Reader Michael Greenspan passes along this item that David Frum at National Review Online wrote a few months ago. I’m not a conflicts of law scholar (that’s the field that deals with these issues); I’m also not Andrew Sullivan, to whom the questions are addressed (and who dealt with them briefly here). But I know a bit about the subject, and thought I’d put my two cents in, and give the answer as a matter of current law.
Basic summary: These are interesting issues, but not that different from other issues that the legal system has had to deal with before, and not tremendously hard to resolve. The existence of the issues doesn’t show that somehow Massachusetts law would interfere with the public policy of other states, nor does it show that somehow the resulting system would be unworkable. To the extent that it disserves anyone, it would disserve the Massachusetts same-sex couples — but it wouldn’t make them any worse off than they are now, without any marriage rights at all.
Here are Frum’s questions, interspersed with my answers (which assume Andrew Sullivan’s quite plausible premise, which is that other states and the federal government will have no constitutional obligation to respect Massachusetts law):
FEB. 27, 2004: EIGHT QUESTIONS FOR ANDREW SULLIVAN
On his website today, Andrew Sullivan proclaims his support for the concept that a same-sex marriage license issued in Massachusetts could be void in the other 49 states. That would be a welcome compromise, especially if the Massachusetts courts ever managed to persuade the voters of Massachusetts to approve their judicially imposed social experiment — but let?s first test Andrew with some practical questions that follow from his idea.
1) A Massachusetts man buys a condo in Miami. He marries another Massachusetts man. The condo purchaser dies before he can write a new will. Who inherits the condo?
Unless I’m mistaken, the disposition of real estate is governed by the law of the state in which it’s located (here, Florida), and in fact you may have to go to court in that state in order to get the property turned over. So the man’s next-of-kin (children, parents, and the like) will inherit the condo, unless Florida courts decide to respect Massachusetts law on this, as a matter of common law rather than constitutional law (which they probably wouldn’t, if the state has a Defense of Marriage Act-like law). The only question is whether the Massachusetts courts will somehow try to compensate the same-sex spouse by upping his share of the rest of the property, something that I doubt they will do; but in any case, that’s up to Massachusetts courts to decide, and other states won’t be affected.
The issue already comes up in other situations, for instance when the state in which an opposite-sex couple lives is a separate property state but the couple owns land in a community property state, or vice versa. There are, after all, other differences in the law surrounding marriage. So not a new problem, and not much of a problem at all. At most, it makes life less good for the Massachusetts same-sex couples than it would be if all states recognized their unions — but I take it that this isn’t Frum’s objection.
(2) Two Massachusetts women marry. One of them becomes pregnant. The couple split up, and the woman who bore the child moves to Connecticut. The other woman sues for visitation rights. What should the Connecticut courts do?
Again, not a new problem. Under Connecticut law, the other woman would probably not be a parent of the child (again, unless Connecticut courts just decide, as a matter of common law, and trumpable by the state legislature). So the question is whether she might still get rights based on her having helped rear the child — precisely the issue that arises when Mother marries Stepfather, Stepfather helps raise the child for years (without formally adopting the child), Mother and Stepfather divorce, and Stepfather asks for custody. Some states recognize the “psychological parent” doctrine, under which such parents can get custody based on their close relationship with the child, on the (plausible) theory that such custody is in the best interests of the child, and that the child’s best interests should be the guide. Other states don’t. In any event, courts would presumably apply the same rules for same-sex couples as they do for opposite-sex couples where the petitioner isn’t an official parent.
Again, not a perfect situation for the same-sex couple, but no worse than if they couldn’t get married at all. And it’s not any worse for anyone else, or for the public policy of the state of Connecticut.
3) A Massachusetts man is accused of stock fraud. The federal Securities and Exchange Commission subpoenas his spouse. The spouse claims marital privilege and refuses to answer the SEC’s questions. May the SEC compel him to answer anyway?
Yes, absolutely. Under the Federal Rules of Evidence, the federal law of testimonial privileges governs in cases involving federal claims. Because of the federal Defense of Marriage Act, the federal law of testimonial privileges doesn’t recognize same-sex marriages. Again, nothing terribly new here; federal courts routinely ignore state law of privileges, and apply the federal law of privileges, in cases involving federal claims.
4) A Massachusetts woman marries another Massachusetts woman. The relationship sours. Without obtaining a divorce, she moves to Texas and marries a man. Has she committed bigamy?
No, because Texas law doesn’t recognize the original marriage, so according to Texas law, the woman is unmarried. Again, no public policy of Texas is interfered with by Massachusetts’ own decisions.
5) Two married Massachusetts men are vacationing in another state. One of them has a stroke. The hospital concludes he will never recover. Local law requires the hospital to ask the next of kin whether to continue treatment. Whom should it ask?
The state’s courts might decide, especially if there’s no state Defense of Marriage Act to the contrary, to respect Massachusetts law on this, on the theory that this better mirrors the parties’ expectations, and that it’s no skin off the state’s nose (since the people were just vacationing there). But if the state legislature, or the state courts as a matter of state common law, want to insist on refusing to recognize any aspect of same-sex marriages, then they would be free to do so.
6) A Massachusetts man marries a foreign visitor to the United States. Should the foreigner be entitled to US residency?
No, because under the federal Defense of Marriage Act the federal government doesn’t recognize same-sex marriages.
7) A Delaware family set up a trust for their son. The son moves to Massachusetts, marries a man, and then gets divorced. The trust is the son’s only financial asset. Should the Massachusetts take the trust into account while dividing up the couple’s possessions? If yes, what happens when the Delaware trustees refuse to comply?
I don’t know enough about trusts law to give a firm answer. Still, two thoughts: (A) Under California community property law, as I understand it, the ex-husband generally wouldn’t have a claim against the trust in any event, since the trust is the son’s separate (pre-marriage) property; my guess is that though Massachusetts isn’t a community property state, it would have a similar rule. (B) Otherwise, I suspect we’d have a similar situation to the one in item 1.
8) A Massachusetts woman married to another woman wins a lawsuit against a California corporation. She dies before she can collect her debt. Her closest blood relative demands t
hat the corporation pay the relative, not the surviving spouse. Who should get the money?
Personal property, unlike real property, is generally governed by the law of the state where the owner died. Again, I’m not an expert on this, but I suspect that a money judgment will be treated as personal property, and would be owned by the woman’s heirs (i.e., beneficiaries under intestate succession) or legatees (i.e., beneficiaries under a will) under Massachusetts law. In any case, I suspect that the law on this is pretty clear, because the matter already comes up in other cases, too. David Frum finishes:
If a couple gets married in Massachusetts and that marriage goes truly unrecognized by any entity outside the state — well then the Massachusetts wedding ceremony is just a form of words, as meaningless as the illegal weddings now being performed in San Francisco. If you?re not married outside Massachusetts, then you are not really married inside Massachusetts either.
I ask these questions to drive home this point: Americans may live in states, but they conduct their financial and legal lives in a united country bound by interstate institutions.
Somehow I cannot imagine Andrew and those who think like him reconciling themselves to that outcome. I suspect that “letting the states decide” will over time gradually evolve into a demand to allow the most liberal states to impose their social values on the others through the mechanism of a million petty lawsuits on a thousand different issues. That is why it is necessary and proper to settle this issue on a national basis. And since the proponents of same-sex marriage have chosen 2004 as the year in which to bring matters to a head, they have no fair complaint if the opponents of same-sex marriage choose make their reply in that same year.
I don’t think that’s so. My predictions may not be entirely accurate, because as I said I am not an expert on the subject — I’d welcome correction from any trusts, estates, or property lawyers who know this stuff better than I do.
Still I suspect that the bottom line would remain the same: These problems aren’t tremendously novel, hard to solve, or likely to cause undue burdens on other states who disapprove of same-sex marriage. There may be some litigation over them, though a lot less litigation in states that have Defense of Marriage Acts, which set forth clear rules against recognizing out-of-state marriages. And it would be a tiny fraction of the overall level of family-law/wills-and-trusts-law-related litigation that we endure all the time (litigation spawned chiefly by the institution of opposite-sex divorce, though also by the even older institution of family members fighting).
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