Saturday, March 15, 2008

Migrating Same-Sex Marriages in America: "Betwixt and Between"

Professor Brenda Cossman of the University of Toronto's Faculty of Law Blog has a new paper on the gap between the legal and cultural recognition of same-sex marriage in America.

Focusing on the uncertain legal status of same-sex spouses who migrate to, and throughout, America, Betwixt and between Recognition: Migrating-Same-Sex Marriages and the Turn Toward the Private reviews the applicability of conflict of laws principles to judicial determination of the legal status of migrating spouses.

It also nicely canvasses American jurisprudence that has led to the current question marks about the recognition by U.S. state courts of same-sex marriages solemnized elsewhere.

Professor Cossman notes that, to date, many U.S. state courts have have declined to favour recognition:

A glance at the scoreboard in these admittedly early days of migrating same-sex marriage cases suggests that the obvious trend is one of nonrecognition. The courts are overwhelmingly taking the position that if their states do not recognize civil unions or same-sex marriage, then they will not recognize Vermont, Massachusetts, or Canadian unions.

She argues, however, that irrespective of the ultimate verdicts in these cases, judicial processes have offered some measure of social legitimacy to same sex unions. She notes that simply by considering these cases, courts have enabled such unions to enter the lexicon of the culturally "speakable"

The writing of the paper appears to have predated last month's landmark decision in Martinez v. Monroe.

In Martinez, a New York State appellate court in Rochester recognized a Canadian same-sex marriage as legally valid in the state. That appellate ruling, however, is now subject to further appeal by Monroe County.

Regrettably, however, this otherwise informative and scholarly paper also veers somewhat gratuitously, and perhaps, objectionably.

For no apparent reason that appears germane to her central thesis, Professor Cossman also contends:

There are many parallels between same-sex marriage and polygamy. Polygamy has long been one of the bogeymen of the law of conflicts. The law of recognizing marriages celebrated abroad has often been articulated to specifically disallow the recognition of polygamous marriages. Although the general principle was one of place-of-celebration, that is, a marriage was recognized as valid if it was valid in the place where it was celebrated, an exception was made for polygamy. Polygamy long operated as a trope of the public-policy exception to the common-law place-of-celebration rule, deployed to justify, in the most obvious way, the need for such an exception.

Today, it is same-sex marriage that is occupying this trope, becoming the new bogeyman in the law of conflicts. Indeed, it arguably occupies an even more ominous space, since same-sex marriage has been legalized in one state in the Union, and civil unions have been recognized in several others.

Yet the shadow of polygamy lingers, now in the guise of a slippery slope: same sex marriage becomes the obvious example of the need for a public-policy exception—“if it is not a legitimate exception, what is?”—leading in turn to the fear of the ultimate trope -polygamy. Opponents to same-sex marriage repeatedly raise the slippery-slope argument: that its recognition will lead inexorably to recognizing polygamy and other abominations, like incest and bestiality. Conversely, as liberal scholars seek to make the case for the interjurisdictional recognition of same-sex marriage, they, too, must negotiate this slippery slope. But they do so through denial, avoiding the association like the plague and insisting that the monogamous nature of marriage can, and will, hold. (emphasis added).

With due respect to the good Professor, I am quite comfortable with the noted tendency of "liberal scholars" to avoid dealing with the "association" of same-sex marriage to polygamy, incest and bestiality.

By any rational standard, there are no such associations.

Reiteration of these tired "slippery slope" arguments may well afford to them an unwarranted cultural "speakability." The suggestion that such canards continue to require any rebuttal at all is essentially false.

Professor Cossman's ultimate conclusions, however, remain astute:

The courts may be deploying conflicts-of-laws in a kind of border patrol, refusing legal passage, yet they cannot prevent its seepage into the cultural imagination on the other side brought on by each of the legal challenges. These migrating-marriage cases challenge the traditional confines of doctrinal or policy approaches to conflicts, suggesting that we cannot fully grasp this strategic turn toward the private without attention to these contestations, deferrals, and reversals of cultural meaning.

- Garry J. Wise, Toronto

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