The Lawletter Vol 38 No 8
The controlling federal statute on same-sex marriage is the Defense of Marriage Act ("DOMA"). DOMA has two operative provisions. Section 3, codified at 1 U.S.C. § 7, provides that no same-sex marriage can ever be treated as a valid marriage under federal law. This section was held unconstitutional in United States v. Windsor, 133 S. Ct. 2675 (2013).
DOMA § 2, codified at 28 U.S.C. § 1738C, provides that "[n]o State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex." In other words, no state shall ever be required to recognize a same-sex marriage from another state.
Case law before Windsor upheld the constitutionality of § 2. E.g., Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005). In light of Windsor, however, that position is being revisited. The next big issue in federal constitutional law involving same-sex marriage may well be the constitutionality of § 2 of DOMA.
The first post-Windsor case to address the issue is Obergefell v. Kasich, No. 1:13-CV-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013). The plaintiffs in that case were two men who ived together in a committed relationship. One of the plaintiffs was terminally ill with amyotrophic lateral sclerosis, more commonly known as Lou Gehrig's disease. Both plaintiffs lived in Ohio, which does not recognize same-sex marriage.
On July 11, 2013, a specially equipped airplane flew the plaintiffs to Maryland, which allows same-sex marriage. While the airplane sat on the tarmac, the plaintiffs were married. They then immediately returned to Ohio. Neither plaintiff was ever domiciled in Maryland.
On the face of Ohio law, the Maryland marriage was not entitled to recognition in Ohio, which has both a statute and a constitutional provision barring recognition of same-sex marriage. Ohio Rev. Code Ann. § 3101.01(C)(2)-(3); Ohio Const. art. XV, § 11.
Upon their return to Ohio, the plaintiffs filed an action against the State of Ohio and various state officials, asking the court to order them to recognize the Maryland marriage.
The plaintiffs then sought a preliminary injunction.
The court granted the injunction, finding a substantial likelihood that the plaintiffs would prevail at trial. Ohio state law has traditionally held that the validity of a marriage depends upon the law of the jurisdiction in which it was created. The rule has been applied to underage marriage, Hardin v. Davis, 16 Ohio Supp. 19, 1945 WL 5519 (C.P. 1945), and to marriage between relatives (e.g., first cousins), Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958). The court also cited a passage in 45 Ohio Jur. 3d Family Law § 11, stating that the rule applies to common-law marriage.
The question then became whether Ohio could apply a different rule only to same-sex marriage. For two reasons, the court held not. First, the core reasoning of Windsor is that a rule violates equal protection if it was adopted out of prejudice against a minority group. Windsor held that DOMA § 3 was enacted out of prejudice against gay people, and that it was therefore
unconstitutional. The court saw no valid reason for the Ohio statute and constitutional provision at issue, other than similar prejudice against gay people.
Second, a rule violates equal protection if it does not have a rational basis. "Even if the
classification of same‑sex couples legally married in other states is reviewed under the least demanding rational basis test, this Court on this record cannot find a rational basis for the Ohio provisions discriminating against lawful, out‑of-state same sex marriages that is not related to the impermissible expression of disapproval of same‑sex married couples." Obergefell, 2013 WL 3814262, at *6.
Because the plaintiffs were likely to succeed on the merits, the court granted a preliminary injunction.
Obergefell did not expressly consider the constitutionality of DOMA § 2. But that provision is merely a federal version of the provisions that Obergefell held are likely unconstitutional. If equal protection requires that the courts apply to same-sex marriage the exact same choice-of-law rules applied to opposite-sex marriages, then DOMA § 2 is unconstitutional and out-of-state same-sex marriages must generally be recognized.
There is reasonable support in the majority opinion in Windsor for the result reached in Obergefell. Windsor stressed heavily a series of comments made by legislators enacting DOMA, suggesting prejudice against gay people. Those comments cannot be limited to only one
section of DOMA. If the prejudice shown by those statements is the controlling reason for invalidating DOMA § 3, it is likewise a strong reason for invalidating the rest of DOMA, including § 2.
But there is also reason to hold otherwise. At a practical level, Obergefell comes extremely close to forcing nationwide recognition of same-sex marriage. Any same-sex couple wishing to be married can travel to a state recognizing same-sex marriage, get married, return to their
home state, and have a marriage that their home state must recognize for all purposes as a matter of federal law.
It is highly significant that the facts of Obergefell show absolutely no Maryland domicile. The airplane landed, the marriage was conducted, and the airplane took off. If that is a permissible procedure, then federal law is essentially forcing state recognition of all same-sex marriages, because it is very easy to obtain an out-of-state same-sex marriage.
In addition, there are arguably valid reasons for imposing requirements upon recognition of out-of-state same-sex marriages that do not apply to other types of marriages. States have different rules on underage marriages and marriages among relatives, but none of these rules are matters of public policy. People are not marching in the streets, demanding that the state not recognize underage marriages or common-law marriages or marriages between close relatives. These are matters on which the states agree that reasonable people can differ.
But same-sex marriage is a fundamental public policy issue. The presence of statutory and
constitutional provisions in many states shows that recognition of same-sex marriage is viewed by many as a fundamental public policy issue. Obergefell held that one of the most serious and divisive disputes in modern American family law can be resolved by court action, because the judge believes that one side of the dispute is adopting an irrational position. That is certainly not an example of judicial restraint.
The argument against Obergefell is that the high level of public opposition to same-sex marriage, in those states that have not yet adopted it, is itself strong evidence the restrictions against recognition of out-of-state same-sex marriage—DOMA § 2 and its state equivalents—have a rational basis. They are not based upon prejudice alone, but upon a desire to maintain the traditional rule that marriage is for persons of the opposite sex only. Windsor spoke at length of how rules regarding marriage are traditionally a subject for state law and not federal law. Obergefell holds to the contrary, suggesting that federal law can dictate the content of state law rules on recognizing out-of-state marriages.
Finally, it is worth noting that Obergefell does not necessarily require recognition of all out-of-state same-sex marriages. A state could, in theory, adopt a rule that it would not ever recognize any out-of-state marriages that could not occur under local law. Such a measure would apply the same rule across the board to underage marriages, common-law marriages, and marriages between close relatives, thus avoiding one of the main reasons for the Obergefell decision. Such a provision might still be questioned, however, on the ground that it was motivated primarily by prejudice.
Overall, Obergefell is not a position that is likely to last in its current form over a long period of time. If the courts have the power to force recognition of same-sex marriage because the opposition is irrational and motivated by prejudice, then the wiser long-term move is simply to hold that same-sex marriage is a fundamental right—that is, to extend the principles of Loving
v. Virginia, 388 U.S. 1 (1967), to same-sex marriages.
If it is not yet time to declare that same-sex marriage is a fundamental right—and same-sex marriage remains a minority rule, although a growing one, among American states—then it is likewise arguably too early to declare that all opposition to recognition of same-sex marriage is irrational and a result of prejudice. In a world in which some states are free to recognize same-sex marriage and other states are free not to recognize same-sex marriage, there must be a better series of choice-of-law rules than simply assuming that all opposition to recognition is
irrational. Such an assumption fundamentally conflicts with the notion that states are free to refuse to recognize same-sex marriage in the first place.