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Greeny World Domination 126
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w _____ ____ 1 222 666 "Holly Near v. Melissa Etheridge" w
D // | \ 11 2 6 by Yancey Slide D
* || ____ | || | 1 222 666 *
G || || \ / | || | 1 2 6 6 issue #126 of "GwD: The American Dream G
w \\___// \/\/ |____/ 111 222 666 with a Twist -- of Lime" * rel 06/10/03 w
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[Uhh, this is a decision written for a Conflicts of Law class. It's
fictional, yo. I think. Fair use, my friends, fair use. Do same-sex couples
who get married have a divorce remedy in a state that doesn't allow gay
marriage? Well, do they?!? Hmm... -Ed.]
I. Procedural History
Plaintiff appellant Near and defendant appellee Etheridge were joined in
marriage in a same-sex union in the Commonwealth of Massachusetts in 2003.
Plaintiff Near brought suit there in 2007, seeking a declaratory judgment that
the marriage was valid outside the Commonwealth. The judgment was granted,
and later affirmed by the Massachusetts Supreme Judicial Court. The couple
moved to Washington in 2009, where they continue to reside. The parties
separated in 2019, and shortly thereafter Near brought divorce proceedings
against Etheridge, asking for alimony and equitable distribution of property
owned by both parties during the relationship.
The trial court held that the marriage is not valid under Washington law,
and that there is therefore no divorce remedy for same-sex couples in
Washington. Plaintiff Near appeals the trial court's dismissal to this Court.
II. Full Recognition under Full Faith and Credit
Plaintiff Near contends that Article IV of the United States Constitution
compels this Court to recognize their marriage, which is presumptively valid
in the Commonwealth of Massachusetts. The traditional conflicts rule that
looks to the law where the marriage was created is called into question by a
federal statute, the Defense of Marriage Act, and Washington's statute
prohibiting recognition of marriages between persons other than a male and a
female. See 28 U.S.C. 1738C; see also Wash. Rev. Code 26.04.020.
The full faith and credit doctrine is necessary under a federal system to
allow sovereign jurisdictions to fully enforce their own laws. Generally, the
acts of a sister state are given their full effect so long as those acts are
valid in the original state. See _In re Marriage of Effert_, 723 P.2d 541,
544 (Wash. Ct. App. 1986). The federal Defense of Marriage Act purports to
create an explicit exemption by allowing the sort of explicit rejection of
foreign same sex marriages in Washington's code. These exceptions seem
grounded in a sentiment opposed to same sex marriages. In the absence of any
other justification for creating an exception to the full faith and credit
requirements of Article IV, the intention seems to be to exempt same sex
marriages from Article IV as repugnant to public policy. Washington law
directs courts to look to "constitutional, statutory, or regulatory
[provisions]" as a source of public policy. _Thompson v. St. Regis Paper
Co._, 685 P.2d 1081, 1089 (Wash. 1984).
If construed as public policy exemptions, then the Washington and federal
statutes must be disregarded by this Court. Courts are not permitted to
perform public policy analyses on the acts of other states. "A court
enforcing the judgment of a sister state does not engage in an inquiry as to
whether the judgment of the sister state contravenes the policy of the
enforcing state." _Washington v. Bush_, 9 P.3d 219, 225 (Wash. Ct. App.
2000). See also _Fauntleroy v. Lum_, 210 U.S. 230 (1908). Although the
Washington law seems to be an explicit statement of public policy, this Court
is prohibited from using it as such in a choice of laws context.
An alternate and equally plausible theoretical underpinning for the
federal and state statutes is a states' rights principle intended to allow
each state to enact and enforce its own regulations of marriage. Article IV
grants Congress the power "by general laws [to] prescribe the manner in which
such acts, records, and proceedings shall be proved, and the effect thereof."
U.S. Const. art. IV, 1, cl. 2. This has been interpreted as giving Congress
the power to enact such legislation as it feels necessary to correct
"confusion or procedural difficulties" proceeding from the operation of the
Full Faith and Credit Clause. _Yarborough v. Yarborough_, 290 U.S. 202, 215
(1933), cited in _Williams v. North Carolina_, 317 U.S. 287 (1942). This is
not, however, the power to completely set aside full faith and credit; some
pretext must exist that outweighs the constitutional directive.
The apparent justification under this theory is the argument that
compelling other states to grant full force to same sex marriages performed in
Massachusetts would effectively prevent those states from enacting less
permissive marriage laws. The state with the most open and unrestricted law
would serve as a gateway to the rest of the country. From the perspective of
states that would otherwise choose to regulate marriage more strictly, the
result would be a "race to the bottom," in which the most accommodating law
would essentially determine the law in every state. Under this theory,
recognizing the Massachusetts marriage would vitiate Washington's freedom to
enact its own law, and this would outweigh the otherwise controlling full
faith and credit provision. Defendant Etheridge's position is that the
federal and state statutes are constitutional because they preserve
Washington's interest in preserving its own sovereignty against a solvent
stream of foreign marriages.
The inherent flaw in this argument is that there is no showing in the
facts of this case that there is a legitimate risk of such a flood of same-sex
marriages. It may be the case that Massachusetts requires a more stringent
residency requirement than the nominal stay Nevada asked of divorce candidates
that so troubled the dissent in _Williams v. North Carolina_. _Williams v.
North Carolina_, 317 U.S. 287 (1942). If so, then it would be inappropriate
to impose a hardship on lawfully married couples out of proportion to the
minimal threat they pose to state sovereignty. In such case, marriages such
as the Near-Etheridge union should be recognized until it can be shown that
Massachusetts or another state is performing such marriages without a
stringent residency requirement, and that its interests in its marriage law
substantially conflict with our own interests in maintaining sovereignty over
our own policies. In that case, it would be unreasonable to empower such a
state to override the laws of this Washington, the majority finding in
_Fauntleroy v. Lum_ notwithstanding. We note that even if Massachusetts
requires couples to be residents for the purposes of marriage, this Court and
this state retain jurisdiction to determine whether that residency is
sufficient to the needs of the interstate system. See _Williams v. North
Carolina_, 325 U.S. 226 (1944).
Until an actual showing can be made that giving full faith and credit to
another state's marriage policy poses a clear and present danger to
Washington's own sovereignty, the federal and state statutes in question are
not sufficiently grounded to allow this Court to undermine Massachusetts law,
which has not been shown to be substantially in conflict with our own. If
there were no further analysis, then we would remand this case to the trial
court with instructions to determine the law of Massachusetts and structure
Washington?s response accordingly. The facts of this case, however, present
additional, dispositive issues that this Court must also address.
III. Judicial Recognition under Full Faith and Credit
Plaintiff Near next argues that the Full Faith and Credit Clause requires
this Court to recognize the Massachusetts Supreme Judicial Court's declaratory
judgment affirming the validity of the couple's marriage. Generally, Article
IV compels this Court to give full faith and credit to a valid foreign
judgment. "If the foreign court had jurisdiction of the parties and of the
subject matter, and the foreign judgment is therefore valid where it was
rendered, a court of this state must give full faith and credit to the foreign
judgment and regard the issues thereby adjudged to be precluded in a
Washington proceeding." _In re Wagner_, 748 P.2d 639 (Wash. Ct. App. 1987).
See also _Williams v. North Carolina_, 325 U.S. 226 (1944). The fact that the
parties could never obtain such a judgment in this state is irrelevant;
"enforcement of a valid sister state judgment may not be denied, even if the
claim upon which the judgment was based could not have been entertained in a
Washington court." _Lee v. Ferryman_, 945 P.2d 1159, 1163 (Wash. Ct. App.
1997) citing _Roche v. McDonald_, 275 U.S. 449 (1928). The dispositive issue
here, then, is the original validity of the judgment. Defendant Etheridge
must persuade this Court that the Massachusetts ruling is invalid, as this
Court is powerless to disregard a legitimate foreign judgment.
This case is unlike _Williams v. North Carolina II_, which turned on
North Carolina's decision that a Nevada judgment on the domicile of (putative)
Nevada residents was faulty. The Massachusetts Supreme Judicial Court's
declaratory judgment presumes to decide not just the law of Massachusetts, but
also the law of all states, through its interpretation of Article IV. While
such an interpretation is not inappropriate for a court asked to render its
opinion on an interstate matter, the practical effect full recognition of that
judgment would have on Washington would be untenable. Recognition of foreign
judgments serves as collateral estoppel when parties seek to re-litigate an
issue in this state. See _Lee v. Ferryman_, 945 P.2d at 1163-64. This is
essentially the goal of plaintiff Near, who wishes this Court to honor
Massachusetts' judgment on the validity of her marriage without re-litigation.
The Massachusetts judgment is not limited to the validity of the
marriage in Massachusetts; it apparently purports to declare the marriage
presumptively valid in all states. While this is an understandable and
natural extension of Massachusetts' domestic policy, full recognition would
prevent Washington courts from addressing the validity of the Etheridge-Near
marriage, despite the compellingly close and significant contacts this state
has with the relationship and its dissolution. "In effect, the Full Faith and
Credit Clause compels an end to litigation" when foreign judgments are given
full recognition, and while the law seems clear on this point, it cannot be
the case that Washington courts are precluded from peering into the validity
of a marriage within their own state for the purposes of regulating its
dissolution. See _Lee v. Ferryman_, 945 P.2d at 1163.
The Massachusetts judgment essentially merely confirmed that
Massachusetts law applied to Massachusetts residents; once the couple became
Washington residents, they became subject to our law and our courts, and not
even the Commonwealth's esteemed judgment can divert our jurisprudence.
Massachusetts' interests are not great enough to preclude Washington from
conducting its own analysis and, if necessary, reaching a different result.
Our own interest in this case, and our contacts with the issue and the
parties, are overwhelming. This Court rejects the plaintiff's arguments on
this point; the Full Faith and Credit Clause does not require Washington
courts to recognize the Massachusetts Supreme Judicial Court's declaratory
judgment.
IV. Meretricious Relationship
Plaintiff Near next asserts that Washington common law provides a remedy
for these parties even if this Court held their marriage to be invalid in the
state of Washington. We concur. Even if this Court were to rule that the
parties' relationship was not a valid marriage, the equitable property
distribution and alimony remedies sought by plaintiff Near may be available
through the doctrine of meretricious relationships. Although not legal
marriages, this Court has found that "income and property acquired during a
meretricious relationship should be characterized in a similar manner as
income and property acquired during marriage." _Connell v. Francisco_, 898
P.2d 831, 836 (Wash. 1994). There have been no cases in Washington, or indeed
in any state or federal court, deciding whether a meretricious relationship
creates the right to alimony, but it seems doubtful that the property rights
of an explicitly non-marriage relationship would extend to alimony support.
Before the specific remedies available to cohabitants in a meretricious
relationship can be addressed, however, this Court must attempt to determine
whether these parties were, in fact, in such a relationship. This Court in
_Connell v. Francisco_ established a list of relevant factors to such a
determination: "continuous cohabitation, duration of the relationship, purpose
of the relationship, pooling of resources and services for joint projects, and
the intent of the parties." _Connell v. Francisco_, 898 P.2d at 835. Each of
these factors weighs in favor of a finding of a meretricious relationship
between the litigants. Their continuous cohabitation endured for
approximately twenty years, and the fact that the parties held themselves out
for fifteen years as a married couple (and sought the sanction of a high court
to do so) speaks volumes as to the purpose of the relationship and the intent
of the parties. Were this not a same-sex couple, this Court would
characterize their relationship as meretricious without further analysis.
The fact that this is a same-sex relationship cannot be disregarded. The
Washington Second Court of Appeals held in _Vasquez v. Hawthorne_ that
statutory limitations on who may marry "are relevant in determining whether a
relationship is sufficiently 'marital-like' to be meretricious," and that
same-sex couples that cannot marry under Washington law cannot be construed
as having a meretricious relationship. _Vasquez v. Hawthorne_, 994 P.2d 240,
243 (Wash. Ct. App. 2000). We vacated the appellate court's decision on other
grounds without approaching the issue of whether a same sex couple may create
a meretricious relationship.
This Court's failure to approach the issue led to Justice Sanders'
declaration in his concurrence that the majority opinion provided "somewhat
less satisfaction than can be obtained from kissing one's sister." _Vasquez
v. Hawthorne_, 33 P.3d 735, 739 (Wash. 2001). Justice Sanders will be pleased
to know that this Court finds it now necessary to revisit the feasibility of
same sex meretricious relationships. He will be less pleased to find that
this Court cannot concur with the Court of Appeals' _Vasquez_ findings or his
own defense of that ruling. The chief criticism leveled against the judicial
recognition of homosexual meretricious relationships by both the appellate
court and Justice Sanders' concurrence is that such a couple could not marry,
invalidating the "marital-like" standard espoused in _Connell_. _Connell v.
Francisco_, 898 P.2d at 834. This reasoning cannot apply here, for these
parties did marry, albeit not under Washington law.
While such the parties could not have obtained their marriage in this
state, to deny its existence at the time and place of its formation would be
presumptuous. At the time of the ceremony, Massachusetts unquestionably had
the most significant relationship with the parties, and even now, they
maintain an interest in the enforceability and lawful dissolution of the
marriage. There is no theory this Court can posit that would justify ignoring
the six years of marriage within Massachusetts or denying comity to the
Supreme Judicial Court of Massachusetts' declaratory judgment. While there
may be valid legal challenges to the validity of the parties' marriage within
the state of Washington, there is no challenge to its validity in the
Commonwealth of Massachusetts. Incontestably, the parties here before us were
married at one point. Since relationships without a formalized marriage can
fulfill the "marital-like" standard, it would be the height of absurdity for
this Court not to find that a legal marriage, even of foreign provenance, can
do the same.
Justice Sanders will no doubt be disheartened to learn that this Court
will not take a further position on the ability of same sex couples without a
foreign marriage to form a meretricious relationship. In the present case,
however, this Court finds that the parties could, under Washington law, form a
cognizable meretricious relationship. We do not find that the parties did, in
fact, have such a relationship. Such a finding is highly fact dependent, and
should be decided, if necessary, on remand. This Court remanded _Vasquez_ for
trial on similar grounds, holding that "in a situation where the relationship
between the parties is both complicated and contested, the determination of
which equitable theories apply should seldom be decided by the court on
summary judgment." _Vasquez v. Hawthorne_, 33 P.3d at 739. The procedural
history of this case is bereft of a factual analysis of the parties'
relationship; the trial court issued a summary judgment dismissing the
plaintiff's complaint in a fashion that we have expressly held to be
insufficient for finding or denying a meretricious relationship. While it
seems virtually impossible for a factual analysis to determine that such a
relationship did not exist here, given our ruling that it is possible in these
circumstances, a remand on this issue is appropriate. We do not currently so
remand this case, however, as there are dispositive issues yet to be examined.
V. Limited Recognition of Divorce Remedies
The plaintiff argues that Washington law does not preclude recognition of
the marriage for the limited purpose of dissolving it and resolving property
issues between the parties. We again concur. Wash. Rev. Code 26.04.020
stipulates, "a marriage between two persons that is recognized as valid in
another jurisdiction is valid in this state only [when the parties are persons
other than a male and a female]." The statute clearly rejects the recognition
of the validity of extant same sex marriages, but does not deny their very
existence. When the aim of a litigant is to regulate the dissolution of this
marriage, it would be unreasonable to construe this statute such that the
state cannot recognize the fact that a marriage occurred and was treated as
valid by the parties. Such a finding by this Court would severely impair
Massachusetts? power to enforce its own laws, even within its own borders, and
do little to advance Washington's interests.
The Second Restatement of the Conflict of Laws plainly sets out the
fundamental principles when state interests collide. While these principles
are intended to be used in the context of making an informed and reasonable
choice in the application of foreign laws, they are fully applicable here.
Among the central factors that the 6 of the Restatement directs courts to
assess are:
a) The needs of the interstate and international systems,
b) The relevant policies of the forum,
c) The relevant policies of other interested states and their
relative interests,
d) The protection of justified expectations,
e) Certainty, predictability and uniformity of result, and
f) Ease in the determination and application of the law to be
applied.
Each of these factors weighs in favor of recognizing the marriage for the
purposes of dissolving it. The relevant policies of this state and
Massachusetts are simple to assess; Massachusetts clearly intends to enable
same sex couples to wed, while Washington does not wish to validate such
marriages. Washington has no specific rule as to divorce remedies in such
cases, though. Even more significantly, as discussed above, the policy of
meretricious relationships already grants divorce-like remedies to unmarried
parties in Washington, and this avenue is almost certainly open to the
plaintiff. We cannot therefore construe the interests of this state as
weighing heavily against the granting of divorce remedies to these parties.
Massachusetts' interests can be protected by recognizing the marriage for the
purpose of regulating its dissolution without greatly impinging on
Washington's policies. This application of the 6 factors shows that insofar
as there is a conflict between Massachusetts and Washington law, it is a false
conflict. Granting the requested remedies would do little to vitiate the
Washington legislature's intent, while refusing to do so would create
interstate havoc.
The inevitable result of blinding ourselves to the existence of marriages
performed in Massachusetts would be interstate chaos and confusion. Parties
lawfully married in Massachusetts would be unable to dissolve their marriage
elsewhere, resulting in uneven application of property laws on death or
divorce, uncertain legitimacy of children, or even unintentional bigamy.
Justice Douglas? majority opinion in the Williams case called such chaos "part
of the price of our federal system," but we sympathize with Justice Jackson's
dissent: the price is steep and unnecessary. _Williams v. North Carolina_,
325 U.S. 226 (1944). The plaintiff here is asking for very little comity
in order to forestall a great many problems. Granting comity to the
Commonwealth sufficient to recognize the marriage in order to dissolve it
would protect the justified expectations of the parties here, who relied on
the judgment they obtained from the Supreme Judicial Court of Massachusetts.
This will also lead to more certain, predictable, and uniform results in the
arena of divorce judgments. We cannot bring ourselves to deny such comity to
our sister state when their interests do not conflict with our own in the
equitable regulation of this relationship's dissolution.
VI. Conclusion
If the parties had brought suit at any other time, seeking to determine
the validity of their marriage under Washington law, the result might have
been very different. As noted above, it is entirely possible that this Court
would have validated the marriage under the Full Faith and Credit Clause, but
only after a review of the law of Massachusetts as written and as applied.
Similarly, if the plaintiff relied solely on the doctrine of meretricious
relationships, this Court would have reached a different finding; the dispute
would have been remanded to the trial level for an equitable finding as to the
exact nature of their relationship.
As it is, the parties have brought a dispute as to the applicability of
divorce remedies to a marriage that was unquestionably valid in Massachusetts.
Whether it was a lawful marriage as opposed to a meretricious relationship
during the time that the couple resided in Washington is not at issue before
this Court. By construing the controversy before us as a question of the
proper application of divorce remedies to a foreign marriage, rather than as a
dispute over the validity of same sex marriages, this Court can respect the
laws and policies of Washington and interested foreign states as well as
achieve substantive justice for the parties. Accordingly, we find that
Washington law does not preclude recognition of the Massachusetts marriage for
the limited purpose of dissolving the marriage and providing normal divorce
remedies.
This Court vacates the ruling of the trial court and remands this case
for a just and equitable division of property consistent with our findings.
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Issue#126 of "GwD: The American Dream with a Twist -- of Lime" ISSN 1523-1585
copyright (c) MMII/MMIII Yancey Slide/GwD Publications /---------------\
copyright (c) MMIII GwD, Inc. All rights reserved :LIFE KILLS LIFE:
a production of The GREENY world DOMINATION Task Force, Inc. : GwD :
Postal: GwD, Inc. - P.O. Box 16038 - Lubbock, Texas 79490 \---------------/
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