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Outlook: Same-Sex Legal Questions

Lea Brilmayer
Yale University Professor of International Law
Friday, February 13, 2004; 2:00 PM

The news that gay and lesbian couples will be able to apply for marriage licenses and legally marry in Massachusetts starting in May raises important and largely unresolved legal questions about the rights of states to formulate their own family law policies versus their conflicting obligations to recognize legal relationships entered into in other states. In Sunday's Outlook section, Lea Brilmayer, a Yale Univeristy legal scholar and expert on conflict of law issues, discusses the legal questions likely to arise when same-sex marriages are recognized by one state only: Same-Sex Legal Challenges.

The practical implications of these questions are enormous. Does a marriage legal in Masssachusetts guarantee their rights of a same-sex couple married there or do their rights depend on the laws of the state where they live? Can the couple get divorced in another state if their relationship breaks up? If not, then by what legal process would they divide up their property? If one spouse dies, does the other automatically inherit? Are they married or single for purposes of state tax laws? And does it matter, in answering any of these questions, whether the two were long-term residents of Massachusetts when the marriage was celebrated or whether they had gone to Massachusetts for a few days with the sole intention of evading their own state's more restrictive law?

Outlook
The Post's opinion and commentary section runs every Sunday.

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Brilmayer was online Friday, Feb. 13 at 2 p.m. ET, to answer questions about her Sunday Outlook article.

Brilmayer is the Howard Holtzmann Professor of International Law at Yale University School of Law and the author of several books on conflict of law issues.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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Bremerton, Wash.: I am concerned about my estate. I have far right wing family members whom I fear would come after my estate in the event of my death. If my partner and I travel to another state or country (Canada, for instance) to marry becaasue it is not allowed in the state where we reside, would this action make it any more difficult for certain of my family to challenge my will?

Lea Brilmayer: If you have a careful lawyer draft your will, it shouldn't concern you at all. You can give your property pretty much to anyone you want -- whether or not that person is a spouse -- so you want to have a will that makes clear that your preferences are independent of any existence or non-existence of spousal relationship. But talk to your lawyer specifically about tax implications (they may be affected) and also if you own land in a state that does not allow same-sex marriage. I can't give you legal advice here, but a good and sympathetic lawyer can protect your interests.

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Los Angeles, Calif.: Prof. Brilmayer,

Your comparison of the gay marriage debate now -- and its relationship to the full faith and credit clause -- and to interracial marriages decades ago seems apt on so many levels. I feel like we are in the middle of a Civil Rights Era for the gay community, whether we realize it or not. Do you foresee gay rights playing out, legally and socially, much like the civil rights movement in the 50's and 60's? In 20 years from now, do you think gay marriage will be national? I know there are so many differences between the struggle for African-American civil rights and the struggle for gay civil rights, but I can't help but feel inspired and hopeful by the changes wrought in just a few short decades.

Lea Brilmayer: Well, in agreeing to answer these questions I promised myself that I would stick to my area of expertise -- "conflict of laws" (interstate jurisdiction). I added the parallel about interracial marriages because that, also is a "conflict of laws" question (although one with important substantive dimensions). It's probably best for me to stay away from my own views of the legality of gay and lesbian rights, and what I predict. Best wishes.

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Oakton, Va.: I posted this long question to another columnist, but he didn't really answer me. When my wife and I got married in New Jersey, the minister who performed our ceremony signed our marriage license, issued by the state. So the state essentially delegated to our minister the authority to perform a marriage ceremony that would be recognized by the state as legally binding.

My question is this: if a state legalizes homosexual marriage, and a church denomination refuses to perform such ceremonies, doesn't that mean that the state would no longer be able to delegate to ministers/priests/pastors of that denomination the ability to perform marriage ceremonies that are recognized by the state as legally binding? Because to do so would be a violation of the Equal Protection Clause, wouldn't it? The state cannot allow anyone to exercise its authority in a discrimiantory fashion, and in the eyes of the state a church would be discriminating against gays if it refused them marriage. So the bottom line is that if you are Catholic, for instance, your church would not perform gay weddings. If you wanted to have a Catholic wedding, you would have to get married twice -- once at the church, and once at the courthouse, because the church wedding in and of itself would no longer be recognized as legally binding by the state.

That's how it's done in some places in Europe. In Germany, you can have as many church weddings as you want, but if you want your marriage to be recognized by the government, you have to have a courthouse (or whatever it is over there) wedding as well.

Lea Brilmayer: Well, you probably won't feel my answer is satisfactory either, but here goes.
The state does delegate this function to religious officials. But in doing so it doesn't pass judgment on the religious beliefs of the church/religion/synagogue/mosque in question. That's what freedom of religion is all about. There are many religions in this country that have views that are contrary to legislative policy (for example, about equality of men and women) but under our constitutional scheme, we let them be. I don't think that would change in the context of same-sex marriage...but maybe I should stick to "conflict of laws" questions about inter-state enforcement of marriage contract and stay away from the First Amendment!

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San Francisco, Calif.: I understand that there are (a few) cases where states have refused to recognize marriages performed in other states, but are there cases where the federal government has refused to recognize any marriages or divorces considered legitimate by a state?

Lea Brilmayer: Well, that depends on what you mean by "refuse to recognize." Normally, of course, the federal government doesn't give marriage licenses; you get married under state law. So there isn't usually any reason for the federal government to ask, directly, whether someone is legally married or not. And, it doesn't prosecute people for bigamy (any other reason you might want to know whether someone is already married or not). For purposes of tax laws, it usually takes what the individual says as true without asking for proof.
So, usually, the question doesn't arise.
But there are some cases where it might arise, such as if you are married to someone who works for the federal government and there is an issue whether you can continue to receive his/her pension after his/her death. A lot of these questions are highly technical and most people don't even think about it unless they coincidentally had some personal experience.
In some of these situations, federal law requires that the issue be decided by "state law" -- but the big question now, will be "which state"? Also, considering the current political climate, federal law may adopt a more restrictive definition of marriage than (say) Massachusetts. I don't have a good idea just yet what the trend will be for federal courts answering issues of federal law; the subject is just too new. But these questions are hugely important to the financial interests of the average person, and it's going to be a big, big fight.
Regarding divorce, I think the answer is "No, no federal cases yet..."

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Washington, D.C.: Let's assume gay people eventually will be able to marry, do you think it will also end the discrimination binational same-sex couples have to endure? Or would immigration rights being federal law not be touched at any level?

Lea Brilmayer: I would be surprised if American trends had much effect on inter-national marriage relations. Interestingly, the "full faith and credit" clause only applies to interstate -- not international -- decisions.

It has always been much more difficult to get enforcement of marriages from another nation than from another state. The reason is that marriage practices are much more varied around the world than they are within our fifty states. For example, there have (off and on) been questions about recognition of polygamous marriages from Islamic societies, and usually the answer has been fairly pragmatic but not (as the article says) "intellectually tidy." So, sometimes the courts decide that the marriage itself won't get full enforcement but the children are still treated as legitimate.
But it's to early to say what the effect will be internationally, unless may the countries all get together and sign a treaty.

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Washington, D.C.: What will happen to those who are able to legally wed in Massachusetts after May 2004 if the amendment to their Constitution goes through in 2006?

Lea Brilmayer: This is a question of "temporal" conflict of laws rather than "geographical" conflict of laws. I mean, the law is changing over time rather than being different in different places.
I can't think of a single case in which a marriage that was valid at one point in time was retroactively made illegal. This is particularly important because there may be children involved, and also because it upsets peoples' financial planning. We don't have any precedents, but realistically we have to find a way to protect people who rely on the existing state of the law, in good faith.

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Silver Spring, Md.: Do the same conflict of law questions apply when considering the recognition of a Canadian same-sex marriage?

Lea Brilmayer: An earlier question asked about inter-national marriages, and the answer is that "full faith and credit" applies between states and not between a state of the US and other countries.
That doesn't mean that NO credit will be given, but rather that the issue is not a question of constitutional law. The constitutional provision for "full faith and credit" doesn't apply. States can still enforce a Canadian marriage because they think that doing so is good policy. I think that any state that is prepared to recognize a same-sex marriage from another state will probably feel the same way about a marriage entered into in Canada.

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Ann Arbor, Mich.: Thank you for taking our questions. Since I'm employed by the University of Michigan Law School, I hope I can stay within the bounds of "conflict of laws."

How do States handle differences in consent law? If I can marry at 14 in Michigan, but the age of consent is 18 in Ohio, couldn't Ohio decide that my marriage is invalid?

How would this differ if gay marriage were involved?

Lea Brilmayer: You're right, it's pretty much exactly the same question.

I said in my article that DOMA is a silly law because there are already ways to handle the differences between state marriage licensing laws. The example of "age of consent" is a good one. Typically, for reasons stated in my article, the state is not constitutionally obliged to give "full faith and credit" to a marriage from another state. But typically, they do because its obviously the intelligent thing to do.

If two people marry at age 16 (in state X) but live in a state (State Y) where the age of consent is 18, then this is what I predict. If they only went to State X because they wanted to avoid the law of their own state (Y) then Y will probably feel entitled to treat their marriage as illegal. But, if they were genuinely living in X and got married under state X law -- but later moved to State Y -- then Y will probably respect their marriage because there was no evasion.
Doesn't sound too good for same-sex couples from outside Massachusetts, does it...?

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Hartford, Conn.: In the article, you write that the federal Defense of Marriage Act is "a silly law, motivated by nothing but political grandstanding." Can you explain what you mean by that?

Lea Brilmayer: Yes. I've been teaching conflict of laws for twenty five years almost, and I know that there is enough flexibility in the law of inter-state relations that a state with strong views about same-sex marriage would have a constitutional basis for refusing to recognize a same-sex union entered into in another state. This was true before DOMA was adopted.
So why was DOMA adopted? Because someone wanted to make a political statement, not because it was necessary.
And it bothers me that it was not drafted with due attention to technical problems about interstate judgments enforcement. We have two hundred years of experience with these problems, and a law like this should be drafted by people who care about the long judicial experience and are willing to learn from it.
If a technically expert person had drafted this law, we wouldn't be having all of the confusion everyone has today. But unfortunately, it was motivated more by the desire to "hit back" at same sex marriages, rather than genuine concern for states rights and diversity of opinion between states.

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Northbrook, Ill.: Is there a difference between civil union and marriage for full faith and credit purposes?

Lea Brilmayer: Actually, no, not for conflict of laws purposes, I see any differences.

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Boston, Mass.: Professor Brilmayer-

Thank you for your article. I found it very informative. I'm wondering whether there are current cases where states have denied recognition of same sex civil unions. How have they fared in these conflicts of law cases?

Lea Brilmayer: A "civil union" might take different forms. Let's say that the parties structured their legal relationship to look like a contract, maybe sort of like an anti-nuptual agreement.
There would be the same state power to inquire into and/or invalidate such an agreement as any other type of contract.

Mostly people don't realize it, but conflict of laws is so technical that it is perfectly possible to sign a contract in one state (and have it valid there)only to find it considered invalid in other states. This happens all the time; it's a mess.

I wish I could give you a quick report on the "stats" about civil unions, but I can only speak impressionistically: I would not expect civil unions to be enforceable to any greater degree than same-sex marriages themselves. And there is tremendous flexibility in the law for states to disregard "civil unions" entered into elsewhere -- REGARDLESS of DOMA.

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Washington, D.C.: Does the "full faith and credit" clause of the Constitution really apply to a marriage in Massachussetts being recognized in Arizona, for example?

Lea Brilmayer: Well, the clause does apply because the wording is "public acts, records, and judicial proceedings" of another state.

However, as my article points out, that is not the same thing as saying automatic, one hundred percent recognition. Licenses, legislation, contracts, and other legal relationships have never been given as much credit as the judicial decisions of other states. Judicial judgments (say, an award of money in a tort case) that results after a full trial on the merits are given a much greater degree of "full faith and credit" than decisions that are made outside of court.

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Pain: Ugh, "Conflict of Laws" was my lowest grade in law school. To think that, as I am a gay man, it may effect my marriage and family is truly disheartening. I thought I had escaped it!
Holland, here I come!
YEEEEEEEEEEE

Lea Brilmayer: Yeah, everyone hates conflicts (and conflicts teachers) in law school...except, of course, the students at Yale...

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Hagerstown, Md.: Will the IRS have to decide if the people getting married in San Francisco now and in Mass starting in May can file married filing joint?

Lea Brilmayer: Yes, one way or another there will have to be some kind of federal decision on the issue. It may be made by the IRS, or possibly there will have to be some kind of omnibus treatment of the matter at the Congressional level.

The states cannot decide what "married" means for federal purposes, except in those situations where federal law itself says that the question is supposed to be decided by looking at state law on the subject (and there are some situations like that).

For the short run, it seems safe to assume that the IRS may defer to definitions set forth by the state, in the state of marital domicile (where you live, that is.) But that solution is likely not to last for long.

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Arlington, Va.: Many federal entitlement programs have provide special treatment to spouses -- Social Security Widow/Widower's benefits for example. Do you anticipate that those same sex couples married during what may be a temporary window of opportunity will be covered or denied coverage for spousal benefits under federal programs.

Lea Brilmayer: To find out the answer to that, you need to check the specific entitlement program. The complicated rules and regulations of each program ought to have the answer.

There is going to be a lot of litigation over this question -- people who are denied benefits will be taking the question to court.

And, you cannot necessarily assume that the answer will be the same in every context. Some statutes refer to state law (in which case, of course, they will have to figure out which state's law). Others have definitions of things such as who counts as a "family" for purposes of benefits and this may vary from one program to another.

And we should assume -- given the high level of political interest -- that there may be unifying federal legislation, to amend entitlements programs so that the same answer is given to every different type of program.

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Cambridge, Mass.: Dear Prof. Brilmayer,

Do you think mini-DOMAs adopted by states are more constitutionally questionable than the federal DOMA? Since some explicitly deny recognition instead of the more permissive DOMA approach that permits non-recognition by states, they may deny recognition to a same sex marriage in a conflicts scenario where the forum state has no real interests with the parties because they were merely travelling through had an accident, medical emergency, etc.? In this instance, would it violate the due process requirements for application of forum law?

Would love to hear your thoughts.

Lea Brilmayer: You sound like a person with legal training...

The due process limitations on application of forum law are very limited. It would certainly be a harsh result to apply Ohio marriage law to a same-sex couple that gets in an accident while driving from Massachusetts to San Fransisco. I don't think that this would be invalidated under the Due Process Clause, but that's a hard one to call.

And Ohio probably could apply its rule on evidentiary privilege if the case happened to be brought in an Ohio court (assume for example that the spouses sue their insurance company in Ohio after an Ohio accident, and the question arises whether they can be forced to testify against each other).

I don't think the mini-Domas are less constitutional than the federal statute, because they are specifically authorized by the federal DOMA which is authorized by the Full Faith and Credit clause.

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Washington, D.C.: Following on the "What will happen if these marriages are invalidated in several years" question, what will happen to Mass same-sex couples where one spouse has passed away intestate? Will the post-amendment heirs be able to sue to recover what the former-spouse inherited under Mass. law?

All of this sounds very much like trying to unscramble an egg. What a sad mess it will be for all involved.

Lea Brilmayer: Don't assume that that Massachusetts law will govern if one spouse passes away. If there is real property located outside Massachusetts (eg. Ohio) then there may have to be additional proceedings there -- I'd predict Ohio law would apply.
But setting that aside, I assume that Massachusetts would honor a marriage that was legal at the time that it was entered into. This is particularly true given that Massachusetts seems committed to recognizing civil unions -- would it make any sense to try retroactively to unravel marriages that took place during the legal interval?

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Dallas, Tex.: Hello! Thanks for taking questions today.

Webster's defines marriage as "the institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family." If same-sex couples are permitted to "marry," doesn't this go against or change the meaning of the word all together? Will this word and its current meaning then need to be changed to a sexuality-neutral term or definition to accommodate "married" homosexuals? What are the legal ramifications of changing the tradition lexicon in this way?

In addition, can you explain the rationale behind invoking equality in this issue? I mean, homosexuals are not currently prohibited from marrying -- they can currently marry people of the opposite sex.

Lea Brilmayer: Well, Webster's is not a recognized legal authority, for one thing. I prefer the Constitution, myself...

But I've promised myself to try to stick to conflict of laws question.

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Harrisburg, Pa.: A marriage in one state is recognized in all states, if I understand the law correctly. Is this a requirement under Federal law or Federal court decisions? There is legislation in Pennsylvania that Pennsylvania would not recognize a gay marriage license from another state. Would such language be legal or would it violate some Federal law?

Lea Brilmayer: Sort of. It has never been completely true that marriages in one state were automatically recognized in others. For centuries we have had problems about whether first cousins can marry; how old people have to be to get married; whether polygamy is legal, etc. And these differences in state laws have always raised the question -- what if two people from State X go to State Y to get married, and then go home. Does their home-state have to recognize their "marriage" elsewhere?
The answer has not always been "yes" and in particular the Constitution does not require an affirmative answer.
You ask about the source of law. It is a blend of Article IV of the Constitution; federal statute (a 200-year old version of the current rules); and most importantly state legislation and state court practice.
Of course, the US Constitution has the highest priority, in cases where it actually provides an answer. Federal law comes next, with state judicial decisions filling in the rest.
The Pennsylvania law you mention is authorized by federal statute, but the constitutional questions about it have not yet been answered.

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Antigo, Wis.: Why is the rule of separation of church and state not enforced in regards to same-sex marriage, when the context of marriage being defined as a union between one man and one woman is a religious belief and does not consider the equal rights of American citizens to seek equal protection under the law.

Lea Brilmayer: I'm going to have to duck this one -- I promised myself to stick to the topic I know best, which is jurisdiction and interstate enforcement of judgments.

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Virginia: My church is studying issues relating to homosexuality and clergy, and the issue of same-sex marriages.

I have warned the group studying the issue that we could be trumped by society and governmental changes if people's same-sex unions/marriages are recognized under law. Am I correct?

Lea Brilmayer: This gets us into the First Amendment, which is definitely not my specialty. You should consult an expert.

But keep in mind that there are things that religious groups can do in furtherance of their own beliefs that would not be legal if they were done by officials of the state. There are federal laws about sex discrimination in employment, right? But we still have objections in many religious groups to ordaining women.

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Denver, Colo.: As you may know, we have a legislator here who is co-sponsoring the movement to have a constitutional amendment prohibiting gay marriages. She is just out of control. One of their arguments is that it weakens "traditional" marriages, and I have yet to see any compelling evidence of this. What is their argument -- how does it "weaken" my marriage to have gay couples marry? I am just appalled and ashamed of the behavior of these closed-minded bigots. To me, it's hatred and fear behind this. Why are they so afraid, and again, HOW does this affect my (heterosexual) marriage?

Lea Brilmayer: Hmmm...can't give an opinion on your marriage...

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Bethesda, Md.: To what extent does the Massachusetts decision on same-sex unions provide a precedent in possible litigation in other states?

Lea Brilmayer: This is really a question about constitutional law, but briefly--
States are often influenced in such matters by what other states do but they don't have to follow one another's precedents about interpretation of a state constitution.

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Los Angeles, Calif.: Several states have common law marriages. Will these be the next to be targeted?

Lea Brilmayer: First, you would have to have precedents in the state in question about the right to have a same-sex common law marriage. If a state decided that the answer was yes, then you would have some of the same conflict of laws questions arising as we are now seeing in the Massachusetts case.

But it would work out differently, I think, in the case of common law marriages. Because the marriage isn't licensed in the same way, I would expect a weaker argument that the common law marriage would be entitled to "full faith and credit."

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Washington, D.C.: My partner and I are having a wedding in Massachussetts this summer (planned it before the ruling) and have been going through a yo yo of emotions about it. Thrilled in November to disappointed about backlash to thrilled again last week to disappointed that out-of-state residents are likely going to be prohibited from getting licenses. If we live in a state that does not have a DOMA or a law explicitly prohibiting same-sex marriage, why couldn't we go to Massachussetts to get married?

Lea Brilmayer: Expect to find much more resistance if you go to Massachusetts specifically to get married -- to "evade" your home state law -- than if you already live in Massachusetts. That is to say, you will have a harder time convincing other states to recognize it.

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Washington, D.C.: It seems bizarre to me that a couple can marry in one state, only to move to another and be treated as if they are just two people living together. Would a state be violating equal protection or due process by simply declaring that a legal arrangement from one state is no longer valid in another simply because both members of the couple are of the same sex?

Lea Brilmayer: The legal argument you want to make would be better explained as "full faith and credit", but the federal DOMA seems to allow just that.

It is bizarre. But your rights also change as you fly across country in an airplane.

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Chevy Chase, Md.: Professor:

Maryland (and others) allows first cousins to marry. Under the full faith and credit clause, other states (including states that don't allow such marriages for whatever reasons) have to accept that. Is this a potential equal protection challenge to Defense of Marriage act ( first cousins can marry and have their marriage recognized, but gays and lesbians can't?)

Lea Brilmayer: Well, actually, other states are not constitutionally obliged to recognize first cousin marriage, under current law.

That's essentially why states can take the position that they do for same-sex marriage.

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Alexandria, Va.: Doesn't the Contract Clause prohibit states from impeding the ability of two parties to contract freely with each other unless there exists a compelling state interest? What is the compelling state interest in preventing gay marriage?

Lea Brilmayer: No, the Contract Clause really deals with interference with contracts that have already been entered into. It says almost nothing about prohibiting formation of certain sorts of contracts.

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