Friday, November 19, 2004
Some Constitutional Musings
I wasn't aware of this until reading Legal Fiction, but apparently the Commonwealth of Virginia has enacted the following statute, which they call the Affirmation of Marriage Act. The Act states that:
"A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable."
Putting aside the thorny moral, religious, and policy questions I think there are potentially some serious Constitutional problems with this statute. First and foremost, it appears that there is an Article I, section 10, "obligations of contracts" problem because the statute seems to nullify previously existing contracts, which the Constitution clearly prohibits the state from doing. In other words, this statute might be unconstitutional as applied only to contracts that are already in existence if indeed they are interpreted to be void in Virginia. Future contracts are not implicated by this provision as there is no existing obligation to nullify or impair.
Second, there is potentially an Article IV, "full faith and credit" problem here, as this statute could be interpreted to apply too contracts created under the laws of a sister state and enforced in Virginia. For example, envision that a same-sex couple gets a "do not revive order" (DNR) or a living will giving power of attorney to the partner. Further assume that the contract is properly executed in a state that permits such contractual arrangements, use Vermont as an example. The couple then relocates to Virginia where one of them falls ill and requires hospitalization and emergency treatment. Is the Vermont executed DNR valid? Does the partner have the necessary power of attorney to authorize treatments or even further reject treatments? These are open questions that may arise and do not implicate marriage in any way as the hypothetical didn't say that the couple was married or in a civil union. Now it may be that such contractual arraignments do not qualify as "the public acts, records or judicial proceedings of State" and therefore are not entitled to full faith and credit by the Constitution, however, it is also likely that they do or can be declared to by the sovereign legislature of Vermont. To complicate the matter further, Virginia, like most states, enjoys what is known as a "public policy exception" to its full faith and credit requirement. This entitles Virginia to deny full faith and credit to public acts that the Virginia legislature has deemed "against the public policy of the state." Now the efficacy of these statutes, to my knowledge, has not been sufficiently challenged, but many scholars and professors believe that they are permissible and will withstand judicial review. Long story short, it is far from clear what the effects of this statute with respect to Article IV are.
To continue, there may also be 14th Amendment problems, Publius and his commentators mention the Lochner substantive due process decision and its granting of the substantive right to "freedom of contract" that the federal government nor the state can infringe. I'll get there in a minute, first I think there may be equal protection and/or privileges and immunities problems. Clearly equal protection is in question here because the statute arguably treats contractual arrangements between one group (same-sex couples) differently from another group (heterosexual/married couples) (I should also point out that single people may be impacted here as well its just not clear). Thus, there will likely be a battle over what level of scrutiny applies. I don't think that a court will hold same-sex couples to be a protected class thus eligible for strict scrutiny, so more than likely its rational basis here. However, this may be a statute that cannot even meet the rational basis standard, as there does not appear to be a rational reason to enforce different treatment among parties to a contract simply based on their sexual orientation. I may be wrong here, and if anyone has a rational basis, please don't be shy. So equal protection may be a way around this law. Furthermore, Privileges and Immunities (P&I), while it is true that after the Slaughter House Cases the P&I clause has been mostly dormant, it still rears its head every once in a while. Most common is in the right to travel context, which among other things protects the right of people to receive the same treatment in a new state as the citizens of that state. While I'm not sure this applies here, it may be possible to craft an argument that the statute discriminates against citizens of other states who seek to relocate to Virginia.
Finally, Lochner and "freedom of contract." While I'm not as up on my Ninth Amendment jurisprudence as some in the blogosphere, (see Feddie at Southern Appeal and Prof. Bernstein at Volokh, for examples) I think this is perhaps the least of the constitutional concerns. Although the statute clearly infringes on the ability of same-sex couples to enter into some contracts I'm not sure that modern jurisprudence is willing to take the necessary step and say that the state plays no role in protecting citizens from certain types of contracts. Currently both the state and federal government limit the "freedom to contract" in a lot of ways. I, even as a lawyer, cannot enter into a legally enforceable adhesion contract, nor can I legally contract for certain types of services such as murder, prostitution, enforceable blackmail, gambling contracts and other criminal actions. While these activities may occur frequently, they are not legally enforceable in courts, thus, if say my murder for hire contract is breached, (i.e, by the killer being arrested or missing his target) I have no legal recourse to get my money back or require a second attempt. So is it reasonable to assume that the state may have an interest in preventing certain kinds of possible legal arrangements. I think so, the bigger question is should this type of relationship be prevented, and that brings me back full circle to the moral, religious and policy arguments that I wanted to avoid.
Final thoughts, this is a bad statute, both from a drafting perspective (its too broad) and a constitutional prospective (too many potential ways to attack it). The Virginia legislative body should revisit this or it should be challenged in federal courts as a violation of the Federal Constitution.
"A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable."
Putting aside the thorny moral, religious, and policy questions I think there are potentially some serious Constitutional problems with this statute. First and foremost, it appears that there is an Article I, section 10, "obligations of contracts" problem because the statute seems to nullify previously existing contracts, which the Constitution clearly prohibits the state from doing. In other words, this statute might be unconstitutional as applied only to contracts that are already in existence if indeed they are interpreted to be void in Virginia. Future contracts are not implicated by this provision as there is no existing obligation to nullify or impair.
Second, there is potentially an Article IV, "full faith and credit" problem here, as this statute could be interpreted to apply too contracts created under the laws of a sister state and enforced in Virginia. For example, envision that a same-sex couple gets a "do not revive order" (DNR) or a living will giving power of attorney to the partner. Further assume that the contract is properly executed in a state that permits such contractual arrangements, use Vermont as an example. The couple then relocates to Virginia where one of them falls ill and requires hospitalization and emergency treatment. Is the Vermont executed DNR valid? Does the partner have the necessary power of attorney to authorize treatments or even further reject treatments? These are open questions that may arise and do not implicate marriage in any way as the hypothetical didn't say that the couple was married or in a civil union. Now it may be that such contractual arraignments do not qualify as "the public acts, records or judicial proceedings of State" and therefore are not entitled to full faith and credit by the Constitution, however, it is also likely that they do or can be declared to by the sovereign legislature of Vermont. To complicate the matter further, Virginia, like most states, enjoys what is known as a "public policy exception" to its full faith and credit requirement. This entitles Virginia to deny full faith and credit to public acts that the Virginia legislature has deemed "against the public policy of the state." Now the efficacy of these statutes, to my knowledge, has not been sufficiently challenged, but many scholars and professors believe that they are permissible and will withstand judicial review. Long story short, it is far from clear what the effects of this statute with respect to Article IV are.
To continue, there may also be 14th Amendment problems, Publius and his commentators mention the Lochner substantive due process decision and its granting of the substantive right to "freedom of contract" that the federal government nor the state can infringe. I'll get there in a minute, first I think there may be equal protection and/or privileges and immunities problems. Clearly equal protection is in question here because the statute arguably treats contractual arrangements between one group (same-sex couples) differently from another group (heterosexual/married couples) (I should also point out that single people may be impacted here as well its just not clear). Thus, there will likely be a battle over what level of scrutiny applies. I don't think that a court will hold same-sex couples to be a protected class thus eligible for strict scrutiny, so more than likely its rational basis here. However, this may be a statute that cannot even meet the rational basis standard, as there does not appear to be a rational reason to enforce different treatment among parties to a contract simply based on their sexual orientation. I may be wrong here, and if anyone has a rational basis, please don't be shy. So equal protection may be a way around this law. Furthermore, Privileges and Immunities (P&I), while it is true that after the Slaughter House Cases the P&I clause has been mostly dormant, it still rears its head every once in a while. Most common is in the right to travel context, which among other things protects the right of people to receive the same treatment in a new state as the citizens of that state. While I'm not sure this applies here, it may be possible to craft an argument that the statute discriminates against citizens of other states who seek to relocate to Virginia.
Finally, Lochner and "freedom of contract." While I'm not as up on my Ninth Amendment jurisprudence as some in the blogosphere, (see Feddie at Southern Appeal and Prof. Bernstein at Volokh, for examples) I think this is perhaps the least of the constitutional concerns. Although the statute clearly infringes on the ability of same-sex couples to enter into some contracts I'm not sure that modern jurisprudence is willing to take the necessary step and say that the state plays no role in protecting citizens from certain types of contracts. Currently both the state and federal government limit the "freedom to contract" in a lot of ways. I, even as a lawyer, cannot enter into a legally enforceable adhesion contract, nor can I legally contract for certain types of services such as murder, prostitution, enforceable blackmail, gambling contracts and other criminal actions. While these activities may occur frequently, they are not legally enforceable in courts, thus, if say my murder for hire contract is breached, (i.e, by the killer being arrested or missing his target) I have no legal recourse to get my money back or require a second attempt. So is it reasonable to assume that the state may have an interest in preventing certain kinds of possible legal arrangements. I think so, the bigger question is should this type of relationship be prevented, and that brings me back full circle to the moral, religious and policy arguments that I wanted to avoid.
Final thoughts, this is a bad statute, both from a drafting perspective (its too broad) and a constitutional prospective (too many potential ways to attack it). The Virginia legislative body should revisit this or it should be challenged in federal courts as a violation of the Federal Constitution.
# posted by mouldfan : 1:19 PM
