By Katharine Baker [via Zócalo Public Square, a forum discussion posted July 8]
Within 24 hours of the Supreme Court striking down Section 3 of DOMA, marriage equality advocates and much of the media started bemoaning the patchwork nature of the federal marriage recognition that we are left with now that the federal government has gotten out of the business of defining marital status for itself. Now, the federal government will honor state determinations of marital status, but what happens if those state determinations differ? What of the same sex couple that gets married in Iowa and moves to Oklahoma? We may not know immediately whether the federal government will honor their marital status. Horrors! Such confusion! Such inconsistency! What a legal mess?
Hardly. This legal mess is, after all, just what the plaintiffs in Windsor asked for. As of Tuesday, June 25, the day before the Supreme Court issued its rulings, uniformity and consistency were the arguments used by the defenders of DOMA. It was the need for uniform federal treatment of same sex marriage that explained why Congress acted rationally and sensibly in drafting DOMA, argued the losing side. The Court said no—notwithstanding the order and consistency that DOMA imposed on federal policy, it was too big a departure from traditional federal deference to state determinations of marriage, too much of a burden on one particular class of married people, and too much of an interference with the important institution of marriage.
So by Thursday, June 27, uniformity and consistency had become the arguments for the other side. Progressive forces fighting the next battle, for a federal constitutional right to same sex marriage, are now arguing that uniformity and consistency are essential. But that is only because progressive forces now feel comfortable that the substantive law is trending in their direction. Uniformity is only worth fighting for if one likes the law that will become uniform. From 1996 until probably last November (when same sex marriage initiatives first began to prevail over conservative efforts to define marriage as between a man and a woman), uniformity was the last thing progressive forces wanted.
Moreover, and again as the plaintiffs in Windsor argued, it is simply not that hard to figure out what will happen to the couple that moves from Iowa to Oklahoma. Federal courts and federal agencies will decide whether it is the law of domicile (where the couple of lives, Oklahoma in the above example) or the law of the place of celebration (where the couple was married, Iowa in the above example) that will determine federal marital status in any given instance. Federal courts and federal agencies have been making such rules for over a hundred years for those marriages that different states have treated differently—common law marriages, underage marriages, interracial marriages (until the Supreme Court decided Loving v. Virginia in 1967).
Neither the domicile nor the celebration rule is perfect. For the couple that lived in Iowa, was married there, lived as married there and then moved to Oklahoma, a “domicile” rule seems very harsh because it seems to undo the marital status that the couple had. But for the couple that lives in Oklahoma, takes a long weekend in Des Moines to get married, and returns to Oklahoma to live, the “domicile” rule does not seem nearly as harsh. Indeed, in that case, the domicile rule might seem appropriate because a celebration rule would allow that couple to subvert the law of their own state.
A place of celebration rule for all federal marriage recognition would unquestionably benefit same sex couples and enhance the marriage tourism industry in all the states that recognize same sex marriage. And there is precedent for that kind of compelled recognition of another state’s marital status determination. In the mid-twentieth century, Nevada was notorious for trying to attract couples eager to divorce. As long as couples could establish domicile in Nevada (which Nevada facilitated by making domicile quite easy to establish), a sister state had to recognize a Nevada divorce notwithstanding the sister state’s different views of divorce. A place of celebration (or dissolution, in the case of divorce) rule is a one-way ratchet though. The state that wants to retain the status quo, by not granting either marital or divorced status, will not get its determination respected by other states. It’s not clear that such a one way ratchet is entirely fair to the states that want to retain the status quo.
For those who are untroubled by that unfairness because they believe that the states that want to retain the status quo are discriminating against same sex couples, it is well to keep in mind that the Supreme Court was unwilling to so find last month. DOMA was not struck down because it discriminated against same sex couples. Three of the most liberal justices—Breyer, Ginsberg and Kagan—were unwilling to find a federal constitutional right to marry for same sex couples. (Hence, their rather curious and not well explained refusal to find standing in Perry, even though they found standing in Windsor.)
In all likelihood, Justices Breyer, Ginsberg and Kagan believe (as do I) that eventually the Supreme Court will find that the outlier states that refuse to recognize marriages between couples of the same sex are violating federal constitutional law. But until those states actually become outliers, though, while we still have significant disagreement between the states, the vast majority of which still disapprove of same sex marriage, there are worse things than a lack of uniformity. If Massachusetts and Vermont and Iowa had not thought that they, as states, had the power to define marriage on their own, in contravention of all other states, we would never have been able to make a convincing argument for overturning DOMA.
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