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July 01, 2003

Interstate Validation of Marriages and Civil Unions

by Barbara J. Cox

Imagine that you live in one state but marry in another. After the wedding, you and your spouse drive home, traveling through several other states along the way. If you and your partner are an opposite-sex couple, all of the states will likely recognize your marriage. If a problem arises-an accident requiring hospitalization, for example-your legal relationship with your spouse will be valid and protected. But suppose that you and your same-sex partner drive from Maryland to Vermont to enter into a civil union because it is the only state that recognizes a significant legal relationship between same-sex couples. If an accident occurs on your drive home and one of you is hospitalized, most states and institutions will not acknowledge your legal relationship with your spouse.

Why the difference between the portability of marriages and civil unions? In Baker v. State of Vermont, the state supreme court ordered its legislature "to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law." The court could have included these couples within the state's marriage laws but instead allowed the legislature to create "some equivalent statutory alternative." Unfortunately, neither the court nor the legislature realized that equality cannot result from an institution that seeks to be "separate but equal." Although receiving equivalent state benefits within Vermont, civil unions are denied equal treatment under the federal Defense of Marriage Act (DOMA), raise federal preemption issues within Vermont, and raise "portability" questions outside the state.

When considering interstate recognition of marriages, many lawyers and most newspapers believe that the Constitution's Full Faith and Credit Clause requires states to recognize one another's marriages. Although this clause can be so interpreted, the Supreme Court and most courts have not yet used it for marriages. Instead, they use various choice-of-law theories, all of which start from the principle that a marriage valid where celebrated is valid everywhere. Most states have statutes to that effect and validate out-of-state marriages even when a marriage is or was prohibited within the resident state (for example, because the partners are underage or first cousins, or were interracial or previously married). After the Supreme Court struck down anti-miscegenation statutes as unconstitutional in Loving v. Virginia, most states validated out-of-state marriages if they were valid where celebrated.

When courts refused recognition, they did so on the bases of state marriage-evasion statutes to prevent circumventing in-state prohibitions, or of the public policy exception found in all choice-of-law theories that permits courts to refuse recognition if the marriage would seriously violate the state's internal public policies. A looming question inherited from Loving is whether courts may use the public policy exception to invalidate the marriages of same-sex couples even though they validate prohibited marriages of opposite-sex couples.

Some courts, however, understand the need for interstate recognition of same-sex relationships. In April 2003 Nassau County Supreme Court Justice John Dunne, in Langan v. St. Vincent's, permitted the surviving member of a civil union to bring a wrongful death action against a hospital. Validating the couple's Vermont civil union, the court permitted John Langan to proceed with the suit as his partner's spouse, just as any spouse from a common-law union in another state could do. "[I]t is impossible to justify, under equal protection principles, withholding the same recognition from a union which meets all the requirements of a marriage in New York but for the sexual orientation of the partners."

Similarly, a family law judge in Marion County, West Virginia, issued an order dissolving a civil union in December 2002 in In re Marriage of Gorman and Gump. The judge's order cited irreconcilable differences as the basis for dissolution and, like most divorce orders, indicated how the parties would divide their assets and separate their lives. Unlike courts in Connecticut and Texas, West Virginia held, "[t]he parties are citizens of West Virginia in need of a judicial remedy to dissolve a legal relationship created by the laws of another state." Because Vermont's dissolution law requires a person to reside there for one year before divorce, many out-of-state couples who entered into civil unions are turning to their own states' courts when divorce becomes necessary.

In a bizarre case from Jefferson County, Texas, Judge Tom Mulvaney granted a "final decree of divorce" in March 2003 to two Texas residents who had entered into a civil union. After the court issued its order dividing the couple's property and debts, Texas Attorney General Greg Abbott argued that the court should not have divorced the two men because no marriage existed. Eventually, the parties agreed to withdraw their divorce petition. Similarly, in Rosengarten v. Downes, the Connecticut Appellate Court held that Connecticut law did not recognize Vermont civil unions and therefore its courts had no jurisdiction to grant dissolutions in these cases. Ultimately Rosengarten was dismissed as moot on further appeal.

Courts refusing to validate civil unions as the legal commitment and relationship the partners intend abdicate their responsibility to provide for their own citizens who are in need of legal remedies. These citizens are entitled to have their legal relationships treated as equal to other legal relationships and to turn to the courts to help resolve issues arising from civil unions. Courts should use choice-of-law precedent to recognize these Vermont civil unions, just as they have with prohibited out-of-state marriages between opposite-sex couples.

Barbara J. Cox

Barbara J. Cox is a professor at California Western School of Law, located in San Diego, California. She has written extensively on the freedom to marry for same-sex couples.