Date: Mon, 19 Jun 1995 21:10:58 -0400 From: listserv@gibbs.oit.unc.edu Content-Length: 155528 X-Lines: 2549 Archive GAYLAW, file wolfson. Part 1/1, total size 155320 bytes: ------------------------------ Cut here ------------------------------ Fighting to Win and Keep the Freedom to Marry: The Legal, Political, and Cultural Challenges Ahead Evan Wolfson1 In 1993, the Hawaii Supreme Court handed down a historic decision opening the door to equal marriage rights for lesbians and gay men.2 The court case is fully on track, with proceedings on remand now scheduled for September. The lawyers for the lesbian and gay couples (Honolulu attorney Daniel R. Foley of Partington & Foley and Evan Wolfson of Lambda Legal Defense & Education Fund, "Lambda") are hopeful that with a final ruling from the state supreme court sometime in 1996-97, lesbians and gay men will have won the right to marry, with all its myriad benefits, rights, and responsibilities.3 The question then will be: will we be able to keep that fundamental right, or will we see it taken away in a political and legal backlash? The answer may well depend on the work we all have done between now and then. The cultural, political, and legal battles will be fought out both on the national level and state-by-state. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 259--------------------------------- Lambda has created a Marriage Project to help coordinate the legal and political tasks that we all must undertake at this critical turning point in our movement's history. The struggle to defend and keep the right to marry after we win it, even more than the recent battles over "gays in the military," will define the position and public understanding of gay people for years to come. It will touch every issue and every state. Together with other organizations, The Marriage Project has identified the tasks at hand, and has prepared materials to assist lesbians, gay men, our local and national organizations, and our allies, in doing the tasks that each one is best equipped to handle. This is an immense challenge, but also an opportunity to do the kind of public education and grassroots organizing we must undertake if we are to get out front and be prepared. What follows are some materials from Lambda's Marriage Project to help get you up to date and able to join the fight. Some of the materials address the legal terrain we will be battling on, others are aimed at facilitating political organizing and engaging the public on the freedom to marry and gay people. The six documents that follow below, listed in their order of appearance, should help organize our legal, political, and cultural efforts to ensure that sexual minorities obtain and retain equal marriage rights in the years ahead. Critical to the coalition building and public education are vehicles such as the Marriage Resolution, described in both the "Briefing" and the "Questions & Answers" documents. The resolution is short and simple: Because marriage is a fundamental right under our Constitution, and because the Constitution guarantees equal protection of the law, RESOLVED, the state should permit gay and lesbian couples to marry and share fully and equally in the rights and responsibilities of marriage. The "Briefing" provides an overview of the tasks ahead while the "Questions & Answers" provides useful talking points on the most common questions people have about marriage and gay people, enabling anyone to bring the Resolution before an organization. The two therefore should be used in tandem. By reading the Briefing and the Questions & Answers, and then taking the Resolution to organizations -- gay and non-gay, first friendly and then less-friendly -- anybody can help to: (1) promote the necessary discussion and consideration of our equal marriage rights among gay and non-gay people (and organizations), (2) collect signatories as evidence of a growing coalition (Lambda to be a central repository,, with list to be shared), and (3) give people a tool and a task in building that coalition and approaching others. Finally, to give an overview of the legal battles ahead -- - not just to win the freedom to marry, but to assure recognition for same-sex couples' lawful marriages as they travel or return home to another state -- we enclose the "Checklist" (a step-by-- step guide to research on state-by-state recognition issues), as well as the "Background" and the "Summary" (two start-up discussions of the conflicts-of-laws and constitutional issues that will arise). To complement these three documents the Federal Issues Outline additionally identifies federal law questions that will need to be addressed and resolved to ensure coast-to-coast recognition of the right to marry for sexual minorities. Lawyers who wish to join this state-by-state research effort, or assist in researching analogous federal questions, should contact Lambda's Marriage Project Legal Clearinghouse.4 It is impossible to over-emphasize the urgency of getting to work now. Already, in the past few months, radical right legislators have introduced bills in the legislatures of South Dakota, Utah and Alaska purporting to render "void" any marriages between members of the same sex -- measures intended not only to thwart recognition of our marriages down the road, but also to both frame and squelch the issue before we have had a chance to do the necessary ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 260--------------------------------- public education and organizing.5 We won round one in South Dakota,6 lost for now in Utah,7 and are still fighting in Alaska. We cannot allow the enemies of lesbian and gay families to catch us off guard in other states. Political and public education work must accompany the legal work that is driving the timing and inevitability of these momentous battles. Please read the following materials to see how you can help with the legal, political, and cultural struggles that we face. And then join us in this historic moment in our continuing fight for full equality and basic human freedom by contacting the Marriage Project and contributing whatever efforts you can to this endeavor. ENDNOTES 1. Senior Staff Attorney at Lambda Legal Defense & Education Fund, 666 Broadway, 12th Floor, New York, NY 10012 (212-995-8585, 212-995-2306-fax); J.D. Harvard 1983; B.A. Yale 1978; Adjunct Professor, Columbia School of Law. Evan Wolfson is also co- counsel in Baehr v. Lewin 852 P.2d 440, 75 (Haw. 1993), and Director of Lambda's Marriage Project, which encourages and coordinates legal and political work nationwide to win and keep gay people's freedom to marry. 2. Baehr v. Lewin, 852 P.2d 44, 75 (Haw. 1993), on remand to lower court. 3. See, generally, Evan Wolfson, "Crossing The Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the IntraCommunity Critique," 21 N.Y.U. Rev. L. & Soc. change ___ (1995) (forthcoming). 4. See supra note 1 for information on how to contact the Marriage Project. 5. See David W. Dunlap, "Some States Trying to Stop Gay Marriages Before They Start," N.Y. Times, Mar. 15, 1995, p. A18, col.1. 6. Peter Freiberg,, "Gays win in South Dakota, lose in Utah," Wash. Blade, Mar. 3, 1993, p.1, col.1. 7. See "Recognition of Marriages," H.B. 366, Gen. Sess. (1995). See "Utah Won't Accept Same-Sex Marriages," N.Y. Times, Mar. 3, 1995, p. B7, col.4.; Tony Semarad, "Ban on Gay Marriages to be Annulled? Passage May Have Come Too Late to Be Valid," Salt Lake Tribune, p. A1. See also Freiberg at 26. TO: Equal Rights Advocates FROM: Evan Wolfson, Director, The Marriage Project 212-995-8986 (work), 212-995-2306 (fax) RE: BRIEFING: Winning and Keeping Equal Marriage Rights For Lesbians and Gay Men -- What Lies Ahead After Hawaii, What Tasks Must We Begin Now? DATE: May 28, 1995 Thank you for the opportunity to brief you on the status of Lambda's Hawaii marriage case, and the challenges, opportunities, and work that lie ahead for our equality movement. Throughout the country, we must begin preparing now to defend the right to marry, which we are on the verge of winning. Lambda looks forward to working with you, others in our movement, and our allies, and is available as a resource to assist you and others, in organizing and preparing at this historic moment in our equal rights struggle. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 261--------------------------------- Update on the Hawaii Marriage Case In May 1993, the Hawaii Supreme Court ruled that the State's refusal to issue marriage licenses to same-sex couples under the Hawaii marriage law presumptively violates the state constitutional guarantee of equal protection. Baehr v. Lewin, 852 P.2d 44, 58, 68 (Haw. 1993). The Court held that the "different-sex restriction" on marital choice constitutes unconstitutional sex discrimination, much as the analogous "same- race restriction" prevalent just a generation ago constituted unconstitutional discrimination based on race.1 Unless the State can show a "compelling" reason why it should be allowed to continue discriminating, it will have to stop. The case is now back in the trial court, where any justifications the State comes up with must undergo strict-scrutiny review. Id. at 74-75. The State's attorneys have alleged a variety of compelling interests and claimed that the means furthering those interests are narrowly tailored.2 My co-counsel, Daniel R. Foley of Honolulu, and I are hopeful that we will be able to defeat these allegations on remand. The Hawaii Supreme Court is likely to follow through on its earlier holding, and will probably thus uphold a trial court decision ending the "different-sex restriction" on marriage. Equal marriage rights for same-sex couples would then be a reality in the Nation's fiftieth state.3 Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory.4 The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal nationwide recognition of their marriage unions. Despite a powerful cluster of expectations, logistics, rights, constitutional obligations, and federalist imperatives, there will likely be a backlash at both the federal and state level, possibly in almost every state. These questions are likely to arise: Will these people's validly-contracted marriages be recognized by their home states and the federal government, and will the benefits and responsibilities that marriage entails be available and enforceable in other jurisdictions for people married in Hawaii? We at Lambda believe that the correct answer to these questions is "Yes." To support that answer, common sense and people's general intuitions both back us up and and are there for us to tap into: marriage is marriage; it's a fundamental right; if you're married, you're married; this is one country, and you don't get a marriage visa when you cross a state border. However, we also know that, as always, lesbians and gay men will have to fight against the tendency of some in politics and the judiciary to create a "gay exception" to even the clearest principle of constitutional law or fairness. Throughout the country, we must now undertake the public education, political organizing, and just plain asking people and groups for support, while preparing, too, for the litigation and political backlash that will follow. Legal Tasks Ahead Lambda has prepared a summary of the legal issues and theories that will be invoked regarding nationwide recognition of marriages validly contracted in Hawaii, as well as a bibliography of articles on various aspects of equal marriage rights. Identifying the legal tasks ahead, we have also already begun work to:  develop networks of attorneys, law professors, and law students to research on a state-by-state basis the legal arguments available against backlash and in favor of recognition (working, i.e., through the ABA, NLGLA)  organize such research by developing checklist of issues and legal areas for analysis  collect materials in a national clearinghouse for future battles  promote, develop, and publish law review articles and spin-offs to mainstream idea of equal marriage rights, recognition, and related constitutional and federalist positions  enlist legal scholars, former law clerks, etc. to do this mainstreaming work and reach judges through conferences, publications, trainings, and create a "buzz" ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 262---------------------------------  prepare materials for legislatures, ranging from briefings to explanatory materials to draft legislation directly on issue and on related issues, i.e., marriage validation. Political Tasks Ahead At the same time, it is vital that all of us, and our allies, begin work now on the political tasks (i.e., public education, national and local organizing) that will shape the legal outcome. On both the national and local levels, all of us must begin now to:  send wake-up calls to our national and local community organizations, and our allies (through, for example, conferences, ad hoc forums, contacts, and briefings such as this)  create a non-defeatist sense of entitlement and expectation, and a climate of receptivity and inevitability (tempered with a commitment to the long haul) -- tap into power of marriage as issue and personal desire even for those less politicized people in our communities  prepare and begin public education campaigns (in conjunction with appropriate groups and professionals)  develop successful "messages" (with polling and p.r. professionals) on the themes of marriage, lesbian and gay families, equal rights, fairness, people's expectations for their partners and children, and federalism -- these are themes that work for us, and a chance to show who we are, frame the battle as we want, address our issues, and present our lives and love affirmatively -- tap into more comfortable, genuine rhetoric for mainstream  marshal evocative stories of how being denied the right to marry affects real people  build a coalition (after developing lists of targets, teams for visiting, and talking points, educate and conduct repeated meetings with potential allies, i.e., progressive organizations, asking for their consideration of the issue over the next several months, and either now or eventually, for their support and endorsement of a resolution in favor of Baehr, lesbian and gay families, and equality)  conduct such repeated meetings with other opinion- shapers: community leaders, churches and religious groups, professional organizations (i.e., social workers, sociologists, psychologists, etc.)  initiate such repeated meetings with editorial boards (following advance prep work through networks, with briefing packets and explanatory memoranda)  prepare such briefing packets, memoranda, issue sheets, organizing manuals, talking points  promote and publish op-ed pieces, features, etc.  organize public forums on topic  organize and conduct trainings to assist local groups in doing this political, educational, and "mainstreaming" work. Although there are many challenges and a backlash ahead, there are also terrific opportunities for organizing and for taking our movement to a new and positive plane. Most Americans, gay or non-gay, have not yet had to give real thought to the validity or meaning of same-sex couples' marriages, or of gay people's being denied the equal right to marry. While the initial reaction of many will range from incredulous to hostile, we also have much going for us: the fairness and rightness of respecting family relationships and committed, caring unions; the ability to present these stories in a compelling, positive, warm, and sympathetic manner (asking people how they would resolve the Catch-22 created by a denial of the right to marry); the logic, indeed, imperative of not requiring people to choose between marriage and movement from state to state; the sense that marriage is marriage, and this is one country in which if you are married, you are married; and a number of sound constitutional, statutory, common law, and fairness arguments. Consider two success stories so far: (1) On August 6, 1994, the Japanese American Citizens League, the nation's largest Asian-American civil rights organization, voted at the national level, over internal opposition, to support equal marriage rights and the decision in Baehr v. Lewin. This is an inspiring start toward winning mainstream endorsement of equal ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 263--------------------------------- marriage rights and building the necessary coalition and educational foundation, and an example of what we must do now vis-a-vis other allies. (2) After some preliminary briefings and education, U.S. Senator Slade Gorton of Washington State declared his opposition to federal interference with equal marriage rights, including by constitutional amendment. He based his position not on a support for our equal right to marry in itself, but rather on a belief that it is not appropriate to interject the Congress into a matter traditionally left to the States (and the traditional and constitutional respect for marriages performed out of state). We must begin asking people and groups -- beginning with our own communities and then our allies, later including other opinion shapers -- for their support. The very next step has to be bringing ourselves, our local and national community groups, and then our allies up to speed on what will follow a win in Hawaii, and on these legal and political tasks that we must undertake now. Lambda has begun such briefings and urges you to organize others, so that we can avoid the unpreparedness that was apparent in the 1993 battle over our right to serve in the military. This time, we have some lead time in which to prepare. Then we need to get as many organizations as possible to endorse this short and simple Marriage Resolution: The Marriage Resolution Because marriage is a fundamental right under our Constitution, and because the Constitution guarantees equal protection of the law, RESOLVED, the State should permit gay and lesbian couples to marry and share fully and equally in the rights and responsibilities of marriage. The Marriage Resolution serves as a vehicle for: (1) promoting the necessary discussion and consideration of our equal marriage rights among gay and non-gay people (and organizations), (2) collecting signatories as evidence of a growing coalition (Lambda to be a central repository, with list to be shared), and (3) giving people a tool and a task in building that coalition and approaching others. Use the Resolution, contact us to sign up your group, and get others on board! As activists and committed organizers, you and your organizations have a critical role in preparing the groundwork NOW for when this issue comes to your home state, as it will. This landmark civil rights battle cannot be left just to lawyers, nor is this is an issue only for Hawaii. Every state, every gay person, every person who cares about equality will be called upon to defend the rights we will have won. Lambda is available to assist you in your leadership at this historic juncture. Please feel free to contact the Lambda Marriage Project for materials or more information, to share your thoughts and plans, and to join with us and others in this work. Some of the Materials Available from Lambda:  Advocate article, 7/26/94, a "wake-up call"  Bibliography of marriage resources  Lambda memo on legal issues regarding nationwide recognition  Marriage Resolution, Q&A, and "talking points" ENDNOTES 1. See Loving v. Virginia, 388 U.S. 1 (1967) ("same-race restriction on choice of a marriage partner violates U.S. Constitution, both as denial of equal protection and as intrusion on ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 264--------------------------------- fundamental right to marry). 2. See, e.g., 1994 Haw. Sess. Laws 217, 1994 Hi. H.B. 2312 (June 1994) (legislature asserts that marriage statute "intended to foster and protect the propagation of the human race through male-female marriages"). Contrary to some press reports, this law is unlikely to impede the progress of the litigation, which is very much still on track. 3. Because the case involves state, not federal, constitutional questions, the Hawaii Supreme Court has the final word. There can be no appeal in Baehr to the U.S. Supreme Court, nor can the legislature alter the outcome (notwithstanding legislation such as that it adopted in June 1994 reiterating its desire to discriminate), short of a highly unlikely constitutional amendment. 4. As among non-gay Americans, there is a vast demand among lesbians and gay men for the equal right to choose whether and whom to marry. See, e.g., Evan Wolfson, "Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the Intra- Community Critique," 21 N.Y.U. Rev. of L. & Soc. Change (1995) (forthcoming). Marriage brings with it a host of legal and social benefits and protections otherwise largely unattainable. And even those in our movement who may not have chosen to fight to win this right are undoubtedly not willing to see us lose it -- with all the potential damage such a setback would entail across a range of lesbian and gay concerns. QUESTIONS & ANSWERS ABOUT THE MARRIAGE RESOLUTION Thanks to a historic court case now underway in Hawaii, lesbians and gay men may be on the verge of winning the right to marry -- a basic right still denied them in all fifty states. In the past, other people were refused the right to marry -- for example, because of their race -- until the law was changed to end this denial of a basic human right. Like non-gay people, gay people need and want the right to marry. Even once gay men and lesbians finally win this fundamental right -- a right central to true equality as well as a long list of important benefits -- the battle will not be over. There may be a backlash to try to take away the right to marry, or to say that same-sex couples married in Hawaii are not married in other states. The battle may be a long one, with victories and setbacks over several years. To prepare for the struggle, we must gather true supporters of gay people's equal rights, and ask them to sign on to: The Marriage Resolution Because marriage is a fundamental right under our Constitution, and because the Constitution guarantees equal protection of the law, RESOLVED, the State should permit gay and lesbian couples to marry and share fully and equally in the rights and responsibilities of marriage. Here are the answers to some questions people might have: Why do we need "gay marriage"? We don't; we need marriage. The term "gay marriage" implies that same-sex couples are asking for rights or privileges that married couples do not have. What we are asking for is our equal right to marry the one we love and care for, just as non-gay Americans do. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 265--------------------------------- Isn't marriage traditionally defined as a union between men and women? Yes. But it is not right for the government to prevent gay people from sharing the rights and responsibilities of marriage. What should matter is not the gender or race of those marrying, but their commitment. After all, at different times marriages were also "traditionally" defined as only unions between people of the same race or religion, and as unions in which wives were the property of their husbands. Those "traditional" elements of marriage changed to reflect American constitutional values and everyone's basic right to equality. Do gay people really need the right to marry? Absolutely. Many same-sex couples share the same responsibilities as married couples. However, nowhere in the United States do they receive the same recognition or benefits that married couples do. In fact, they face tremendous discrimination, and are treated as second-class citizens. For example, lesbians and gay men who have been their partner's primary caretaker are often turned away at the hospital when there's been an accident or illness; refused "family" health coverage, taxation, and inheritance rights; and even denied protection in case the relationship ends. Sometimes they see their children taken away, or their role as parents denied! Regardless of the fact that they have taken responsibility for their partner's well-being, both economically and emotionally, their legal status is, at best, that of a roommate. Finally, lesbians and gay men are denied the emotional, social, and even religious meaning that marriage has for many. What about domestic partnership? In certain cities, municipalities, and companies, there is limited recognition of relationships between unmarried partners, including same-sex couples. The benefits and responsibilities of such "domestic partnerships" vary considerably. However, no domestic partnership plan can confer the same set of benefits and responsibilities that marriage does. Domestic partnership is of limited help to some unmarried couples, but is no substitute for the equal right to marry. What's happening in Hawaii? The case began in 1991, when the state clerk refused marriage licenses to three couples (two lesbian couples, one gay male couple). In 1993, the state Supreme Court ruled that the refusal violated the state Constitution, which guarantees equality and prohibits sex discrimination. The case is now back in the lower court, where, unless the state can come up with a "compelling" reason for discriminating, it must stop. The state legislature passed a law again trying to restrict marriage, but gave only one reason (procreation) for the discrimination. Because this is not a good reason for refusing to allow these couples to marry, lawyers are optimistic. But this equal rights battle cannot be left just to lawyers, nor is it just about Hawaii. Isn't marriage really about procreation? No. Many non-gay people marry, and cannot or do not have children. And many gay men and lesbians do have children, but are so far denied the right to raise those children within a marital relationship. Legally and in reality, marriage is best understood as a relationship of emotional and financial interdependence between two people who make a public commitment. Many of them -- gay or non-gay -- wish to be parents; many others do not. The choice belongs to the couple, not the state. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 266--------------------------------- Do all lesbians and gay men want the right to marry? No, gay people are as diverse as non-gay people; many would not choose to marry even if they could. However, virtually all gay people want the right to decide for themselves whether and whom to marry, just as non-gay people do. Don't some religions oppose lesbian and gay relationships? Yes, but this is not a fight to force any religious institution to perform or extend religious recognition to any marriages it doesn't want to. This is about the right to the civil marriage license issued by the state. Just as the state should not interfere with religious ceremonies one way or the other, so religious groups should not control who gets a civil marriage license. Of course, many lesbians and gay men are active in their respective religions, many of which do recognize and support their loving unions and commitments. Isn't this a bad time to fight for the right to marry? To some, there is never a good time to fight any battle for equal rights. But here we have no choice. In this particular battle, the timeline centers on the lawsuit. When and if the Hawaii Supreme Court hands down a final ruling affirming the right of same-sex couples to marry, many people in Hawaii and elsewhere will get married there. When they return home to other states, the nationwide validity of their legally contracted marriages may be challenged. Although there are powerful legal and practical reasons why a couple's lawful marriage in one state must be recognized throughout the country (this is, after all, one country, and if you're married, you're married), there will undoubtedly be an effort in some states and possible in the federal government to block this recognition. As always in the struggle for human rights, the outcome will depend in part on how well those committed to equal rights have prepared for the state- by-state and national legal and political battles, beginning now. Recall that just a generation ago, a similar "same-race" restriction was in place, and state governments denied interracial couples the right to marry. Under slavery, African- Americans were not even permitted to marry at all, which was one of the ways they were legally dehumanized! Today we realize that this was wrong, and the choice of a marriage partner belongs to each man or woman, not the state. The same is true for lesbians and gay men. It's a matter of basic fairness, social responsibility, civic equality, and human dignity. How can I help? By getting the word out, educating the public about gay people's right to marry, and becoming part of a broad-based coalition of individuals and groups that support equal marriage rights. Make sure that any organization you belong to or can reach out to, sign on to the Marriage Resolution. By endorsing the Marriage Resolution, you are telling politicians, judges, and others that it is time to end this discrimination against lesbians and gay men throughout the United States. Once your organization(s) have endorsed this resolution, please let us know immediately by mail, phone, or fax. Then circulate it to others. Contact us at: The Marriage Project Lambda Legal Defense & Education Fund 666 Broadway, 12th Floor New York, NY 10012 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 267--------------------------------- 212-995-8585 212-995-2306-faxTO: Attorneys, Academics, and Students FROM: Evan Wolfson, Lambda Legal Defense & Education Fund Jeffrey Gibson, ABA Section on Individual Rights and Responsibilities, Chair Lesbian & Gay Committee Barbara Cox, California Western School of Law DATE: January 22, 1995 RE: CHECKLIST for State-by-State Legal Research on the Nationwide Recognition of Same-Sex Couples' Validly Contracted Marriages Lambda Legal Defense & Education Fund ("Lambda") and the Section on Individual Rights and Responsibilities of the American Bar Association, together with Gay & Lesbian Advocates & Defenders and other organizations, have formed a network of attorneys to research the critical constitutional and legal questions that may arise following what would be a landmark victory in Baehr v. Lewin, the Hawaii equal marriage rights case. We are seeking your participation in this state-by-state project. If you are willing to help, please fill out the accompanying form and mail or fax it to Lambda today. We will then contact you to put you in touch with others researching in the same area. What we need from you is research in your state on the following questions. Please try to be thorough, creative, and exhaustive in providing this information. Lambda's Marriage Project Legal Clearinghouse plans to compile and distribute the work we do together as part of a manual for attorneys around the country. We would like you to submit your materials by June 1, 1995. Please research the questions set forth in this checklist (to get you started, see the accompanying memo entitled "Background materials..."). When writing up your research and appending cases or other materials, please indicate which question you are answering. This will help us in being accurate when compiling information gathered from attorneys around the country. QUESTIONS: This checklist addresses first choice of law questions and then full faith and credit (and other constitutional) questions. CHOICE OF LAW APPROACHES Marriage Validation Statutes: 1. Does your state have a marriage validation statute? If so, include a copy of the text of the statute. If your state has a marriage validation statute, please review the cases under that statute and answer questions 2-5. If not, proceed to question 6. 2. Have the courts used the marriage validation statute to recognize an out-of-state ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 268--------------------------------- marriage? If so: (a) what types of out-of-state marriages were validated, (b) what was the court's reasoning for applying the validation statute to the marriage, and (c) how could we use the court's reasoning to argue that it should use the validation statute to recognize an out-of-state marriage by a same-sex couple? Be specific. 3. Under what circumstances, if any, have any courts used a "public policy exception" to refuse to apply the marriage validation statute? Be specific in detailing the specific public policy exception used and whether there is any likelihood that a court would use that same public policy to refuse to apply the marriage validation statute in cases of an out-of-state marriage of same-sex couples. Also indicate whether the use of the public policy has been critiqued in the courts or in local law reviews or journals. 4. If public policy exceptions have been used to refuse validation, have any courts used the marriage validation statute to recognize an out-of-state marriage despite the existence of public policy exceptions? Be specific in detailing the court's reasons for not using the public policy exception and recognizing the out-of-state marriage under the validation statute. 5. Determine whether the marriage validation statute in your state was adopted as a segment of the Uniform Marriage and Divorce Act or any other interstate arrangement. Be specific in indicating the uniform act or interstate arrangement. Marriage Evasion Statutes: 6. Does your state have a marriage evasion statute? If so, include a copy of the text of the statute. If your state has a marriage evasion statute, please review any prior cases under that statute and answer questions 7-10. If not, proceed to question 11. 7. Have the courts required that an out-of-state marriage must be statutorily prohibited within the state in order to be invalid under the evasion statute? If so, explain what the specific statutory prohibition was, and how the courts used that prohibition to find a violation of the marriage evasion statute. Be specific. 8. Have any courts recognized an out-of-state marriage by state domiciliaries that was statutorily prohibited within the state notwithstanding the evasion statute? If so, explain how the marriage was statutorily prohibited and why the court found that it did not violate the evasion statute. Be specific. 9. Have any courts found that an out-of-state marriage violated the marriage evasion statute even if the marriage was not specifically prohibited within the state by statute? If so, what type of marriage was involved and on what basis did the court find that the marriage was invalid under the evasion statute? Be specific. 10. If any courts have found that an out-of-state marriage violated the marriage evasion statute, did it do so on public policy grounds, rather than or in addition to statutory prohibition? If so, what were the public policy grounds and why did the court find that the marriage violated that public policy? Also indicate whether the use of the public policy has been critiqued in the courts or in local law reviews or journals. Be specific. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 269--------------------------------- General Public Policy Issues: Because we have to be prepared to address "public policy" grounds that might be alleged to support or oppose recognition of out-of-state marriages by same-sex couples, the following broad public policy questions must be answered. Public policy concerns may arise at any time in the choice-of-law arena. 11. List any statutes or case precedent that might be used to support an argument that marriages by same-sex couples would violate state public policy (e.g. "sodomy" statutes, prohibition of lesbian or gay adoption, cases denying benefits to same-sex couple or refusing to permit co-parent adoption or visitation, etc.) If statutes exist, include a copy of the text of the statute. If precedent exists, include a brief summary of the case, an explanation of the public policy, and how you think that it might be used to argue that marriage by same-sex couples violates public policy. 12. List any statutes or case precedent that might be used to support an argument that marriage by same-sex couples would not violate state public policy (e.g. anti-discrimination or "domestic partnership" statutes or policies, cases determining that "sodomy" statutes are unconstitutional, cases permitting co- parent adoption or visitation, etc.) If statutes exist, include a copy of the text of the statute. If precedent exists, include a brief summary of the case, an explanation of the public policy, and how you think that it might be used to argue that marriage by same-sex couples does not violate public policy. Recognition of Out-of-State Marriages: Most states have handled cases on whether to recognize out- of-state marriages. In this question, do not consider cases decided under choice-of-law theory. Instead, focus on cases that do not specify choice-of-law theory but use public policy or other grounds for deciding whether to recognize the marriage. Save the choice-of-law cases for the next section. 13. Has your state had any cases deciding whether to recognize an out-of-state marriage by state domiciliaries? If so: (a) list those cases, (b) include the type of out-of-state marriage that was involved, (c) why was there a question of whether it should be recognized in that state, and (d) provide an explanation of the court's reasoning for recognizing or refusing to recognize the out-of-state marriage. Be specific. 14. If your state prohibited interracial marriages, did any cases (whether majority, concurring, or dissenting opinions) discuss the racism inherent in the prohibition? List those cases (and any others of particular interest), and provide the court's reasoning and an explanation of how that reasoning challenges the inherent racism or denies that racism is behind the prohibition. Be specific. Have any commentators or local historians discussed the state's history regarding interracial marriage and how the law of the state was skewed by racism regarding marriage and family relationships? Discuss. Choice-of-Law Theory Cases: ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 270--------------------------------- 15. In deciding out-of-state marriage recognition cases, has your court explicitly used a choice-of-law theory (e.g. First Restatement, etc.) in deciding whether to recognize the marriage? If so, what choice-of-law theory did it use and how did it use that theory to determine whether to validate the out-of-state marriage? Be specific. 16. If your state has not had a marriage case decided by choice-of-law theory, what choice-of-law theory does it use for other conflicts cases? Primarily, these cases would be torts or contracts cases, although numerous other types are possible. Be specific in stating what choice-of-law theory your state uses. It is possible that your state uses one or more theories. If it does, be sure to indicate which theory it uses for which cases. 17. In applying that choice-of-law theory, how does your state court determine when to use its own law or when to use the law of the other state? In other words, using the cases, explain how the court applied its choice-of-law theory and how those cases might be used to support or oppose recognition of an out- of-state marriage by same-sex couples. Be specific. 18. If your courts have used any public policy grounds in deciding choice-of-law cases, how have they used public policy to decide which law to apply, how has the use of public policy been critiqued by the courts, and how has it been critiqued in local law reviews or journals? Be specific. FULL FAITH AND CREDIT (AND OTHER CONSTITUTIONAL) APPROACHES Advocates need to be prepared to address both the choice-of- law issues and the constitutional Full Faith and Credit issues that arise in marriage recognition cases. Research on a national basis is being done on Full Faith and Credit and other constitutional theories (i.e., right to travel, equal protection, fundamental right to marry). What we need from you in particular is research on when courts in your state have used the Full Faith and Credit clause (or other federalism-related doctrines) for cases arising in your state. 19. How have your state courts or the federal courts for your state defined (a) public acts, (b) records, or (c) judicial proceedings in Full Faith and Credit cases? How can these cases be used to support or oppose an argument that marriage fits within those definitions and thus an out-of-state marriage by same-sex couples should be protected under the Full Faith and Credit? Be specific. 20. Have any courts used the Full Faith and Credit clause in deciding whether to recognize out-of-state marriages or whether to refuse to recognize out-of-state marriages? If so: (a) indicate the kinds of marriages the court considered, (b) its reasoning for finding that the Full Faith and Credit clause controlled the issue, and (c) its reasoning for providing constitutional protection or refusing to provide constitutional protection under the clause. Be specific. 21. In cases when issues arising under the Full Faith and Credit clause might have been invoked but were not, do your courts or commentators in local law reviews or journals shed any light on why those issues were not raised (i.e. impact of racism, failure of attorneys to argue the issue and why). If so, explain the reasons for the failure to raise these issues. Be specific. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 271--------------------------------- 22. Other than Full Faith and Credit, have the courts or commentators in local law reviews or journals discussed the use of other constitutional theories (i.e., right to travel, fundamental right to marry) as a basis to recognize or not recognize out-of-state marriages? If so, explain those theories and how they would support the recognition or lack of recognition of the marriages. Be specific. General Marriage Requirements: 23. We need to determine and collect the marriage requirements for every state. Please research your state's marriage statutes and indicate: (a) what the requirements are to marry in your state; (b) is there a domiciliary or residency requirement for your state and, if so, what is it; (c) in issuing marriage licenses, (1) does your state issue a marriage license that can be used in other states; (2) does your state require that a marriage license be issued in your state even if the marriage is going to be held out-of-state; (3) does your state allow weddings to be performed locally with a marriage license issued from out- of-state; (d) what other requirements exist in your marriage statutes that might affect the ability of a same-sex couple to marry or have their marriage recognized in your state; (e) who can officiate marriages in your state and what does "officiate" actually mean under your statutes; and (f) are there any statutes in your state that recognize specific religious marriages as legally valid even when they do not conform to the other requirements in your marriage statutes (see, e.g., N.H. ch. 457, sec. 37, which recognizes marriages performed by Jewish rabbis or Quakers in the way usually practiced by those religions, notwithstanding other statutory requirements.) Include a copy of all cited statutes. 24. Is marriage by same-sex couples expressly prohibited in your state? (a) If so, include a copy of the text of the statute and any legislative history that exists for the prohibition. Many statutes are ambiguous, in that they often include references to "a man and a woman" or "husband and wife". If there is any possible reading of your statutes that would support an argument that marriage by same-sex couples is prohibited, include those statutes. (b) If your state prohibits marriage by same-sex couples, how does the prohibition compare to other prohibitions (i.e., incest, polygamy, age or remarriage restrictions) and can we use those differences (or similarities) to argue in favor of marriage by same-sex couples (i.e., if they previously recognized a "more prohibited" out-of-state marriage)? Be specific. For all of these questions, it is vital that your research be specific, creative, and exhaustive. We need to have as much information on all these questions, and the related ones that arise during your research, in order to make it possible to compile information that will be useful to other attorneys and all of us in the battle ahead..  ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 272--------------------------------- Thank you in advance for your willingness to participate in this national research effort. We are confident that this research will assist in preparing same-sex couples to assure equal recognition of their marriages nationwide. If you know of others who can assist with this project, or if you have questions while completing this checklist, please contact: Professor Barbara Cox, California Western School of Law at (619) 525-1496, or Evan Wolfson, Senior Staff Attorney and Director of the Marriage Project, Lambda Legal Defense & Education Fund at (212)-995-8585. Responses and supporting materials should be mailed to: The Marriage Project Legal Clearinghouse Lambda Legal Defense and Education Fund 666 Broadway, 12th Floor New York, New York 10012 Sign-Up Form PLEASE FILL OUT COMPLETELY AND FAX (OR MAIL) to: Evan Wolfson, Marriage Project Legal Clearinghouse Lambda Legal Defense & Education Fund (212-995-2306-fax): YES, I would like to help ensure that we not only win, but keep, equal marriage rights for lesbians and gay men, and assure that same-sex couples' marriages are recognized nationwide. Please count on me as a participant in the Marriage Project Legal Clearinghouse. NAME: ADDRESS: ORGANIZATIONAL AFFILIATION(S) (if any): PHONE (Day): (Evening): FAX: E-MAIL: ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 273--------------------------------- AREA(S) OF SPECIALIZATION/PRACTICE: COMMENTS/OTHER POTENTIAL PARTICIPANTS: (Continue on back if necessary)TO: Attorneys, Academics, and Students FROM: Evan Wolfson, Lambda Legal Defense and Education Fund Jeffrey Gibson, ABA Section on Individual Rights and Responsibilities, Chair Lesbian & Gay Committee Barbara Cox, California Western School of Law DATE: January 9, 1995 RE: BACKGROUND MATERIALS for State-by-State Legal Research on the Nationwide Recognition of Same-Sex Couples' Validly Contracted Marriages I. PURPOSE OF PROJECT AND BACKGROUND MEMO The purpose of this summary Background memo is to prepare you to help in a national effort to research choice-of-law and Full Faith and Credit issues on a state-by-state basis. Choice- of-law and constitutional questions will arise once the Supreme Court in Hawaii recognizes same-sex couples' equal marriage rights in Lambda's pending Baehr v. Lewin case. Undoubtedly, many gay and lesbian couples will travel to Hawaii and get married. They will then return home. This research project seeks to compile the statutes and precedent in each state to prepare advocates to address the choice-of-law and Full Faith and Credit questions that may arise during litigation if same-sex couples' validly contracted marriages are denied recognition (e.g., when they file a joint tax return, seek employer-paid health insurance benefits, or register as a "family" for membership purposes, etc.) The summary below highlights the main choice-of-law and Full Faith and Credit analyses that will be used by most courts in resolving these cases. II. OVERVIEW In May 1993, the Hawaii Supreme Court ruled that the State's refusal to issue marriage licenses to same-sex couples under the Hawaii marriage law presumptively violates the state constitution's guarantee of equal protection. Baehr v. Lewin, 852 P.2d 44, 58, 68 (Haw. 1993). The Court remanded the case to the trial court for strict-scrutiny review as to whether Hawaii's alleged compelling state interest(s) justify the statute's discrimination, and whether the means furthering the asserted interest(s) are narrowly drawn. Id. at 74-75. The State's attorneys have alleged a variety of compelling interests and claimed that the means furthering those interests are narrowly tailored.1 Co-counsel Daniel R. Foley of Honolulu and Evan Wolfson of Lambda Legal Defense and Education Fund are hopeful that the plaintiffs will be able to defeat these allegations on remand. Indications are that the Hawaii Supreme Court is likely to follow through on its earlier holding, and will thus uphold a trial court decision ending the "different-sex restriction" on marriage. Equal marriage rights for same-sex couples would then be a reality in the Nation's fiftieth state.2 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 274--------------------------------- Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory.3 The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal recognition of their unions. Despite a powerful cluster of expectations, logistics, rights, constitutional obligations, and federalist imperatives, these questions are likely to arise: will these people's validly-contracted marriages be recognized by their home states and the federal government, and will the benefits and responsibilities that marriage entails be available and enforceable in other jurisdictions? We believe that the correct answer to these questions is "Yes." To support that answer, there is much common sense and people's general intuitions both to back us up and for us to tap into: marriage is marriage; if you're married, you're married; this is one country; and it's a fundamental right. However, we also know that, as always, lesbians and gay men will have to fight against the tendency of some in politics and the judiciary to create a "gay exception" to even the clearest principle of constitutional law or fairness. Throughout the country, we must now undertake the public education, political organizing, and just plain asking people and groups for support, while preparing, too, for the litigation that will follow. This summary briefly surveys the legal grounds for gaining nationwide recognition of the marriages same-sex couples contract in Hawaii.3 Because the better answers are on our side -- and because the legal battle, as well as people's serious consideration of what is involved in marriage and respect for the marriages of gay people, are just beginning to take shape -- it is important we begin to marshal and mainstream our arguments without ceding ground. On this critical front, we have not yet begun to fight. Broadly speaking, there are two basic approaches to marriage recognition: constitutional and statutory/case law, discussed in detail below. Obviously, if there is a successful determination that the Constitution requires recognition nationwide, as we believe there should be, there would be no need to pursue the complex state-by-state issues that arise under conflicts of law and other approaches by which states have dealt with marriage recognition in the past. Such a constitutional outcome could arise under the Full Faith and Credit clause, other federalist principles (i.e., right to travel), equal protection doctrine, or the fundamental right to marry itself, as discussed below. In these background materials, we first lay out the non- constitutional approaches, as courts might elect to avoid a constitutional issue by recognizing same-sex couples' marriages on other bases. As advocates, we must master, further develop, and be prepared for both the constitutional and conflicts approaches, as well as more general public policy considerations such as practicality and fairness, without waiving or abandoning any. III. CHOICE-OF-LAW STATUTES AND CASES a. Introduction Once Hawaii protects the right of same-sex couples to marry, the question will arise to what extent an out-of-state marriage by a same-sex couple will be recognized upon the couple's return to their domicile. For example, Amy and Betty or Andy and Barry travel from their home state to Hawaii to marry following recognition of same-sex marriage upon conclusion of the Baehr case. Following their marriage and honeymoon in Hawaii, they return to their domicile and assert their marital status in that state, just as non-gay people do. At some point, a benefit provider (be it a health insurance carrier, health club owner, workers' compensation board, government body, or other institution) may refuse to accept that the couple is validly married. Then the parties will proceed to litigate our couple's marital status within their domicile state.4 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 275--------------------------------- States have a variety of rules to decide the question. For example, the Restatement (Second) of Conflict of Laws provides a system of analysis for courts seeking to resolve this question of first impression. Although some commentators object to the Second Restatement's position on marriage, the Second Restatement's usefulness at this point is to indicate an organization for analyzing how some courts in various jurisdictions may address marriage by same-sex couples. Section 283 states that: (1) The validity of marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage under the principles stated in  6. (2) A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage. Turning to section 6, that section states that "A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law." When no statutory directive exists, to determine the state with the "most significant relationship" to the issue, the court should consider various factors relevant to the choice-of-law.5 Thus, we will begin, as the courts must do, by considering the statutory directives of the various states as the first step in determining whether our couple's marriage will be validated within their domicile.6 When no statutory directive exists, the courts of the state with the "most significant relationship," usually the parties' domicile, will consider choice-of-law theories to resolve whether to recognize the marriage which was valid where celebrated. Courts considering this issue usually begin by recognizing the general rule preferring validation of marriages which exists with an "overwhelming tendency" in the U.S.7 Under this rule, marriages will be found to be valid if there is any reasonable basis for doing so.8 There are such strong policy reasons behind this rule that it has become well entrenched in the substantive law of all the states.9 "The validation rule confirms the parties' expectations, it provides stability in an area where stability (because of children and property) is very important, and it avoids the potentially hideous problems that would arise if the legality of a marriage varied from state to state."10 The parties' expectations arise from the fact that the married couple needs to know "reliably and certainly, and at once, whether they are married or not."11 Additionally, the concern about uncertainty comes from the problem of a couple being married in one state and not another or being continually uncertain about their marital status while pursuing litigation to determine that status.12 Despite this overwhelming tendency to validate the marriage, our same-sex couple may be left unsure whether their marriage will be recognized, due to the discretion courts have to refuse recognition on public policy grounds. Given this inherent uncertainty, we need to research these questions to provide what guidance is available, from statutes and choice-of-law theories, to determine the validity of our couple's marriage. b. Validation Statutes This section gives background for checklist questions 1-5. Numerous states have adopted some form of the Uniform Marriage and Divorce Act  210 which was intended to validate marriages celebrated outside a state within the adopting state. There are some variations in the statutory language. Colorado has a statute which, like most other states, simply adopts the language from the Uniform Marriage and Divorce Act. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 276--------------------------------- All marriages contracted within this state prior to January 1, 1974, or outside this state that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties are valid in this state.13 The comments of the Uniform Marriage and Divorce Act indicate that  210 was intended to validate marriages, even if the parties would not have been allowed to marry in their domicile.14 The comment also states that  210 "expressly fails to incorporate the 'strong public policy' exception of the Restatement [Second] and hence may change the law in some jurisdictions. This section will preclude invalidation of many marriages which would have been invalidated in the past."15 Thus, a strong argument can be made in states which have adopted  210 that they are prevented from contradicting the policy behind that section, validation in all circumstances, by refusing to recognize our couple's marriage on public policy grounds. Many states with validation statutes also adopted  207 of the Uniform Marriage and Divorce Act which lists narrow prohibitions against marriage. For example, the Colorado statute states: 14-2-110 Prohibited marriages. (1) The following marriages are prohibited: (a) A marriage entered into prior to the dissolution of an earlier marriage by one of the parties; (b) A marriage between an ancestor and a descendent or between a brother and a sister, whether the relationship is by the half or the whole blood; (c) A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established custom of aboriginal cultures. Colorado cases, when applying these two sections of the Marriage and Divorce Act, are similar to those found in other states. Those cases give out-of-state marriages clear acceptance, even when contrary to other marriage statutes in the state, unless the marriages were expressly prohibited. Thus, questions 1-5 ask you to research whether your state has a validation statute, under what circumstances that validation statute has been used, and whether the courts have used public policy grounds in deciding whether to apply the validation statute to an out-of-state marriage. Question 24 asks whether and how your state prohibits marriage by same-sex couples to help determine whether the courts will recognize their out-of- state marriages. c. Evasion statutes This section gives background for questions 6-10. Illinois, Massachusetts, Vermont, and Wisconsin adopted the Uniform Marriage Evasion Act during its brief existence.16 The typical language contained in these statutes can be found in the Vermont statute. If a person residing and intending to continue to reside in this state is prohibited from contracting marriage under the laws of this state and such person goes into another state or country and there contracts a marriage prohibited and declared void by the laws of this state, ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 277--------------------------------- such marriage shall be null and void for all purposes in this state.17 Numerous other states also have evasion statutes, although not adopted as part of the Uniform Marriage Evasion Act. With all evasion statutes, the most important question that needs to be answered is whether your state prohibits marriage by same-sex couples statutorily. Under the clear language of most evasion statutes, they only apply if the marriage in question has been prohibited. If your state does prohibit marriage for same- sex couples statutorily, then we will need to look for cases when other types of marriage were also statutorily prohibited and whether the courts upheld those marriages despite the statutory prohibition or found them to violate the evasion statute. If your state does not prohibit marriage for same-sex couples, then we will be able to make the argument that the evasion statute does not apply unless the statute has been applied to other marriages that were also not prohibited. Questions 6-10 ask you to determine whether your state has an evasion statute and to locate cases interpreting that statute and how the courts have used the statute in deciding the marriage recognition cases. Question 20 asks whether your state prohibits marriage by same-sex couples so that we can determine whether the evasion statute, on its face, applies. d. General policy issues and out-of-state marriage cases Questions 11-12 consider public policy grounds that may be raised by parties and courts regardless of marriage validation statutes, marriage evasion statutes, or choice-of-law theory. Question 13 asks for research on general out-of-state marriage cases that do not fit under either validation or evasion statutes but also were not explicitly decided using choice-of-law theory. Question 14 asks for research on miscegenation cases and the racism inherent in the prohibition of interracial marriage. Questions 23-24 ask for research on the specific marriage requirements in your state and whether your state prohibits marriage by same-sex couples. e. Choice-of-law theory This section gives background for questions 15-18. Although the question of whether to recognize a marriage by same-sex couple may well be determined by a validation statute or an evasion statute, it is likely that courts will also consider their state's choice-of-law theory in determining whether to recognize an out-of-state marriage. Choice-of-law theories are used to help courts determine which state's law to use when faced with resolving cases involving parties or law from different states. In these cases, the question would be whether to recognize the valid Hawaii marriage or to refuse to recognize it due to the domiciliary state's refusal to allow marriage by same- sex couples. This section will list the main choice-of-law theories used today and will briefly, and incompletely, summarize how a same- sex marriage might be addressed under those theories. Each state uses some choice-of-law theory in deciding cases. Once you determine the choice-of-law theory your state uses, this section will provide background on each of those theories and the questions that will arise under them on the issue of an out-of- state marriage by a same-sex couple. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 278--------------------------------- 1. First Restatement For marriage cases decided under  121 of the First Restatement, the rule of lex loci celebrationis would apply, meaning a marriage valid where celebrated was valid everywhere.18 Although comment d of  121 indicates that the law of the domicile governs the domestic status of marriage, the differences between states in their marriage laws would "lead to great difficulty, if it were not for the fact that all Anglo-American states agree in creating the status of marriage (except in rare cases considered in  131 and 132) in every case where there is a contract of marriage valid in the state where the contract is made."19 The courts are understandably reluctant "to negate a relationship upon which so many personal and governmental considerations depend."20 In fact, denying a normal incident of marriage to a validly married couple is a harsh measure that should be avoided unless enjoyment of that incident "violently offends the moral sense of the community."21 But it would be possible, under the First Restatement, that some would argue that our couple's marriage in Hawaii offends a community's "moral sense" and should be treated as one of the "rare" cases under  132. That section states: A marriage which is against the law of the state of domicile of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere in the following cases: (a) polygamous marriage, (b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicile, (c) marriage between persons of different races where such marriages are at the domicile regarded as odious, (d) marriage of a domiciliary which a statute at the domicile makes void even though celebrated in another state. Thus, although  121 of the First Restatement would lead one to expect that our couple, married in Hawaii, could return to their domicile and find strong support for validation of their marriage,  132 appears to allow the domiciliary state to limit marital recognition. Although marriages by same-sex couples were not specifically included within  132, comment b indicates that the list is "not intended to be an exclusive enumeration and if a marriage offends a strong policy of the domicile in any other respect, such marriage will be invalid everywhere."22 However, with regard to miscegenous marriages (which were still restricted when the First Restatement was published) comment c indicates that, in order to be "odious" under  132(c), it must "not only be prohibited by statute but must offend a deep-rooted sense of morality predominant in the state."23 Thus, despite  132, in states following the First Restatement, our same-sex couple could have their marriage in Hawaii validated if (1) the state chose to follow  121 which would validate it automatically or, (2) even if the state followed  132, it did not have a statute prohibiting same-sex marriage or same-sex marriage was not found to offend that state's "predominant" sense of morality. It would be possible, however, that a court might say that our same-sex couple's marriage violates the community's "sense of morality."24 Despite the fixed rule in favor of validity, numerous older cases following the First Restatement did reject out-of-state marriages as invalid, despite being valid where celebrated.25 Thus, even when choice-of-law decisions tended to follow mechanical rules, courts maintained their archaic prerogative to invalidate marriages when contrary to local public policy or prejudice. Because  132 allows an explicit "escape device" from  121's rule favoring validation, courts hesitant to recognize marriages by same-sex couples may attempt to invoke public policy grounds to refuse recognition. Advocates in First Restatement states should be prepared to reject this approach, as well as to defeat it on its own terms by showing that its essential elements are not met. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 279--------------------------------- 2. Interest Analysis In the late 1950's and early 1960's, Brainerd Currie developed his "governmental interest analysis" theory in a series of law review articles.26 Currie argued that the positive law and common-law rules of a state expressed state policy choices which that state had an "interest" in applying to the state's domiciliaries. Currie divided the conflicts world into three portions: false conflicts, true conflicts, and unprovided-for cases. False conflicts occur when the parties have a common domicile, that state has the only interest in applying its law, and the forum should apply the law of the common domicile. True conflicts arise when more than one state has an interest in applying its law to its domiciliary and unprovided-for cases occur when no domiciliary benefits from application of his or her state's law. In those cases, Currie suggests applying the forum law because there is no good reason to displace it since the problem is insoluble. Interest analysts note that courts, regardless of the approach or method used, generally end up applying their own law, as Currie advocated they should. Currie would probably find that our couple's situation involves a "false" conflict because, although they were married under one state's law, that state was not their domicile and their domicile's law should control. But, as can be seen from the statutory review above, the domicile's law may be quite difficult to ascertain. 3. Second Restatement The Restatement (Second) of Conflict of Laws, reported by Professor Willis Reese, was completed in 1971. According to Reese, the Restatement's goal was to state narrow, precise, definite rules in areas such as status, corporations, and property where some consensus existed among courts as to factors to be considered, while retaining broad, flexible rules in areas of contracts and torts which would lead courts to sound results. When considering the validity of out-of-state marriages, the Restatement (Second) directs courts to consider the law of the state with the "most significant relationship to the spouses and the marriage" to the issue involved in the particular case. What state has the "most significant relationship" is determined by consulting the factors in  6. Having determined which state has this "most significant relationship," next using  283(2), the court will then consider the marriage to be valid if it was valid where celebrated "unless it violates the strong public policy" of the state with the most significant relationship to the marriage. Reese notes that the primary values involved are protection of the expectations of the parties, who must have intended to enter into a valid marriage, and recognition of the general policy favoring validation of marriages. The Second Restatement, although clearly tending toward validation as a general rule, also attempts to protect "the interest of a State in not having its domiciliaries contract marriages of which it disapproves" and would defer to the domiciliary state, as the state with the most significant relationship to the couple, to consider whether a given marriage violates its public policy. Again, this analysis potentially leaves the court significant discretion in determining if such a strong public policy exists and what it is. 4. Leflar's choice-influencing considerations Finally, Robert Leflar's "choice-influencing considerations" theory attempted to focus on those factors that influenced courts in their choice-of-law analysis. Leflar's considerations include: (1) predictability of result, (2) maintenance of interstate and international order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interests, and (5) application of the better rule of law. The theory is extremely flexible and allows courts to apply a law that the other theories would not permit but which would be appropriate in the case. The "better rule of law" consideration- -one that finds no parallel in  6 of the Second Restatement--is the one that has proven most controversial, due to fears that it would lead courts to give inadequate deference to the forum state's legislation or that it would lead to an uncritical application of forum law. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 280--------------------------------- Leflar indicated that "justice in the individual case" is the ultimate result to be achieved in choice-of-law cases. He believed that the better law would be the one that upheld a "fair transaction entered into by the parties in good faith," including marriages. Leflar did recognize that looking to the "better rule" might lead judges to the forum's own law, especially if foreign law might "interfere with fundamental local policies." It is evident that the search for the better rule of law may lead a court almost automatically to its own lawbooks. The idea that the forum's own law is the best in the world, especially better than fancy new sets of laws based on such nontraditional approaches as research and policy analysis, is unfortunately but understandably still current among some members of our high courts.27 He found an automatic preference of forum law to be unjustifiable and believed that judges could appreciate when their forum law was anachronistic, behind the times, or a "drag on the coat tails of civilization."28 He referred to Sunday laws, fellow-servant rules, and married women's incapacity to contract as illustrations.29 Archaic laws should yield to more progressive ones, thereby serving one of choice-of-laws' functions as "growing pains for the law of a state, at all events in a federation such as our own."30 When a court finds itself faced with a choice between such anachronistic laws still hanging on in one state, and realistic practical modern rules in another state, with both states having substantial connection with the relevant facts, it would be surprising if the court's choice did not incline toward the superior law. A court sufficiently aware of the relation between law and societal needs to recognize superiority of one rule over another will seldom be restrained in its choice by the fact that the outmoded rule happens still to prevail in its own state. One way or another it will normally choose the law that makes good sense when applied to the facts.31 Leflar believed that judges were "perfectly capable" of preferring rules of law that "make good social-economic sense for the time when the court speaks."32 Judges concerned with "justice in the individual case" and "protection of justified expectations of the parties" would prefer the better rule of law.33 It seems likely that judges considering these factors would recognize our couple's marriage in Hawaii. 5. Considering marriages by same-sex couples under these approaches Regardless of the approach used by any particular state, advocates will find significant general support for validation of our same-sex couple's marriage as a starting point in the choice- of-law analysis. Commentators, ranging from Leflar, MacDougal and Felix,34 to Richman and Reynolds,35 and Scoles and Hay,36 tend to treat marriage as a relatively settled area of choice-of- law. None of them, however, has anticipated what will happen when a domicile that does not have equal marriage rights is faced with a challenge to a marriage by same-sex domiciliaries celebrated in a state which recognizes its validity. All start from the overwhelming tendency in choice-of-law cases to validate the marriage.37 Courts tend to validate marriages, using either the First Restatement's lex celebrationis, which recognizes marriage as a status question and looks to the state creating the status to determine its validity, or modern theories which protect parties' expectations, provide stability, and avoid the "hideous" problems that result when one's marital status varies from state to state.38 Considerations such as providing predictability for the parties involved and protecting interstate order would lead to validation, whether considered under Leflar's theory39 or sections 6(a) and (f) of the Second Restatement. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 281--------------------------------- Following the approach often taken in contracts cases, states will validate the marriage to protect the parties' expectations, unless doing so would offend a state's strongly held public policy.40 This exception for a state's public policy recognizes Currie's governmental interest analysis and section 6(b) of the Restatement (Second) in protecting the purpose behind a state's marriage laws. It also fits within Leflar's forum state's interest in applying its law when its domiciliaries leave the state to marry in another state which would permit a marriage that could not be celebrated within their domicile.41 All of these modern theories leave it to the court to consider the strength of the domicile's policies underlying particular marital regulations, which will vary from state to state although based on similar regulations and prohibitions.42 Thus, to determine whether our couple is validly married, most courts will find that it is "(a) the whole law of the domicile, including its conflicts rules, that we should look to in the first instance; and (b) its conflicts rules will ordinarily refer the question to the law of the place of performance, which will usually sustain the marriage; but (c) in some cases its reference will be to its own internal marriage laws."43 But what result? The tendency to validate the marriage, which all commentators recognize as extremely strong,44 will be countered by the overwhelming homophobia existing in the judiciary today.45 Courts will be able to refuse recognition of our couple's marriage by choosing to group it with cases of incest and polygamy which are the most frequent examples of invalidity.46 Perhaps a more exact match would be miscegenous marriages, which are conceptually more similar to marriages by same-sex couples and offer more compelling and resonant analogies and moral lessons. Questions 15-18 ask you to determine what theory your state uses, whether it has used the theory in deciding any out-of-state marriage cases, and if it has not, how the reasoning it has used in other cases applying its chosen choice-of-law theory can be predicted to apply in marriage cases of same-sex couples. IV. FULL FAITH AND CREDIT ARGUMENTS UNDER THE U.S. CONSTITUTION "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 Jackson47 The Constitution specifically declares what Americans have come to expect, that this is one country and you do not shed your rights as you cross a state border: 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. U.S. Const., Art. IV,  1. Successfully establishing that the Full Faith and Credit Clause requires all states to recognize a marriage legally contracted in another State would yield the most sweeping possible outcome, and, as a constitutional holding, the one most immune from legislative tampering. We believe that full faith and credit recognition is mandated by the plain meaning of the Full Faith and Credit Clause, and by basic federalist imperatives that unite this into one country and permit us to travel, work, and live in America as we have come to today. Simply put, all Americans, gay and nongay alike, would be best served by requiring full faith and credit for marriages validly contracted in any U.S. state. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 282--------------------------------- a. Applying the Full Faith and Credit Clause Marriage qualifies for recognition under each prong of the Full Faith and Credit Clause, partaking as it does of each of the three categories: public Acts, Records, and judicial Proceedings:  Creation of a marriage is a "public Act" both because it occurs pursuant to a statutory scheme, and is performed in most states by a public or legally-- designated official, and because the marriage is itself an act -- a res, a thing or status itself created by a State (which thus acts).  The marriage certificate is the "Record" of that res, recording (with delineated legal effect) that a marriage has been validly contracted, that the spouses have met the qualifications of the marriage statutes, and that they have duly entered matrimony. (Along with marriage certificates, analogous public records of even lesser consequence, ranging from birth certificates to automobile titles, have been accorded full faith and credit).  Finally, celebrating a marriage is arguably a "judicial Proceeding" in at least those sixteen states in which judges, court clerks, or justices of the peace officiate. Perhaps more important, marriage partakes of important elements of a "judgment," the state "act" or "judicial Proceeding" that has received with least question the greatest "full faith and credit" from the Supreme Court.48 Application of the Full Faith and Credit Clause to require recognition of marriages is consistent with the intent of the Framers and with Supreme Court precedent. The Court has stated that the Full Faith and Credit Clause altered the status of the several states as independent foreign sovereignties, each free to ignore rights and obligations created under the laws or established by the judicial proceedings of the others, by making each an integral part of a single nation, in which rights judicially established in any part are given nationwide application. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943).49 The Supreme Court has never ruled on the issue of whether marriages must be accorded Art. IV,  1 respect, but state courts and lower federal courts often have, even in instances where the marriages would not be recognized under the laws of the forum state.50 The Supreme Court's silence on the full faith and credit due marriage reflects, we believe, both the county's history of racism and aversion to interracial marriage,51 as well as the resultant general neglect of the Clause itself52 -- burdens our adversaries should be forced to carry. If they prevail, those opposing recognition of same-sex couples' validly-contracted marriages ineluctably stand to create a legal and practical nightmare, whereby Americans have to get their "marriage visa" stamped when they cross a state border, or where they (or their parents) are simultaneously married and unmarried in different reaches of the country. Such a situation is simply untenable, both in terms of federalism and the meaning and expectations around marriage, itself a fundamental right.53 b. The Full Faith and Credit Clause's Implementing Statutes Congress has implemented the Full Faith and Credit Clause by means of 28 U.S.C.  1738, 1738A, 1739 ("the Statutes"). Because the Statutes are not part of the Constitution, they can, of course, be altered by Congress. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 283--------------------------------- Section 1738 provides, in part: Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of [such jurisdiction] from which they are taken. This statute is most notable for clarifying that full faith and credit obligations apply to all courts in the United States, thus requiring federal courts also to give complete faith and credit to State acts, records and judicial proceedings. The Statutes elaborate on the meaning of "full-faith and credit" by defining it as the same faith and credit given by law and usage in the courts of the state producing the act, record, or proceeding. For example, other states must accord a marriage license issued in Hawaii the same weight and consequence that certificate receives in Hawaii. The U.S. Supreme Court first applied the principle of according full faith and credit to out-of-state acts, records, and proceedings in the context of judgments. For example, to determine what full faith and credit judgments should receive "[i]t remains only then to inquire in every case what is the effect of a judgment in the state where it is rendered."54 But full faith and credit is not limited to judgments; over time the Court has extended the same analysis to other acts, records, and proceedings.55 In each instance, a court in the forum state must accord the act, record, or proceeding the same effect it has in the state where issued. By statute Hawaii regards a marriage certificate issued pursuant to its marriage law to be prima facie evidence of a validly contracted marriage.56 Therefore, the courts of all other states must also recognize the certificate as prima facie evidence of a validly contracted marriage.57 c. Other Constitutional Grounds A State's refusal to recognize a marriage validly contracted under the laws of Hawaii would place a direct and tangible obstacle in the path of interstate migration and burden people's now-not-merely-abstract right to marry, thus implicating other constitutional provisions relating to due process, the right to travel and move freely throughout the nation, equal protection, interstate commerce, and privileges and immunities,58 as well as the fundamental right to marry itself. For example, a married couple in Hawaii who wished to travel in or to another state would essentially have to choose between their marriage and their right to travel. The rights to marry and to have that marriage recognized are of fundamental importance, both in and of themselves,59 and in part because marital status includes substantial economic and practical protections and benefits, upon which may depend the couple's ability to live as they want, raise children as they want, or even subsist. By refusing to recognize a couples's marriage, a State would, for example, "unduly interfere with the right to 'migrate, resettle, find a new job, and start a new life." Shapiro v. Thompson, 394 U.S. 618, 629 (1969);60 see also Edwards v. California, 314 U.S. 160 (1941)61; Crandall v. Nevada, 73 U.S. 35 (1867).62 Whatever cluster of constitutional grounds ultimately proves successful, it is clear that those opposing recognition of same- sex couples' marriages are advocating a position that could do great damage not only to the individual couples and children involved, but also to ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 284--------------------------------- the institution of marriage, family relationships, and the links and mobility vital to our federal union.63 For all these reasons, the position that the Constitution mandates full faith and credit for validly contracted marriages is right and should be developed. Questions 19-22 ask for your research on how your state has interpreted the full faith and credit clause, whether its interpretations support the argument that marriage comes within the clause's protection, and whether it has decided any out-of- state marriage cases using the full faith and credit clause. You should also collect and discuss any treatment of the other constitutional theories suggested above. V. Summary and Conclusion We want to repeat our thanks to you for volunteering to participate in this research project. We believe that we have a window of about 12-18 months before the Hawaii Supreme Court will ultimately decide whether same-sex couples can marry in Hawaii. By using this time effectively, we will be prepared, both legally and politically, to protect equal marriage rights for same-sex couples returning from Hawaii to a potentially hostile domicile. This research project will not be successful without your help.  If you know of others who can assist with this project, or if you have questions while completing the checklist, please contact: Professor Barbara Cox, California Western School of Law, at (619) 525-1496, or Evan Wolfson, Senior Staff Attorney and Director of the Marriage Project, Lambda Legal Defense & Education Fund, at (212)-995-8585. Responses and supporting materials should be mailed to: The Marriage Project Legal Clearinghouse Lambda Legal Defense and Education Fund 666 Broadway, 12th Floor New York, New York 10012 ENDNOTES 1. See, e.g., 1994 Haw. Sess. Laws 217, 1994 Hi. H.B. 2312 (June 1994) (legislature asserts that marriage statute "intended to foster and protect the propagation of the human race through male-female marriages"). 2. Because the case involves state, not federal, constitutional questions, the Hawaii Supreme Court has the final word. There can be no appeal in Baehr to the U.S. Supreme Court, nor can the legislature alter the outcome (notwithstanding legislation such as that it adopted in June 1994 reiterating its desire to discriminate), short of a highly unlikely constitutional amendment. 3. As among non-gay Americans, there is a vast demand among lesbians and gay men for the equal right to choose whether and whom to marry. See, e.g., Evan Wolfson, "Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the Intra- Community Critique," 21 N.Y.U. Rev. of L. & Soc. Change ____ (1995) (forthcoming). 3. For a fuller discussion of these and other issues, see the materials identified in the bibliography of equal marriage rights maintained by Lambda; see also Barbara J. Cox, "Same-Sex Marriage and Choice of Law: If We Marry in Hawaii, Are We Still Married ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 285--------------------------------- When We Return Home?," 1994 Wisc. L. Rev. 1033; Deborah M. Henson, "Will Same-Sex Marriages Be Recognized in Sister States?: Full Faith and Credit and Due Process Limitations on States' Choice of Law Regarding the Status and Incidents of Homosexual Marriages Following Hawaii's Baehr v. Lewin," 32 U. Louisville J. Fam. L. 551 (1994); Evan Wolfson & Gregory v. S. McCurdy, "'Let No One Set Asunder': Full Faith and Credit for the Validly Contracted Marriages of Same-Sex and Different-Sex Couples" (forthcoming); Jennifer Gerarda Brown, "Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage," 68 S. Cal. L. Rev. ___ (1995) (forthcoming); Joseph W. Hovermill, "A Conflict of Laws and Morals: The Choice of Law Implications of Hawaii's Recognition of Same-Sex Marriages," 53 Md. L. Rev. 450 (1994); Thomas Keane, "Aloha, Marriage? Constitutional and Choice of Law Arguments of Same-Sex Marriages," 47 Stan. L. Rev. 499 (1994). 4. Some commentators object to the idea that marital status is "universal" and believe that one's marital status should be determined on an issue-by-issue basis, after considering the policies behind each particular incident of marriage. David E. Engdahl, Proposal for a Benign Revolution in Marriage Law and Marriage Conflicts Law, 55 Iowa L. Rev. 56, 108-10 (1969); Hans W. Baade, Marriage and Divorce in American Conflicts Law: Governmental-Interests Analysis and the Restatement (Second), 72 Colum. L. Rev. 329, 356-57 (1972); J. David Fine, Application of Issue Analysis to Choice-of-Law Involving Family Law Matters in the United States, 26 Loyola L. Rev. 31 (1980); Reese, supra note 23, at 952, 965. This analysis conforms to the factual reality of how most cases arise. The problem with this analysis in our situation, however, is that our couple is concerned about their "status", that is, whether, in fact, they are married for all purposes. Some courts have resolved the choice-of-law problem by finding a person to be a spouse for some purposes, for example intestate succession, but not for others, such as cohabitation. See, In re Dalip Singh Bir's Estate, 83 Cal. App. 2d 256, 259-60, 188 P.2d 499, 502 (1948)(public policy not affected by dividing property between polygamous wives validly married abroad, but would be affected by cohabitation in the state); Miller v. Lucks, 203 Miss. 824, 832, 36 So. 2d 140, 142 (1948)(interracial couple's marriage valid for intestate succession but would not be recognized for in-state cohabitation); and other cases cited in Engdahl, at nn. 218-226 and accompanying text. This piecemeal response is unacceptable. Litigating marital recognition for a specific incident of marriage after one spouse had already died, as occurred in the above cases, is a legitimate exercise. In such situations, considering the policies behind each incident could more easily lead to recognition of the marriage, where recognition universally would be denied, because the policy behind granting the incident would not "offended" by recognizing the marriage. But if our couple is denied the opportunity to determine their "universal" marital status for all incidents of marriage, they must relitigate their marital status repeatedly as they request recognition of their marriage for each incident. This is an untenable prospect and would be unacceptable for other couples. In fact, our couple may choose to bring a declaratory judgment action upon returning to their domicile to determine their marital status for all purposes. See Reese, supra note 23, at 953. 5. Id. at  6(2). Those factors include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of the parties' justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Id. 6. Leflar, 41 N.Y.U. L. Rev. 267, 271 (1966), states that if the forum's legislature has enacted a choice-of-law statute, forum courts will follow it, once they determine what it means. Reese also notes that a marriage validation statute, such as  210 of the Uniform Marriage and Divorce Act, would require a court to uphold a foreign marriage. Reese, 26 Int'l & Comp. L.Q. 952, 963. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 286--------------------------------- 7. William M. Richman and William L. Reynolds, Understanding Conflict of Laws  116 at 362 (2d ed. 1993). 8. Id. 9. Id. 10. Id. 11. Robert A. Leflar, Luther L. McDougal III, and Robert L. Felix, American Conflicts Law  220 at 605 (4th ed. 1986). 12. Id. 13. Colo. Rev. Stats. Ann. 12-2-112 (West 1991). 14. Uniform Marriage and Divorce Act  210, 9 U.L.A. 176 (1987). 15. Id. 16. Ill. Ann. Stat. ch. 750, para. 5/216 (Smith-Hurd 1993); Mass. Gen. Laws Ann. ch. 207  10 (West 1994); Vt.Stat. Ann. tit. 15  5 (1993); Wis. Stat.  765.04 (1993). 17. Vt. Stat. Ann. tit. 15  5 (1993). 18. First Restatement 121. For cases applying this rule, see Fine, 26 Loy. L. Rev. 31, 37 n.11 (1980). 19. First Restatement 121, comment d. Section 131 applies to remarriage after divorce and section 132 applies to marriages void under domicile law. Id. 20. Johnson, 38 N.D. L. Rev. 442, 456 (1962). 21. Charles W. Taintor II, Marriage in the Conflict of Laws, 9 Vand. L. Rev. 607, 615 (1956). 22. First Restatement  132, comment b. 23. Id. at comment c. Taintor, 9 Vand. L. Rev. 607, 625 (1956), concludes that only when a state declares a marriage will be void does that state express "a strong enough public policy to require the inference that it makes extra-state ceremonies ineffective...." Taintor was describing the state of the law under the First Restatement which was in effect almost universally at the time of that article. Thus, only those First Restatement states that expressly prohibit same-sex couples from marrying could even begin to claim that they have sufficiently declared that these marriages are odious within the meaning of  132(c). 24. Additionally, section 134 could be used by states that did not want to recognize marriage of same-sex couples not originally their domiciliaries but who moved to that state after their marriage. Section 134 allows one state to refuse to extend any particular incident of marriage to a couple if it would find it sufficiently offensive to public policy to do so. 25. See Taintor, supra notes 259, 290 and 293; and Johnson, supra note 183. 26. These articles are collected in Currie's Selected Essays on the Conflict of Laws (1963). ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 287--------------------------------- 27. Leflar, 41 N.Y.U.L. Rev. 267, 298 (1966). 28. Id. at 299. 29. Id. at 299, n.113. 30. Id. (citing Paul A. Freund, Chief Justice Stone and the Conflict of Laws, 59 Harv. L. Rev. 1212, 1216 (1946)). 31. Id. 32. Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Cal. L. Rev. 1584, 1588 (1966). 33. Id. 34. Leflar, McDougal, and Felix, American Conflicts Law  219-21 (4th ed. 1986). 35. Richman and Reynolds, Understanding Conflict of Laws  116 (2d ed. 1993). 36. Scoles and Hay, Conflicts of Law  13.1-13.18 (2d ed. 1992). 37. Richman and Reynolds, supra note 32, at  116 at 362. 38. Id. 39. Leflar, McDougal, and Felix, supra note 31, at  220 at 605. 40. Richman and Reynolds, supra note 32, at  116 at 363. 41. Leflar, McDougal, and Felix, supra note 31, at  220 at 606. 42. Id. 43. Id. See also Williams v. North Carolina, 317 U.S. 287, 298 (1942) which states: "Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders." 44. Leflar, McDougal, and Felix, supra note 31, at 605, Richman and Reynolds, supra note 32, at  116 at 362, and Scoles and Hay, supra note 33, at  13.5 at 436. 45. See Rhonda R. Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L.J. 799 (1979). 46. Scoles and Hay, supra note 32, at  13.5 at 436. 47. Estin v. Estin, 334 U.S. 541, 553 (1948) (Jackson, J., dissenting). 48. Experts agree that judgments receive the most immediate, unquestioned full faith and credit. See, e.g., Lea Brilmayer, "Credit Due Judgments and Credit Due Laws: The Respective Roles of Due Process and Full Faith and Credit in the Interstate Context," 70 Iowa L. Rev. 95, 97 (1984). 49. Magnolia was partially overruled on other grounds. Thomas v. Washington Gas Light ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 288--------------------------------- Co., 448 U.S. 261 (1980). 50. See, e.g., Parish v. Minvielle, 217 So.2d 684, 688 (Ct. of App. La. 1969) (Louisiana does not recognize or permit common-law marriages but must give effect to them when validly contracted in Texas); Guidry v. Mezeal, 487 So.2d 780, 781 (Ct. of Appeals La. 3rd Cir. 1986); Succession of Rodgers, 499 So.2d 429, 495 (Ct. of Appeals La. 2d. Cir. 1986); Commonwealth ex rel. Alexander v. Alexander, 289 A.2d 83, 86 (Pa. 1971) (Jones, J., concurring) (Pennsylvania must give full faith and credit to a Georgia marriage certificate); Orsburn v. Graves, 210 S.W.2d 496 (Ak. 1948) (Arkansas must give full faith and credit to validly contracted Texas common-law marriage). Although New York does not recognize common-law marriages, it gives Art. IV  1 full faith and credit to marriages that are valid under the laws of other states. Thomas v. Sullivan, 922 F.2d 132, 134 (2nd Cir. 1990); Ram v. Ramharack, 571 N.Y.S.2d 190 (N.Y. Sp. Ct. Queens Cty 1991). 51. See Robert H. Jackson, "Full Faith and Credit -- the Lawyer's Clause of the Constitution," 45 Colum L. Rev. 1, 7 (1945) (Full Faith and Credit Clause under-invoked in contexts such as marriage because "the slavery question and [Jim Crow laws] had begun to distort men's view of government and of law. Talk of 'state sovereignty' became involved in the issue."). 52. Id. at 3 (former Supreme Court justice observes that the Full Faith and Credit "[C]lause is a relatively a neglected one in legal literature.... The practicing lawyer often neglects to raise questions under it, and judges not infrequently decide cases to which it would apply without mention of it."). Indeed, the whole idea of enforceable rights is itself relatively new, as is the constitutionalization of family and marriage law, both largely arising since the heyday of non-recognition cases. 53. Thus, even more than developing any technical legal argument, it is critical that we collect and explain evocative real life examples of how burdensome, or indeed impossible, it would be to have the status of one's marriage, or one's parents' marriage, vary from state to state. 54. Mills v. Duryee, 7 Cranch 481, 11 U.S. 481, 484, 5 L.Ed. 411 (1813); see also Wright v. Georgia R.R. & Banking Co., 216 U.S. 420, 429 (1910). 55. See Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887) (holding that "public acts", including plaintiff's corporate charter, must be given same effect as in issuing state). 56. See Haw. Rev. Stat.  527-1 and 572-13 (c) (1985); see also Conn. Gen. Stat. Ann.  46b-35 (1958). For a list of states statutorily prescribing what full faith and credit their marriage certificates should receive see Evan Wolfson and Gregory v. S. McCurdy, "'Let No One Set Asunder': Full Faith and Credit for the Validly Contracted Marriages of Same-Sex and Different-Sex Couples" (forthcoming). 57. Another set of issues may arise if states take the position that people do, on the face of it, appear to be married, and then pass statutes giving benefits to different-sex married couples while denying them to same-sex married couples. Challenges might arise under gender discrimination, sexual orientation, and other equal protection theories, as well as due process and fundamental right to marry theories. Naturally, the fall-out in these battles may also prompt reconsideration of the use of marriage as the unique criterion it is today in many contexts. 58. U.S. Const., art. IV, 2. See, e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 289--------------------------------- 59. Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 438 (1965); Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987). 60. In Shapiro v. Thompson, the Court grounded the right to travel in the Equal Protection Clause and employed strict scrutiny analysis. 61. Edwards involved California's attempt to slow travel into the state by prosecuting citizens who knowingly brought into the state any indigent nonresident. The Supreme Court unanimously upheld the constitutional right to cross state lines, but disagreed on the constitutional provision abridged. The majority relied on the Commerce Clause as prohibiting "attempts...of any single state to isolate itself from difficulties common to all of them...by the single expedient of shutting its gates to the outside world." Id. at 173. The two concurrences found the Privileges and Immunities Clause of the Fourteenth Amendment to be the applicable constitutional text, and focused on individual rights in finding that right to free movement between states is a right of national citizenship. Mobility, Justice Douglas argued in his concurrence, is basic to any question of freedom of opportunity and to prevent the indigent from seeking new horizons would "contravene every conception of national unity." Id. at 181. This takes on even greater force when linked to marriage. 62. In Sosna v. Iowa, the Court applied rationality review in upholding a one-year durational residency requirement for divorce. 419 U.S. 393 (1975). In distinguishing previous cases in which durational residency requirements held invalid, Justice Rehnquist explained that the recent traveler was not "irretrievably foreclosed from obtaining some part of what she sought; her access to the courts was merely delayed." Id. The Court's distinction seemed to turn on the perceived significance of the burden on the right to interstate migration. In the Court's view a "mere" one-year's delay in securing a divorce was not a sufficient "penalty" on travel as to merit strict scrutiny. On the other hand, in Boddie v. Connecticut, the Court held that Connecticut could not, consistent with the obligations imposed by the Due Process Clause, deny access to a divorce court based on ability to pay a fee. 401 U.S. at 380. A State's refusal to recognize a same-sex couple's marriage from Hawaii, would penalize, not merely delay, those individuals who have exercised their right to move freely throughout our country. 63. The best things our opponents have going for them are, of course, (1) people's ignorance and hostility regarding gay issues, and (2) the fact that, as a historical matter, marriage recognition has not largely been treated as a constitutional matter. We must address this latter point by showing (a) the parallels to non-recognition in other circumstances, i.e., race, and (b) the increasing constitutionalization of marriage and other rights. The fact that the Full Faith and Credit Clause was muzzled in the past does not justify its non-invocation in the future, if needed. Cf., e.g., Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (Court reverses precedent of over a hundred years to reestablish view of federalism less deferential to states' rights). WINNING AND KEEPING EQUAL MARRIAGE RIGHTS: WHAT WILL FOLLOW VICTORY IN BAEHR V. LEWIN? A Summary of Legal Issues Evan Wolfson1 BACKGROUND In May 1993, the Hawaii Supreme Court ruled that the State's refusal to issue marriage licenses to same-sex couples under the Hawaii marriage law presumptively violates the state ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 290--------------------------------- constitution's guarantee of equal protection. Baehr v. Lewin, 852 P.2d 44, 58, 68 (Haw. 1993). The Court remanded the case to the trial court for strict-scrutiny review as to whether Hawaii's alleged compelling state interest(s) justify the statute's discrimination, and whether the means furthering the asserted interest(s) are narrowly drawn. Id. at 74-75. The State's attorneys have alleged a variety of compelling interests and claimed that the means furthering those interests are narrowly tailored.2 My co-counsel Daniel R. Foley of Honolulu and I are hopeful that the plaintiffs will be able to defeat these allegations on remand. Indications are that the Hawaii Supreme Court is likely to follow through on its earlier holding, and will thus uphold a trial court decision ending the "different-sex restriction" on marriage. Equal marriage rights for same-sex couples would then be a reality in the Nation's fiftieth state.3 Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory.4 The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal recognition of their unions. Despite a powerful cluster of expectations, logistics, rights, constitutional obligations, and federalist imperatives, these questions are likely to arise: Will these people's validly-contracted marriages be recognized by their home states and the federal government, and will the benefits and responsibilities that marriage entails be available and enforceable in other jurisdictions? We at Lambda believe that the correct answer to these questions is "Yes." To support that answer, there is much common sense and people's general intuitions both to back us up and for us to tap into: marriage is marriage; it's a fundamental human right; if you're married, you're married; this is one country. However, we also know that, as always, lesbians and gay men will have to fight against the tendency of some in politics and the judiciary to create a "gay exception" to even the clearest principle of constitutional law or fairness. Throughout the country, we must now undertake the public education, political organizing, and just plain asking people and groups for support, while preparing, too, for the litigation that will follow. This summary briefly surveys the legal grounds for gaining nationwide recognition of the marriages same-sex couples contract in Hawaii.5 These grounds include the U.S. Constitution, the common law, and statutory law. Because the better answers are on our side -- and because the legal battle, as well as people's serious consideration of what is involved in marriage and respect for the marriages of gay people, are just beginining to take shape -- it is important we begin to marshal and mainstream our arguments without ceding ground. On this critical front, we have not yet begun to fight. I. THE U.S. CONSTITUTION "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 Jackson6 A. The Full Faith and Credit Clause The Constitution specifically declares what Americans have come to expect, that this is one country and you do not shed your rights as you cross a state border: 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. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 291--------------------------------- U.S. Const., Art. IV,  1. Successfully establishing that the Full Faith and Credit Clause requires all states to recognize a marriage legally contracted in another State would yield the most sweeping possible outcome, and, as a constitutional holding, the one most immune from legislative tampering. We believe that full faith and credit recognition is mandated by the plain meaning of the Full Faith and Credit Clause, and by basic federalist imperatives that unite this into one country and permit us to travel, work, and live in America as we have come to today. Simply put, all Americans, gay and non- gay alike, would be best served by requiring full faith and credit for marriages validly contracted in any U.S. state. 1. Applying the Full Faith and Credit Clause Marriage qualifies for recognition under each prong of the Full Faith and Credit Clause, partaking as it does of each of the three categories: public Acts, Records, and judicial Proceedings:  Creation of a marriage is a "public Act" both because it occurs pursuant to a statutory scheme, and is performed in most states by a public or legally- designated official, and because the marriage is itself an act -- a res, a thing or status itself created by a State (which thus acts).  The marriage certificate is the "Record" of that res, recording (with delineated legal effect) that a marriage has been validly contracted, that the spouses have met the qualifications of the marriage statutes, and that they have duly entered matrimony. (Along with marriage certificates, analogous public records of even lesser consequence, ranging from birth certificates to automobile titles, have been accorded full faith and credit).  Finally, celebrating a marriage is arguably a "judicial Proceeding" in at least those sixteen states in which judges, court clerks, or justices of the peace officiate. Perhaps more important, marriage partakes of important elements of a "judgment," the state "act" or "judicial Proceeding" that has received with least question the greatest "full faith and credit" from the Supreme Court.7 Application of the Full Faith and Credit Clause to require recognition of marriages is consistent with the intent of the Framers and with Supreme Court precedent. The Court has stated that the Full Faith and Credit Clause altered the status of the several states as independent foreign sovereignties, each free to ignore rights and obligations created under the laws or established by the judicial proceedings of the others, by making each an integral part of a single nation, in which rights judicially established in any part are given nation- wide application. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943).8 The Supreme Court has never ruled on the issue of whether marriages must be accorded Art. IV,  1 respect, but state courts and lower federal courts often have, even in instances where the marriages would not be recognized under the laws of the forum state.9 The Supreme Court's silence on the full faith and credit due marriage reflects, I believe, both the country's history of racism and aversion to interracial marriage,10 as well as the resultant general neglect of the Clause itself11 -- burdens our adversaries should be forced to carry. If they prevail, those opposing recognition of same-sex couples' validly-contracted marriages ineluctably stand to create a legal and practical nightmare, whereby Americans have to get their "marriage visa" stamped when they cross a state border, or where they (or their parents) are simultaneously married and unmarried in different reaches of the country. Such a situation is simply untenable, both in terms of federalism and the meaning and ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 292--------------------------------- expectations around marriage, itself a fundamental right.12 2. The Full Faith and Credit Clause's Implementing Statutes Congress has implemented the Full Faith and Credit Clause by means of 28 U.S.C.  1738, 1738A, 1739 ("the Statutes"). Because the Statutes are not part of the Constitution, they can of, course, be altered by Congress. Section 1738 provides, in part: Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of [such jurisdiction] from which they are taken. This statute is most notable for clarifying that full faith and credit obligations apply to all courts in the United States, thus requiring federal courts also to give complete faith and credit to State acts, records and judicial proceedings. The Statutes elaborate on the meaning of "full faith and credit" by defining it as the same faith and credit given by law and usage in the courts of the state producing the act, record, or proceeding. For example, other states must accord a marriage license issued in Hawaii the same weight and consequence that certificate receives in Hawaii. The U.S. Supreme Court first applied the principle of according full faith and credit to out-of-state acts, records, and proceedings in the context of judgments. For example, to determine what full faith and credit judgments should receive "[i]t remains only then to inquire in every case what is the effect of a judgment in the state where it is rendered."13 But full faith and credit is not limited to judgments; over time the Court has extended the same analysis to other acts, records, and proceedings.14 In each instance, a court in the forum state must accord the act, record, or proceeding the same effect it has in the state where issued. By statute Hawaii regards a marriage certificate issued pursuant to its marriage law to be prima facie evidence of a validly contracted marriage.15 Therefore, the courts of all other states must also recognize the certificate as prima facie evidence of a validly contracted marriage.16 B. "Conflicts of Law" as a Competing Analysis States resisting recognition of same-sex couples' marriages will probably argue that the Full Faith and Credit Clause does not require them to treat such marriages as an act, proceeding, or record to which they must give effect, but rather allows them to invoke their own marriage laws as applicable. That argument arises because the U.S. Supreme Court has distinguished between the application of the Clause to out-of-state determinations of the legal status, rights, and responsibilities of specific persons, and to choice-of-law decisions in litigation. In my view, the argument is misplaced, as what is at issue is not whose law should govern, but rather what respect must be accorded a res, a marital status, that the couples now possess and embody. In this "conflicts of law" context, the Supreme Court has recognized that full faith and credit does not automatically compel a forum state to subordinate its own statutory policy to a conflicting public act of another state; rather it is for this Court to choose in each case between the competing public policies involved. Hughes v. Fetter, 341 U.S. 609, 611 (1951). The issue in Hughes was whether Wisconsin could under its wrongful death statute deny a cause of action to the estate of an Illinois descendent, where Illinois law would have permitted the suit. In ruling that Wisconsin must allow the suit, the Court balanced ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 293--------------------------------- the strong unifying principle embodied in the Full Faith and Credit Clause looking toward maximum enforcement in each state of the obligations or rights created or recognized by the statutes of sister states against the policy of Wisconsin "against permitting Wisconsin courts to entertain this wrongful death action." Id. The Court noted that "if the same cause of action had previously been reduced to judgment, the Full Faith and Credit Clause would compel the courts of Wisconsin to entertain an action to enforce it" without balancing any policy interests. Hughes, 341 U.S. at 612 n.4. Thus, when state acts, records, or judicial proceedings have been applied to the facts of a particular case to determine the rights, obligations, or status of specific parties, the other states must give those acts, records, or proceedings the same effect they would have at home. The status has been created, the judgment rendered, the record recorded, and rights established -- no question of what legal regime may be invoked is now at pertinent. However, when asked to recognize an unfulfilled or general right or duty based on another state's statute or case law (such as the cause of action that would have been available to Hughes in Illinois), states may weigh the competing interests before deciding which rule of law to apply. Since a marriage -- whether as a certificate, an act, or a judgment-like res -- falls into the category of such adjudications or creations, there can be no policy balancing regarding their recognition. That this is the right result is reinforced by the fact that people could easily have a "judgment" outright were Hawaii to accompany its celebration of marriages with a mechanism whereby married couples could speedily obtain, as suggested by Hughes, a declaratory judgment of marriage. Couples could then return home with their certificate, their newlywed status, their snapshots, and a court order.17 Hence, "conflicts" or "choice of law" is not the proper analysis for cases involving marriage, and the marriage laws of the forum State cannot be used to displace an accomplished act (also recorded and "adjudged") under Hawaii's marriage law. C. Other Constitutional Grounds A State's refusal to recognize a marriage validly contracted under the laws of Hawaii would place a direct and tangible obstacle in the path of interstate migration and burden people's now-not-merely-abstract right to marry, thus implicating other constitutional provisions relating to due process, the right to travel and move freely throughout the nation, equal protection, interstate commerce, and privileges and immunities,18 as well as the fundamental right to marry itself. For example, a married couple in Hawaii who wished to travel in or to another state would essentially have to choose between their marriage and their right to travel. The rights to marry and to have that marriage recognized are of fundamental importance, both in and of themselves,19 and in part because marital status includes substantial economic and practical protections and benefits, upon which may depend the couple's ability to live as they want, raise children as they want, or even subsist. By refusing to recognize a couples's marriage, a State would, for example, "unduly interfere with the right to 'migrate, resettle, find a new job, and start a new life." Shapiro v. Thompson, 394 U.S. 618, 629 (1969);20 see also Edwards v. California, 314 U.S. 160 (1941)21; Crandall v. Nevada, 73 U.S. 35 (1867).22 Whatever cluster of constitutional grounds ultimately proves successful, it is clear that those opposing recognition of same- sex couples' marriages are advocating a position that could do great damage not only to the individual couples and children involved, but also to ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 294--------------------------------- the institution of marriage, family relationships, and the links and mobility vital to our federal union.23 For all these reasons, the position that the Constitution mandates full faith and credit for validly contracted marriages is right and should be developed. II. The Common Law Although there are a number of marriage-recognition decisions invoking the Full Faith and Credit Clause (and none explicitly rejecting it), the vast majority of cases regarding marriage recognition have proceeded under common law. Under that approach, marriages that are validly contracted in one state are given, at least, a strong presumption of validity in all other states. 52 Am.Jur.2d Marriage  3 (1970).24 We must be prepared to make arguments under the common law, although we should not, in doing so, concede the validity of abandoning the Full Faith and Credit Clause and its federalist imperatives. The rule at common law has been that a marriage valid where contracted (under the "lex loci contractus") is valid everywhere (i.e., in the "forum state" or under "lex fori").25 This general rule of course helped obviate the tensions that flow from non- recognition of people's marriages, and thus any need to invoke the Full Faith and Credit Clause. In addition, many states have subscribed to the Uniform Marriage and Divorce Act, or adopted some version of its requirement that all marriages validly contracted in one state will be valid in the forum state.26 Under some common law approaches, this general rule contains a disfavored loophole, what I call the "states' rights 'public policy' exception." Under this exception, although there is a presumption for recognition, states may elect not to recognize a marriage that is valid where contracted if recognition would contradict a strong public policy of the forum state or (in the Second Restatement's formulation) of the state "which had the most significant relationship to the spouses and the marriage at the time of the marriage."27 Restatement, Second, Conflict of Law  283 (1969).28 This states' rights exception arose at least in large part from the historical desire not to have to recognize interracial marriage. Citing the local "public policy exception" -- and ignoring the Full Faith and Credit Clause -- forum states have sometimes refused recognition to out-of-state or foreign marriages that either violated the forum's own marriage laws, or would not have been capable of celebration under those laws, regarding polygamy and bigamy, incest, miscegenation, age, prior divorce, common law marriage, capacity, and proxy marriages. On the other hand, the force of the general rule has often led other courts to recognize marriages that violated the forum's provisions regarding those same subjects.29 In keeping with this mixed pattern, some states undoubtedly will recognize same-sex couples' marriages, while others may attempt to deny recognition, invoking states' rights and adducing a public policy out of miscellaneous anti-gay aspects of their law. There are, of course, no legitimate public policies served by telling a couple that they are not married, or withholding equal protection, respect, and treatment. If they are permitted to pursue this aconstitutional approach, courts would have to determine whether recognition of an out-of-state marriage offends a "strong public policy." They might consider whether the marriage was expressly or impliedly prohibited by local statute or case law,30 and possibly (if seemingly unconstitutionally) whether such marriages are contrary to "morality," "natural law," the traditions of "Christiandom," or "Judeo-Christian teachings."31 They might consider whether the forum state has somehow adopted (or in a meaningful way countenanced) a strong policy of anti-gay discrimination somehow related to same-sex couples' marriages. However, given the strong interests in favor of ensuring that marital status enjoy uniform ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 295--------------------------------- recognition throughout the states -- to protect parties from charges of unlawful cohabitation and adultery, to ensure orderly disposition of property in the event of death or divorce, to protect the interests of children, to facilitate mobility, and generally to protect the expectations of the parties -- states have generally recognized marriages (even if contrary to state law or public policy), refusing to recognize validly contracted marriages only on grounds of strong local public policy. 52 Am.Jur.2d Marriage  80, 82 (1970); Restatement, Second, Conflict of Laws  283 cmt. b (1969). When challenged with a claim of "public policy," advocates should respond with the strongest countervailing policy and justice arguments available under the specific circumstances of the case, as well as general arguments. The policy balancing may occur in the context of the specific right, benefit, or responsibility of marriage arising in the litigation, e.g. intestate succession rights, insurance proceeds, tax status, or maintenance. See Restatement, Second, Conflict of Laws,  283 (1969). Under this approach, advocates may wish to focus on the policy advantages of recognizing the marriage for purposes of the specific incident (e.g. the orderly disposition of descendent's property in a case of intestate succession), and critical elements related to the parties' expectations and fair reliance interests, as well as on recognition of the status of the marriage itself. We might also argue that the "public policy" is not sufficiently strong, as evidenced by how it is expressed (i.e., as a civil rather than criminal statute, or only by inference from other state laws or policies rather than expressly or on point), or that an analogous "public policy" was disregarded in an analogous (albeit non-gay) case. The states' rights exception to the common-law rule of presumptive recognition has not actually been invoked in decades, has received sharp, serious, and sustained scholarly criticism, and should, if necessary, be challenged on constitutional grounds. A product of a shameful past of racism, national disunion, and relatively less mobility, the states' rights exception contradicts the basic premise of federalism that the states cannot treat each other like foreign countries.32 III. Statutory Law The Uniform Marriage and Divorce Act ("the Act") effective in at least seventeen states33 provides that: All marriages contracted within this State prior to the effective date of the Act, or outside this State, that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties, are valid in this State. 9A U.L.A.,  210 (1979). The Act has a great advantage over the common law rule in that its authors explicitly declared: the section expressly fails to incorporate the 'strong public policy' exception of the Restatement and thus may change the law in some jurisdictions. This section will preclude invalidation of many marriages which would have been invalidated in the past. Id., official comment. In interpreting the Act an Illinois court stated that: Out-of-state marriages are recognized as valid, thereby giving full faith and credit to a sister State's laws, if they were valid when contracted. However, the statute further extends what marriages are valid, even if the marriages were not valid where contracted, if the marriages were subsequently validated, either by the law of the State where contracted or by the law of the State where the parties to the marriage were domiciled. By allowing prohibited marriages to become validated, the purpose of the Illinois statute, i.e., to "strengthen and preserve the integrity of marriage and safeguard family relationships" is ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 296--------------------------------- furthered. Estate of Banks, 1994 Ill. App. Lexis 265, (App. Ct. Ill. 5th Dist. 1994) (citation omitted, emphasis added).34 Given that a significant number, indeed a plurality, of states are thus bound (independent of constitutional obligation) to respect marriages celebrated elsewhere, there are ample federalist arguments in favor of having a clean rule based on people's clear expectations regarding marriage and American union. CONCLUSION Most Americans, gay or non-gay, have not yet had to give real thought to the validity or meaning of same-sex couples' marriages and having the equal right to marry. While the initial reaction of many will range from incredulous to hostile, we also have much going for us: the fairness and rightness of respecting family relationships and committed, caring unions; the ability to present these stories in a compelling, positive, warm, and sympathetic manner (asking people how they would resolve this Catch-22); the logic, indeed, imperative of not requiring people to choose between marriage and movement from state to state; the sense that marriage is marriage, and this is one country in which if you are married, you are married; and a number of sound constitutional, statutory, common law, and fairness arguments. Whether under the Full Faith and Credit Clause, other constitutional provisions, or the common law presumption of recognition, we should not give up on this fight before we have even begun to wage it. And we must begin to wage it, not just through legal preparation, but through public education and political organizing. Above all, we must frame the discussion so as to put forward what works for us, while casting our enemies in their true colors -- the same crowd that, hiding behind the banner of "states' rights," has always been hostile to others' equal rights and pursuit of happiness. 1. Senior Staff Attorney at Lambda Legal Defense and Education Fund. With appreciation, I acknowledge the significant assistance of Gregory S. McCurdy and law students Robert Murphy and Camille Massey in the preparation of this summary as well as underlying materials on these topics. 2. See, e.g., 1994 Haw. Sess. Laws 217, 1994 Hi. H.B. 2312 (June 1994) (legislature asserts that marriage statute "intended to foster and protect the propagation of the human race through male-female marriages"). 3. Because the case involves state, not federal, constitutional questions, the Hawaii Supreme Court has the final word. There can be no appeal in Baehr to the U.S. Supreme Court, nor can the legislature alter the outcome (notwithstanding legislation such as that it adopted in June 1994 reiterating its desire to discriminate), short of a highly unlikely constitutional amendment. 4. As among non-gay Americans, there is a vast demand among lesbians and gay men for the equal right to choose whether and whom to marry. See, e.g., Evan Wolfson, "Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the Intra- Community Critique," 21 N.Y.U. Rev. of L. & Soc. Change ___ (1995) (forthcoming). Marriage brings with it a host of legal and social benefits and protections otherwise largely unavailable. Id. 5. For fuller discussion of these and other issues, see the material identified in the bibliography of equal marriage rights maintained by Lambda; see also Evan Wolfson & Gregory v.S. McCurdy, "'Let No One Set Asunder': Full Faith and Credit for the Validly Contracted Marriages of Same-Sex and Different-Sex Couples" (forthcoming); Jennifer ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 297--------------------------------- Gerarda Brown, "Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage," 68 S. Cal. L. Rev. ___ (1995) (forthcoming); Barbara J. Cox, "Same-Sex Marriage and Choice of Law: If We Marry in Hawaii, Are We Still Married When We Return Home?," 1994 Wisc. L. Rev. 1033; Joseph W. Hovermill, "A Conflict of Laws and Morals: The Choice of Law Implications of Hawaii's Recognition of Same- Sex Marriages," 53 Md. L. Rev. 450 (1994); Deborah M. Henson, "Will Same-Sex Marriages Be Recognized in Sister States?: Full Faith and Credit and Due Process Limitations on States' Choice of Law Regarding the Status and Incidents of Homosexual Marriages Following Hawaii's Baehr v. Lewin," 32 U. Louisville J. Fam. L. 551 (1994); Thomas Keane, "Aloha, Marriage? Constitutional and Choice of Law Arguments for Recognition of Same-Sex Marriges," 47 Stan. L. Rev. 499 (1994). 6. Estin v. Estin, 334 U.S. 541, 553 (1948) (Jackson, J., dissenting). 7. Experts agree that judgments receive the most immediate, unquestioned full faith and credit. See, e.g., Lea Brilmayer, "Credit Due Judgments and Credit Due Laws: The Respective Roles of Due Process and Full Faith and Credit in the Interstate Context," 70 Iowa L. Rev. 95, 97 (1984). 8. Magnolia was partially overruled on other grounds. Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980). 9. See, e.g., Parish v. Minvielle, 217 So.2d 684, 688 (Ct. of App. La. 1969) (Louisiana does not recognize or permit common-law marriages but must give effect to them when validly contracted in Texas); Guidry v. Mezeal, 487 So.2d 780, 781 (Ct. of Appeals La. 3rd Cir. 1986); Succession of Rodgers, 499 So.2d 429, 495 (Ct. of Appeals La. 2d. Cir. 1986); Commonwealth ex rel. Alexander v. Alexander, 289 A.2d 83, 86 (Pa. 1971) (Jones, J., concurring) (Pennsylvania must give full faith and credit to a Georgia marriage certificate); Orsburn v. Graves, 210 S.W.2d 496 (Ak. 1948) (Arkansas must give full faith and credit to validly contracted Texas common-law marriage). Although New York does not recognize common-law marriages, it gives Art. IV  1 full faith and credit to marriages that are valid under the laws of other states. Thomas v. Sullivan, 922 F.2d 132, 134 (2nd Cir. 1990); Ram v. Ramharack, 571 N.Y.S.2d 190 (N.Y. Sp. Ct. Queens Cty 1991). 10. See Robert H. Jackson, "Full Faith and Credit -- the Lawyer's Clause of the Constitution," 45 Colum L. Rev. 1, 7 (1945) (Full Faith and Credit Clause under-invoked in contexts such as marriage because "the slavery question and [Jim Crow laws] had begun to distort men's view of government and of law. Talk of 'state sovereignty' became involved in the issue."). 11. Id. at 3 (former Supreme Court justice observes that the Full Faith and Credit "[C]lause is a relatively a neglected one in legal literature.... The practicing lawyer often neglects to raise questions under it, and judges not infrequently decide cases to which it would apply without mention of it."). Indeed, the whole idea of enforceable rights is itself relatively new, as is the constitutionalization of family and marriage law, both largely arising since the heyday of non-recognition cases. 12. Thus, even more than developing any technical legal argument, it is critical that we collect and explain evocative real life examples of how burdensome, or indeed impossible, it would be to have the status of one's marriage, or one's parents' marriage, vary from state to state. 13. Mills v. Duryee, 7 Cranch 481, 11 U.S. 481, 484, 5 L.Ed. 411 (1813); see also Wright v. Georgia R.R. & Banking Co., 216 U.S. 420, 429 (1910). 14. See Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887) (holding ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 298--------------------------------- that "public acts", including plaintiff's corporate charter, must be given same effect as in issuing state). 15. See Haw. Rev. Stat.  527-1 and 572-13 (c) (1985); see also Conn. Gen. Stat. Ann.  46b-35 (1958). For a list of states statutorily prescribing what full faith and credit their marriage certificates should receive see Evan Wolfson and Gregory v.S. McCurdy, "'Let No One Set Asunder': Full Faith and Credit for the Validly Contracted Marriages of Same-Sex and Different-Sex Couples" (forthcoming). 16. Another set of issues may arise if states take the position that people do, on the face of it, appear to be married, and then pass statutes giving benefits to different-sex married couples while denying them to same-sex married couples. Challenges might arise under gender discrimination, sexual orientation, and other equal protection theories, as well as due process and fundamental right to marry theories. Naturally, the fall-out in these battles may also prompt reconsideration of the use of marriage as the unique criterion it is today in many contexts. 17. Professor Henson has also noted this point. 32 U. Louisville J. Fam. L. at 551. There is also an argument to be made regarding the anomaly in requiring states to recognize divorces, but not marriages. 18. U.S. Const., art. IV, 2. See, e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). 19. Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 438 (1965); Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987). 20. In Shapiro v. Thompson, the Court grounded the right to travel in the Equal Protection Clause and employed strict scrutiny analysis. The Court stated: "Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest." Id. at 638. At issue in Shapiro were state and federal provisions denying welfare benefits to persons who had not resided within the jurisdiction for at least a year. The requirement both deterred and penalized travel. In addition, none of the government's reasons were found to be compelling. The Court said that families could not be "denied welfare aid upon which may depend the ability...to obtain the very means to subsist," solely because they were members of a class which could not satisfy a one-year residency requirement. Id. at 627. In Dunn v. Blumstein, the majority declared that "it is irrelevant whether disenfranchisement or denial of welfare is the more potent deterrent to travel. Shapiro did not rest upon a finding that denial of welfare actually deterred travel...In Shapiro we explicitly stated that the compelling-state-interest test would be triggered by 'any classification which serves to penalize the exercise of [the right to travel]...'" 405 U.S. 330, 339-340 (1972) (quoting Shapiro, supra, at 634). The Dunn Court overturned Tennessee's state and local durational residency requirements for voting, and stated "whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification (recent interstate travel) we conclude that the state must show a substantial and compelling reason for imposing durational residence requirements." Id. at 335. Further, since the residency requirements impinged on the fundamental rights of both voting and travel, they faced a double-barreled assault of strict scrutiny. Likewise, a State's refusal to recognize same-sex couples' marriages from Hawaii would also impinge upon at least two fundamental rights: the right to marry and the right to travel. 21. Edwards involved California's attempt to slow travel into the state by prosecuting citizens who knowingly brought into the state any indigent nonresident. The Supreme Court ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 299--------------------------------- unanimously upheld the constitutional right to cross state lines, but disagreed on the constitutional provision abridged. The majority relied on the Commerce Clause as prohibiting "attempts...of any single state to isolate itself from difficulties common to all of them...by the single expedient of shutting its gates to the outside world." Id. at 173. The two concurrences found the Privileges and Immunities Clause of the Fourteenth Amendment to be the applicable constitutional text, and focused on individual rights in finding that right to free movement between states is a right of national citizenship. Mobility, Justice Douglas argued in his concurrence, is basic to any question of freedom of opportunity and to prevent the indigent from seeking new horizons would "contravene every conception of national unity." Id. at 181. This takes on even greater force when linked to marriage. 22. In Sosna v. Iowa, the Court applied rationality review in upholding a one-year durational residency requirement for divorce. 419 U.S. 393 (1975). In distinguishing previous cases in which durational residency requirements held invalid, Justice Rehnquist explained that the recent traveler was not "irretrievably foreclosed from obtaining some part of what she sought; her access to the courts was merely delayed." Id. The Court's distinction seemed to turn on the perceived significance of the burden on the right to interstate migration. In the Court's view a "mere" one-year's delay in securing a divorce was not a sufficient "penalty" on travel as to merit strict scrutiny. On the other hand, in Boddie v. Connecticut, the Court held that Connecticut could not, consistent with the obligations imposed by the Due Process Clause, deny access to a divorce court based on ability to pay a fee. 401 U.S. at 380. A State's refusal to recognize a same-sex couple's marriage from Hawaii, would penalize, not merely delay, those individuals who have exercised their right to move freely throughout our country. 23. The best things our opponents have going for them are, of course, (1) people's ignorance and hostility regarding gay issues, and (2) the fact that, as a historical matter, marriage recognition has not largely been treated as a constitutional matter. We must address this latter point by showing (a) the parallels to non-recognition in other circumstances, i.e., race, and (b) the increasing constitutionalization of marriage and other rights. The fact that the Full Faith and Credit Clause was muzzled in the past does not justify its non-invocation in the future, if needed. Cf., e.g., Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (Court reverses precedent of over a hundred years to reestablish view of federalism less deferential to states' rights). 24. See also, 52 Am.Jur.2d Marriage 80 (1970); Restatement, Second, Conflicts of Laws 283 (1969). 25. Patterson v. Gaines, 6 How. 550, 12 L. Ed. 553 (1848) and see, e.g., Franzen v. E.I. DuPont De Nomours, 146 F.2d 837 (3rd Cir. 1944); 52 Am.Jur.2d Marriage  80 n9 (1970); Krug v. Krug, 296 So.2d 715 (Ala. 1974). 26. The Uniform Marriage and Divorce Act expressly repudiates any "public policy" exception, and thus precludes invalidation of marriages whether or not they could have been celebrated under the law of the forum state. 27. The distinction between "forum state" and "state with most significant relationship" could actually in theory be pivotal, if the "forum state," i.e., the state where recognition is being demanded, is not the state that had the most contacts at the time of the marriage (and thus does not have "standing" under the Restatement to invoke the "public policy exception"). In any case, the Second Restatement identifies factors to be considered in evaluating the strength of an asserted public policy, while emphasizing the strong policy in favor of recognition. 28. The First Restatement contains a much more narrowly worded version of the "state's rights exception," requiring that a marriage be recognized unless it "not only [is] prohibited by statute but [also] offend[s] a deep-rooted sense of morality predominant in the state." At least fifteen states follow the First Restatement. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 300--------------------------------- 29. As my colleague Matt Coles suggests, this fact sets up a case for a "public policy parity" argument: Where recognition was granted in one analogous case, it must be accorded in another, as the "public policy" purportedly justifying denial of recognition of a same-sex couple's marriage is no greater than that previously ignored in recognizing some other marriage (i.e., ones that were miscegenous, "evasive," between parties closely related, etc.). Thus, it is important to be prepared to probe the elements of the claimed "public policy," distinguishing, for example, between an outright prohibition on same-sex couples' marriages and a mere tradition of applying a silent statute solely in favor of different-sex couples. 30. The First Restatement requires that there be explicit statutory prohibition. 31. Such language from the cases, of course, betrays the archaic and offensive roots of the states' rights public policy exception. 32. See Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 313 (1992); see also 45 Colum. L. Rev. 1, 27 (1945) ("[i]t is hard to see how the faith and credit clause has any practical meaning as to statutes if the Court should adhere to" the public policy exception); Gary J. Simson, State Autonomy in Choice of Law: A Suggested Approach, 52 So. Cal. L. Rev. 61, 70 n.51 (1978) (because it prevents consistent results, public policy exception is inconsistent with Full Faith and Credit Clause); Jennifer Gerarda Brown, Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage 3/14/94 DRAFT at 52 n.157 (on file with Lambda) (article also analyzes economic benefits to state celebrating and recognizing same-sex couples' marriages). 33. See Ariz. Rev. Stat. Ann.  25-112 (1991); Ark. Code Ann.  9-11-107 (Michie 1993); Cal. Family Code  308 (West 1994); Colo. Rev. Stat. Ann.  14-2-112 (West 1989); Idaho Code  32-209 (1993); Kan. Stat. Ann.  23-115 (1992);Ky. Rev. Stat. Ann.  402.040 (Michie 1984); Mich. Comp. Laws  551.271 (1993); Mont. Code Ann.  40-1-104 (1993); Neb. Rev. Stat.  42-117 (1992); N.M. Stat. Ann  401.4 (Michie 1993); N.D. Cent. Code  14-03-8 (1993); S.D. Codified Laws Ann.  25-1-38 (1993); Utah Code Ann.  30-1-4 (1993); Wyo. Stat.  20-1-111 (1993); Walker v. Walker, 44 N.E.2d 937 (1942); Ind. 50 Op. Att'y Gen. 346 (1967); Vital v. Vital, 319 Mass. 185, 65 N.E.2d 205 (1946). Brown, Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage, 3/14/94 Draft, at 49 n.143. See also, e.g., Conn. Gen. Stat. Ann.  466-28 (1958) (marriages contracted in the foreign country where one or both parties are Connecticut citizens "shall be valid" provided (1) both parties have the legal capacity to marry in Connecticut and the marriage is celebrated in conformity to the law of the country of celebration; or (2) the marriage is celebrated in the presence of an American diplomat by ordained clergy). Hawaii's analogous statute is entitled "Contracted without the State." HRS 572-3. 34. Similarly, in determining eligibility for social security benefits the U.S. Department of Health and Human Services recognizes as valid a marriage that would be recognized as valid by the courts of the state in which the wage earner was domiciled. Thomas v. Sullivan, 922 F.2d 132, 136 (2d Cir, 1990), citing 42 U.S.C.  416(h)(1)(A). But see Adams v. Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982) (court says same-sex couple not legally married under state law, nor would INS be obligated to recognize such marriage for purposes of immigration). Because immigration law has changed since Adams, because it lacked the benefit of cases such as Turner and Baehr, and because it is dicta, the assertions in Adams regarding congressional intent, the meaning of marriage, and the government's obligations are of dubious validity. Overview & Commentary: Bagaz 721/94 El-Al v. Danilowitz and the Future of Sexual Minority Rights in Israel ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 301--------------------------------- ------------------------------ Cut here ------------------------------