Hidden Time Bomb in the DOMA Case?

The Orwellian “Defense of Marriage Act” seems to have had a bad day with the Supremes yesterday, which is a good thing.  Let’s assume that the Court strikes down section 3, which bans federal benefits for same-sex couples, and does what the plaintiff wants, namely, make one’s marital status depend upon which state the couple is in.  Since Edith Windsor and Thea Spyer were in New York, and New York recognizes same-sex couples, they are married for federal purposes.  (It’s a bit more complicated than that, but for our purposes here, it’s good enough.).

That might raise more questions than it answers.

Suppose Molly and Sarah get married in California.  Then, for reasons known only to themselves, they decide to move to Oklahoma, which of course does not recognize same-sex marriage.  Then Molly dies and Sarah wants Social Security survivors’ benefits.  Does she get them?  The answer is not obvious.  Molly and Sarah were legally married in California, but they lived in — and were thus citizens of — Oklahoma.  Which state is the federal government supposed to listen to?

At the argument yesterday, Chief Justice Roberts immediately grasped the problem.  (He’s conveniently obtuse when it comes to things that are politically inconvenient to him, and never resists making absurd legal claims, but he is no dummy).  Say Ms. Windsor and her spouse had moved to North Carolina, he asked Roberta Kaplan, her lawyer.  Would they qualify for federal benefits?  No, said Kaplan: it would turn on domicile, not state of marriage.  But her answer hardly carries the force of law.

One could see why that would be the answer — it is the state of citizenship — but one could also see why it wouldn’t: it might interfere with the right to interstate travel, which the Court has repeatedly held to be a fundamental right.  If the answer is that benefits eligibility turns on the state that approves the marriage, then one can imagine the development of a thriving marriage industry in states that approve same-sex marriage.  (That industry has already developed, but now it would mean even more).

There is actually a third possibility, which might avoid the extremes but make things more complicated.  The answer might turn on the interpretation of the statute in question.  After all, as was mentioned yesterday, more than 1,000 federal statutory provisions mention marriage, and it could be a matter of statutory interpretation as to whether the marriage definition applies to the state of domicile or place of marriage.

But if that is the case, then it gives the Obama Administration important new power.  As every lawyer knows, the 1984 Supreme Court ruling in Chevron v. NRDC holds that courts must defer to reasonable administrative (i.e. executive agency) constructions of a statute.  President Obama could (and should) make it very clear that he expects agencies charged with interpreting statutes in their jurisdiction that mention marriage should interpret it to mean “place of marriage”.

Of course, the Court could answer this question in its opinion.  But if Justice Kennedy is the deciding vote, his practice is not to clarify these things, and in any event, the four centrist justices (Ginsburg, Breyer, Sotomayor, Kagan) will probably not agree to make it the state of domicile (Kennedy’s likely preference).  So it most likely will not be answered.

Put another way, even if the Court strikes down Section 3, this one ain’t over, folks.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

38 thoughts on “Hidden Time Bomb in the DOMA Case?”

  1. Wait, do the Feds even recognize or define a unique “state of domicile”? I spent years filling out multiple state “part year resident” tax forms, and I don’t recall a point where anyone cared to define my legal state “residency”. I suppose there are casual definitions—voter registration location (but that’s administered locally), driver’s license (but I’m not required to have one), address on tax forms (may be overseas; may not be required to file; etc.). What happens to a retired gay couple that spend a decade national-park-hopping in an RV? What happens to a gay couple that moves to Pakistan to do social work, but still files federal taxes? (In that case, if the federal government obeys the laws of the domicile and treats them as unmarried … does that count as “applying sharia in US courts”? Would the GOP object, or would their heads explode?)

    1. “Wait, do the Feds even recognize or define a unique ‘state of domicile’?”

      Well, they’d have to if their federal eligibility turns on whether they were married under the state of their domicile. That’s one reason not to make it do that. It would be quite easy for the Social Security Administration to hold that for administrative purposes, it is just going to determine whether you are married if you were legally married in the place of marriage. As for Sharia, we enforce that all the time, and it’s a good thing, too! http://www.samefacts.com/2010/09/watching-conservatives/sharia-law-is-enforced-in-the-united-states/

      1. But there’s also a very good reason to use domicile because it would match the rules for heterosexuals. My understanding is that when a heterosexual married couple moves to a state with the intention of remaining there for the indefinite future, their marriage comes under the jurisdiction of the state to which they have moved. If their marriage is one that isn’t recognized there, the couple’s marriage is generally speaking considered a nullity and they might be subject to criminal penalties if they continue to live as husband and wife.

        My understanding is also that the federal government follows the same rule because if they didn’t it might create a number of problems such as what happens if you have, say, a couple that married in a state (let’s use New York as an example)that doesn’t have divorce. They move to a state that does have divorce and get divorced. If they remarry, who get the spousal benefits? Or what if the wife goes to Mexico, gets divorced, goes to live in California, gets married again. The husband, not to be outdone, moves to Colorado and also remarries. He dies. Who gets the federal death benefits or whatever? First or second wife?

        If homosexual marriages are recognized based on whether they were valid when carried out, would the partner whose status generates the federal benefits be able to leave that benefit away from his spouse if he so chose and the homosexually married couple moved to a state where their marriage wasn’t recognized?

        I understand that the problem is that there probably going to be a fairly substantial minority or maybe even a majority of states where same sex marriage might not be recognized if the court allows it to be done on a state-by-state basis. But, as I said earlier, this type of determination has always been made for heterosexual marriages, most notably during the period when there were a very large number of states that either didn’t permit divorce or which didn’t recognize divorces granted by certain specific states such as Nevada or foreign jurisdictions such as Mexico.

        1. New York DOES have divorce. Until very recently, it didn’t have no-fault or no-consent divorce (it was the last state to enact those things), but it has always had divorce.

          Wouldn’t the principle of comity or reciprocity solve this? If you’re married in one state, you’re married in every state. If you marry a same-sex partner in California, and then go to Oklahoma and marry an opposite-sex partner, you’re still a bigamist.

          1. 1. I understand that New York has always had divorce, it just came to mind as an example of a state with highly restrictive divorce laws that didn’t particularly like divorces granted in other places, thereby leading to a lot of litigation. A better choice by me would have been to refer to Arizona, Arkansas, and Louisiana which have something called “covenant marriage” that have very restrictive grounds for divorce. Weintraub directs readers to Hay, The American “Covenant Marriage” in the Conflict of Laws,” 64 La. L. Rev. 43 (2003) for discussions of “Covenant Marriage” generally and in the context of whether “Covenant Marriage” states must give “full faith and credit” to divorces rendered in “no fault” states.

            2. After skimming through Weintraub last night, I think the question would be one of “full faith and credit” and not comity or reciprocity. That’s way beyond my depth. My present (very basic) understanding is that federal law requires that divorces rendered in another state have to be given full faith and credit but not marriages.

            3. Weintraub offers the following hypothetical as one he thinks would be the greatest test of DOMA under the Full Faith and Credit Clause:

            “A same-sex spouse obtains a wrongful death judgment against a nonresident who has killed the plaintiff’s partner at the couple’s domicile. The marriage was performed at the marital domicile, which permits same-sex marriages. Then the plaintiff sues in the nonresident’s state demanding full faith and credit for the wrongful death judgement…”

  2. If eligibility for federal benefits turns on state of domicile, things could get even more complicated than that. If you move from a non-marriage state to a marriage state, do you get the benefits only from that day forward, or they accrue? If there are elections to take (early retirement, late retirement etc), do you have to take them at the appropriate age even when you’re in a non-marriage state? Whee.

    1. Is there any legal problem with defining a FEDERAL marriage, which could be obtained as an alternative to a state marriage; and which would come with its whole set of corresponding family law vis a vis divorce, etc? Somewhat like federal vs state charters for businesses.

      Obviously defining such a law is a hassle, and could be a godawful political battle (both to start it, and then to constantly amend it); but I raise the issue on the idea that, should things play out as has been suggested here, leaving gay marriages hostage to the whim of the state in which they are forced to reside, this could prove a new line of political attack.

      A third possibility, a way to thread the needle as it were, would be to define a federal civil union, which is what is used (if one registers for it) for the purposes of federal laws and benefits; while leaving marriage to the states. One can go an evil states like New York to get “married”, then return to Oklahoma and register for federal civil union. The obvious problem here would be what happens when these come into dispute, if the couple divorces in NY but not “federally”; but that seems like a technical issues that could easily defined away, eg by simply asserting that the state divorce always implies federal divorce. This compromise would
      – allow the benefits to work
      – not get the feds tied up in the word marriage (which seems to be THE political issue)
      – still allows gays to get married (which again seems to be THE political issue)

  3. True story: I took the Maryland Bar Exam in February of 1976. At that time, it was composed of two sections, the “Maryland essay” portion and the Multi-State Bar Exam. The Multi-State was sort of like the SAT (in fact it was a product of the Educational Testing Service). It had 200 multiple choice questions.

    One of the questions was: If Congress were to attempt to regulate marriage, which provision of the Constitution would most likely be applicable to grant Congress authority to act?

    One of the four choices was “The power to regulate interstate commerce.” That was the one I picked.

    I remember only one of the other choices: The Thirteenth Amendment. I assumed that the drafter of the question had a sense of humor, but that the computer that would be grading the exam did not.

    And, yes, I passed first time out.

    1. What made you chose “commerce clause”? Not snark, serious question. Domestic relations is a traditional state area, with strong state interest and it’s possible to never leave the state in which you get married and many (maybe most) people never do. Doesn’t necessarily affect or effect interstate commerce. Coffee was a stretch but there was a certain logic to it in terms of traveling in interstate commerce, etc that doesn’t seem intuitively to make sense in the marriage or family law context in a way that the Privileges and Immunities Clause of Article IV does. I’m open to persuasion, however.

      (By the way, what was the right answer)?

      1. I chose “interstate commerce” because the other three possibilities were less likely to be the answer.

        I don’t know the “correct” answer. In fact, the Multi-State, while presenting 200 questions, actually has between 190 and 195 questions. That’s because, after reviewing the answers, the examiners conclude that certain questions/answers were too vague, ambiguous, or otherwise not acceptable and the questions are thrown out. So it’s entirely possible that there was no “right” answer.

        In speaking to the executive secretary of the Bar Examiners before I was sworn in, he offered to let me see my grades. I declined the offer, figuring that I actually failed and received a “passing” letter in error. No reason to tempt fate.

  4. “If the answer is that benefits eligibility turns on the state that approves the marriage, then one can imagine the development of a thriving marriage industry in states that approve same-sex marriage.”

    I foresee a jump in platonic marriages of convenience by more than a few women and some men.

    1. That is already a very widespread phenomena among the elderly. Also, if I understand this correctly, the controlling fact would probably be the place where the aid recipients or applicants live and not where they were married.

  5. It is possible that this question has been answered by people we don’t really think about: people who want to marry their attractive cousins. These unions are not uniformly recognized, so there is a chance of some caselaw. On the other hand, if George Michael and Maibe Bluth née Bluth move to a state that forbids their marriage, no one need ever suspect that that they are cousins. So the prohibition may never have been enforced the way it would be against same-sex couples.

    1. I thought about that, and I think your answer is dead on; I can’t imagine any caselaw on this. Ditto any interracial couple who, for reasons known only to themselves, moved to states pre-Loving that had anti-miscegenation laws.

  6. This is exactly the situation that governs all marriage and other domestic relations for heterosexuals. It is why a heterosexual marriage or divorce might be recognized in one state but unrecognized in another. It’s why a marriage (following a divorce) can be recognized in one state but be considered bigamous in the state where you want to live. Marriages between first and second cousins or Aunts and nephews might be legal in Texas but get you thrown into jail if you move to California.

    Yes, it’s a stupid system. But it’s the system that has always government domestic relations. Why should there be a special national rule for homosexuals?

    1. But the question here is not about what states do; the question is what the federal government will do if people legally married in one state move to another state. For federal purposes, are they married or not? Put another way, there doesn’t have to be a uniform national law, but there does have to be a uniform federal policy on which marriages it will recognize and which it won’t. So: you marry your cousin in California, which is legal. Then, you and your wife move to Arizona, which not only will not perform first cousin marriages, but won’t recognize them from out-of-state (at least so says Wikipedia). If you die, can your spouse get Social Security survivors’ benefits? I seriously doubt it has come up. but you never know.

      1. Actually, I don’t know about social security benefits but the general question of what happens if people who are legally married move to a state where they’re not comes up all the time. Every treatise on Conflict of Laws has at least one chapter on marriage and domestic relations. It mainly came up during the period when there were many states that either didn’t permit divorces or made them very difficult to obtain. People tried to circumvent these restrictions by getting divorced in places like Nevada or Mexico; there are countless Perry Mason books that have complications from quickie divorces and remarriages as a plot device. Now that “no fault divorce” is apparently very widely available, it doesn’t come up very much—but it does materialize occasionally.

        Many years ago, I was asked to look into the case of a man who had been married in Louisiana at a time when there was no divorce possible. He paid his wife to go to Reno and get divorced. A few months later he moved to another state and remarried. Many years later, he and his second wife returned to Louisiana for family reasons and because he was offered a very good job and, for reasons I don’t remember, the first wife filed a criminal complaint charging him with bigamy. Case went no-place but people do move to state where they their marriages aren’t recognized all the time. Sometimes there can be very unpleasant complications.

        Personally, I think there should be a federal marriage act to define marriage and uniformly regulate family law but it doesn’t like it will ever happen. So, basically, it seems to me that if marriage is marriage then homosexuals should have to live with the same crappy legal system as the rest of us.

        1. I guess the gay-marriage parallel case is something like this: Two men marry in Massachusetts. One abandons but does not divorce the other, moves to Louisiana (where the state treats him as unmarried), and marries a Louisiana woman. I wonder if it’s ever come up.

          1. I doubt that it’s ever come up but, I think it works out more or less backwards from what you might assume because of the wording of the two bigamy statutes.

            I think that the formerly gay married guy who moves from Massachusetts didn’t commit the crime of bigamy under MGL Chapter 272, §15 because the law requires that the cohabitation with the illegal second husband or wife take place in Massachusetts. The Commonwealth doesn’t seem to care about people illegally cohabiting with a second wife/husband/spousal unit someplace else so what happens in Louisiana stays in Louisiana as far as the Commonwealth of Massachusetts is concerned.

            Surprisingly, Louisiana might be a different story even though we are assuming that it doesn’t and wouldn’t chose to recognize same sex marriages as valid. Revised Statutes 14:76 provides: “Bigamy is the marriage to another person by a person already married and having a husband or wife living; or the habitual cohabitation, in this state, with such second husband or wife, regardless of the place where the marriage was celebrated.” Both the scholarly commentary and the cases (which obviously predated same sex marriage anywhere) are clear that the important factor is that the first marriage was a valid marriage according to the laws of the place where it was contracted; which, in your hypothetical, it was since Massachusetts permits same sex marriage. Apparently, it doesn’t have to be a marriage that would have been valid if contracted in Louisiana.

            So, my guess is that that the formerly gay married guy can probably be charged in Louisiana with the crime of bigamy pursuant to R.S. 14:76 even though his first (same sex) marriage wouldn’t be recognized as valid by that state for other purposes.

    2. ISTM that whether there has to be a ‘special national rule’ depends on whether a particular state restriction is an equal protection violation. I agree with the argument that failure to grant a marriage license to a SS couple is an equal protection violation. It’s not obvious to me why failure to recognize an out-of-state SSM isn’t an equal protection violation for exactly the same reasons.

      Is failure to grant a first-cousin license, or failure to recognize a first cousin marriage, an equal protection violation? That would depend on the level of scrutiny — I would think it wouldn’t be strict scrutiny, since it’s neither race not gender — and whether the states have a rational basis.

      1. Since the only even slightly plausible reason to deny first cousins the right to marry is fear that any children they produce will be genetically suboptimal, it would make zero sense to deny a marriage license to same-sex first cousins.

        1. I wonder whether this sort of thing is going to weigh on the minds of the justices. I’m beginning to think that we’re opening the door to some marriages that will carry our society someplace I’m not sure I or most people want to go.

          Which leads to this question: Can “ickiness” constitute a rational basis for legislating?

          1. I don’t think we really have to worry about a few fringe situations carrying “society” anywhere. I strongly doubt that anti-bestiality statutes will be struck down. But if they were, I doubt your life or mine would be affected at all.

          2. “Can ‘ickiness’ constitute a rational basis for legislating?” Actually, Romer v. Evans answered that: no. And if you think about it, saying “ick” to something without something more articulable is almost the definition of irrationality.

    3. How does it work with regard to age restrictions? If some young teenagers got married in a state that allowed it but then moved to a state that did not what would be the rule if:

      A) They moved while still too young by the rules of the second state.
      B) They moved after they had grown up.

      What happens?

  7. Interesting. And there’s no reason to suppose that each federal agency would come up with the same answer. And what about DOD, which frequently orders people to move from one place to another?

    But folks are right, that this exact issue is faced with respect to first cousin marriages. (One of my mother’s first cousins married a first cousin [other side] and had to relocate to do so. They continue to live in the state in which they were married. Suppose he dies first, and she moves back to the state where she lived most of her life — is she still a widow?)

  8. Jonathan has the big picture right, but he’s wrong on one significant detail. Chevron only applies when an agency is charged with interpreting the statute through regulatory power, not when it is only charged with implementing the statute. There is a difference.

    1. I agree, and didn’t mean to suggest otherwise. US Attorneys’ offices implement statutes all the time, but we don’t give them Chevron deference, at least not officially. In the DOMA context, though, the vast majority of the relevant agencies have regulatory power. It’s going to come up all the time with the IRS and its Revenue Rulings. SSA with Social Security benefits. Maybe Department of Labor with ERISA, although I don’t know about that, and anything that requires me to learn more about ERISA constitutes a reason for me to look at another topic!

  9. What if a married couple moves abroad, to a country where their marriage is not recognized? (Suppose, for example, that during South Africa’s apartheid era, a South African man living in the US married an American of a different race, and then the couple moved to South Africa. Under South African law, the marriage would be void.) How does the US government handle benefits in that case?

    1. I’m only about 80% sure I’m right, but I think there is an answer to Seth’s hypo. Most overseas Americans retain domicile in some state or another–maybe all do.

  10. The question must come up now, since there SSM is not the only type of marriage only has been recognized some places because of local public policy. For instance, what happened in the days of segregation where various states didn’t recognize interracial marriages?

    1. I think it is very much as we’ve been discussing in relation to divorce and consanguineous marriages. Such questions have always been addressed as a question of state power. This isn’t a great strength of mine and it probably been 30 years since I took Conflict of Laws so you should take this with a grain of salt but, for whatever it’s worth, this is how I think it lays out:

      If you live in Texas you can (or at one time you could)marry your aunt or uncle. If you move to a state that doesn’t allow such marriages, you’re not married as far as that state is concerned and may actually be committing a crime there, depending upon the degree of consanguinity. Which means that you can’t file a joint tax return, assert spousal privilege in court and you aren’t your spouse’s “next of kin” and so forth.

      If you and/or your spouse move to a state that permits or recognizes such marriages, voilà, you’re married for purposes of state law and you get all the rights and privileges that go with being married. If you take a second wife/husband you’re probably guilty of bigamy there and, of course, also in Texas if you return there and live with your second wife/husband.

    2. A more specific reply on interracial marriage: In his Commentary on the Conflict of Laws, Prof. Weintraub observes that this problem was sometimes handled by making a distinction between validity and incidents (a framework which might also be applicable to same-sex marriage). He says: “Even though a marriage is valid under the [rules generally applicable to domestic relations] just discussed, whether a specific incident of that marriage may be enjoyed in a particular state depends upon whether enjoyment of the incident would offend a strongly held policy of that state. For example, in the days before it was decided that miscegenation statues are unconstitutional, cohabitation in Tennesse by a white an and a Negro woman, who were married in Mississippi where such marriages were then valid, resulted in an indictment for miscegenetic cohabitation. On the other hand, Mississippi, when it did have a miscegenation statute in force, held that a white man could inherit his Negro wife’s Mississippi property because the couple had been married and domiciled in Illinois. Miscegenetic cohabitation would be deeply offensive to local policy, but inheritance would not.”

      1. Thank you. Andrew Koppelman in his book “Same Sex, Different States: When Same-Sex Marriages Cross State Lines” discussed this question to some degree, but it has been a little while since I read it. Suffice to say, history provides some lessons here though often from some accounts it seems to me that some have forgotten it.

  11. @ CharleyCarp,

    Two points:

    First, the constitutional analyses being applied by the court are supposed to have some connection to the values of our society. More specifically, although the question inexplicably didn’t arise during oral argument, much of the discussion about whether there is a “rational basis” for discriminating against same-sex marriage has turned on exactly this question and the related question of how one can construct a “stopping point” for the rule once it no longer relates to a characteristic like race or gender but instead focuses on something like sexual preference.

    Thus, the questions of whether the “ick factor” is something that can be considered by a legislature or the citizenry is deciding who ought to be allowed to marry and how such a determination ought to be treated under the “rational basis” test are central to the constitutional analysis. I don’t think you can or should dismiss those concerns so lightly. It seems to me that there is a balance to be struck between individual rights and the right of society to organize itself along lines with which it feels comfortable.

    Second, the “bestiality” trope is an absurd fixation of ignorant conservatives since animals quite obviously can’t give consent. I think questions about other possible variations such as age restrictions on marriage are slightly different and very much legitimate because if we say that society can’t have stopping points about things like consanguineous relationships it difficult to see objections to child marriage as significantly less arbitrary. Which, like certain consanguineous marriages, is something I personally find distasteful and troubling. Because I think most people think likewise, the question of whether society can pick an arbitrary stopping point seems like it should be more central to our discussion.

    1. Thanks very much. Looks like an interesting article. I’m going to try and work my way through it over the weekend.

  12. This is the proper blog for any person who desires to find out about this subject. You recognize so much its virtually difficult to argue with you (not that I truly would want?-HaHa). You certainly put a brand new spin on a topic thats been written about for years. Awesome stuff, just wonderful!

    [URL=http://www.michaelkorstopbags.com/ipad-iphone-cases-c-47.html]michael kors laptop bag[/URL]

Comments are closed.