So states have different rules about who can get married, and states also have different rules about which state’s law to look to when a same-sex couple moves around the country. Now it’s time to answer the question some of you have been patiently waiting with: what does the federal government normally do about this? As I’ve noted, outside of the DOMA context, the federal government usually looks to state law, and surely there must be other areas where state law differs. So what do the feds do?
The answer is ... it’s an even bigger mess! Notice that as a matter of legal theory and doctrine the question we’re asking here isn’t necessarily marriage-specific. Rather, it can be asked more generally as: “when federal law relies upon state law, what’s the system for choosing which state’s law?” In the twentieth century, federal courts have adopted at least three different approaches to this problem.
One approach is based off of a choice-of-law classic called Klaxon v. Stentor Electric Manufacturing (I’ve always loved the name of this case, and it may be the real reason I got into conflicts in the first place). Klaxon is the rule that the courts apply to the similar problem in diversity cases. It says that you apply the same choice-of-law rule as would be applied by a state court in the state where the district court is physically located. If you sue in the federal district of New Jersey, you apply New Jersey choice-of-law principles; if you sue in the southern district of New York, you apply New York choice-of-law principles. It has nothing to do with where any of the actions in the case took place — it’s just about where the plaintiff decides to bring the lawsuit.
As I said, this is the law in so-called diversity jurisdiction, which features cases that are brought entirely under state law, but which nonetheless get to federal court. It’s designed to make the federal court imitate the equivalent state court as closely as possible. Some courts have also applied this rule to cases brought under federal law, which would include the marital choice-of-law situation we’re talking about here.
A second approach is for federal courts to make up their own choice-of-law rule as a matter of so-called “federal common law.” The good news is that this gets you away from the weird formalism of the Klaxon rule. The bad news is that now the federal court has to come up with a rule. And within this approach, federal courts have come up with all sorts of different rules for marriage.
For example, in Tatum v. Tatum, an old Ninth Circuit case about life insurance for a federal employee named Erwin Tatum (who had a somewhat exciting romantic life, for a postal worker), the court summarized the state of disagreement about the life insurance statute as follows (with citations omitted):
Under similar conditions, the adjudicated National Service Life Insurance Act cases have produced differing conclusions. One point of unanimity is that state law will govern. But there exists little agreement as to what state law is applicable. Some would view the law of the place of marriage as controlling; others would be guided by the law of the domicile of the parties, either at the time of the marriage, or when the alleged claim accrues; another court has declined to resolve the matter.
This was over fifty years ago, and things haven’t gotten much clearer! Some courts follow their own ad hoc rules, some look to one of the Restatements. So this approach is really a welter of sub-approaches.
Finally, the third approach is to sort of give up on using state law after all. This is the least common solution (hence the point that marriage is usually a creature of state law) but it’s a thread that some courts return to. Commenter “Andy Grewal” summarizes this attitude pretty well:
That is, if a federal statute generally refers to marriage under state law, but SSM is not what Congress had in mind when it used the term “marriage,” then SSM should not qualify under the federal statute whether recognized in a the couple’s home state or not. On the flip side, if Congress intended to reach marriages of any sort when it (e.g.) refers to a married couple in the tax code, the fact that the residence state does not recognize a same-sex couple’s marriage should not disqualify the couple from the federal statute.
So in at least two cases, federal courts have done something like this. One is an old case called Borax, where the Second Circuit held that a couple was married for purposes of the tax code even though the man’s prior divorce was invalid under state law. Judge Friendly (one of Orin’s favorite judges) dissented. Another is Adams v. Howerton, a Ninth Circuit case that actually deals with same-sex marriage. But the case is from 1982, so it was easy for the court to say that the “ordinary, contemporary, common meaning” of the word “marriage” meant only opposite-sex marriages. That would be a much more debatable claim today!
So federal courts are all over the place. The Supreme Court has never resolved this issue and individual circuits waffle back and forth between different approaches. Discovering these sets of federal cases, and learning how little people knew about them, inspired me to write my paper. In some more posts, I’ll explain which approach I think should be used.