Marriage and Immigration — Which State’s Law Applies?

Last week, in United States v. Windsor, the Supreme Court struck down the Defense of Marriage Act. As I mentioned in my previous post, the Department of Homeland Security appears to be interpreting the Court’s decision to permit the recognition of same-sex marriages for immigration purposes. But which state’s (or country’s) law should determine whether a couple is married? Should it be the state where they celebrated their wedding, or the state where they live?

On the day after the Supreme Court’s ruling, President Obama opted for the “celebration rule.” “If you’ve been married in Massachusetts and move somewhere else, you’re still married,” he explained. “Under federal law, you should be able to obtain the benefits of any lawfully married couple. But again I’m speaking as a president, not a lawyer.”

As “lawyer Obama” might suspect, the celebration rule is a bit more complicated than it looks at first glance. Under the celebration rule, a marriage is valid where celebrated if it does not violate the “strong public policy” of the state where the couple is domiciled—where they reside and intend to remain. Some state courts have interpreted “strong public policy” to mean a statute or constitutional amendment banning the type of marriage in question. Virginia, for example, does not recognize same-sex marriages entered into elsewhere based on an amendment to the Virginia Constitution banning same-sex marriage. Others have adopted a more generous approach, finding a “strong public policy” against the type of marriage only if the state has a statute making it a crime to evade the state’s marriage law by leaving the state to marry and returning there to live. Edith Windsor, in fact, was able to claim to be “married” in New York precisely because of New York’s generous version of the celebration rule; she had been married in Canada in 2007 before same-sex marriage was available in New York, but because New York did not have a criminal evasion statute the marriage was recognized under New York law. Her marriage would not have been recognized in Virginia.

Immigration courts have, by and large, adopted the version of the celebration rule that looks for an evasion statute as evidence of strong public policy. This means that a marriage validly entered into will be good for immigration purposes if the couple plans to live in most states in the U.S. (many states repealed their evasion statutes after just such a statute targeting interracial marriages was struck down in Loving v. Virginia in 1967). But some states still have them. Wisconsin’s, for example, imposes a criminal penalty of up to ninth months imprisonment or a $10,000 fine for going outside the state to enter into a marriage prohibited under Wisconsin law. Even the very generous version of the celebration rule thus far adopted by the BIA will still not give immigration marriage benefits to couples who validly marry and then return to a state with one of these statutes; it will take a “President Obama”-style celebration rule to do that.

Which brings me to one final wrinkle … the concept of domicile itself. As I explained in a recent article (Citizen Spouse, 101 Cal. L. Rev. 407), not all couples have a “marital domicile.” Many couples now live apart, or live in more than one place, sharing multiple residences but not a state of domicile. In an age of increased mobility and dual-career couples, the old-fashioned notion of “marital domicile” may cause more confusion than it is worth. We may also need to rethink the idea of permanency that domicile is based on. A simple “President Obama” celebration rule that completely ignores the law of the state in which a couple resides may show a lack of respect for state law, but it may be the most pragmatic solution in a world where people move frequently. Marital status (like immigration status) is most useful and stable when it is portable.

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