Research Matters: Will Baude on “Interstate Recognition of Same-Sex Marriage after Windsor”

Research Matters is a regular feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Professor Will Baude, who joined the Law School faculty in January, focuses much of his scholarship on constitutional law and conflicts of law. Those areas are especially relevant in light of current events surrounding same-sex marriage. Baude wrote “Interstate Recognition of Same-Sex Marriage after Windsor,” published in the New York University Journal of Law and Liberty in December. In it, Baude strikes a compromise to answer the open question of whether U.S. v. Windsor, the 2013 case that struck down the Defense of Marriage Act, also calls for interstate recognition of same-sex marriage.

Q. Why did you write this?

A. I was asked if I wanted to write something for a Supreme Court symposium about Windsor, the Supreme Court’s same-sex marriage case. And I’d been thinking about this puzzle a lot, about what happens when you’re married in one state, and other states don’t recognize it. I’d seen this issue start to come up in litigation, where people were suing in federal court and saying, we’d been married in Maryland and now we’re in Ohio, and we want Ohio to recognize our marriage, even though Ohio doesn’t have same-sex marriage (Obergefell v. Kasich). That’s an interesting case because it’s theoretically narrower than just a right to same-sex marriage case. They’re not saying that they have a right to get married in Ohio, they’re just saying once they are married somewhere else, their marriage should be recognized. I’d seen a lot of confusion on both sides, and I wanted to pick apart what was going on.

Q. Was there a resolution in the Ohio case?

A. The district court has ruled in favor of the challenge, and now it’s on appeal. The Sixth Circuit will have to weigh in. A bunch of these interstate recognition cases are pending, in a lot of different courts. This question might end up in the Supreme Court eventually, or the Court might just consider the “big” question, which is the right to same-sex marriage. We’ll see what happens.

Q. What do you think should be done about interstate recognition of same-sex marriages?  

A. I take an intermediate point of view. There are some people who say, the Windsor decision had nothing to do with interstate recognition because it simply struck down the federal Defense of Marriage Act (DOMA). And I say, that’s not quite right. There are a bunch of things in the decision that point in favor of recognition. At the same time – it’s a confusing opinion – there are also a bunch of things that seem to point in favor of federalism, and every-state-decides-for-itself. So I suggest there’s an intermediate possibility, which is that if you live in one state that recognizes same-sex marriage, like Illinois, and you get married, and then eventually you move somewhere else, because your job, your family, or your life takes you somewhere else, that your marriage should be recognized. You were fully married, and it’s not your fault you’re moving somewhere else. We want to protect the right to travel. But there’s a different situation, which is what was going on in Obergefell. The whole time, they lived in this state that’s anti-same-sex marriage, and they made a really quick trip somewhere else to get married, just as a way of getting around Ohio’s law. They get on a plane in Ohio, the plane lands in Maryland, they don’t even get off the plane, and somebody comes on board, marries them, and they take off again and fly back to Ohio. And that, traditionally, in the conflict of laws, is something that states have been much less likely to recognize. It’s this idea that you’re kind of evading your home state’s law, and if you could do that, it’d be hard for states to have their own policies about anything.

I was troubled by the fact that the court didn’t even talk about this distinction, or note that they’re very different situations. I think one possible way to deal with the fact that the language in Windsor is a sort of compromise is to compromise by saying, you can have recognition in the first scenario but not the second one.

Q. How was the language in Windsor a compromise?

A. Basically, the court gives two reasons, simultaneously, for ruling the way it does. It doesn’t really explain which of the reasons matters, or how they combine. On one hand, it says the reason DOMA is unconstitutional is that once a state marries you, it confers upon your relationship a certain form of dignity. And that dignity can’t be taken away without demeaning you. But it also says that traditionally states are the ones who decide who gets married, within their own borders. Therefore, since the federal Defense of Marriage Act is saying that people who were married under state law don’t count for federal law, it violates this federalism principle. The opinion sort of lays out those two things as reasons, as factors, but it doesn’t go further than that. That means interstate recognition remains an open question.

Q. How did you come to this compromise?

A. I drew on the background I have in conflict of laws scholarship. When I was reading the case and reading the dilemma, I started thinking, how do the background common-law principles deal with this? What do they tell us? And since they told us that these two things are not the same, that these evasive marriages are not the same as someone who’s actually moving from place to place, that made me think, if you had to compromise, that’s one place you could draw the line.

Q. Is this compromise at all driven by your personal opinions? 

A. No. My preference would be that there would be gay marriage in the whole country, if I were voting on a ballot initiative. But the point of the legal analysis is, until we come to that conclusion, we have to figure out how to deal with all the people whose lives are affected by the legal regime in the meantime.

Q. Is it difficult, as someone who supports same-sex marriage, to develop a compromise that implies that the marriage in Obergefell should not be recognized in Ohio?

A. It’s the difficulty about writing in this area at all, that often the substance and the procedure don’t line up. But that’s the way it goes sometimes in law. If you’re doing legal scholarship well, sometimes you come to the conclusion that the law doesn’t do things that you wish it did. I actually hope that one consequence of this is to lead to more direct focus on the rights issues. If we want to have same-sex marriage, we should just do that. The kind of covert way of doing it, by having some states recognizing it, and stretching the normal federalism principles to let those states impose it everywhere, is probably worse. It privileges people who can afford to fly to Maryland on a private jet. It deprives a lot of the country of the chance to actually weigh in and eventually maybe come to the right view on the issue. It also has the risk of setting bad precedents for the future.

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