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«THE “FEDERAL LAW OF MARRIAGE”: DEFERENCE, DEVIATION, AND DOMA W. BURLETTE CARTER I. Introduction II. American Notions of “Local” Matters A. Origins 1. The Colonial Experience 2. The Notion ...»

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At home, it is noteworthy that the first U.S. state to adopt same-sex marriage for gays and lesbians, Massachusetts, also thereafter became the first in the nation to require health insurance for all of its citizens. In rejecting bans on same-sex marriage, Massachusetts’ high court opined that supporting procreation was not the purpose of marriage in that state.331 That choice reflects a local perspective that is different from perspectives in other parts of the country. Yet, the irony is that despite the embrace of “marriage equality” for same-sex couples, Massachusetts continues to maintain a separate property regime for marriage, it does not have a system of paid maternity leave for pregnant employees, and does not offset the costs of pregnancy not covered by insurance, except in the form of social services for the very poor. All this leads one to conclude that it must intend that husbands support their wives during the inefficiency of pregnancy, and that unmarried women eat the costs or go on public assistance, since child support is not compensation for a mother’s lost earning and earning power.332 The point is not that Massachusetts must now become Europe, but rather that governmental support of marriage is often an attempt (however successful or ill conceived) to ensure that procreation burdens remain on identifiable, private shoulders. It is a way government seeks to hold people accountable for their own. That this is not a good model for community in some people’s eyes does not make the model unconstitutional. And same-sex couples are not the only group that has been excluded by the design of marriage. Working parents who need two incomes also find that the design of many of marriages’ benefits filtered through the tax system are available only to those who can afford to have one partner in the couple stay at home, as in the case of spousal income tax treatment discussed in Part III(C)(2).

In 2003, the General Accountability Office (“GAO”) identified “some 1100

331. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003) (rejecting notion that in Massachusetts, marriage is for supporting procreation).

332. See Website of the Massachusetts Commission Against Discrimination, available at http://www.mass.gov/mcad/maternity1.html (last visited May 16, 2013) (guaranteeing eight weeks of maternity leave to women for adoption or birth, but not requiring paid leave; suggesting Massachusetts law may require men to receive identical leave regardless of birth status of parents); see also Global NAPs, Inc. v.

Awiszus, 930 N.E.2d 1262 (Mass. 2010) (interpreting Massachusetts pregnancy leave statute to find that a woman not covered by federal leave act who took leave more than eight weeks could be terminated).

2013] THE FEDERAL LAW OF MARRIAGE 777 laws in the United States Code in which marital status is a factor.333 What GAO did not consider was the extent to which procreation in marriage— though encouraged and supported by the government through these benefits— contributes to the baseline costs of the parties receiving those benefits or whether Congress was trying to offset that cost. Nor was GAO asked to consider how other benefits available to those who are not married measure against those given to the married. Consider, for example, that no one compensates a birth mother (or her partner if she is part of a couple) for her forbearance from economic opportunities in pursuit of having a healthy baby.

Stillbirths and miscarriages carry a huge cost as well, despite the tragic end.

Those who bring home a bundle of joy from a hospital often also bring home a hefty portion of their bill that is not covered by insurance. On the other hand, if one adopts there is a $13,000 federal tax credit to offset the expenses of procuring the child (a credit available to same-sex couples who adopt).334 There may be good reasons to distinguish between heterosexual couples and adoptive couples in funding the costs of procuring a child, but the point remains that GAO was asked to consider marriage’s benefits in a vacuum.

Congress does not have that privilege. It must consider the benefits of the married and unmarried, of those with children and those without, of the single and the coupled and cohabitating with no children, and of single parents. Its failure has not been that it has failed to establish marriage equality for gays and lesbian couples, but rather that it has largely failed to consider the rights of same-sex couples in marriage and family policy at all.


I have argued that procreation support is a key factor in the federal government’s support of marriage. The broad scale attack on procreation that has been launched in the same-sex marriage cases seems to assume that procreation and same-sex marriage cannot exist in the same system. In this section, I argue that courts should use conflicts of laws doctrines to reconcile Congress’ authorized choice to use procreation as a key component of marriage policy and the legal rights of same-sex couples.

From the start, it should be noted that this is not a proposal that seeks to accomplish “marriage equality,” that is, all married persons receive exactly the

333. In 1997 the General Accountability Office identified “all those laws in the United States Code in which marital status is a factor, even though some of these laws may not directly create benefits, rights, or privileges.” U.S. Gen. Accounting Office, Defense of Marriage Act, GAO/OGC-97-16 at 1-2 (1997), available at http://www.gao.gov/archive/1997/og97016.pdf. The number of instances was 1049.

Letter from Barry R. Bedrick, Assoc. Gen. Counsel to Hon. Henry Hyde, Chairman S.

Judiciary Comm., Jan. 31, 1997. In a followup memorandum it updated that number to 1138 as of 2003. Letter from Danya K. Shah, Assoc. Gen. Counsel to Hon. Bill Frist, Maj. Leader, U.S. Senate, Jan. 23, 2004.

334. 26 U.S.C. § 23.

778 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 21:4 same rights. It is better described as a proposal for “marriage for all.” That is, everyone should have the right to be married, but Congress has the right to decide that marriages should receive different taxpayer funded economic support based on rational criteria. This writer agrees with those who opine that the only reason that the state should be involved in marriage policy is to support procreation and its effects on earning power for the couple. If children could be plucked from trees and came with buds attached to their bellybuttons that bloomed into twenty-five-year “your baby only” support trust funds, no woman or married couple would have to experience the economic inefficiency of pregnancy, and heterosexual couples could have sex without worrying about birth control and accidental pregnancies. Government would then have no need to be involved in marriage support because only people who want and are ready for children would have them, and parents would have more than enough money to raise them. People don’t need government to form family relationships. But children are part of the nation’s economic juggling act and procreation (bearing and raising) is both inefficient and expensive. Marriage is one major way that the government ensures that the larger portion of procreation’s costs—birthing and raising—are borne by identifiable private parties. While the government provides some initial carrots to sweeten the pot, the truth is that, from the public’s point of view, marriage without a national plan for maternity care is a relatively cheap way to finance the necessary work of procreation as a capitalist system moves forward. And the government uses heterosexuality as a marker because that marker identifies all of the people it wishes to reach and pregnancy, even today, remains unpredictable. It’s an unromantic system for sure.

The American model has funneled access to legal recognition of family largely through marriage. Our repeated historical error has been that access to those family rights often has been made to depend upon who was being married, what kind of children they might produce or indeed whether they would produce at all. Blacks procreated the wrong type of children; women were too inefficient at procreation; the poor and the ummarried procreated at the wrong time (when they were not rich or when they were not married); and same-sex couples did not procreate at all. Thus, no legally recognized family rights for you! All the while government continued to attach benefits for those who were entitled by law to the legal recognition that is marriage. Thus, samesex marriage advocates are right that because marriage centered on procreation and the right kind, marriage became the key to access to many incidents that bore very little relationship to procreation.

Conflict of law rules help to resolve the dilemma over when a procreation standard can be legitimate public policy and when it must bow to the rights of individuals to form families as they choose.335 As discussed in Part II, under

–  –  –

state conflict of law rules, the law of the place where the marriage was celebrated governed the validity of a marriage. On the other hand, the incidents that flowed from that marriage were often governed by the state where the couple lived. The logic makes sense. The incidents, especially if they are economic in nature, are far more likely to affect the home jurisdiction’s policy interests and coffers. If the marriage fails, it is the forum state that must deal with the financial failures that may follow as well.

Similarly, considering federal conflict of law rules, it makes sense that while recognizing marriages, Congress has, as discussed in Part III(C)(2), declined to apply state community property rules to some federal benefits. Indeed, the Supreme Court has recognized that reasonable restrictions may be imposed as to the incidents of marriage.336 I suggest then that we categorize the federal rights related to state sanctioned marriage along conflict of laws lines into two categories: the validity of the marriage on the one hand, the incidents on the other. 337 Marriage confers the legal right to call an unrelated other one’s most intimate family. The marital bundle includes the right to be treated like spouses by government both in private relations and in public ones, and for a whole host of reasons including social, medical, and legal. I will call this bundle of rights that marriage confers simply “family” rights. I suggest that we place the other benefits that government attaches to marriage in the category of “incidents” or branch rights. These branch rights are not core to the family relationship—indeed, some are quite new—and they largely comprise economic benefits from the

336. While declaring unconstitutional a restriction on marriage by persons who are behind in child support payments, the court stated “[W]e do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.” Zablocki v. Redhall, 434 U.S. 374, 386-87 (1978).

337. Other scholars have proposed using incidents theory in the context of interstate recognition of same-sex marriages. These theories generally propose that a marriage would be deemed valid but only with respect to certain incidents. The downside of such an approach of course is that the validity status of a marriage constantly changes, tested as each incident arises. I propose to conceptually separate the notions of validity and incidents, as a conflicts of law policy has traditionally done. E.g., Barbara J. Cox, Using an Incidents of Marriage Analysis When Considering Interstate Recognition of Same-Sex Couples’ Marriages, Civil Unions, and Domestic Partnerships, 13 WID. L.J.

699, 718-58 (2003-2004); Barbara Cox, Same-Sex Marriage And Choice-Of-Law: If We Marry In Hawaii, Are We Still Married When We Return Home?, 1994 WIS. L.

REV. 1033 (1995). Yet another approach would provide all couples the economic benefits of marriage but allow differences with respect to rights that could be replicated by contract. See ERIN O’HARA & LARRY RIBSTEIN, THE LAW MARKET 164-65 (2009).

Domestic partnership statutes also reflect a different “incidents” approach. While those statutes do not use the term "marriage" for committed same-sex relationships, they provide a legal status to such relationships and some or all of the incidents traditionally associated with marriage.

780 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 21:4 public purse. Congress could take these rights away from all couples without altering the traditional notions that a person is “married” to another.

A. “Family” Rights Through the incidents that it attaches to marriage and family life, the federal government can burden or facilitate family life. Think of granting one couple a government-subsidized right to bring one’s spouse on an overseas trip while denying another, granting one the right to live in a government-subsidized home but not another, granting one a right to be buried next to each other in a government-funded cemetery but not another, granting one federal marital privilege but not another. Such denials burden the right to be a family, elevating one party’s access to family rights granted by government over another party’s rights.

1. State Law Should Control Who is “Married” for Purposes of Federal Incidents that Affect a Couple’s Right To Be a Family.

State law should govern the question of whether a marriage is valid and who is marital family. The approach is consistent with longstanding federal conflicts of law policy. Some would argue it is constitutionally mandated.

Whatever its source, as I have shown, deviation from state or local custom is an extraordinary path for Congress to take.

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