Conflict of Laws & Same-sex marriage

I never took this class in law school.  The fake reason is because it was so early in the morning. The real reason (I’m serious) is because Herma Hill Kay was teaching it and I admire(d) her so much that I wanted her to think I was smart. Obvious solution: don’t take her class.  Yes, I needed more therapy (please keep all affirming comments to yourself — I am working on it!).   The great news is that we now have a good working relationship (I think) through the ABF and she thinks I am at least passably smart. 

But, if I had taken her class, I think I would have learned that THIS is the right outcome for a state that does not have same-sex marriage. 

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3 Responses to Conflict of Laws & Same-sex marriage

  1. jeffaregularworkinglawyer says:

    Well, I did take Conflicts in law school, from the late, great Bill Foster, who has always been my model of a lawyer. http://www.secfac.wisc.edu/senate/2002/1202/1676(mem_res).pdf

    One interesting thing about this case is that it involves a Canadian marriage, as opposed to one from Massachusetts, so the Full Faith and Credit Clause of the Constitution is not implicated. Of course, President Clinton signed the Orwellian “Defense of Marriage Act” in 1996 as an end run around an argument that the FFCC requires states to recognize same-sex marriages solemnized in other states in which they are valid, and the Supreme Court has yet to rule on its constitutionality. For all you pious progressives who vote based on who has the best laundry list of policies (as opposed to who might actually act like a leader, unite the country, and accomplish important things), remember that Hillary Clinton stated while running for the Senate in 2000 that she would have voted for this abomination, http://findarticles.com/p/articles/mi_m1589/is_2000_Feb_15/ai_59410444, while Barack Obama argued against it in 1996, and ran for the Senate in 2004 calling for its repeal. Not exactly a Profile in Courage on his part, but not a Profile in Cynical Pandering, Triangulation, and Generally Saying Whatever She Has To Say To Get Elected, either. For the record, among the 14 senators who voted against DOMA were the two from Illinois, Paul Simon and Carol Moseley-Braun.

    The general rule about recognition of foreign marriages (foreign state or country) has always been to recognize them unless they were “repugnant to the public policy” of the state. People v. Ezeonu, a 1992 New York case, is interesting in this regard. The defendant was charged with statutory rape of a 13-year-old. Marriage is a valid defense to statutory rape under New York law; the defendant claimed to have entered into a valid polygamous marriage with the victim in Nigeria, which recognizes polygamous marriage — she was, he claimed, his second wife. The New York court refused to recognize the alleged marriage on public policy grounds. Query whether the result would have been the same if the defendant had died intestate (without a will, for all you non-lawyers), and the 13-year-old had been asserting a right to inherit from his estate.

  2. laurabethnielsen says:

    A different query: SHOULD the result be the same about the will and the marriage. Does public policy or rule of law require consistency? Or, should it, in both cases protect the girl (in the first instance by not allowing the marriage and in the second by allowing inheritance)?

  3. jeffaregularworkinglawyer says:

    This is the great first year of law school epiphany. We naively want the law to be a series of rules that can be followed objectively under all circumstances. But, queue the organ music, we quickly learn that it’s not so. Law is a rationalization of policy preferences, except when it’s not.

    We think that the rule of law does require consistency — either we recognize a foreign polygamous marriage, or the foreign marriage of a 40-year old man to a 13-year old girl, or we don’t. Let’s say we don’t (works for me). Great — now we have a rule. It’s objective, and everyone can follow it. That’s law. If a judge gets to say, “well, we normally don’t recognize these marriages, but I’m going to this time, because I think that in the case before me it would result in a socially desirable outcome,” that strikes us as rule by judicial fiat — tyranny, not law. Because if a judge can make an exception to recognize a marriage, maybe he can make an exception to not recognize one, too — maybe yours. But what if we agree with the judge, as in the case of allowing intestate succession by a 13-year old second wife, which seems to protect the powerless (although at whose expense)? Well, that kind of judicial fiat is OK. And to cover our tracks, we create a new, more complicated rule, which we will pretend is just as certain and objective as the old one.

    One of my favorite statutes is the Wisconsin Fair Dealership Act. It provides substantive rights to dealers who have a “community of economic interest” with their suppliers. How do I know whether a dealer meets that standard? The statute doesn’t say. So the Wisconsin Supreme Court has promulgated a twelve factor test for coming up with the answer. And it doesn’t matter what the factors are — a twelve factor test is tantamount to telling the trial court, “do what you think is right, and then use this tool to rationalize your decision. If you really screw up, the legislature will let you know — or we will.” So being a lawyer requires you to pretend that you are talking about rules when you are really talking about policy. Except when consistency of rules is more important than policy. Because, you know what, sometimes it really is. We’ll let you know when that is, too.

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