Archive | Conflict of Laws

NYU Journal of Law and Liberty’s Supreme Court Review-Preview

The newest issue of the NYU Journal of Law and Liberty is available online. It contains their special Supreme Court Review-Preview, which in turn contains my short article, Interstate Recognition of Same-Sex Marriage after Windsor, which I’ve mentioned here before. It begins:

Last June, the headlines said that the Supreme Court’s decision in United States v. Windsor struck down the Defense of Marriage Act. But that is only half true. The Defense of Marriage Act had two important provisions. Section Three defined “marriage” for purposes of federal law as being limited to the union of one man and one woman. It was invalidated in Windsor. But the Act’s other section, Section Two, says that states are not required to recognize one another’s same-sex marriages. Section Two was not invalidated, but it may be soon.

The Review-Preview also contains interesting-looking articles by Fernando Teson, Barry Friedman, Ilya Shapiro, Peter Shane, and by co-bloggers David Bernstein and Nick Rosenkranz. Richard Epstein wrote the introduction.

(I haven’t yet figured out how to download a PDF from the journal website, but the final version of mine is also on my SSRN page.) [...]

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The Limited(?) Nature of the Ohio Same-Sex Marriage Decision

Like Jonathan (posting directly below) I saw a lot of early reports suggesting that Judge Black, in the Southern District of Ohio, had invalidated Ohio’s ban on same-sex marriage. But Chris Geidner has a link to the actual decision, and as a technical matter it is slightly more limited: it invalidates Ohio’s ban as applied to those who have “valid same-sex marriages from other jurisdictions.”

This makes more sense. Judge Black had already issued a decision that said basically the same thing a few months ago. I discuss that decision (criticizing it in part and endorsing it in part) in my latest article in the NYU Journal of Law and Liberty’s Supreme Court issue: Interstate Recognition of Same-Sex Marriage after Windsor. This is a right to remain married when you travel, not a right to get married in Ohio.

That said, there is a footnote toward the end of Judge Black’s decision that makes clear that he would also declare a general right to same-sex marriage in Ohio if he had a chance:

As a final note, although the question of whether Ohio’s refusal to grant same-sex marriages also violates Ohio same-sex couples’ right to due process and equal protection is not before the Court in this case, the logical conclusion to be drawn from the evidence, arguments, and law presented here is that Ohio’s violation of the constitutional rights of its gay citizens extends beyond the bounds of this lawsuit.

But as a technical matter, the judge acknowledges that question was outside of the scope of his decision. Ohio clerks should not start issuing marriage licenses to same-sex couples.

Finally, I want to say that I’ve repeatedly noticed and appreciated the reporting of Chris Geidner in all of these same-sex marriage decisions over the past six months. More [...]

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The Aurora Mass Shooting, Choice of Law, and Newsgatherer Shield Statutes

Reporter, who is based in New York, gathers information in Colorado, related to a Colorado crime. She returns to New York, but is subpoenaed to appear in Colorado court proceedings, to testify about her confidential sources. Should New York newsgatherer shield law or Colorado newsgatherer shield law apply? An interesting and unusual choice of law problem, on which New York’s highest court split 4-2-1 yesterday in In the Matter of Holmes v. Winter (N.Y. Dec. 10, 2013). An excerpt:

New York’s Shield Law provides an absolute privilege that prevents a journalist from being compelled to identify confidential sources who provided information for a news story. In this case, the issue is whether it would violate New York public policy for a New York court to issue a subpoena directing a New York reporter to appear at a judicial proceeding in another state where there is a substantial likelihood that she will be directed to disclose the names of confidential sources or face being held in contempt of court.

Petitioner James Holmes is charged with multiple counts of murder, among other offenses, arising from a mass shooting at a midnight screening of a “Batman” movie at an Aurora, Colorado movie theater. Twelve people were killed during the incident and 70 others were wounded. Holmes was arrested at the scene soon after the violence ended. Anticipating that the shootings would generate widespread media attention, the state court presiding over the criminal charges—the District Court for the County of Arapahoe—immediately issued an order limiting pretrial publicity in the case by either side, including law enforcement.

On July 23, 2012, while executing a search warrant, the police took possession of a notebook that Holmes had mailed to a psychiatrist at the University of Colorado before the shootings. Holmes asserted that the notebook, which

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Murder Prosecution Raises Multiple Same-Sex Marriage Recognition Questions

A current murder prosecution in Kentucky happens to simultaneously raise two different same-sex-marriage recognition problems that I’ve previously blogged about. In Kentucky, as in many states, spouses don’t have to testify against one another about things they said while married. Ms. Bobby Jo Clary is on trial for murder, and the state wants her partner, Geneva Case, to testify about some things Clary apparently told her. Case doesn’t want to testify.

So far, however, the trial judge has ruled that Case has to testify for what seems to be a combination of two reasons — Kentucky doesn’t recognize same-sex marriages, and anyway Clary and Case aren’t married; they got a civil union in Vermont in 2004. (I’m going just by the description in the news reports here — I haven’t looked to see if there’s a written ruling from the court.) As readers might realize, this triggers two different questions I’ve been blogging about recently, and to win Case and Clary will have to prevail on both.

First, is there an obligation to recognition to recognize out-of-state same-sex marriages? The Kentucky Constitution says that same-sex marriage (and legal statuses “substantially similar to that of marriage”) shall not be “valid or recognized” in Kentucky. This triggers the question that I wrote about the for the NYU Journal of Law & Liberty. (My answer, recall, is that the logic of Windsor might reasonably be extended to require their marriage to be recognized if they were residents of Vermont at the time.)

Second, even if there is an obligation to recognize out-of-state same-sex marriages, does it apply to couples who have what is technically a civil union rather than a marriage? Vermont now has same-sex marriages, but Case and Clary got married when it was only a civil-union state. And when [...]

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New Labor Guidance on Same-Sex Marriage and ERISA

Thanks to the indispensable Chris Geidner, I see that the Department of Labor has issued “guidance” about how to deal with same-sex marriages under ERISA. Like just about every federal agency other than the Social Security Administration, the labor department takes the view that a marriage is valid for federal purposes if it was valid in the state where it was celebrated, regardless of whether the couple lives in an anti-recognition state.

A few thoughts:

— The guidance provides good policy reasons not to look at the law of the domicile. It does not, however, provide any arguments against (or even acknowledgment of) the solution that I’ve advocated, which would be to follow the choice of law provisions set out in the ERISA plan itself. (Most ERISA plans that I’ve read contain a choice of law provision designating a state whose law governs the interpretation of the plan.)

— The guidance argues that a domicile-based definition would “grow increasingly complex” because administrators “would need to continually track the state of domicile of all same-sex married employees and former employees and their spouses.” That’s true. But that problem wouldn’t occur under a plan-based approach.

— That said, the guidance deserves credit for explicitly flagging and talking about the choice of law problem in relatively coherent terms, and laying out some of the major arguments in favor of the policy it adopted.

— Unlike a lot of the other agency policies I’ve blogged about so far, it’s relatively easy to imagine a scenario where somebody could have standing to challenge this — fights over assets under ERISA are usually zero sum. That means we might actually see litigation over this policy. [...]

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Does Windsor Require States to Recognize Out-of-State Same-Sex Marriages?

I’ve blogged before about Obergefell v. Kasich, the first post-Windsor decision to raise the very interesting question of whether states are required to recognize out-of-state same-sex marriages.

I’ve now written a short essay on that question, which is forthcoming in the NYU Journal of Law and Liberty’s inaugural Supreme Court Review-Preview. Here is the introduction:

Last June, the headlines said that the Supreme Court’s decision in United States v. Windsor struck down the Defense of Marriage Act. But that is only half true. The Defense of Marriage Act had two important provisions. Section Three defined “marriage” for purposes of federal law as being limited to the union of one man and one woman. It was invalidated in Windsor. But the Act’s other section, Section Two, says that states are not required to recognize one another’s same-sex marriages. Section Two was not invalidated. But it may be soon.

Indeed, the validity of Section Two is a natural question after Windsor. Putting it more generally, the question is whether states are constitutionally required to recognize same-sex marriages that were celebrated elsewhere.

One federal court has already answered “yes,” relying on Windsor to hold that interstate recognition is constitutionally required: In Obergefell v. Kasich, a federal district judge granted a temporary restraining order requiring the state of Ohio to recognize a marriage between two Ohio men who had briefly traveled to Maryland to marry. (The recognition was for the sad occasion of issuing a death certificate.) And there is more to come. It seems likely that the court will issue a final decision soon enough, and another plaintiff has already been added to the Obergefell suit. Many other courts will soon confront the same question.

Windsor does not address this question directly. But the decision contains two different

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IRS Will Recongize Same-Sex Marriages Regardless of Where Couples Reside

Today the Treasury department announced that it will recognize all same-sex marriages valid in the “place of celebration” regardless of where the couple now lives. This is particularly noteworthy because it seems like a policy change. It had generally been thought that the IRS deals with other questions of marital validity by looking to residence. That’s what the Tax Court thought in Von Tersch v. Comm’r (1967) (“For 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.”); that’s what Patricia Cain thought in DOMA and the Internal Revenue Code (2009) (pp. 513-514) (“Although the rule is not clearly and completely stated in the Internal Revenue Code, or in the regulations, it is generally assumed that for tax purposes, a couple will be considered as married if they are legally married in the state of domicile.”); and it’s what I assumed too.

The new Revenue Ruling argues, however, that the new rule is consistent with its past practice:

For over half a century, for Federal income tax purposes, the Service has recognized marriages based on the laws of the state in which they were entered into, without regard to subsequent changes in domicile, to achieve uniformity, stability, and efficiency in the application and administration of the Code.

I don’t know who is right here, although I assume that Treasury knows what it is talking about. (If there were an unacknowledged change, the ruling would be vulnerable.)

A few thoughts:

1. At this point, it seems pretty clear that the administration is trying to implement a place-of-celebration rule as broadly as it lawfully can, and that the Social Security decision a few weeks ago is likely to [...]

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Social Security Administration Takes Different View of Marital Choice of Law

Chris Geidner (my go-to source these days for post-DOMA legal developments) reports that the Social Security Administration has now developed policies for paying benefits to couples in same-sex marriages. Most interestingly, the SSA has bucked the trend in other executive agencies of paying benefits to all couples whose marriage was validly celebrated. Instead, the SSA will pay benefits only to a couple whose home state (“domicile”) recognizes their marriage.

I assume that this stems from 42 U.S.C. § 416(h)(1)(A)(i), a special statute dealing with choice of marital law for social security claims:

An applicant is the wife, husband, widow, or widower of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, or, if such insured individual is or was not so domiciled in any State, the courts of the District of Columbia, would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died.

Two additional thoughts about this.

1. SSA’s decision may well be required by 416(h)(1)(A)(i), and if so it is hard to criticize the administration. But the decision has the unfortunate effect of ensuring that same-sex couples will be married for some federal purposes and not for others. My view is that one of the important attributes of marriage as a legal matter is the way it functions as a cross-cutting and trans-substantive. (See pp. 1415-1416 of my article.) So this is not a good thing. This should be [...]

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Steve Sanders on The Obligation to Recognize Out-of-State Marriages

IU Law Professor Steve Sanders has a post on the ACS Blog discussing Obergefell v. Kasich, the S.D. Ohio decision I blogged about earlier that required Ohio to recognize a marriage from Maryland — a marriage performed on a jet that had touched down in Maryland for the ceremony.

Sanders is quite critical of the district court’s reasoning (“the opinion seems conclusory and lacking in rigor”) although he is potentially sympathetic to its result. He argues that a constitutional obligation to recognize out-of-state marriages should come from the Due Process Clause: “Given marriage’s enormous legal, social, and practical significance, an existing union should be understood to implicate its own unique liberty interest under the Due Process Clause, separate from whatever ‘right to marry’ that clause may provide.” (I don’t read his piece to express a firm view about a case like this one, where the marriage was “evasive” of the couple’s home-state laws.)

I don’t necessarily concur in all of his constitutional analysis (largely because of our different constitutional methodologies), but those who are interested in the issue should read Sanders’s article in the Michigan Law Review making this argument in greater detail. [...]

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Civil Unions and Federal Law

A commenter to my last DOMA/choice-of-law post asks– why not just have federal law recognize all state-law civil unions? Why insist that a legal union be labeled “marriage” to count federally as a marriage? There are two slightly different versions of this question, which in my view have different answers.

Version one: Under current law, do federal laws referring to “marriage” include unmarried couples in civil unions? My view is “no,” as a simple matter of statutory text. There are a lot of couples in various kinds of close relationships, but for whatever reason (presumably some combination of tradition and simplicity) lawmakers often choose to single out “marriage” when giving special legal status to a relationship. Indeed, for better or worse, that special legal status has become an important part of what marriage is. So when Congress refers to couples who are married, we ought to take it at its word. Civil unions, while functionally very similar to marriage, are formally not marriage. Indeed, that is often the very point of a civil union. If one thinks that the legislature is constitutionally permitted to regulate access to marriage in this way (a big if, these days!), then one ought to respect the choice of forms.

That said, here’s version two of the question: Ought we to amend federal law, so that wherever possible, couples in state-law civil unions have all of the same benefits as couples in state-law marriages? My view is “maybe so!” At the outset I’ll say that I’m strongly in favor of amending federal law to provide some predictable and consistent way of deciding what couples are married for purposes of federal law. Bills providing a federal choice of law rule have been introduced in both the House and Senate and would help avoid exactly the kind [...]

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Cozen O’Connor v. Tobits: A Questionable Resolution of Some Complicated Choice of Law Problems

Thanks to the ever-alert Chris Geidner, I saw this post-DOMA decision by a federal district court in Pennsylvania, which is a good example of how complicated the post-DOMA choice-of-law problems can be (and how hard it is to get them right).

The case is an interpleader action dealing with ERISA problems (bear with me!) arising out of the death of Ms. Sarah Farley. Ms. Farley worked at a Pennsylvania law firm and married another woman, Ms. Tobits, in Canada. At the time of the marriage until Ms. Farley’s death, the couple were residents of Illinois. The firm’s ERISA plan, however, contains a clause saying that it is governed by Pennsylvania law (to the extent it isn’t preempted by federal law).

Under the rules of ERISA and the terms of the plan, Ms. Tobits gets the proceeds of the plan if she is Ms. Farley’s “surviving spouse.” If she isn’t, Ms. Farley’s parents get it. So the question is what law to look to — Pennsylvania law, Illinois law, Canadian law, something else? — to figure out if Ms. Tobits is a spouse.

The district court concluded that Ms. Tobits was a spouse. For reasons that are not clear, it seems to have decided that what matters is how the marriage would have been recognized in Illinois. (At times it notes that Illinois was “the couple’s place of domicile,” but earlier it asserted flatly that “Post-Windsor, where a state recognizes a party as a ‘Surviving Spouse,’ the federal government must do so with respect to ERISA benefits …” which implies that maybe another state would work too. It’s not clear why it thought Canada wasn’t enough.) It then concluded that Illinois law recognized the marriage, and so the Illinois marriage was incorporated into federal law.

Both of those conclusions are questionable. [...]

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Federal Court Orders Interstate Recognition of Same-Sex Marriage

As readers of the VC all surely know, the Supreme Court’s decision last month in Windsor struck down Section 3 of DOMA, which restricts the recognition of marriage for purposes of federal statutes. One of the big unanswered questions after Windsor was what would happen to Section 2 of DOMA, and more generally the question of whether states must start recognizing same-sex marriages that were performed elsewhere.

Chris Geidner reports that today a federal district court in Ohio answered “yes,” issuing a preliminary injunction forcing the state to recognize a Maryland same-sex marriage. The court concluded that the Constitution required the state to recognize the marriage, and invalidated an Ohio ballot measure saying that same-sex marriages should not be recognized:

[A]s the United States Supreme Court found in Windsor, there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal. Instead, as in Windsor, and at least on this early record here, the very purpose of the Ohio provisions, enacted in 2004, is to “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

Obviously, this decision will not be the last word on the issue and may not even be the last word in this case. It also may be foolish to try to analyze these issues as a matter of precedent or logic, rather than as a matter of predicting the general gestalt direction of equal protection law.

That said, two quick thoughts:

— For the most part, the opinion strikes me as a plausible interpretation of Windsor. Windsor did have some discussion of federalism, which wouldn’t necessarily extend to the interstate context. But the opinion also put emphasis on how “the State’s [...]

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