Interest Analysis in Interjurisdictional Marriage Disputes

IF 2.5 2区 社会学 Q1 Social Sciences University of Pennsylvania Law Review Pub Date : 2005-02-03 DOI:10.2307/4150661
T. Wolff
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On one side, skeptics argue that the federal Defense of Marriage Act and the public policy exception in choice of law together grant states the power to disregard any marriage that contravenes local law. On the other side, advocates of recognition invoke an array of constitutional arguments to contend that states may never exercise such a discriminatory and disruptive power against the marriages of gay couples. These are the lightning and thunder of legal analysis: categorical claims of state authority, met with categorical claims of constitutional invalidity.Many of the disputes that state courts will confront when married gay couples move and travel around the country will not be resolved by the heat and noise of this debate. Until the Supreme Court of the United States is prepared to place its institutional capital behind a principle of fully equal treatment for gay and lesbian couples, those couples must be prepared to engage courts in a discussion about what is sensible and advisable, not merely what is mandatory or prohibited. Among the most important elements in that discussion will be an examination of the range of interests that a state may rely upon in considering whether to give effect to a gay couple's marriage. That examination does require some attention to recent constitutional developments. While the Court has avoided any statement about the constitutional right of gay couples to marry in its recent decisions, it has nonetheless established principles that inform the range of interests that a state may legitimately assert as a basis for applying hostile forum law to the validly celebrated marriage of a couple from another state.In this Article, written for a symposium at the University of Pennsylvania Law School, I canvas a broad array of interjurisdictional marriage disputes and examine the interests that state courts have relied upon in discussing whether to give effect to a marriage that runs contrary to local law. I then examine the constitutional status of each of these rationales, as applied to a married gay couple, in the wake of the Supreme Court's decisions in Lawrence v. Texas, Romer v. Evans and Saenz v. Roe. I also discuss the statutes and constitutional provisions that a majority of states have now enacted to ban marriage by same-sex couples. Many of these mini Defense of Marriage Acts have used broad language to declare that marriages between gay couples are void. Such provisions are not unprecedented, and their relevance for interjurisdictional disputes is not always clear. In previous marriage controversies, courts have often required that a legislature make a clear and unmistakable statement of its intent to apply such provisions to good-faith marriages performed out of state, even in the face of broad language declaring such marriages absolutely void when performed locally. I examine the desirability of such a clear-statement rule here. Finally, I place these conflicts issues in a larger context by discussing the particular mode of subordination that often characterizes discrimination against gay people: the fantasy that they will cease to exist if the law denies them any form of official recognition or status. The proper way to frame the analysis in a recognition dispute, I argue, is to inquire into the most sensible way to treat the married gay and lesbian couples who will inevitably live within a jurisdiction, not to perpetuate an unreal discussion about whether it is desirable for those couples to exist at all.","PeriodicalId":48012,"journal":{"name":"University of Pennsylvania Law Review","volume":"153 1","pages":"2215"},"PeriodicalIF":2.5000,"publicationDate":"2005-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/4150661","citationCount":"3","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"University of Pennsylvania Law Review","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.2307/4150661","RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"Social Sciences","Score":null,"Total":0}
引用次数: 3

Abstract

Gay and lesbian couples are now entering into legally authorized marriages for the first time in our Nation's history. As has happened many times before when significant policy differences have emerged among the civil marriage laws of different states, these married couples will inevitably move about the country, and state courts will have to decide whether and for what purpose to give effect to their marriages when forum law would have prohibited them from marrying locally. The debate over this recognition problem is already fully joined. Thus far, however, that debate has most frequently been characterized by positions that are sweeping and unconditional. On one side, skeptics argue that the federal Defense of Marriage Act and the public policy exception in choice of law together grant states the power to disregard any marriage that contravenes local law. On the other side, advocates of recognition invoke an array of constitutional arguments to contend that states may never exercise such a discriminatory and disruptive power against the marriages of gay couples. These are the lightning and thunder of legal analysis: categorical claims of state authority, met with categorical claims of constitutional invalidity.Many of the disputes that state courts will confront when married gay couples move and travel around the country will not be resolved by the heat and noise of this debate. Until the Supreme Court of the United States is prepared to place its institutional capital behind a principle of fully equal treatment for gay and lesbian couples, those couples must be prepared to engage courts in a discussion about what is sensible and advisable, not merely what is mandatory or prohibited. Among the most important elements in that discussion will be an examination of the range of interests that a state may rely upon in considering whether to give effect to a gay couple's marriage. That examination does require some attention to recent constitutional developments. While the Court has avoided any statement about the constitutional right of gay couples to marry in its recent decisions, it has nonetheless established principles that inform the range of interests that a state may legitimately assert as a basis for applying hostile forum law to the validly celebrated marriage of a couple from another state.In this Article, written for a symposium at the University of Pennsylvania Law School, I canvas a broad array of interjurisdictional marriage disputes and examine the interests that state courts have relied upon in discussing whether to give effect to a marriage that runs contrary to local law. I then examine the constitutional status of each of these rationales, as applied to a married gay couple, in the wake of the Supreme Court's decisions in Lawrence v. Texas, Romer v. Evans and Saenz v. Roe. I also discuss the statutes and constitutional provisions that a majority of states have now enacted to ban marriage by same-sex couples. Many of these mini Defense of Marriage Acts have used broad language to declare that marriages between gay couples are void. Such provisions are not unprecedented, and their relevance for interjurisdictional disputes is not always clear. In previous marriage controversies, courts have often required that a legislature make a clear and unmistakable statement of its intent to apply such provisions to good-faith marriages performed out of state, even in the face of broad language declaring such marriages absolutely void when performed locally. I examine the desirability of such a clear-statement rule here. Finally, I place these conflicts issues in a larger context by discussing the particular mode of subordination that often characterizes discrimination against gay people: the fantasy that they will cease to exist if the law denies them any form of official recognition or status. The proper way to frame the analysis in a recognition dispute, I argue, is to inquire into the most sensible way to treat the married gay and lesbian couples who will inevitably live within a jurisdiction, not to perpetuate an unreal discussion about whether it is desirable for those couples to exist at all.
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跨司法管辖区婚姻纠纷中的利益分析
男女同性恋者在我国历史上第一次进入合法婚姻。就像以前发生过很多次的情况一样,当不同州的民事婚姻法之间出现了重大的政策差异时,这些已婚夫妇将不可避免地在全国各地搬家,而当法庭法禁止他们在当地结婚时,州法院将不得不决定是否以及为了什么目的使他们的婚姻生效。关于这一认识问题的辩论已经全面展开。然而,到目前为止,这场辩论最经常的特点是立场笼统和无条件。一方面,怀疑论者认为,联邦《婚姻保护法》和法律选择中的公共政策例外共同赋予各州无视任何违反当地法律的婚姻的权力。另一方面,主张承认同性婚姻的人援引了一系列宪法论据,认为各州永远不可能对同性恋夫妇的婚姻行使这种歧视性和破坏性的权力。这些都是法律分析的闪电和雷声:明确主张国家权力,遇到明确主张宪法无效。当已婚的同性恋夫妇在全国各地搬家和旅行时,州法院将面临许多纠纷,这些纠纷不会因这场辩论的激烈和嘈杂而得到解决。在美国最高法院准备将其制度资本投入到男女同性恋伴侣完全平等待遇的原则背后之前,这些伴侣必须准备好让法院讨论什么是明智和明智的,而不仅仅是什么是强制性的或被禁止的。讨论中最重要的因素之一将是对各州在考虑是否使同性伴侣的婚姻生效时可能依赖的利益范围的审查。这种审查确实需要对最近的宪法发展给予一些关注。虽然最高法院在最近的判决中避免对同性恋伴侣结婚的宪法权利作出任何声明,但它仍然确立了一些原则,告知各州可以合法主张的利益范围,作为对来自另一个州的夫妇的有效庆祝婚姻适用敌对论坛法的基础。在这篇为宾夕法尼亚大学法学院的一个研讨会撰写的文章中,我分析了一系列跨司法管辖区的婚姻纠纷,并考察了州法院在讨论是否使违反当地法律的婚姻生效时所依赖的利益。然后,在最高法院对劳伦斯诉德克萨斯州案、罗默诉埃文斯案和萨恩斯诉罗伊案的判决之后,我将研究这些基本原则在适用于已婚同性恋夫妇时的宪法地位。我还讨论了大多数州现在颁布的禁止同性伴侣结婚的法规和宪法条款。许多小型的《婚姻保护法》都使用了宽泛的语言来宣布同性伴侣之间的婚姻无效。这些规定并非史无前例,它们与管辖权间争端的相关性并不总是很清楚。在以往的婚姻纠纷中,法院经常要求立法机关作出明确无误的声明,表明其意图将这些条款适用于在州外履行的善意婚姻,即使面对宣称此类婚姻在当地履行时绝对无效的宽泛措辞。我在这里考察这种明确声明规则的可取性。最后,我把这些冲突问题放在一个更大的背景下,讨论了一种特殊的从属模式,这种模式往往是歧视同性恋者的特征:如果法律否认他们任何形式的官方承认或地位,他们将不复存在。我认为,在承认争议中进行分析的正确方式,是探究如何以最明智的方式对待那些不可避免地生活在某个司法管辖范围内的已婚男女同性恋伴侣,而不是继续进行一场不真实的讨论,即这些伴侣是否存在是值得的。
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