ID: 709

Date: 2/1/2004

Title:  Public Policy and the Recognition of Same-Sex Marriage

AuthorLast: Oates

AuthorFirst: Kevin

Body: On June 26, 2003 the United States Supreme Court in Lawrence v. Texas , found a Texas criminal statute making it a misdemeanor for a person to engage in “deviate sexual intercourse with another individual of the same sex” unconstitutional under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. On November 18, 2003, the Supreme Judicial Court of Massachusetts held in Goodrich v. Department of Public Health , that a state marriage licensing statute restricting the issuance of a license to two people of the opposite sex violates the equal protection provisions of the Massachusetts Constitution. These two decisions have once again brought attention to the controversial issue of same-sex marriage. In large measure the question of whether two persons of the same sex may marry involves defining “civil marriage.” While defining marriage is a state function , even if a particular state’s law prohibiting same-sex marriage does not violate a state constitution, the courts of that state may, based on a logical extension of the Supreme Court’s holding in Lawrence and the operation of the Full Faith and Credit Clause, be required to recognize same-sex marriages celebrated in other states. The United States Constitution requires that “Full Faith and Credit shall be given in each State to the Acts, Records and Judicial Proceedings of every other state.” The prospect of a state that does not recognize same-sex marriage being compelled to recognize a same-sex marriage celebrated in another state led Congress in 1996 to enact the Defense of Marriage Act (“DOMA”), which provides in part that no state is required to “give effect to any public act, record, or judicial proceeding of any other State, … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.” Congress claimed authority to pass the DOMA based on the second part of Full Faith and Credit Clause which states, “the Congress may by general Laws prescribe the manner in which such Acts, Records and proceedings shall be proved, and the effect thereof.” Ironically, it is the specific provision of the Full Faith and Credit Clause, requiring the “Full Faith and Credit shall be given” by one state to the laws and judgments of another state, which critics have pointed to in questioning the constitutional validity of the DOMA. The question that remains unanswered about the DOMA is whether the Full Faith and Credit Clause gives Congress the right to tell a state in which areas it may exercise discretion in giving full faith and credit to the laws and judgments of another state. Although the Supreme Court has never directly addressed the impact of Full Faith and Credit Clause on one state’s obligation to recognize the validity of a marriage celebrated in another state, the recognition of marriage is viewed by courts as a choice- of- law issue and the traditional conflict of laws rule is that a marriage valid in the state where it is celebrated is valid in all other states, unless the marriage is contrary to the public policy of the state asked to recognize the marriage. Some supporters of Congress’ right to enact the DOMA point to the “public policy” exception to the obligation to give full faith and credit in arguing the DOMA merely specifies a forum state has a right to refuse to recognize a same-sex marriage celebrated in another state if such marriage would violate the public policy of the forum state. While at first blush the existence of a “public policy” exception to giving full faith and credit may signal the right of one state to refuse to recognize a same-sex marriage, and any claim deriving from that union, the practical application of the exception in cases involving same–sex marriage may prove more complicated. One problem with reliance on the “public policy” exception is the limited scope of the exception. While the Supreme Court has recognized the “public policy” exception to full faith and credit as it applies to a forum state in determining the law applicable to a controversy, it has also specified that judgments are not subject to the public policy exception. While the “public policy” exception may arguably provide grounds for a court to refuse to recognize the law of another state allowing for same-sex marriage, the “public policy” exception should not provide grounds to refuse recognition of a judgment based on the relationship of marriage validly entered into by two members of the same sex in another state. Take for example, a hypothetical judgment based on wrongful death, one of the rights accorded members of married couple but denied to members of a same-sex couple. Assume that based on the Goodrich decision two men in Massachusetts are permitted to marry. One spouse is subsequently killed in Massachusetts due to the negligence of a resident of Florida, a state that does not recognize same-sex marriage. The surviving spouse sues the Florida resident in Massachusetts state court and obtains a wrongful death judgment. The Florida resident fails to pay to the judgment and the surviving spouse files an action in Florida to enforce the judgment. Based on the operation of the Full Faith and Credit Clause and the failure of the “public policy” exception to apply to judgments, Florida, a state that refuses to allow same-sex marriage, would be obligated to give effect to the judgment of the surviving spouse based on the wrongful death of his same-sex spouse. Admittedly, Florida courts may not be overly troubled by occasionally being asked to enforce a monetary judgment arising out of a same-sex marriage celebrated in another state. The possibility exists however that a same-sex couple may obtain a non-monetary judgment as to the validity of their marriage in a state allowing same-sex marriage and a state such as Florida may be asked to enforce that judgment and declare the same-sex couple married for the purpose of Florida law. Such a request would involve enforcement of an out of state judgment and therefore not be subject to the “public policy” exception, but would also arguably involve recognition of the law of the other state, which would be subject to the “public policy” exception. Another significant problem with a state using the “public policy” exception as grounds for refusing to recognize a same-sex marriage celebrated in another state is whether a public policy against allowing same-sex couples to marry would, as the Supreme Judicial Court of Massachusetts found in Goodrich , result in a denial of equal protection to the same-sex couple. Although the Goodrich decision was based on the equal protection provisions of the Massachusetts Constitution, there exists a colorable argument that enforcement of a state’s public policy against same-sex marriage would violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In Lawrence , the majority of the Court found the Texas statute unconstitutional under the Due Process Clause of the Fourteenth Amendment to the United States Constitution , but Justice O’Connor, in a concurring opinion found the criminal statute violated the Equal Protection Clause of the Fourteenth Amendment. While recognizing that the concept of liberty gives substantial protection to adults in making decisions regarding their private sex lives , the majority in Lawrence, undoubtedly aware of the potential ramifications of the decision beyond the ability of states to criminalize sexual acts between members of the same sex, noted that Lawrence did not involve the issue of “whether the government must give formal recognition to any relationship that homosexual persons may enter.” Likewise, Justice O’Connor, although recognizing that moral disapproval of a group is insufficient to satisfy rational basis review under the Equal Protection Clause , suggested other laws distinguishing between heterosexuals and homosexuals, which are supported by a legitimate state interest such as “preserving the traditional interest of marriage,” would not necessarily fail under rational basis review. Justice Scalia authored a dissenting opinion in Lawrence in which he suggested the validity of state laws against same-sex marriage was undermined by the majority decision. Despite the majority’s attempt to limit the scope of its holding in Lawrence, the Court’s recognition of the rights of same-sex consenting adults to engage in sex without fear of government prosecution may have let the genie out of the bottle with regard to interjurisdictional recognition of same-sex marriage. The rights recognized by the Court in Lawrence when coupled with the requirement of the Full Faith and Credit Clause that one state recognize the laws and judgments of another state, call into question the ability of a state that does not recognize same-sex marriage, relying on either the DOMA or the “public policy” exception to the Full Faith and Credit Clause in refusing to recognize a same-sex marriage celebrated in another state. Ultimately, despite the power to define marriage, a state’s disapproval of same-sex marriage may not allow the state to refuse recognition of a same-sex marriage celebrated in another state. The author teaches Lawyering Process and Conflict of Laws at the Boyd School of Law. He earned his J.D. in 1991 from Pace University School of Law, and his LL.M. in Legal Education from Temple University, Beasley School of Law in 2003. Prior to teaching, he practiced law in New York and Philadelphia. Endnotes 123 S. Ct. 2472 (2003). Tex. Penal Code Ann. § 21.06 (2003). Id. Lawrence v. Texas, 123 S. Ct at 2484 (2003). In declaring the Texas statute unconstitutional the Supreme Court overruled Bowers v. Hardwick, 478 U.S. 186 (1986). Lawrence v. Texas, 123 S. Ct. 2472, 2484 (2003). The Court’s majority opinion, stated, “[t]he State cannot demean … [the petitioners’] existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” Lawrence v. Texas, 123 S. Ct. 2472, 2484 (2003). 798 N.E. 2d 941, 948 (Mass. 2003). See also Baehr v. Lewin, 852 P. 2d 44 (Haw. 1993) (plurality held state marriage licensing law which did not allow for same sex couples to obtain a license violated equal protection clause of the Hawaii constitution). Hawaii subsequently passed a constitutional amendment giving the legislature the ability to reserve marriage to opposite-sex couples. See Sherrer v. Sherrer, 334 U.S. 343, 354 (1948). The Supreme Court in Lawrence recognized “the central role that decisions whether to marry or have children bear in shaping one’s identity.” Lawrence v. Texas, 123 S. Ct. 2472, 2481 (2003). U.S. Const. art. IV, § 1. The Supreme Court has specified the purpose of the Full Faith and Credit Clause: to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin. Milwaukee County v. M.E. White Co., 296 U.S. 268, 276-77 (1935). 28 U.S.C. § 1738C (1997). U.S. Const. art. IV, § 1. U.S. Const. art. IV, § 1 (emphasis added). See Patrick J. Borchers, Baker v. General Motors: Implications for Interjurisdictional Recognition of Non-Traditional Marriages, 32 Creighton L. Rev. 153 (1998). See e.g. In re May’s Estate, 114 N.E. 2d 4 (N.Y. 1953) Restatement of Conflict of Laws §§121, 134 (1934); Restatement (Second) of Conflict of Laws § 283 (2003). See Heather Hamilton, The Defense of Marriage Act: A Critical Analysis of Its Constitutionality Under The Full Faith and Credit Clause, 47 DePaul L. Rev. 943, 965 (1998). In Baker v. General Motors Corp., 522 U.S. 222 (1998), the Supreme Court stated: Our precedent differentiates between the credit owed to laws (legislative measures and common law) and to judgments…. The Full Faith and Credit Clause does not compel ‘a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.’ Regarding judgments, however, the full faith and credit obligation is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.” Id. (citing Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493, 501(1939)). Goodrich, 798 N.E. 2d at 956. The Goodrich court recounted the “enormous” benefits that flow from marriage, including the right to bring a claim for the wrongful death of a spouse, joint tax filing, tenancy by the entirety, homestead protections, the right to maintain a wrongful death action, the presumptions of legitimacy and parentage of children born to a married couple, and inheritance, elective share and dower rights, and concluded that deprivation of these rights to same sex couples would treat those couples as second class citizens. Id. at 955-56, 949. This hypothetical is based on one stated in, Patrick J. Borchers, Baker v. General Motors: Implications for Interjurisdictional Recognition of Non-Traditional Marriages, 32 Creighton L. Rev., 180-181 (1998). 798 N.E. 2d 941, 948 (Mass. 2003). 123 S. Ct. 2472 (2003). Id. at 2484. Id. Id. at 2480. Id. at 2484. The Court also stated that the case did not involve minors, public acts, prostitution, or persons who were coerced, injured, or in relationships where consent could not be refused easily. Id. Id. at 2486. Id. at 2487. Id. at 2490. Justice Scalia also suggested that the majority overruling Bowers v. Hardwick, 478 U.S. 186 (1986), undermined the validity of state laws prohibiting bigamy, “adult incest, prostitution masturbation, adultery, fornication, bestiality, and obscenity.” Lawrence v. Texas, 123 S. Ct. 2472, 2490 (2003).