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May 11, 2004

The Right to Not Be Married... or Whatever

As concerned citizens attempt to flesh out the full implications of what can and cannot be assumed about the Full Faith and Credit clause with respect to same-sex marriages and federalism (see the comments here, for example), the country's courts are in the process of setting the precedent that will ultimately decide the debate. Dennis Powell points out one such case with sparse details available. Two lesbians with a Vermont civil union are battling over divorce under New York's jurisdiction. Powell raises the FF&C clause here:

Barring invocation of the Defense of Marriage Act, the case would be tried under the full-faith-and-credit clause. But again there are legal vines to be hacked away. What law in New York governs civil unions that do not legally exist in New York? The judge would have a choice. The case could be ruled as being so far outside New York law that the parties to the suit would be told to go back to Vermont for their divorce (which would be problematic not for the judge but certainly for the parties, in that Vermont has a six-month residency requirement for filing and a one-year residency requirement for obtaining a dissolution). The judge could decide to try the case in New York employing the relevant Vermont statutes. Or the judge could try the case under New York domestic-relations law, effectively creating recognition of civil unions in the state. ...

There is apparently no judicial guideline in New York for the handling of such matters. By statute, New York does not recognize common-law marriages, but under full faith and credit dissolves them if a divorce action is brought. It could turn out that the path through the legal jungle is an easy one, depending on the approach taken in the case. But it may well spark legislative action in the Empire State.

Full Faith and Credit, it is crucial to remind ourselves, is little more than another principle thrown into the tangle of this issue. It is simultaneously an angle of attack for proponents of SSM and a decoy from other routes. New York attorney general Eliot Spitzer has already declared that Massachusetts same-sex marriages should be recognized in New York. The bottom line is that, barring a constitutional amendment, this fundamental social and cultural question is going to be answered by a handful of largely unaccountable public officials.

For a sense of the way in which the various routes and angles coalesce to redefine the law — effectively, to legislate — by way of legal precedent, consider another case addressing Vermont civil unions in New York. In that instance, the question is whether a civil union ought to grant the same rights to litigate as a spouse in a wrongful death suite. In the process of working around to a "yes," a judge has cited common-law marriage precedent that requires recognition of such marriages if they are legal in the other state. Of course, common-law marriages are not legal in Vermont, but that merely made it a simpler matter to equate civil unions with them.

In the wrongful death case, it is also relevant that the judge cited various limited instances in which common-law marriages have been recognized. Such citations — always selective, and often drawing from other states' courts — become the basis for determining what precedent is and, in the language of full faith and credit, what "public policy" is. Thanks to the Massachusetts judiciary, same-sex marriage has come too quickly for the public even to observe the federalist ramifications of civil unions in one state. It simply stretches the bounds of reasonable discussion to suggest that a patchwork for marriage will hold long enough to allow legal consequences to become apparent, much less social consequences.

I'll say it again: If gay marriage arrives as a direct, unobstructed result of this push, it will not only arrive in the worst conceivable way for our culture, and the gay subculture, but it will also have torn a gaping hole in the law on its way.

Posted by Justin Katz at May 11, 2004 5:31 PM
Marriage & Family

Barring invocation of the Defense of Marriage Act, the case would be tried under the full-faith-and-credit clause.

What does that even mean? I think what Powell should have said is the case raises choice-of-law issues. Which laws should apply to this case and should the cause of action even be heard in the NY forum. Choice-of-law issues arise all of the time, though. This case happens to draw a lot of interest because it involves a gay couple.

Now there are guidelines as to how to apply choice-of-law doctrine to cases involving marriage. Civil unions are unheard of. Should the same rules apply? One should expect less confusion with marriage.

And of course attorney generals and judges draw on precedent. What would you have them do instead? Flip a coin? If the legislature of the State of New York wants to instruct its judges to treat the issue of same-sex marriages differently than other marriages, it is and has been free to do so. Many states have done precisely that. New York has not chosen to do so.

Posted by: Gabriel Rosenberg at May 11, 2004 6:45 PM

Prof. Rosenberg,

Confusion may have been Powell's concern, but it isn't mine. Given the conflicting precedents floating around, the "confusion" about civil unions only exists because what increasingly appears to be a predetermined verdict requires the judiciary to knock down larger barriers.

As to what courts should do, it seems to me that admitting the boundaries of their positions would be a good start. Something along the lines of: "Sorry, you're talking to the wrong branch of government." But it's important that, in the only New York cases on the table (excluding Spitzer's remark), we're not talking about treating "same-sex marriages differently than other marriages." We're talking about judges treating a relationship that would seem, according to a strict reading of New York law, to be just an out-of-state contract.

Posted by: Justin Katz at May 11, 2004 9:14 PM

"I'll say it again: If gay marriage arrives as a direct, unobstructed result of this push, it will not only arrive in the worst conceivable way for our culture, and the gay subculture, but it will also have torn a gaping hole in the law on its way." You don't suppose that's the real goal of some, do you? Oh, how could I even THINK that........

Posted by: ELC at May 11, 2004 9:48 PM

We're talking about judges treating a relationship that would seem, according to a strict reading of New York law, to be just an out-of-state contract.

Even if we assumed that it was just an out-of-state contract, then the forum should be open and New York should probably apply Vermont law. If I make a contract with someone in Connecticut and then move to New York, New York can still enforce that contract (and generally will unless the contract involved something like selling drugs). Now the thing is under Vermont law the relationship should be considered exactly the same as marriage.

And what do you mean "Sorry you're dealing with the wrong branch of government"? To which branch of government are they supposed to take these cases?

Posted by: Gabriel Rosenberg at May 11, 2004 11:04 PM

I would assume, (in my humble opinion)that the choice would be to render the agreements null and void. This is a political question, not a question of law - and judges should refrain from establishing precedant without a clear signal from the legislature.
Its really just a question of judicial restraint, something liberal judges find hard to muster.
Power is intoxicating.

Posted by: Fitz at May 12, 2004 11:53 AM

But in this case the legislature has given no instructions to the judiciary one way or another. So you have a general rule that says you respect the laws of the other states and the legislature has made no exception to this rule for civil unions. I think it would be judicial activism to ignore the general rule and create your own exception out of thin air. Sure it might be intoxicating to create a new rule that says Vermont laws are to be disregarded, but that is a matter that should properly be left to the legislature.

Posted by: Gabriel Rosenberg at May 12, 2004 12:00 PM

Prof. Rosenberg,

I don't know enough about contract law, but I'd be surprised if the question weren't at least a bit muddier than you characterize it when the type of contract in question doesn't even exist in the person's home state. Just to make something up, say a woman signs a long-term contract as a prostitute in Nevada, and she and her client move to Connecticut. Would the default position for the judiciary be to enforce the terms of the contract — even as a surrogate for Nevada?

The difficulty, of course, is that civil unions and SSM are brand new innovations, not mentioned in law because they didn't exist anywhere. I can't, offhand, think of any parallel from which to judge a "general rule."

Posted by: Justin Katz at May 13, 2004 2:03 PM

Good points, Mr. Katz. There is a very good chance the prostitution contract would not be enforced because of Connecticut's public policy against prostitution. I think the word for such contracts is "meretricious" and they are generally unenforcable.

And I agree civil unions are completely new and thus there is little guidance for a judge. So a judge must do the best he or she can and try to draw parallels. A natural comparison is marriage. This is in fact a very natural comparison since Vermont law says civil unions are to be treated like marriages in every way. Now they don't use the word "marriage" (and you would seem to note that even a same-sex marriage is not exactly the same thing as marriage as contemplated in the past), but that seems to be the best thing to go on as a starting point.

When it comes down to it, though, the legislature in New York has given the judges absolutely no guidance on this. The judge is left in the position of trying to figure out what's best. I think it's quite reasonable to recognize the civil union for certain purposes (especially dissolving it--what policy interest does the State of New York in preventing the couple from dissolving their civil union?) Although I will note that the Supreme Court of Connecticut reached the opposite conclusion in a similar circumstance. I disagree with the court, but again there was no guidance from the legislature, so I can hardly blame it for what was a difficult decision.

Posted by: Gabriel Rosenberg at May 13, 2004 9:53 PM

Well, we'll just disagree (on the final conclusion), I guess. I'm of the opinion that judges, who are representatives of the people of their states, after all, and not advocates for either or both of the parties to a lawsuit ought to approach such decisions in a way that is cognizant of the political heat surrounding the issue and wary of setting precedent that they must know will be leveraged to go much further.

Posted by: Justin Katz at May 13, 2004 10:16 PM

Yes, but either way they will set precedent. That is unavoidable.

Posted by: Gabriel Rosenberg at May 14, 2004 8:29 AM

If this is in Canada can America be far behind? The problem with the homosexual agenda is that it is morally, spiritually wrong. It is being pushed in our schools and in our culture even though the vast majority of the population is not homosexual and do not agree that homosexual marriage is a right. This is a political hot spot and they have lots of money to lobby for their cause. Our politicians have no backbone, and what they used to have has been excised by political correctness. Political correctness is a blight on freedom.

'Chill Bill' Passes Canadian House, Makes Free Speech Against Gays a Crime
By Jimmy Moore
Talon News
April 30, 2004

OTTAWA, ONTARIO (Talon News) -- A bill introduced by Canadian parliament member Svend Robinson that would make free speech against homosexuals a crime passed in the House of Commons.

The "Chill Bill," or C-250, passed by a vote of 140-110 on Wednesday despite objections from the religious community that religious speech would be limited by the law if they speak out against homosexuality.

If it becomes law, then the "Chill Bill," which is also known as the "Bible As Hate Literature" bill, would ban speech that would be used in condemnation of homosexuality or homosexual acts.

This is similar to the anti-hate speech law in Sweden where a Pentecostal minister is now facing charges for using the Bible to point out that homosexuality is a sin.

Robinson, who belongs to the socialist New Democratic Party in the Canadian parliament, has championed civil liberties issues in the past and is openly gay.

The "Chill Bill" would specifically amend Section 318 of the hate crime law by adding the phrase "sexual orientation" as the fifth protected class of people, adding to color, race, religion, and ethnic origin.

"It's a bill that recognizes that when hate crimes are perpetrated [in Canada] against those who are of a minority religion or race or ethnic origin or color, that Canada says this is wrong," Robinson said in defense of his bill.

Robinson asserts that homosexuals should also be included as part of the language of the hate crimes law.

"But there's one group in the country and that is gays and lesbians -- the group that has more hate crimes, more violence perpetrated against it -- that isn't included in the hate propaganda laws," Robinson notes.

However, Evangelical Fellowship of Canada President Bruce Clemenger believes this bill would have a decidedly "chilling effect" on people of faith who believe homosexuality is wrong.

"Whether this law leads to the prosecution of religious groups or not, it's almost certain to have a chilling effect," he told the Calgary Herald. "Will the Gideons still be allowed to place Bibles in motel rooms?"

Clemenger is concerned that the terms "hate" and "sexual orientation" are not defined in the legislation. The maximum penalty for these hate crime convictions is five years in prison.

Robinson responds to this by saying his bill was drafted to prevent "gay bashing" and contends that the notion that religious speech would be silenced by the bill is "utterly without foundation."

Even still, John McKay, a member of the Canadian parliament who voted against C-250, said those who oppose homosexuality will be forced to suffer the consequences of speaking out against them in the future if this bill becomes law.

"Anybody who has views on homosexuality that differ from Svend Robinson's will be exposed rather dramatically to the joys of the Criminal Code," McKay told the Canadian Press.

Canadian legislative observer Vic Toews said Robinson is simply advocating "fascism" to promote his radical agenda.

Derek Rogusky, the vice president of family policy for Focus on the Family Canada, said any legislation that limits the rights of people of faith while giving more rights to gays generally favors homosexuals when challenged in court.

"We've seen through the courts that when religious freedom comes up against gay rights, that in fact religious freedom tends to be more often than not the loser in those particular cases," Rogusky told CBC Newsworld.

But religious objections to homosexuality are already being condemned in Canada.

The Saskatchewan Human Rights Commission recently ruled that a newspaper ad that listed Biblical references in it opposing homosexuality amounted to a human rights offense. The newspaper and the man who took out the ad were forced to pay $1,500 each to three gay men who complained about it.

And in British Columbia, the supreme court said a high school teacher's one-month suspension without pay should remain because he wrote letters to the editor in his local newspaper contending that nobody is born with homosexuality.

Bill C-250 is now headed to the 105-member Canadian Senate for consideration.

Copyright © 2004 Talon News -- All rights reserved.

Posted by: Jody Huck at May 18, 2004 1:42 PM


I agree that the "homosexual agenda... is morally, spiritually wrong." However, I think it worth noting that there are plenty of agendas that are equally wrong, but not equally problematic. Homosexuality seems to manifest in a way that puts an especial premium on acceptance. Those driving the agenda, therefore, will continue to push well past the point at which most people are willing to accept.

Posted by: Justin Katz at May 18, 2004 11:10 PM