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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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Courts must determine when Congress’ asserted reasons for deviating from local law are valid and when they are not. In the context of same-sex marriages, the holdings of Lawrence v. Texas and Windsor confirm that the mere fact that a couple is of the same-sex should not alone constitute sufficient public policy to reject marital family status at the federal level when states recognize it.338 Moreover, though unnoticed by other legal scholars and litigants, the several states now expressly recognize at a minimum the right of intimate same-sex couples to contract with respect to family life: to enter into cohabitation agreements, to designate each other as personal agents for making health care decisions over otherwise legal next of kin and the like. That move is huge. In an earlier era, a resounding majority would have considered such relationships an abomination, so immoral that the state considered any agreements to secure them void.339 Add those states to the thirteen that have

338. Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence the court struck down a Texas state sodomy statute criminalizing intimate relations between consenting adults as unconstitutional. The sexual relationship that was at the heart of the felony charge in Lawrence—and rejected as a basis for criminal sanctions—is also at the heart of historical objections to marriage.

339. The states expressly stating that such contracts are valid are Georgia, Florida, Pennsylvania, Indiana, Ohio, North Carolina, South Carolina, and Texas. See, e.g., Crooke v. Gilden, 414 S.E.2d 645 (Ga. 1992) (upholding the contract); Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997) (upholding the contract); Swails v. Haberer, No. 02-7095, 2004 U.S. Dist. Lexis 17727 (E.D. Pa. 2004) (upholding the contract applying state law); Boyle v. King, 2010 Pa. Dist. & Cnty, No. GD07-021569, Dec.

2013] THE FEDERAL LAW OF MARRIAGE 781 adopted same-sex marriage and the seven or so that have adopted domestic partnerships or civil unions, and one finds a firm majority of states that have embraced some form of legally cognizable way to allow individuals to choose relationships and families that they wish. This writer believes it likely that many other states would also recognize same-sex cohabitation agreements and other documents solidifying the relationship between same-sex couples.

Cohabitation agreements are not marriage, but the moral objections to the underlying relationship in both cases are the same.

Consequently, there is no reason in the cases of same-sex marriage for the federal government not to follow state or local law with respect to who is in a marital family. These marital family relationships exist independent of procreation. From state designations, the government can then decide how to allocate the benefits it chooses to attach to those relationships.

2. For Equal Protection Purposes, Courts Should Apply Intermediate Scrutiny to Denials of Federal Benefits that Affect Family Rights.

In the case of same-sex couples, courts should review refusals to provide benefits that affect family rights under intermediate scrutiny. The reason is that, as to these types of rights, same-sex couples constitute a quasi-suspect

class. They satisfy the traditional concerns that compel heightened scrutiny:

(1) they have historically endured persecution and discrimination in pursuing their family rights both within and outside of marriage; (2) homosexuality has no relation to aptitude or ability to contribute to society; (3) with respect to these rights, the class remains a politically weakened minority; and (4) when they exercise the right to form families they become visible and identifiable.340 LEXIS 313 (2010) (agreeing the contract would be enforceable but finding none and applying other state law instead of divorce code to lesbian couple for property separation on breakup of relationship); Cherkis v. Curzi, No. 1989-CE-6173 (Pa. Ct.

C.P. Aug. 30, 1991) (upholding the contract); Anderson v. Anderson, No. 43CO1-9105CP-269 (Kosciusko Cir. Cr., Indiana, 1992) (upholding the contract); Seward v.

Mentrup, 622 N.E.2d 756 (Ohio Ct. App. 1993) (finding that mere cohabitation would not give rise to any benefits, but a written agreement might do so); N.C. CONST. ART.

XIV, §6 (banning same-sex marriage while upholding the contract); SC CONST. ART.

XVII, §15 (banning same-sex marriage while upholding the contract); Ross v.

Goldstein, 203 S.W.3d 508, 514 (Tex. App. 2006) (banning same-sex marriage while upholding the contract).

340. Windsor v. United States, 699 F.3d 169, 181-82 (2d Cir. 2012) (noting Supreme Court has applied these factors in determining whether heightened scrutiny is needed and citing Bowen v. Gilliard, 483 U.S. 587, 602 (1987)); City of Cleburne v.

Cleburne Living Center, 473 U.S. 432 (1985); id. at 440-41; id. at 442 n.10, 472 n.24.

By contrast, under Loving v. Virginia, heterosexual blacks are “suspect” with respect to both family rights and incidents. Indeed, as a heterosexual couple, the Lovings met the presumed ability to procreation requirement and were still denied access to marriage, precisely because of their presumed ability to procreate.

782 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 21:4

B.”Branch” Rights

1. Federal Law Should Control Who Receives the Federal Branch Rights That Flow From State-Designated Marriages.





Branch rights are the benefits and burdens that government attaches to marriage in order to effect specific governmental public policy objectives.

Most of them will be economic. Because of their significant impact upon the federal purse and the state’s lack of power with respect to federal expenditures, who receives branch rights in the federal context should be governed by federal law.

2. For Equal Protection Purposes, Courts Should Apply Rational Basis Scrutiny to Federal Denials of Branch Rights.

Generally, the denial of branch rights to same-sex married couples should be subject to a rational basis level of scrutiny in an Equal Protection challenge.

The key inquiry will be whether or not the statute was intended to advance a legitimate interest in supporting natural procreation through marriage or address the unique imbalance in the married heterosexual couple with respect to it. I submit that rational bases other than these will be few or nonexistant.

The rational basis test makes sense for branch rights. These rights have never been considered at the core of the right to be married and conflict of laws policy has never dictated that one sovereign should follow another sovereign’s policies on them. Second, gay and lesbian Americans as a group are not a suspect or a quasi-suspect class with respect to the branch rights that are attached to marriage. Instead, regarding these rights, they are like many others who are excluded from marriage’s economic benefits by Congressional priorities. Third, such a standard allows the government the needed flexibility to make the policy choices it has a right to make in spending federal tax dollars. Fourth many of these incidents involve economic legislation as to which the courts have long extended deference to Congress’ decisions.341 Fifth, branch rights by definition do not involve state power over the family or other significant federalism issues. Sixth, a rational basis standard recognizes that in making funding decisions Congress considers far more interests than merely those of same-sex couples versus opposite sex couples.

An example using the Oregon Donation law discussed in Part III(C)(1) will explain why suspect or quasi-suspect status for same-sex couples should not apply to branch rights and why a rational basis standard makes sense. The Oregon law allowed only white men, Indians who had white fathers and white women married to white men to take a share of Oregon land.342 Despite the fact that the law was linked to procreation and marriage, it did not economically disadvantage gay white men; indeed, white males of all

341. Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955).

342. See discussion supra at p. 753, notes 237-38.

2013] THE FEDERAL LAW OF MARRIAGE 783 orientations were economically favored under law. They could get the essentially free land grant and, unlike women, had the power to apply for it in their own right. The “incidents” of marriage in that day which Justice Story identified as discussed in Part II(A)(3)—the disability of the wife, the rights of the husband—were of no aid to gay men because those disabilities hobbled one of the parties economically without the offsetting responsibility or benefit of procreation.343 Two (white) men could work and travel far more widely than other groups. Each member of a gay white male couple could take a lot of land with each partner controlling his share. They could live together and farm it together. If “economic benefits” is the concern as has been emphasized in media, why trade the economic situation of two white males for the economic rights of a white heterosexual married man holding all power within his home but aided by a legally hobbled wife and facing repeated accidental and expensive pregnancies? Indeed, this sole option for marital arrangements in earlier centuries—coupled with the fact that gay men could only have and legally claim biological children through marriage and intimacy with women— was likely a key reason we have so little evidence that gay men tried legally to marry other gay men in that era. Even if there were no barriers on same-sex relationships, legal marriage would have made no economic sense for gay men in prior centuries because it was riddled with sexism that economically crippled one of the partners. But marriage law did significantly disadvantage gay men in terms of family rights. They could not publicly proclaim themselves as in love, or “married” or as an intimate family. Consequently, they could not secure their connection into old age and beyond. Even publicly pursuing the relationship outside of marriage could, in some communities, bring serious criminal penalty.

Women in contrast had no right to land, unless they were married to a white man or, after 1853, unless they were once married to one and widowed.344 This requirement—to marry a white man—denied lesbian women family rights. If they married white men (which only white women could do) they got the economic benefit and likely children, but they lost out on the family benefit that they very much desired. Black women in most jurisdictions, regardless of orientation, could either not marry at all (due to slavery) or, if free, could often not legally marry white men.

Two groups had no chance of getting Oregon land under any circumstances.

One was women of any orientation who never married, straight or lesbian. The second was blacks. Male, female, straight, or gay, married or unmarried—all

343. Thus, Justice Story noted the incidents of marriage were the disabilities of a wife and the rights of husband. See discussion supra p. 719. As the Oregon statute demonstrates, marriage based economic benefits at the federal level essentially followed this model. Indeed, arguably one goal of such a structure was to place the married man on par with the single one and thus encourage marriage in a regime that crippled the wife from making significant economic contributions.

344. In 1853, Congress allowed widows to claim through husbands who had applied for the land, but died. Donation Land Claim Act of 1853, 10 Stat. 158, §8.

784 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 21:4 blacks, not merely slaves—were disqualified from getting Oregon land by statute on the basis of race.345 Poor people’s right to the land depended largely upon their race and their gender, not upon their class or economic status.

Some land grant statutes did later allow white women to apply for less desirable land,346 and the end of slavery helped ease racial restrictions and improve black access. But the Oregon design (which, remember, was novel for its time in allowing married women to have even a share of land) demonstrates why the strictest standard of scrutiny should not be applied to the denial of branch benefits relating to marriage of same-sex couples. The example demonstrates the need to have standards of review that reflect and remedy the discriminatory history in question. The outcome I suggest is also consistent with the Supreme Court’s holding in Loving. To discuss Loving as merely about the right to marry is, to mix a metaphor, to whitewash the case and then to neuter it. Loving was a case about the freedom to marry and form a family as one chooses, but it was also a case about race discrimination and about race procreational discrimination.347 Any approach that ignores this history reduces the “marriage-equality”

345. Donation Land Claim Act of 1850, ch. 76, §4, 9 Stat. at 496 (1850) (defining racial and gender restrictions). At that time, blacks were, by far, the largest group of those classified as non-whites. Given how many Spaniards and Mexicans occupied these areas, many Latinos were considered “white” and, thereby, would have qualified for land. Those considered non-white would not have qualified. This writer has found no evidence yet of other groups being denied land or applying for it probably because their numbers in the U.S. were quite small in 1850. On gays and lesbians, I do not deny the possibility that they suffered discrimination uniquely as gays and as well as whatever else they were (e.g., race, gender etc.). The notion is called intersectionality.

See, e.g, Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color, 43 Stan. L. Rev. 1241 (1991) (introducing notion of intersectionality); Darren Rosenblum, Queer Intersectionality and the Failure of Recent Lesbian and Gay "Victories," 4 LAW & SEXUALITY 83 (1994) (applying the intersectionality theory to gay and lesbian experiences). Indeed, intersectionality advances my argument that one needs to be careful in assuming that all experiences fit into the same box.

346. The Advantage of Having an Administration that is Posted on Whisky— Married Women May Now Buy Land, LOS ANGELES TIMES, July 19, 1887, at 5. The Secretary of Interior decided that women, including married women, may purchase timber and stone lands in states of Mississippi, Louisiana, California, Oregon, Nevada, and Washington Territory, provided that land is not suitable for agriculture.



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