A Common-Law Solution

So I’ve explained why I reject two of the three possible approaches that federal courts take to the marital choice of law problem. The one that’s left over is the so-called federal common law approach, where courts craft a common-law doctrine for deciding which state’s marriage law is relevant to a federal statute.

You might ask, wasn’t federal common law forbidden by the Court’s decision in Erie v. Tompkins? No, not really. Here is how the Court explained it just last term in AEP v. Connecticut:

“There is no federal general common law,” Erie R. Co. v. Tompkins famously recognized. In the wake of Erie, however, a keener understanding developed. See generally Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964). Erie “le[ft] to the states what ought be left to them,” id., at 405, and thus required “federal courts [to] follow state decisions on matters of substantive law appropriately cognizable by the states,” id., at 422. Erie also sparked “the emergence of a federal decisional law in areas of national concern.” Id., at 405. The “new” federal common law addresses “subjects within national legislative power where Congress has so directed” or where the basic scheme of the Constitution so demands.

I elaborate on this more in the paper, but basically it should be pretty clear that this kind of choice-of-law rule — choosing the state law on which a federal statute has chosen to rely — is the kind of “area of national concern” where a federal common law rule is okay.

That leaves us with the question: well, what rule? It may be a little anticlimactic to say so, but I don’t actually think it is that important what the rule is. The important thing is that there be a rule, so that federal law have a consistent test for deciding whether a couple is married. (As others have noted, whether a couple is married will still depend on state law, but at least the federal law will have a single approach for evaluating it.)

The rule I advocate in the paper is that the courts should look at the choice-of-law rules of the couple’s domicile. So, if a same-sex couple lives in Massachusetts or Maryland or New Mexico, they are married for purposes of federal law. If they live in Texas, they are not.

Basically, I think the federal government’s goal here should be to leave the smallest footprint possible, and I think the federal government does that best by treating couples the same way at home as their state does. (Obviously there are arguments that federal law should guarantee a constitutional right to same-sex marriage, but if so, that should be done directly, through interpretation of the 14th Amendment, not in a roundabout fashion by manipulating choice of law.)

Another important consideration is that there are at least a couple of statutes that do provide marital choice of law rules (for social security and for some veterans benefits) and they both look to the law of the domicile. These statutes were trumped, for same-sex marriages, by DOMA, but they will presumably spring back into effect if DOMA is gone. They affect just a tiny piece of the federal law of marriage recognition, but it would be best for a federal common law rule to be consistent with them, so that marriage can get a unified treatment throughout federal law.

So there you have it. My experience has been that a lot of people have different intuitions about what the right federal common law rule should be, and that those intuitions tie very closely to whether they like or don’t like the right to same-sex marriage. But if I’ve convinced you that there should be a rule, and that courts have the power to create a rule, that’s the important part.

I have a little bit more to say about this– about both Congress’s role, and about a few other areas of law. I’ll try to post about them tonight or this weekend, before my magic Volokh credentials turn back into a pumpkin, and I turn back into a regular, non-blogging fellow.