Choice-Of-Law Issues After United States v. Windsor
Brett R. Turner, Senior Attorney, National Legal Research Group
On June 26, 2013, the U.S. Supreme Court held in United States v. Windsor, No. 12-307, 2013 WL 3196928 (U.S. June 26, 2013), that section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, is unconstitutional. Section 3 provides that for purposes of federal law, same-sex marriages are not recognized. Windsor held that in determining the marital status of same-sex couples, as in determining the marital status of opposite-sex couples, the federal government must defer to state law.
While state law is now controlling, many situations will arise in which state law is conflicting. This short note will take a preliminary look at choice-of-law issues in a post-Windsor world. The note is based upon a morning's worth of research, but not upon an exhaustive review of the entire field. As additional relevant points appear, the note will be kept updated.
At a very minimum, Windsor must mean that when a same-sex couple gets married and continues to live in a state that recognizes same-sex marriage, they have a valid marriage under federal law. Thus, they are entitled to federal benefits available to married persons, such as the right to file a joint tax return.
What if a same-sex couple gets married in a state that allows same-sex marriage but moves to a state that does not? Under federal tax law, "[f]or the purpose of establishing eligibility to file a joint Federal income tax return, the marital status of the two individuals is to be determined under the laws of the State of their residence." Von Tersch v. Comm'r, 47 T.C. 415, 419 (1967) (citing Rev. Rul. 58-66, 1958‑1 C.B. 60); Lipton v. Comm'r, T.C. Summ. Op. 2007‑36, 2007 WL 686349, at *4 (2007)
The practical setting of Revenue Ruling 58-66 was common-law marriage. Most American states have abolished common-law marriage, but a small number of states retain it. See generally Nadine E. Roddy, Interstate Recognition of Common Law Marriages, 9 Divorce Litig. 200 (1997). Revenue Ruling 58-66 stated:
The marital status of individuals as determined under state law is recognized in the administration of the Federal income tax laws. Therefore, if applicable state law recognizes common‑law marriages, the status of individuals living in such relationship that the state would treat them as husband and wife is, for Federal income tax purposes, that of husband and wife.
The foregoing position of the Internal Revenue Service with respect to a common‑law marriage is equally applicable in the case of taxpayers who enter into a common‑law marriage in a state which recognizes such relationship and who later move into a state in which a ceremony is required to initiate the marital relationship. Accordingly, a taxpayer who enters into a common‑law marriage in a state which recognizes such marriages is entitled, under the provisions of section 151(b) of the Internal Revenue Code of 1954, to an exemption of $600 for his common‑law wife in making a separate income tax return, provided that, for the calendar year in which the taxable year of the taxpayer begins, she has no gross income and is not the dependent of another taxpayer. Also, for the purpose of filing a joint income tax return under section 6013(a) of the Code, a common‑law wife in a state which recognizes such marriages will be considered to be the taxpayer's spouse.
Rev. Rul. 58-66. Thus, if a couple contracts a valid common-law marriage in one state, the IRS will treat that couple as married in all other states, regardless of where they move.
But common-law marriage is a very imperfect analogy to same-sex marriage. States differ on whether they will allow common-law marriage, but states that do not allow such marriages by their own citizens still universally recognize common-law marriages when contracted out of state. Roddy, supra. By contrast, many states that do not recognize same-sex marriage feel so strongly about the issue that they will not recognize an out-of-state same-sex marriage.
But the common-law marriage cases probably do mean that federal recognition of same-sex marriages depends upon whether the state in which the parties reside would recognize a same-sex marriage, and not upon whether the state would allow its own citizens of the same sex to marry. For example, Maryland, New York, and Rhode Island recognized out-of-state same-sex marriages as valid some time before actually allowing such marriages. If a same-sex couple gets married in a state allowing same-sex marriage, and then moves to a state that recognizes such marriage, the marriage remains valid for purposes of federal law, even if the new state does not allow its own same-sex citizens to marry. That is exactly the same fact situation as in the common-law marriage cases.
Another potential analogy is antimiscegenation laws—laws prohibiting marriages between persons of different races. The IRS held in Revenue Ruling 68-277 that it would treat all mixed-race marriages as valid, regardless of state law. Rev. Rul. 68-277, 1968-1 C.B. 526. But that Ruling expressly cited Loving v. Virginia, 388 U.S. 1 (1967), which held that antimiscegenation laws were invalid on their face. Windsor clearly did not hold that laws banning same-sex marriage are invalid on their face. Rather, it held that whether to enact such a law is a question of state law, which the states are free to resolve in either direction. Research has not revealed any decisions considering the validity of a mixed-race marriage, for purposes of federal law, in the pre-Loving era, where the parties moved after the marriage.
The more common situation will occur when parties to a same-sex marriage move to a state that refuses to recognize out-of-state same-sex marriages at all. Under the logic of Revenue Ruling 58-66, and federal case law relying upon it, there would seem to be a good argument that if an out-of-state same-sex marriage will not be recognized in the state in which the parties currently reside, there is no valid marriage under federal law. Thus, a married same-sex couple may indeed lose federal benefits if they move to a state that refuses to recognize their specific marriage. But that is clearly a different question from whether the new state allows its own same-sex residents to marry.
It is possible, of course, that the federal government may come under some degree of pressure to change the principles of Revenue Ruling 58-66. Indeed, supporters of same-sex marriage are already pushing the federal government to adopt a broad rule that it will recognize any marriage that is valid in the state in which it was celebrated, regardless of where the parties live. Revenue Ruling 58-66 is purely administrative, and it could presumably be changed without the need for congressional action. Congress could, of course, reverse any administrative changes, but such a reversal would require a majority of both houses and approval of the President, a requirement that could be difficult to meet.
An even harder situation occurs when a same-sex couple, living in a state that does not recognize same-sex marriage, travels briefly to another state and obtains a same-sex marriage there, without having resided or been domiciled in the second state. This situation has arisen often in the context of divorce, and the general rule is that a divorce can be granted only in a state in which at least one spouse has a bona fide domicile. Williams v. North Carolina, 325 U.S. 226 (1945). Jurisdiction to marry seems similar to jurisdiction to divorce. It is very possible that federal law may not recognize a same-sex marriage that is not valid in the state in which the parties reside, even if the marriage was celebrated during a brief trip to a state that does recognize same-sex marriage.
There are probably a fair number of cases in which parties have crossed a state border to marry, without being domiciled in the new state, and their marriage has been upheld in the state in which they reside. But, again, there is a fundamental difference between marriages that a state does not allow, and marriages that the state refuses to recognize, especially for reasons of public policy. A state may prefer that its opposite-sex residents marry locally, but it rarely has a fundamental objection when they choose to get married elsewhere. The field of same-sex marriage, however, is full of restrictions based upon public policy. As long as the Supreme Court continues to view same-sex marriage as a concept that states are free to recognize or not recognize, it seems likely that federal law will not recognize an out-of-state same-sex marriage that is not valid in the state in which the parties reside, even if it is valid in the state in which it was celebrated.
The broadest possible choice-of-law rule would require the federal government to recognize any facially valid marriage license, regardless of where the spouses reside, so long as the marriage is valid in the state in which it was issued. This is clearly not the current law outside the same-sex marriage area, at least in the tax setting; the law on the books provides that the law of the state in which the taxpayer resides is controlling. Rev. Rul. 58‑66. But this rule arises primarily from common-law marriage cases, and a common-law marriage by definition has no formal license. There is room to argue that where a license does exist, the law of the state that issues the license is always controlling. But the greater likelihood is that the law of the taxpayer's residence will continue to be controlling.
So far, the discussion has assumed a single state of residence. But all married persons do not necessarily reside together. Assume that a same-sex couple marries in a state that permits same-sex marriage. They experience marital problems, and one spouse moves to a state that does not recognize same-sex marriage. Can the couple file a joint tax return? This is probably the most difficult situation. The most logical resolution is that the court should look to the last marital domicile—the last state in which the parties resided together. But there is room to argue that a joint tax return can be filed if either spouse resides in a state that recognizes the marriage, or to argue that the law of the state that issued the marriage license should be controlling.
The above discussion focuses primarily upon federal tax law, where the validity of a marriage has traditionally been determined by the law of the state in which the parties reside. The federal government provides married people with many benefits, and it is possible that different choice-of-law rules might apply outside the tax area.
Update (June 28, 2013): President Obama told reporters at a news conference, "It's my personal belief—but I'm speaking now as a president as opposed to as a lawyer—that if you've been married in Massachusetts and you move someplace else, you're still married, and that under federal law you should be able to obtain the benefits of any lawfully married couple."
But conservative groups are arguing that federal law should look to the state of domicile. "'We would support a narrower interpretation that would only apply to the state of domicile,' said Peter Sprigg, senior fellow at the Family Research Council, which filed a friend-of-the-court brief in support of DOMA."
Update (June 28, 2013): Several people have asked why states are not required to recognize all out-of-state marriages, same-sex or otherwise, under the Full Faith and Credit Clause, U.S. Const. art. IV, § 1. That Clause provides:
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.
(Emphasis added.) Thus, while the general rule is that states must give full faith and credit to public acts of other states, including marriage, Congress is expressly given the power to modify this requirement by statute.
Pursuant to the power granted in the sentence emphasized above, Congress enacted § 2 of the Defense of Marriage Act (“DOMA”). That statute provides:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
So Congress has expressly created a statutory exception to the Full Faith and Credit Clause, applying to same-sex marriages.
Windsor held that § 3 of DOMA was unconstitutional, but the constitutionality of § 2 was outside the scope of the issues presented. The federal decisions to date have uniformly held that § 2 is a constitutional exercise of Congress's express power to define full faith and credit by statute. See, e.g., Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005).