conflicting approaches to same sex marriage raise legal issues

Conflicting Approaches To Same-Sex Marriage Raise Legal Issues

November 1st, 2009 By: Arvak
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Same-Sex-Marriage-2The recent endorsement of same-sex marriage by a few states is raising some unexpected but inevitable legal issues. Specifically, the Volokh Conspiracy points out that courts now need to grapple with the effects of same-sex marriage on civil litigation and criminal trials. To wit, do the confidentiality provisions for spouses shield same-sex partners from having to testify against one another?

Complicating the matter is the interaction between statutes and common law principles as well as the interaction between state and federal law. For those who don’t know (including our European readers, many of whom would be completely unfamiliar with a common-law legal system), statutes are laws created by legislatures and applied by the courts through a process of interpreting their text and underlying principles. Common law principles are creations of courts, based on lines of precedent that draw on previous decisions and doctrines of interpretation going back in some cases hundreds of years. When in conflict, statutes override common law, for the simple reason that any product of a legislature is more democratic and legitimate than a creation of a court.

With regards to state and federal law, under the Supremacy Clause of the United States Constitution as well as many interpretations of other Constitutional clauses, federal law trumps any state laws that are in conflict provided (and this is important) that the provision relates to an area of law not reserved to the states. With the exception of criminal acts that cross state lines and a few provisions relating to national security or other narrow federal interest, most criminal laws are exclusively matters for the states. Most civil lawsuits are usually also governed by state laws, even when pursued in a federal court due for jurisdictional reasons. (Yes, this means that federal courts are often called upon to apply state laws.)

All this potential for conflict in laws and application of laws is coming to a head in a case in a federal court applying Iowa law (Iowa allows same-sex marriage) but involving parties that were married in a same-sex union in Toronto, Canada who are seeking to invoke a privilege derived from the federal rules of evidence that shields spouses from having to testify against one another. Confused yet?

In this case, the statute in question is the federal Defense Of Marriage Act (DOMA) passed by a Republican Congress and signed by Democratic President Bill Clinton. The most well-known provisions of the DOMA protect states that do not have same-sex marriage laws from being required to honor same-sex marriage laws passed (or more commonly enacted by their courts as common law implementations of Constitutional equal-protection provisions) in other states. A less-known but related provision protects states that have not endorsed same-sex marriage as well as the federal government itself from having to extend any federal law benefits or privileges derived from “marriage”. Thus, by default, any state provisions extending marriage rights to same-sex couples do not extend to courts in other states nor to federal courts. Thus, it would appear on its face that the privilege of spousal immunity does not apply and there is no shield of protection for same-sex partners in this case.

But wait! This is a case in federal court applying Iowa law. And Iowa law does recognize same-sex marriage as well as containing its own separate provisions for spousal privilege. And the marriage itself took place in Toronto, Canada, so it would seem to an amateur at least on its face that spousal privilege would apply, right? That’s the tentative conclusion that Volokh seems to come to.

But wait again! Same-sex marriage in Iowa is a common-law endorsement, created by the Iowa Supreme Court specifically overruling its legislature. So the protections derived from it would fall under any statute that both remains in force and conflicts with the common law marriage recognized by the Iowa Supreme Court. So, given the international character of the marriage itself and the conflict provided by the DOMA’s definition of what marriage is for purposes of federal law (which would presumably govern an international marriage), there’s no spousal privilege in this case, right?

But wait yet again! It turns out that the specific text of the Federal Rules of Evidence (a federal statute defining which privileges are recognized in federal courts) does not define spousal privilege, and instead simply allows state law to define which privileges will apply. So the DOMA might be completely irrelevant and the question would be whether Iowa law will apply (which gives spousal privilege to all couples, including same-sex couples), Canadian law (which presumably does as well, either through its common law roots or statutory code), or rather the state in which the same-sex couple in this case actually resides (which presumably does not, though the immediately available materials are unclear on this point).

But what yet again again! It turns out that some gay-rights advocates want the DOMA to apply to bar spousal privilege in this case so that they can use this case as an opportunity for a facial challenge to the Constitutionality of the DOMA on equal protection grounds. Their argument would probably be that the DOMA creates a situation where criminal defendants in a same-sex partnership would receive spousal privilege protections in some states, but not in others. This would deny them the equal protection of the laws required by the Fifteenth Amendment and thus render the DOMA itself unconstitutional and void. The individual risk to the defendant in this case is not as important to some activists as the opportunity to create a challenge to a DOMA law they find detestable. To them, the risk is worth the reward, especially since they themselves would bear none of the risk. Neat trick, that.

What a mess.

Setting aside the emotionally loaded issues that swirl around homosexuality and gay rights in modern politics, it is probably best to look at the underlying policy grounds for spousal privilege and simply decide if they are well-served by application to this case. The purpose of spousal privilege is to facilitate communication and trust between spouses (which is in the interest of the government as well for many reasons). Is any government interest served in keeping this narrow to deny its access to same-sex couples? Unless simply spiting same-sex couples is the goal, it is hard to see any government interest here. So it seems quite clear that the court can (given the swirling ambiguities in the statutory laws here) and should apply the privilege to bar the testimony in this case. The fact that same-sex couples want to submit themselves to the legal institution of marriage should be a benefit to society in how it stabilizes their relationships and brings them into line with other social and economic institutions. Other than socially conservative concerns grounded in religious belief systems, there is no good conservative argument against same-sex unions.

But the larger issue is that this specific case is not going to be the last problem with conflicts in laws raised by the issue of same sex marriage. The simple fact is that same-sex couples in stable, long-term relationships exist. Even those with personal moral codes that find their sexual activity to be repugnant can’t wish them away or have any hope or persuading them. And even the financial consequences of extending “marriage” claims on government benefits is probably outweighed by the benefits from the extension of the “marriage penalty” to their tax returns and the decrease in future litigation over contractual and other controversies resulting from legal ambiguities. After all, this case deals with just one potential issue of conflicting and ambiguous laws — spousal privilege. How about when complex litigation arises from conflicting interstate or international claims of spousal rights for wills, trusts, medical decisions, taxes, and contracts? This case is the tip of a very large legal iceberg.

Bottom line: Even conservatives applying an economic approach should see the wisdom of normalizing same-sex civil unions with full and equal rights and privileges under the law. The emotional objections of social conservatives just aren’t worth the cost and aggravation any longer. And the DOMA is a clumsy and obsolete tool for trying to deal with it. Its time is over.

Note to commenters: Bigoted comments from either the pro-gay-rights or anti-gay-rights side will not be published on this site and may be deleted without warning. If you can’t be civil, don’t waste your time commenting.

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  1. Kate O’Hanlan, MD

    November 2nd, 2009 at 07:58

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    Dear Sirs, Madams of AP,

    In the article, no mention is ever made that the American Academy of Pediatrics, the American Psychological Association, American College of Obstetrics and Gynecology District 9, and the American Psychiatric Association have all endorsed civil marriage for same-sex couples because research evidence shows that marriage significantly strengthens the mental and physical health and the longevity of couples, and provides significantly greater legal and financial security for children, parents and seniors.

    This should be part of every mention about the recent historical recaps of the same-sex marriage equality movement. You should mention that all of the the academic and medical associations that have ever reviewed the issues of same-sex marriage and parenting have endorsed that no one’s personal rights be manipulated based on orientation.

    Please revise the article entitled “Maine voters to pass judgment on gay marriage” by DAVID SHARP and upload to internet. Please also make certain that all other future articles’ summary type paragraphs (the nut graph, I believe, is the name of that recapping paragraph, no?) contain the academic and medical perspectives. This enables you to claim both balance and thoroughness as qualities of the aforementioned article in those new articles to come. I know that we both share these values.


  2. Jason Arvak

    November 2nd, 2009 at 16:36

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    That is a curious authority you claim, Dr. O’Hanlan, to micromanage the exact content of every article related to the subject in any by insisting that it include exact content you specify, all the way down to your demand that it plagiarize another article that you liked.


    And no, we will not be complying with your requests. We will write what we think appropriate rather than reading the script you provide for us.

  3. Jay_C

    November 2nd, 2009 at 19:57

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    ” Even conservatives applying an economic approach should see the wisdom of Normalizing same-sex civil unions with full and equal rights and privileges under the law.”

    Agreed, as long as the language is not modified, the word Marriage / Married (pertaining to human relationships) / phrase “Institution of Marriage” means something already, and that is between a Man and a Woman. Call it whatever you want, just not Marriage. To me, normalizing same-sex civil unions with full and equal rights and privileges under the law has no negative impact, I don’t see any anyway, my beef is about the pre-existing words / phrase an their meanings.

    As a slight aside (as far as the states rights portion of this goes), It reminded me, it is laughable that a good potion of folks that support Gay Marriage (via party line blinders) went ahead and started using the states’ right argument to oppose Thune’s gun rights amendment to the DOD reauthorization bill (that would have allowed people to carry concealed weapons over state lines).

  4. Jim

    November 2nd, 2009 at 21:26

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    @Jay C: By the pre-existing meaning of the word “marriage”, are you referring to the meaning whereby wealthy parents of male children traded property (land, goats, milking cows) for the hand in marriage of their cousin’s daughter or daughters in some cases? Or perhaps you mean the definition whereby women were unable to seek divorce from their husbands once married since they were nothing more than part of his assets with no rights of their own? Oh, wait, maybe you mean the definition which specifically forbade the intermingling of races — as supported by the Bible, many religious institutions, and no less than 70% of the American population, as recently as the mid-1960s? Please be clear about where you would like to move the definition back in time, since this definition you are referring to, where any man and any woman of any race, creed, economic status or nationality can marry one another (and only one other), is a fairly recent phenomenon.

    Personally, I would advocate that marriage be limited to only those who can procreate (i.e., no one over 45, but let’s say up to 70 for men if they promise to use Viagra), who contractually agree never to divorce under penalty of death (that is the promise you make to one another, so honor it or else) and of course only within your own religion (and if you don’t have a religion, then of course you are forbidden as well, this being a religious institution after all). That would surely cut down on the number of people trying to get “married” and threatening the definition of that valuable word. How does that sound to you? Will you support my campaign?

  5. Jay_C

    November 2nd, 2009 at 23:26

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    It’s called a dictionary Jim… wow…

    Lets see Jim, are there any other definitions of a words that you would like to contest? Of course “we” are all wrong, and Jim is the enlightened one..

    Go through the dictionary and get back to us in about 5 years when you have finished reading the whole thing. Here’s a starter.. Perhaps black could be changed to the definition of white, up could be changed the the definition of down etc. :)

  6. Jay_C

    November 2nd, 2009 at 23:35

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    Notice that the primary definition is “between a man an a woman”

    but the secondary definition is, “: the state of being ***united to a person*** of the same sex in a relationship ***like that of a traditional Marriage*** Notice it says *like* a traditional marriage not the same as…simiar to..but not the same, get the difference?

  7. guttersnipe

    November 21st, 2009 at 19:17

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    @Jay C: And did you notice that the dictionary changes the meaning of words and the order of the definitions throughout the years based on popularity of usage. They also add in new words. “Doh” was even added after it had been popularized by Homer Simpson. And…if we are using the Dictionary as our guide for policy, which one would we use? In’s definition it includes this:

    “Obsolete. the formal declaration or contract by which act a man and a woman join in wedlock.”

    Couldn’t we also make the man and woman clause obsolete.

    Don’t mess with my marriage and I won’t mess with yours. (Yes, I am gay married. We are not in a civil union.)

  8. Jay_C

    December 1st, 2009 at 17:16

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    “@Jay C: And did you notice that the dictionary changes the meaning of words and the order of the definitions throughout the years based on popularity of usage.”

    That’s my whole point :)

    Hence my comment:

    “The **primary*** definition is “between a man and a woman”

    The **secondary** definition is, “the state of being ***united to a person of the same sex in a relationship ***…..**like** that of a traditional Marriage*** Notice it says *like* a traditional marriage not the same as…similar to, but not the same..

    In other words, you made my point for me. The order of the definitions right now is primarily “between a man and a woman”, then secondarily, a rung below that…“the state of being united to a person of the same sex in a relationship”

    I didn’t use the dictionary as I guide to policy, I was answering Jim’s question of determining where I got my definition.

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