By Mike Dorf
As we await the end of the SCOTUS Term, expect speculation about the same-sex marriage cases to heat up. Here I want to get a jump on my fellow pundits by asking a question that may very well become highly salient before long.
Suppose that the Court invalidates DOMA Sec. 3 on grounds that do not require all states to recognize SSM (and that the holding in Perry--the Prop 8 case--likewise leaves some, most or all states the option of not recognizing SSM). The obvious consequence will be that federal law will treat same-sex couples who are married under the law of the state in which they reside as married. But what about same-sex couples who are in a state-recognized domestic partnership or civil union that confers the benefits of marriage without the word "marriage"? If DOMA falls, will such couples be treated as married for purposes of federal law?
This is hardly a hypothetical question. The following states currently permit same-sex unions with most or all of the benefits of marriage but not the word: California; Colorado; Delaware; Hawaii; Illinois; Nevada; New Jersey; Oregon. Other states that formerly had domestic partnerships without the word marriage have recently shifted to marriage (e.g., Vermont, Washington). Still other states (like Wisconsin) and some localities offer domestic partnerships that fall short of the full package of benefits of marriage. My exact count may be slightly off or outdated, but that's unimportant so long as there is at least one state that offers all of the benefits of, but not the word, marriage. And there is.
As I see it, there are multiple possibilities for the federal treatment of civil unions in the event that DOMA Sec. 3 is invalidated. Here I'll list them in broad stroke.
1) State domestic partnerships that afford all or nearly all of the benefits of marriage will be deemed marriages for all federal law purposes. This is the cleanest and, to my mind, the most sensible, result. Federal law piggybacks on state domestic relations law for purposes of conferring benefits (and occasionally for imposing burdens), not for purposes of conferring symbolic meaning. Although I previously expressed some skepticism about the "pure" federalism argument for invalidating DOMA, I do think that it would be quite inappropriate on federalism grounds for the federal government to adopt a policy whereby a state's decision to confer the benefits (and burdens) of marriage is overridden because federal officials decide that when Congress used the word "marriage" to allocate federal benefits (and burdens) it meant to elevate each state's decision with respect to the symbolic aspects of the word over the practical aspects of state law.
2) But the wording is plain. At the other extreme, one could imagine an argument to the contrary that says that Congress (or in the case of regs, the agencies) specifically chose the words "marriage", "married", and "marry" in various statutes (or regs) and that these words only incorporate actual marriages under state law. To be sure, most of the references in the U.S. Code (and CFR) to marriage pre-date the advent of civil unions but, the argument would go, it is often true that the plain meaning of legislation extends beyond examples that occurred to the legislators. Under this view, if Congress wants to incorporate civil unions by reference it can amend the relevant statutes and if a state wants its same-sex couples to get the federal benefits of marriage it can make same-sex marriage available.
View number 2) might appeal to textualists but I nonetheless think it is mistaken on the ground that it elevates form over substance. Consider an analogy. Marriage is not the only relationship that federal law defines by incorporating state law. Property is another. Now let's suppose that (for reasons we need not worry about) some state decides to denote some ownership interest in land or chattels as "shmoperty", even as state law otherwise attaches all of the hallmarks of property to that ownership interest. Does the use of the term "property" in federal law therefore not cover shmoperty? I can't see why it wouldn't. Certainly for constitutional purposes (in the procedural due process and Takings context), the courts have said that a state cannot escape the consequences of creating a property interest by attaching different labels to property relationships. The same would seem to be true for purposes of interpreting a federal statutory term "property." And I see no good reason why marriage should be treated differently from property.
3) It's Different for Different Aspects of Federal Law. Another possibility would be to treat each use of the term "marry" and its variants in federal law as a separate opportunity for a decision whether a particular state's civil union/domestic partnership qualifies. As the Windsor briefs note, there are over a thousand instances of federal law (including statutes, regulations, etc.) in which "marriage" is relevant. These provisions were adopted at different times and for different purposes. Thus, one could imagine a legal regime in which the determination of whether any particular federal invocation of marriage applies to a state same-sex civil union depends on the particular history and purposes of that invocation, in combination with the law of the particular state. In such a regime, one could further imagine individual agencies of the federal government adopting regulations and guidelines applicable to particular provisions.
This "retail" approach would be quite messy but not different in principle from what occurs in other contexts. For example, the word "person" appears in numerous sections of the U.S. Code. It is defined by the federal Dictionary Act to include corporations, but only presumptively. If "the context indicates otherwise", then some statutory uses of the term "person" do not include corporations. Here too, one could imagine a similar approach for marriage. We might start with a presumption that marriage does or does not include civil unions, but leave open the possibility that it's different in different contexts. Or one might not have any presumption but still make a contextual judgment.
4) Defer to the Executive. The Executive Branch will make the initial determination of whether "marriage" in various federal laws includes state civil unions. But to what extent will that initial determination be upheld by the courts? The answer will depend in part on whether the initial determination or determinations occur via processes that entitle the Executive to deference under Chevron and other doctrines of deference. Of course, if one thinks that the relevant uses of "marriage" and its variants clearly do or do not apply to civil unions, then no deference would be appropriate, but it seems at least possible that the courts would find that there is a sufficient lack of clarity to satisfy Chevron Step 1.
5) Justiciability. My expectation (and certainly my hope) would be that the Obama Administration would take the position that the federal term "marriage" and its variants applies across the board to state-recognized same-sex civil unions and domestic partnerships that confer all or nearly all of the state law benefits of marriage, at least with respect to states that do not also permit same-sex couples to "marry." If it did so, would anyone have standing to challenge such a determination? While it is easy to imagine cases in which a civil-unionized couple challenges an administration decision to deny recognition to their union (a tax case like Windsor itself coming out of New Jersey, say), it's a bit harder to come up with an example of a case in which someone has standing to challenge the recognition of same-sex civil unions as federal marriages.
Harder but not impossible. Here's a case: A civil-unionized couple wants to file their federal income taxes as separate individuals. The so-called "marriage penalty" cannot always be avoided (for those to whom it applies) by filing separate returns, because the tax is not then simply what it would be if the couple were not married; there is a distinct "married filing separately" form, and in some instances both it and the "married filing jointly" return will result in greater total tax liability than would arise for the total of two single people otherwise in the same situation. So we can imagine a civil-unionized couple saying they're not married for federal law purposes--although, given the politics, they'd take a lot of heat for doing so.
The issue could also arise in a context to which a federal executive policy wouldn't apply. Suppose that Pete sues David for copyright infringement in federal court. David is a citizen and resident of New Jersey, who is in a same-sex civil union with Sam. Pete believes that David told Sam that he (David) had read Pete's screenplay before writing his own, allegedly infringing, screenplay. Pete wants to call Sam as a witness to testify to David's admission of access, evidence that would clearly be relevant to Pete's case and not hearsay (because a statement of party opponent). Sam says he does not have to testify, invoking the spousal privilege against adverse testimony. Sam says that the federal executive policy of construing marriage to include couples like him and David means that the privilege applies. Pete says that the executive policy is not entilted to deference because David and Sam are not "married." Presto! A justiciable case presenting the question of whether federal marriage includes civil unions.
I think that I have barely scratched the surface of a set of quite interesting questions that could follow in the wake of Windsor--and note that I haven't even addressed two remaining puzzles: 1) How to define federal law usages of the term "marriage" with respect to same-sex couples in civil unions that afford some, but substantially fewer than all, of the benefits of marriage? and 2) How to define federal law usages of the term "marriage" with respect to opposite-sex couples in civil unions? Hawaii, Illinois and Nevada, as well as various foreign countries, allow such unions. This second set of issues will arise regardless of whether the Court invalidates DOMA Sec. 3 in Windsor.