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This article originally appeared in the Opinion section of the National Law Journal, February 21, 2005.

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Same-sex marriage: 'Full faith' for judgments

By Steve Sanders
Special to The National Law Journal

Imagine this scenario. Sandra and Ellen marry in Massachusetts. A few months later, their car is hit by a truck on a Massachusetts highway. Sandra is killed.

Ellen sues the driver's employer, a freight company headquartered in Indianapolis, for wrongful death. After trial, the Massachusetts court awards a money judgment. But to collect against the defendant's assets, Ellen must carry the judgment to Indiana and ask a court there to domesticate it.

Like 39 other states, Indiana outlaws same-sex marriage. The defendant invokes the federal Defense of Marriage Act (DOMA), which says that no state is "required to give effect to any public act, record, or judicial proceeding" respecting another state's same-sex marriage "or a right or claim arising from such relationship." Based on DOMA's plain language, the Indiana court turns Ellen away. The tort judgment she received in her home state becomes worthless.

Now that same-sex marriage has finally arrived, it may take just such a legal miscarriage to demonstrate why the federal gambit to "defend" marriage is unconstitutional.

DOMA, pushed through Congress by conservatives in 1996, affects the Constitution's "full faith and credit" clause. That clause requires states to recognize each other's laws and judgments. But the Constitution authorizes Congress to tinker with the "effect" of full faith and credit, and so with DOMA, Congress said one state can refuse to have anything to do with another's same-sex marriage.

In a little-noticed ruling last month, DOMA survived its first constitutional challenge. The case, Wilson v. Ake, was brought by two Florida women after a Florida county clerk refused to recognize the marriage they had obtained in Massachusetts. A federal district judge rejected arguments that DOMA violates the full faith clause. Recognizing that the conservative 11th U.S. Circuit Court of Appeals is unlikely to disagree, the plaintiffs reportedly have dropped further challenges.

The ruling was not a surprise. Although its framers intended the full faith and credit clause to unite the various state legal regimes -- to "guard," as Justice Robert Jackson once explained, "against the disintegrating influence of provincialism" -- the high court has held that the clause does not require one state to apply another state's law in violation of its own public policy. Thus, it will take a different case, under more tragic circumstances, to demonstrate DOMA's cruelty to gay couples, and why the federal courts must eventually strike it down -- at least as applied in some situations.

Consider Ellen's tort judgment. In most states, one spouse is entitled to compensation for the other's wrongful death. Massachusetts also allows loss-of-consortium actions, which allow one spouse to recover when the other has been injured by a third party. And in a probate proceeding (or same-sex divorce), if a Massachusetts court awards Ellen real estate owned by Sandra in an anti-gay marriage state, Ellen might need to petition that state's courts to transfer title.

Is a state that bans same-sex marriage entitled to ignore not only the laws, but also the court judgments of an equal-marriage state? DOMA's supporters would argue yes -- after all, marriage was a but-for condition of Ellen's tort claim. But if so, the result would be a travesty.

As every first-year law student learns, the ancient rule of res judicata means once a dispute has been litigated and reduced to judgment, its elements may not be reopened in a different jurisdiction. While states may ignore statutes that conflict with their own policy values, the principle that all states must honor each other's judgments is fundamental to a federal system. Accordingly, American law has long distinguished between statutes and judgments, and the Supreme Court has underscored that the Constitution allows "no roving 'public policy exception' to the full faith and credit due judgments."

The same principle must apply in the context of same-sex marriage. When Ellen seeks to collect against an out-of-state defendant, the validity of her marriage is no longer at issue. All that remains is a Massachusetts judgment, which the other state may not rebuff like some foreign currency.

Consider the harsh consequences of the alternative. A money judgment creates a property interest. So by invoking DOMA, a court could deprive Ellen of property -- a deprivation based, in effect, on nothing more than her sexual orientation.

No arbitrary disadvantages

Although the Supreme Court remains silent on same-sex marriage, it made clear in the 1996 case Romer v. Evans that a state may not impose arbitrary and unusual legal disadvantages based on sexual orientation: Gays and lesbians may not be excluded from the "transactions and endeavors that constitute ordinary civic life in a free society."

For now, states may exclude gays from marriage. But states must not be allowed to prohibit individuals in same-sex marriages from vindicating individual tort and property rights -- ancient rights basic to civilized society -- that arise simply as a consequence of such marriages.

That is what DOMA purports to do. And so when an unhappy case like that of Sandra and Ellen finally gets to court, it will show why the effort to "defend" marriage is at war not only with the Constitution, but with basic decency.

Steve Sanders is a third-year law student at the University of Michigan Law School; he formerly taught political science at Indiana University.