Amidst all of my many posts about what federal courts should do if DOMA is struck down, I thought I should say a little bit about Congress.

First — and this may be obvious to some readers but perhaps not to all — Congress could of course fix the choice of law problem by providing a statutory rule. Indeed, one of the few virtues of DOMA is that it is just such a rule. And in one of the most recent proposed bills that would repeal DOMA, Congress has also proposed replacing it with a choice of law rule.

I think this is a great idea. If DOMA goes away, Congress should exercise its power to replace it with some legitimate choice of law rule (obviously, if DOMA is unconstitutional, the replacement rule couldn’t be identical to DOMA, but there are a lot of other possibilities).

A congressional choice of law solution would have more legitimacy than a common-law solution, and could be more far-reaching, considering a broader range of policy considerations. (It could even extend federal marital benefits to civil unions, as discussed in my exchange with JHW.) Indeed, the opportunity to provide a replacement rule is one reason that Congress ought to repeal DOMA rather than just waiting around for the courts to have their way with it.

As for what rule Congress should adopt, I think the rule proposed in S.598 is a pretty good one. That rule is:

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.

For domestic marriages, the bill makes the marriage valid if it was valid where the couple got married. (Note, by the way, that with very rare exception, a marriage is almost always valid where the couple got married, because the couple usually chooses to get married someplace where their marriage will be valid.) For international marriages, there is the extra requirement that it must be a marriage that is valid in at least one state — no polygamy, no brother-sister marriages, no marrying nine-year-olds.

This is something of a “maximalist” approach to the choice of law problem, because in practice it will make almost all same-sex marriages valid. (Or at least it is “maximalist” within the realm of the traditional choice of law options.) So I think it would be problematic for courts to impose a solution like this without Congressional authorization. But it would also maximize stability and predictability for same-sex couples, at least with respect to federal law. As with the common-law solution, there’s plenty of room for argument about what rule Congress should adopt, but it would be nice if it stepped in with a rule.

However, I am pessimistic about this actually happening. Scholars have been calling for Congress to fix various choice of law problems for decades, and it rarely happens. While the DOMA repeal bill is a sign that at least somebody in Congress has thought about this issue, I don’t think anybody should be holding their breath for that bill, or any other statutory solution. That’s why I spent so much time blogging about the courts.

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