Judge Walker’s district does not cover all of California. Rather, there are several districts for California.

    In a worst-case scenario, a judge in the southern district could rule the opposite way that Judge Walker did (before his retirement, Judge Walker was a judge in the northern district). So then what happens? The normal rule would make Judge Walker’s decision binding on lower courts in his
    district, but not other districts.

    Regardless, we could in theory (hopefully not in practice) have a situation in which Proposition Eight is unconstitutional in one part of California but not another.

  24. Bryon says

    In reviewing Article IV, Section 2 of the Constitution, I read:

    “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

    Since we must obtain a state marriage license and have vows solemnized by a state-recognized officiant, how then is a marriage license NOT a public Record or the marriage process NOT a public Act?

    Someone please explain this to a poor benighted layman.

  25. Bill says

    @Byron: The issue is not whether a marriage license is a public record or a process at least in part a public act. DOMA attempts to follow the constitution via the right of Congress to “by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” However, just being compliant with that one sentence in the constitution does not make DOMA constitutional as there are other reasons to reject it (e.g., the 14th Amendment).

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