Thursday, June 20, 2013

Where Will Gay Rights Be After SCOTUS Rules?

Many are waiting with apprehension this morning since today or Monday will likely be when the U. S. Supreme Court hands down its rulings in Hollingsworth v. Perry, the Proposition 8 case, and United States v. Windsor, the DOMA case.   The speculation is that DOMA will be ruled unconstitutional and for gays in states where gay marriage is legal, a host of new legal rights will become available.  The Proposition 8 case is another matter and few seem to anticipate a broad ruling that would strike down bans on gay marriage nationwide.  So where does that leave those of us living in virulently anti-gay states like Virginia?  Mostly still totally screwed and second, third or even fourth class citizens.  But, if DOMA does fall, there will be some possible rights flowing to us if we marry in states where gay marriage is legal.  As noted in prior posts, we will face very complicated and inconsistent legal rights and challenges.  A narrow ruling on Prop 8 and a striking down of DOMA will no doubt unleash a further host of law suits.  Here are highlights of some further analysis from Towleroad.

Normally, marriage law is pretty simple: For 99 percent of heterosexual couples, the hardest thing about marrying in one state and moving to another state is packing the fine china. Sure, there are some states (New York) that allow first cousins to marry and some states (West Virginia) that do not, but for the most part, when a man marries a woman, they are married in all legal respects whether they live on the 65th floor in an Upper West Side hi-rise or in a ranch house in Oklahoma. 

The end of DOMA doubles down the complexity faced by legally married same-sex couples. What is the governing law for marriages for federal law: the place of celebration or the place of domicile? What if the choice of law is different from different aspects of federal law? What happens when a legally married couple moves to a state that feels that their marriage violates public policy? What of gay couples that do not have the option of marrying and are in registered domestic partnerships or civil unions that provide all the benefits of marriage?

[I]n a world without DOMA, which makes the choice of law question moot, what will the federal government do? The general rule is the marriages are recognized in the state of celebration, or the state the couple signed the marriage license, even if they reside somewhere else.

Some people argue that all states should recognize same-sex marriages performed in other states because the Constitution, specifically the Full Faith and Credit Clause, requires the states to recognize the "the public acts, records, and judicial proceedings, of every other state." But a marriage license is not a judicial proceeding and although it could be considered a "record," courts have generally not required other states to give binding recognition under the Full Faith and Credit Clause to similar documents, such as a pharmacist's, dentist's, or a lawyer's license.

That means that the Constitution isn't going to be much help coming up with a clear choice of law rule in a post-DOMA world. We could rely on the common law default rule that marriages are recognized by the federal government based on the laws of the state of celebration. But the common law rule has exceptions -- big ones -- that make life impossibly difficult for gay couples to move from one state to another when those state gay marriage laws differ. For some moves -- say, from New York to New Mexico -- there is no problem because whereas New Mexico may not be a freedom to marry state, it will recognize out of state gay marriages. But for other moves -- say, from Massachusetts to Utah -- the public policy exception to out-of-state marriage recognition takes Utah off the map as a viable destination for gay couples.

This raises questions of social justice and fairness, but also constitutional rights. You have a right to move, and states that ban gay marriage and refuse to recognize out-of-state marriages put an effective burden on gay would-be new residents. In Saenz v. Roe (1999), for example, the Supreme Court held, in part, that those who leave one state and become permanent residents of another state have a right to be treated equally to native born citizens of that state. That holding is not cabined by a mover's sexual orientation: a gay person isn't entitled to be treated like any other gay person in his new state, but rather he is entitled to treated equally to any other person in his new state. That could apply to marriage discrimination, as well.

Of course, Congress could step in and solve the complexity problem. The Respect for Marriage Act (ROMA), for example, would codify the following rule:

For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

Short of this kind of Congressional action -- which, by the way, is unlikely, given the makeup of the House and the long decades that have passed without Congress taking any action to mop up the messy patchwork of choice of law rules when it comes to marriage -- the post-DOMA world will be a tangled web of common law rules that will be subject to future litigation. There are no simple answers to the next questions. The IRS may interpret the tax and bankruptcy codes to define marriage based on state of celebration, but that rule can be challenged. Immigration authorities may interpret the rule differently, based on contradictory case law coming out of the spousal visa context, though, as attorney Lavi Soloway has argued, the celebration rule is the stronger argument.
Yes, it will be very complicated for many of us.   All so that the Christofascists can feel morally superior and inflict their anti-gay animus on as many of us as possible.  So much for religious freedom and the "liberty" that America pretends to offer to all.

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