First, I’d like to thank Mr. Corbett for the opportunity to guest blog. The following is a – rather academic (apologies) – essay on what to do about “invasions” of gay marriage into forums who have public policy against gay marriage. I do not argue for or against gay marriage (which may be an interesting discussion to have), but rather I assess how to deal with migratory marriages from countries or states that have a different world-view on the issue. I regret not developing more rigorously the idea of cultural relativism – an area that has been a long interest to me in philosophy and philosophy of science. I believe it holds the key to the area overall. By this I mean that cultural relativism is pitted against “fundamental rights” or ideas of universal human rights. Hopefully I develop these ideas soon. The issue of gay marriage may go up to the S.Ct. on a Loving v. Virginia type argument. I’m afraid the S.Ct. is not going to take a case in the near future, hence why I feel the following choice of law argument still is useful. Another interesting argument that may be had here is what the S.Ct. should do if it does take a case on gay marriage. Advocates of same-sex marriage have been arguing that same-sex marriage is legal right. Their claim rests on four legal arguments: (a.) People have a fundamental right to marry; (b.) Discrimination against gays is morally and legally equivalent to discrimination against African-Americans (c.) Denial of same-sex marriage is a form of sexual discrimination (d.) It is unconstitutional because it is just arbitrary and unfair (that was the basis of the decisions in Vermont and MA). I will not at this time make any analysis on the merits of these claims – though I would contend it would be an extremely interesting debate.  Finally, I must point out that the essay is more research than original thought; the footnotes are perhaps the most important points.

Same Sex, Different Country[i]

By: Timothy J. DeHaut

§1 Introduction

The family is quite often considered the foundational unit that makes up society.[ii] Ideals of family are strongly held throughout the world. These ideas however are not unified; different cultures hold different beliefs of marriage, divorce, and same-sex marriage. In an era of globalization, families move across national boarders. Nationals of different countries may set up the family unit in a particular country and then move to another country.[iii] Sometimes the family unit falls apart and people seek divorce; the regulations governing divorce may be different in two different nation states, both of which may have an interest in governing the people seeking the divorce. Sometimes the family units themselves, for married gays, are against the belief system of the country. “Thus, on a variety of issues, in the transitional context, the different values that define family structure within particular cultures will come into direct conflict.”[iv] There is no universal law governing the world. Moreover, with the broad cultural differences in ideals of family law, a transnational agreement is far from practically attainable.[v] Individual countries themselves are far from unified.[vi] The debate surrounding same-sex marriage and unions, in particular, is particularly vigorous with many vocal voices on either side. Should countries give any effect to same-sex partnerships or divorces within their boarders? Within the United States, are individual states obligated to give effect to same-sex partnerships or divorces granted in other states? These questions are difficult and highly emotionally laden. Luckily, “rules of private international law go a long way in respecting the competing norms that are vying in a complex global society.”[vii] Traditional choice of law analysis gives significant insights into how to deal with the novel problems of globalization and family law.

§2 Cultural Relativism and Local Cultural Respect

Like so many issues of globalization, a universal international accord unifying the law in the area would solve many of the problems; universal international consensus on some of the issues however is far from philosophically or politically possible. Moreover, even where universal international agreement has been made, cultural relativism still plays a key role in its implementation. One such instance is cross-boarder custody disputes.

Two relevant universal international agreements are relevant to the area of cross-boarder custody disputes: the Protection Convention and the Abduction Convention.[viii] Disputes over and about children are guided by these two agreements. One of the important elements to these agreements is an assessment of the “best interests” of the child when calculating whether a child should be returned to another jurisdiction after abduction by one parent. “‘Best Interests’ is an amorphous concept filtered through the customs and mores indigenous to a particular society; cultural relativism cannot be completely ignored.”[ix] One example in the convention is that a child need not be returned if there is a “grave risk” that return of the child “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”[x] Courts inevitably apply their own concepts of physical or psychological harm to the analysis. That said, often courts can yield to other views that do not reflect their own ideals. Three examples are illustrative: In Friedrich v. Friedrich,[xi] the Court considered returning a child to his father in Germany and whether that would cause psychological harm. The Court stated, “Even if the home of Mr. Friedrich were a grim place to raise a child in comparison to the pretty, peaceful streets of Ironton, Ohio, that fact would be irrelevant to the federal court’s obligations under the Convention.” For the Friedrich Court, the question was not where the child would be happiest, but rather whether the Convention required the Court to allow for reserve that question for the Court in Germany. The Friedrich Court shows the acceptance of cultural relativism. In Hosain v. Malik,[xii] a Maryland court was asked to determine whether to enforce a Pakistani Court order that required a child to be returned to Pakistan. The mother, who had removed the child to Maryland, argued that the Pakistani Court did not apply the best interest of the child in awarding custody. The Maryland court disagreed stating that the best interests analysis must be done through the lens of Pakistani cultural and values. Among the values were the father’s right to control the child, the mother loosing her rights for being wicked and not promoting the religious interest of the child, and that the mother was overall inappropriate to bring up the child under the views of Pakistani cultural.[xiii] Here again, the Court applied cultural values different to its own in accordance to cultural relativism. Finally, in Silverman v. Silverman,[xiv] a court of appeals reversed the lower courts decision not to return a child to Israel. The court of appeals reasoned that the mother, who had removed the child to the United States, could make no particularized showing of grave risk to the children aside from the “general regional violence… that threaten[s] everyone in Israel.”[xv] The three illustrative cases above show that cultural relativism is often not ignored in regard to cross-boarder child abduction cases. The three cases, however, are not a complete description of the decisions in the area. Often, courts make decisions about individuals that they have very little connection with by relying on ideas of universal human rights. In fact, the general idea of human rights – a universalist concept – is pitted against cultural relativism. While an answer to this question is beyond the scope of this article, important insights in regard to the debate can be gleaned from an examination of another area of family law: marriage.

§3 The Precedents of Polygamy and Miscegenation

Any choice of law analysis is an interest analysis that tries to balance the legitimate interests – both territorial and personal – of different States in having their own laws applied.[xvi] The basics of the choice of law analysis can be summarized as follows: “A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.”[xvii] Since a state has the right to regulate marriage within its own boarders, no state should have to defer to another state’s marriages when its own citizens are involved. “When a state makes the social and legal decision to bestow a special status of ‘marriage’ or ‘partnership’ on a particular relationship, it is making a statement about its set of values for a particular community. A state or country makes that judgment, not for the world at large, but for a relevant community in which it has interest.”[xviii] Therefore, the public policy doctrine allows for a state to regulate its own citizens while allowing other states to regulate their citizens. The public policy exception has been invoked, historically, in two main contexts: polygamy and international marriage (or miscegenation). Importantly however, a blanket rule of nonrecognition was never fully accepted in any context.[xix] Rather, countries choose to recognize marriages for different purposes.

An English case, Baindail v. Baindail,[xx] presents an example in the context of polygamy.[xxi] An English woman, Lawson had married a British Indian man, Baindail, in England in 1939. After some time, Lawson discovered that Baindail had previously contracted a Hindu marriage in India and that he had a son in that marriage. Lawson sought to annul her marriage on the grounds of bigamy. Baindail “cited several cases that seemed to indicate that potentially polygamous marriages were not regarded as marriages at all by English law and argued that he was therefore legally a single man at the time of his English marriage.”[xxii] The first British polygamy case, Hyde v. Hyde,[xxiii] supported this position. The Baindail court did not want to legalize polygamy but it also did not want to ignore Baindail’s prior marriage in India. It wanted to recognize the marriage for limited purposes while not allowing polygamy to infiltrate its domestic law. The court was able to do this by showing that marriage created a large number of different legal rights which could be separated out – a concept familiar in the property law context. The result was Lawson’s marriage could be annulled. Other cases, such as Nachimson v. Nachimson,[xxiv] used similar mechanisms. The present English rule forbids polygamous marriages from taking place within England. People who live in England cannot contract such marriage elsewhere. But polygamous marriages are otherwise recognized by English courts today.[xxv]

A similar problem arose in the United States involving interracial marriages, or miscegenation. Southern American states, during the early and middle twentieth century, had strong public policy against miscegenation. Three classes of choice of law problems arose involving interracial marriages: First were evasion cases, where parties had traveled out of their home state for the express purpose of evading the state’s prohibition on their marriage, and thereafter immediately returned home. Courts always invalidated these marriages.[xxvi] If the state had a legitimate public policy it should not have been so easily circumvented. Second, were extraterritorial cases, where parties never lived within the state, but in which the marriage was relevant to litigation conducted there – for instance, litigation in regard to inherited property after the death of a spouse. Courts always recognized these marriages.[xxvii] Finally, were migratory cases, where parties had contracted a marriage valid where they had lived and subsequently moved to a state where interracial marriages where prohibited, though the parties never had the intention of evading the law. Courts were divided on the issue.[xxviii]

The United States was not the only country to have prohibition of interracial marriage. South Africa’s 1949 Prohibition of Mixed Marriage Act prohibited its male citizens from entering into interracial marriages in another country. Importantly, however, it did not apply to foreigners who moved to South Africa. “Like the Jim Crow [US] South, South Africa did not seek to apply its law outside its borders; the law’s preeminent object appears to have been, once more, the prevention of interracial cohabitation within the country.”[xxix], [xxx]

§4 What to do about Same-Sex Marriage

The question of gay marriage is extremely volatile throughout the world. Equally contested is the issue of recognition of other country’s marriages which are same-sex unions. While the emotion involved in this debate may seem unprecedented, throughout history there have been equally divisive. The precedents of polygamy and miscegenation provide important insights into how to deal with same-sex marriages. When and when not to recognize same-sex unions in a forum can be broken into evasive, extraterritorial, and migratory; a visitor category could also be added. A marriage is evasive only if the parties are domiciled in the state that prohibits them from marrying.[xxxi] Evasive marriage should not be recognized except in situations where there was no possibility that the marriage would continue within the state’s boarders, such as inheritance suits after a spouse has died. Similarly, in extraterritorial marriages, but the marriage is relevant to litigation conducted there, should be recognized for all purposes, regardless of the public policy of the forum state.[xxxii] Visitor marriages should also be recognized as the state has less interest in regulating people who not their own citizens; moreover, it does not affect their public policy. Migratory marriages present the most difficulty in this context as they did in the miscegenation context. However, lessons from Baindail can be helpful here: marriages can be recognized for some purposes and not for others. Individual case assessments must be made. However, any right or obligation of marriage that can be recharacterized as a nonmarital right- such as a right to contract, or a parent-child relation, or an obligation created by judicial judgment should be recognized while rights that are not capable of being so recharacterized, such as the right to file joint state tax return, should not be recognized.[xxxiii]

[i] Title adapted from Andrew Koppelman, Same Sex, Different State, New Haven: Yale University Press, 2006.

[ii] Ireland has gone as far as putting the idea of family as the basic unit of society into their Constitution. See Irish Constitution, Article 41.

[iii] Linda Silbeman and Karin Wolfe, The Importance of Private International Law for Family Issues in an Era of Globalization: Two Case Studies – International Child Abduction and Same-Sex Unions, 32 Hofstra Law Review 233, 233.

[iv] Id.

[v] Belgium, Canada, Netherlands, South Africa, and Spain allow for same sex marriage. Denmark, Sweden, Norway, Finland, Iceland, and the UK have partnerships that are nearly identical to marriage while France, Germany, Austria, Hungary, Portugal, Brazil, Croatia, New Zealand, and parts of Australia, Argentina, and Switzerland, give a limited sets of rights. See generally Koppelman, pg 57. In other areas of the world, such as Saudi Arabia, homosexual acts can be punished by death; in over 30 nations, homosexual acts can be punished by significant prison sentences.

[vi] The United States, for instance, is significantly divided on the same-sex marriage debate with Massachusetts and allowing for same sex marriage; Vermont, California, Connecticut, New Jersey, and New Hampshire have schemes that grant almost all the rights of married couples without the name of marriage. Hawaii, Maine, Washington, Oregon (2008), and DC grant partnerships that have some rights. Forty US states have statutes that bar recognition domestic partnerships and civil unions. Eighteen states have constitutional bans on same-sex unions; seven have bans on same-sex marriage. See generally Koppelman, pg 57. Lawrence v. Texas (2003) outlawed anti-homosexual sodomy laws in the United States, however, at the time about 14 states still had criminal provisions for homosexual acts.

[vii] 32 Hofstra Law Review at 272.

[viii] See Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, Oct. 19, 1996, 35 I.L.M. 1391 (1996) [abbreviated Protection Convention]; Convention on the Civil Aspects of International Child Abduction, open for signature Oct. 25, 1980, T.I.A.S. No. 11,670, 1342 U.N.T.S. 89 (entered into force Dec. 1, 1983) [abbreviated Abduction Convention].

[ix] 32 Hofstra Law Review at 237.

[x] Abduction Convention, supra note 8, art. 13(b), T.I.A.S. No. 11,670 at 9, 1343 U.N.T.S. at 100.

[xi] 78 F.3d 1060 (6th Cir. 1996).

[xii] 671 A.2d 988 (Md. Ct. Spec. App. 1996)

[xiii] See generally, 32 Hofstra Law Review at 236-37.

[xiv] 338 F.3d 886 (8th Cir. 2003).

[xv] Id. at 901.

[xvi] Koppelman, 15.

[xvii] Restatement (Second) of Conflicts of Laws, §283(2) (1971). While the Restatement is a statement of the laws in the United States domestic context, the theme of the summary is representative of the worldwide choice of law jurisprudence.

[xviii] 32 Hofstra Law Review at 247.

[xix] Koppelman, 31.

[xx] [1946] All E.R. 342, CA.

[xxi] See generally, Koppelman, 82-83.

[xxii] Id.

[xxiii] L.R. 1 P. & D. 130 (1866). The Hyde court famously defined a marriage as the voluntary union for life of one man and one woman, to the exclusion of all others. The Hyde court invalidated a Mormon marriage for the purpose of enforcing matrimonial duties.

[xxiv] [1930] 1 P. 217 (C A) (recognized a Russian marriage as valid for the purposes of divorce because the ability to get out of the marriage did not effect the English definition of marriage)

[xxv] See Koppelman, 84.

[xxvi] Id at 37.

[xxvii] Id.

[xxviii] Id.

[xxix] Id at 41.

[xxx] Today, these laws no longer stand. Anti-miscegenation laws were held invalid by the United States Supreme Court in Loving v. Virginia, 388 U.S. 1 (1967), and in South Africa in 1985.

[xxxi] See Koppelman, 106.

[xxxii] Id at 112.

[xxxiii] Id. at 112.