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Reliance on Foreign Law -- from a Republican Louisiana State Court Judge:

Louisiana law bars marriage between first cousins — but it also provides that foreign marriages should be recognized, even if they would otherwise be illegal, unless they violate "a strong public policy" of the state. This is indeed a traditional rule recognized in many states.

And it makes sense: Marriage is supposed to help people organize their lives around their marital status, and generally speaking that sort of self-organization is helpful to society more broadly (which is why the law specially recognizes and in various ways tries to encourage marriage). If people got married in a foreign jurisdiction, treating them as unmarried in the place in which they move will frustrate their expectations, likely harm one or both parties, and likely cause some harm to the state's interests that marriage advances. A state normally wouldn't want this to happen, unless it's condemnation of this particular marriage is very strong indeed.

In any case, it's clear that Louisiana law recognizes three categories of marriage: (1) A clearly defined category of marriages that may be entered into in Louisiana; (2) a less well-defined category of marriages that may not be entered into in Louisiana but that are recognized if they were validly entered into in another state or country; and (3) a correspondingly not very well-defined category of marriages that aren't recognized in Louisiana at all. The question in Ghassemi v. Ghassemi was whether first cousin marriages fall into category 2 or category 3. And to answer that it is of course not enough to look at the specific details set forth in Louisiana marriage rules (which generally defines category 1 marriages, and doesn't speak in detail to the boundary between category 2 and category 3). One also has to engage in the vaguer inquiry of whether the public policy against first cousin marriage — indubitably a policy that Louisiana law does recognize — is "strong" enough to overcome the general presumption of recognizing even those out-of-jurisdiction marriages that couldn't be legally entered into in Louisiana.

In measuring the "strength" of this policy, the Court of Appeal (in an opinion by Republican Judge Jimmy Kuhn) looked, first, to whether Louisiana law categorically prohibits all first-cousin marriages and sexual relationships; it concluded that there have long been various exceptions to this prohibition. (The court specifically notes "In so concluding we note that the Louisiana Legislature has not expressly outlawed marriages between first cousins regardless of where they are contracted as it has emphatically done in the case of purported same sex marriages" (emphasis in original).) But then, it also looked to various other sources as to the depth of the prohibition on first cousin marriage, including:

  1. "natural law" (which Louisiana courts seem to refer to much more often than do other state courts, perhaps because of Louisiana's civil law tradition; the court cited an old American Law Reports annotation that discussed this subject),

  2. "Bible's Book of Leviticus, the font of Western incest laws,"

  3. the views of other states (of which about half allow some or all first-cousin marriages),

  4. the views of other "western countries": "the U.S. is unique among western countries in restricting first cousin marriages."

This strikes me as a pretty reasonable of evaluating the strength of a state's public policy in this particular situation. By definition, we've got a question that under state statutes has no precisely defined answer; the statutes expressly call for courts to determine how "strong" the public policy against the marriage is. The court should then look to other clues to the state's public policy. First, it should see what can be gleaned from other rules within the same state. Second, it should look at those rules that are historically the sources of the state's legal system (and on this point the Bible strikes me as relevant, not because of its religious nature but because of its historical role in shaping European and American incest law). And third, it should look at what similar jurisdictions think about the subject, starting with other states of the same nation but going on to other nations within the same broad culture.

Now I generally agree that American courts generally shouldn't rely on modern foreign law in interpreting the meaning of the U.S. Constitution. It's true that Western countries are often trying to solve similar problems with their constitutions, but American constitutional practices have their own history, rest on their own text, and by design created a constitutional regime that is supposed to be individualized to American life and American political thought.

But I think it's a mistake to overgeneralize this into a broad hostility to the "use of foreign law" in American courts. Using foreign law even to determine the scope of domestic legal principles is often quite sensible, even if not to determine the substantive scope of American constitutional rules — as even Justice Scalia has agreed.

josh:
I've been arguing this in most posts I've seen on the VC. And I only do b/c I often face issues in state courts that simply have no answers in either that state's (IL) statutes or case law. No one ever argues that out-of-state decisions on these issues are binding, just persuasive. And, often, the issue of looking to foreign jurisdictions is commented on without any nuance -- it's not an awful thing in all contexts.
10.20.2008 2:33pm
Laura S.:
Thanks for posting something other than election/regulation pontification. Also thanks for being relatively brief, tidy, and thoughtful in your argument.
10.20.2008 2:37pm
vassil petrov (mail):
the U.S. is unique among western countries in restricting first cousin marriages.

Is that true? In Eastern orthodox countries (not Western countries true) this type of marriage is regarded as incestuous. I think this is a result of the influence of the Emperor Justinianus's reforms through the Ecloga.
10.20.2008 2:41pm
pbf (mail) (www):
Wonder of wonders: recognition that the opinions of other judicial bodies that have looked seriously at issues in question might be worthy of consideration. If they're persuasive, they're persuasive; if not, they're not. But merely putting them off limits from consideration entirely never has made any sense to me.
10.20.2008 2:43pm
wfjag:
Exactly why is Judge Kuhn's political affiliation relevant?
10.20.2008 2:58pm
PatHMV (mail) (www):
My (Louisiana) law school professor on family law told me that the state would periodically pass a bill legitimizing all first-cousin marriages entered into prior to that date (even those entered into within the state of Louisiana itself), because some constituent would come to their local legislator with that problem. But the ban on such marriages was never permanently lifted, because the preachers would object.
10.20.2008 2:59pm
vassil petrov (mail):
Exactly why is Judge Kuhn's political affiliation relevant?

Yes, same question.
10.20.2008 3:01pm
lsu (mail):
FYI....On Nov. 4, Judge Kuhn will face another sitting appellate court judge in a run-off for a seat on the Louisiana Supreme Court.
10.20.2008 3:23pm
Norman Bates (mail):
Why did the court restrict itself to Leviticus? Genesis contains examples of cross-cousin marriages, e.g. the marriage of Jacob and Rachel.
10.20.2008 3:35pm
Seamus (mail):

But the ban on such marriages was never permanently lifted, because the preachers would object.



The preachers would object? On what ground? First-cousin marriages were legalized in England at the time of the Reformation because it was decided that marriage law of England should recognize those prohibitions found in scripture (such as the prohibition on marrying one's brother's widow--the issue that provoked Henry VIII to break with Rome) but not recognize those not found in scripture (such as the cannon law ban on first-cousin marriages). If these preachers are Bible-believing Protestants, it's hard to see where they have a leg to stand on. (I suppose the preachers might be Catholic priests, but if so, I'd expect them to be referred to as such.)
10.20.2008 3:43pm
ASlyJD (mail):
Ditto the "preachers would object." How? In the verse describing banned marriages, first cousins isn't in the list.
10.20.2008 3:49pm
PatHMV (mail) (www):
Well, much of Louisiana is Catholic, a much greater percentage than in most states. I don't know for a fact what the preachers, generally speaking, based their objections on, as I wasn't there and was merely recounting a story told by my professor. But surely it is not unheard of for preachers to object to things on cultural grounds, perhaps on the uneducated or mistaken belief that "scripture says so." It's unnatural, don'tcha know.

I can tell you that neither Louisiana law nor Louisiana culture care a whit for English law or customs, as neither is descended from such. Our civil law is not based on the common law, and our culture is largely not based on anything Protestant (though the northern part of the state is largely Protestant, the southern part has long been overwhelmingly Catholic since before the Louisiana Purchase, even).
10.20.2008 4:20pm
wfjag:

First-cousin marriages were legalized in England at the time of the Reformation because it was decided that marriage law of England should recognize those prohibitions found in scripture (such as the prohibition on marrying one's brother's widow--the issue that provoked Henry VIII to break with Rome) but not recognize those not found in scripture (such as the cannon law ban on first-cousin marriages).

I guess you never studied history. Henry VIII married Catherine of Aragon with the Roman Catholic Church's blessing. It was only much later, when Henry wanted to marry Anne Boleyn, who was pregnant, and the Roman Catholic Church would not grant an annullment of the prior marriage, that Henry broke with the Roman Catholic Church and set up the Church of England. He had no sons with Catherine and unless his child with Anne was one of a recognized marriage, that child could not become King of England (Henry had illegitimate sons, just no sons with Catherine).

I'm not aware of the Roman Catholic Church ever taking a stand against marriages by cousins. It certainly was never a problem for the Hapsburgs.
10.20.2008 4:45pm
MarkField (mail):

I guess you never studied history.


That's a pretty harsh comment, made more so by the fact that the original post was correct.


I'm not aware of the Roman Catholic Church ever taking a stand against marriages by cousins. It certainly was never a problem for the Hapsburgs.


As for cousin marriages at canon law, Wikipedia says that "In the Roman Catholic Church, unwittingly marrying a closely-consanguineous blood relative is grounds for an annulment, but dispensations were granted, actually almost routinely (the Catholic Church's ban on marriage within the fourth degree of relationship (first cousins) lasted from 1550 to 1917; before that, the prohibition applied to marriages within the seventh degree of kinship).[citation needed] The general rule was that while fourth cousins could marry without dispensation, those more closely related needed dispensation, with it becoming harder and harder to obtain the closer the couple were related."
10.20.2008 5:19pm
tim maguire (mail):
I think it's a worthwhile distinction that the court here is not trying to determine Lousiana law, exactly, but rather are trying to determine whether public policy should allow or deny first cousin marriages. If this is a case of first impression, then they must look to sources outside of court precedent. Once you've crossed that threshold, foreign law is as good as any other source.
10.20.2008 5:41pm
Cornellian (mail):
before that, the prohibition applied to marriages within the seventh degree of kinship)

Seventh degree??? That's what, third cousins?
10.20.2008 7:11pm
MarkField (mail):

Seventh degree??? That's what, third cousins?


Fourth.
10.20.2008 7:58pm
wm13:
We have wandered off topic, but many have commented on the strange nature of the medieval Church's anti-incest rules (i.e., prohibiting fourth cousin marriages). I have heard at least three explanations: (i) such rules served the interests of the church, by preventing familial concentrations of wealth, (ii) such rules served the interests of the aristocracy, by allowing de facto divorce, since most marriages would be within the prohibited degree, and (iii) such rules were the unmotivated result of too many clerks with too much time on their hands, elaborating unnecessarily on some rather simple scriptural and natural rules against incest.
10.20.2008 8:18pm
MarkField (mail):
There may have been a fourth reason as well: the Church charged for dispensations. The wider the sphere of consanguinity, the more dispensations they could grant. Not that I'm cynical or anything.
10.20.2008 11:18pm
Oschisms (mail):
First cousins may marry in New York State, unless Prof. Schecter of BarBri is wrong. I'm too lazy to look it up in the DRL.
10.20.2008 11:55pm
Seamus (mail):

I guess you never studied history.



Oh, damn, I guess I'll have to ask the University of Virginia to revoke my history B.A. Not to mention all those credits I earned studying Mr. Havran's courses on Early Modern England.

Of course Henry VIII married Catherine with the Church's blessing. That's exactly why Henry had to find a way to argue that the Church was wrong to do so. What he (or the canon lawyers and other brainy fellows he commissioned to find a way to justify his annulment case) decided was that, because the prohibition on marrying your brother's wife was in scripture, the Church could not validly dispense from the impediment of affinity in such cases. And just as his theory held that the Church could not permit marriages forbidden in scripture, so too it could not *prohibit* marriages (such as first-cousin marriages) forbidden in scripture. If you go to an old edition of the Book of Common Prayer, you'll find a page showing all the people you can't marry, which is basically a sheet cribbed from the prohibitions in Leviticus.


I'm not aware of the Roman Catholic Church ever taking a stand against marriages by cousins. It certainly was never a problem for the Hapsburgs.



I guess you never studied canon law.
10.21.2008 5:15pm
Seamus (mail):
so too it could not *prohibit* marriages (such as first-cousin marriages) forbidden in scripture.

Uh, make that "could not *prohibit* marriages (such as first-cousin marriages) permitted by scripture."
10.21.2008 5:28pm
Seamus (mail):

We have wandered off topic, but many have commented on the strange nature of the medieval Church's anti-incest rules (i.e., prohibiting fourth cousin marriages).



It's not just the medieval Church. The Church today prohibits marriages within the fourth degree of consanguinity. See Codex Iur. Can., can. 1091 ยง 4. Dispensations are available, however, and contrary to what you might have heard, don't require payment of big bucks.
10.21.2008 5:38pm