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Saturday, June 29, 2013

First came OPM

That didn't take long. Not only has California begun issuing marriage licenses to same-sex couples but SCOTUSBlog reports that OPM has ordered federal agencies to provide federal spousal benefits to same-sex spouses of federal employees, thus triggering one of the first executive decisions that must grapple with the DOMA choice of law problem.  Lyle Denniston reads the OPM memo "to indicate that the benefits would be keyed only to the status of legal marriage of the employee, wherever it was performed and regardless of where they now live." 

That may be so, (and I assume Lyle has talked to folks in the executive branch who read the memo this way) but the memo itself is actually strangely cagey about this.  It simply refers to those "who have legally married" or "are in legal same-sex marriages."  Perhaps this is intended to assume that any marriage lawful in the place of celebration is a "legal marriage," but it is not obvious to me why. 

For example, suppose a couple lives in an anti-evasive marriage state, and travels to Iowa or Massachusetts to marry, without ever changing their residency.  It would be fair to say that as a matter of their domicile state's law, they have not entered into a legal marriage, but rather an illegal one.  So saying that the benefits will apply to all "legal" marriages just triggers the choice of law question -- what do you mean, "legal"?

If this is how the executive branch intends to deal with the choice of law question, I am dispirited.

[UPDATE: Chris Geidner: "'Yes, these benefits will be available to any Federal employee or annuitant who has a valid marriage license, regardless of their State of residency,' Thomas Richards, OPM director of communications, told BuzzFeed Friday afternoon."

I assume that "valid" means "valid" under license-state law, regardless of whether it is valid under other states' laws.]

Posted by Will Baude on June 29, 2013 at 12:08 AM in Constitutional thoughts | Permalink


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Ah - now I understand what was dispiriting. I clicked your Social Security Act link, and saw two interesting oddities:

(1) Those without a domicile in any state default to District of Columbia rules. I could be wrong, but I _think_ that means that all American same-sex couples abroad and in U.S. territories who get validly married anywhere get the benefit (for social security purposes) of the fact that the District of Columbia recognizes same-sex marriage. Who knew that DC's decision to recognize same-sex marriage would have such far-reaching effects.

(2) Those whose state of domicile won't recognize same-sex marriage nonetheless count as spouses if they would inherit property under the state's rules of intestate succession. I assume that means that everybody with a civil union, in the states that still have civil unions for same sex couples but not marriage, is now "married" for federal social security purposes, after Windsor.

I highly doubt that the drafters of this act had these particular consequences in mind, but they seem clear enough. Hopefully for OPM, other statutes leave more room for agency interpretation.

Posted by: Joey Fishkin | Jun 30, 2013 12:46:06 AM

I also suggest in my article that the immigration laws do not choose the law of the place of celebration, 1422 n.276, and in any case they are not clear about it. But state-of-celebration has nonetheless been the traditional rule of the BIA (for common-law reasons, not statutory ones).

Meanwhile the Social Security statute, for what it's worth, requires the state of domicile. 42 U.S.C. § 416(h)(1)(A)(i) http://www.ssa.gov/OP_Home/ssact/title02/0216.htm.

Posted by: William Baude | Jun 29, 2013 10:24:31 PM

Oh! I think the last sentence of my post wasn't very clear. I agree that the executive branch should address the choice of law issue-- early and often! (Beyond DOMA at 1406 ("As with congressional action, regulatory resolution of the conflicts problem seems desirable, but uncertain.")).

I am dispirited because the OPM memo does not actually address the choice of law issue. It simply restates the question (which marriages are lawful?) although apparently the authors of the memo *believe* that the memo answers the question. That makes me concerned that they don't really understand the problem, won't be able to implement their answer fully, and won't understand how to insulate their solution from challenges. I hope I am wrong about these things, but that's why I'm worried.

For example, when the executive branch gets around to enacting regs about this, it would be nice if they said how the "lawfulness" of a marriage is to be determined, rather than assuming that "lawful" means "valid in the state of celebration." On the latter point they might get Auer deference (if the Court doesn't overrule Auer first), but they could do better.

I also agree (per your "whose to stop them?" question) that a lot of these issues won't necessarily be subject to judicial review because nobody will have standing to challenge them. So that is heartening. But some of them will.

Posted by: William Baude | Jun 29, 2013 10:11:21 PM

From reading the reporting, and from no inside knowledge, it appears that certain federal statutes are relatively clear that the rule is state of celebration (e.g. immigration law). I'm guessing a lot of other federal statutes are ambiguous, and I don't know if there are some that point clearly to state of domicile.

In your article on this subject, Will (recently cited by the Supreme Court!) you favored a new statute from Congress that would enact a trans-substantive "state-of-celebration" rule across all federal statutes. That is the outcome that I agree would be simplest and best. But let's imagine we don't have a Congress that is actually prepared to enact anything (hard to imagine, I know).

So at that point, I'm not at all clear on why we NEED a new statute. Why not do it through agency interpretation, perhaps an executive order, etc.? In theory, Congress could overrule this interpretation if it really wanted to. In the meantime, it seems to me that the executive branch really ought to advance some clear interpretation, and avoid a mess or a mishmash (to the degree possible). And if they are putting forward an interpretation, why not place of celebration? It promotes freedom of movement and interstate commerce; it prevents states from taking federal benefits away from lawfully-married-in-another-state couples who move in. Why is this dispiriting?

To put it in more practical terms: suppose a lot of executive branch agencies do this -- they simply start interpreting their statutes so that by "lawful" they mean "lawful in the state of celebration." Who's to stop them, exactly? It seems to me likely to stick and become a consistent rule, basically as good as a statute. You find this "dispiriting" but I'm not entirely sure I see why.

Posted by: Joey Fishkin | Jun 29, 2013 10:00:27 PM

There's a particularly nice post-Windsor problem under the Copyright Act, which defines an author's "widow" as "surviving spouse under the law of the author’s domicile at the time of his or her death."

Posted by: James Grimmelmann | Jun 29, 2013 12:32:24 PM

I don’t find the decision dispiriting. Lots of employers choose to give benefits to same-sex couples when one is an employee, regardless of whether the couple is married, and now the federal government has basically chosen to do the same—with the extra requirement that the couple jump through the hoop of getting married in a state that allows same-sex marriages. The extra requirement might be justified as a means of weeding out those who fraudulently claim to be in a same-sex relationship.

I agree however that the matter is more problematic concerning federal benefits (or burdens) unrelated to one’s status as a federal employee. It would be odd, for example, for a Virginia same-sex couple who goes to Massachusetts to get married and returns immediately to Virginia to be considered married for the purposes of federal income tax and not married for the purpose of Virginia income tax. Until same-sex marriage gets its Loving v. Virginia (that is, a case that compels all states to recognize same-sex marriages) there will variation in state law on the matter and the best choice-of-law rule for federal law that incorporates state law concerning marriage is one that looks to the state of domicile at the time of the celebration of the marriage. The Virginia couple should not be considered married for the purpose of federal law.

On the other hand, I have less of a problem with differential treatment of the Virginia couple under federal and Virginia law if they were married in Massachusetts while domiciled there and then moved to Virginia. Indeed, I’d be willing to go even further and say that Virginia should be forced to recognize the Massachusetts marriage as a matter of Full Faith and Credit. But the Court’s Full Faith and Credit cases are not on my side here.

Posted by: Michael Steven Green | Jun 29, 2013 8:42:39 AM

"Have legally married" and "in a legal marriage" aren't obviously the same (though the memo seems to use them interchangeably), and neither one obviously applies to a marriage in violation of a domicile state's law. I do think Lyle is probably write about the original intent of the memo, but it's a really weird way to say so given the obvious questions.

Posted by: William Baude | Jun 29, 2013 12:32:28 AM

The natural way to refer to a same-sex marriage validly entered into in the state of celebration but not recognized in the domicile state would be to call it an unrecognized same-sex marriage or something to that effect, not an illegal or non-legal same-sex marriage (which suggests something quite different). I think Lyle Denniston has this one right, especially given phrasing like "have legally married."

Posted by: JHW | Jun 29, 2013 12:27:44 AM

Is there any way this issue could wind up in court? What if a couple domiciled in Texas goes to Iowa to get married, and returns to Texas. Before certifying to the federal government that their marriage is "legal," could they seek some kind of declaratory action? Is this a viable test case?

Posted by: Josh Blackman | Jun 29, 2013 12:21:39 AM

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