Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review
In the United States federalist system, fifty different states often arrive at fifty different conclusions of law that can conflict not only with each other but also with federal law. The Supremacy Clause usually allows for the resolution of the latter conflicts, whereas conflicts among the laws of different states are less easily resolved. That is epitomized in the split between states that recognize same-sex marriages and those that do not. Although many have celebrated the recent abrogation of the Defense of Marriage Act (DOMA) in United States v. Windsor, the decision does not foreclose further conflicts over the treatment of same-sex marriages, whether between the federal government and the states, or among the states themselves. These conflicts are particularly complex in the context of property rights in same-sex marriages. In light of conflict of law jurisprudence, there is pronounced confusion about how states that do not recognize same-sex marriages may treat those couples in cases of death and the disposition of property.
Uncertainty in Conflict of Laws Jurisprudence
The United States Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” However, one state usually may refuse to recognize another state’s “public act or proceeding” if it is against the first state’s strong public policy. The clause carries more force when applied to a judgment obtained in a foreign jurisdiction than when applied to a foreign jurisdiction’s substantive law.
Conflict of laws jurisprudence alone is sufficiently confusing and murky outside of state divisions on same-sex marriage. For example, in the case of Clarke v. Clarke in 1900, the Supreme Court affirmed a Connecticut court’s refusal to apply a South Carolina court’s construction of a will to land in Connecticut, largely on the grounds that the situs doctrine allows a state to control the land within its borders. Then, in 1909 in Fall v. Eastin, the Court affirmed a Nebraska Supreme Court decision refusing to recognize the jurisdiction of a Washington court that had ordered a conveyance of title to Nebraska land in a divorce proceeding. Finally, in the case of Durfee v. Duke in the 1960s, the Court decided that, although a federal court in Missouri had the right and duty to inquire into the jurisdiction of a state court in Nebraska that had adjudicated a land dispute, once the issue of jurisdiction had been fully litigated in the Nebraska court, the Missouri court was precluded from re-examining the case entirely.
This line of jurisprudence indicates that state two does not have to give effect state one’s attempted adjudication of land rights in state two, while simultaneously indicating that fully and fairly litigated jurisdictional issues in state one will preclude state two from re-examining the judgment.
Conflict of Laws and Same-Sex Unions: A Legal Battleground
The application of this clouded line of jurisprudence to same-sex marriage issues and the resulting confusion are inevitable consequences of a federal system. Even as efforts to legalize same-sex marriage increase in number and success, many states still refuse to recognize such marriages, thus creating a bifurcated landscape of state law and an acute example of a conflict of laws. This split in martial recognition has resulted in a host of legal problems, even for same-sex couples who have obtained recognition of their union. These problems are perhaps most visible as states attempt to determine how legal same-sex marriages performed in other states affect marital and property rights in states where such unions are prohibited. Ohio, which does not recognize same-sex marriages, is witnessing similar problems in the case of a deceased same-sex spouse. James Obergefell and John Arthur lived in Ohio in a twenty-year committed relationship before they traveled briefly to Maryland to be legally married. Shortly after returning to Ohio, Arthur died. Recently, a federal court in Ohio issued a temporary restraining order commanding the State to record Obergefell as Arthur’s “surviving spouse.” This was an important reason for the lawsuit, since without recognition as Arthur’s “spouse,” Obergefell could not be buried next to Arthur in Arthur’s family cemetery plot.
Playing Out the Conflicts: Some Hypotheticals
Accordingly, as demonstrated by the Obergefell case, problems arise when applying the varying lines of reasoning in conflict of laws jurisprudence to disputes arising from same-sex marriages legally performed in one state and then litigated elsewhere. The current bifurcated state laws and uncertainty of conflict of law resolutions on same-sex marriage leave gay and lesbian couples in the lurch.
The Intestacy Issue and Ohio Case Law
On the one hand, in a scenario whose facts mirror the case of Fall v. Eastin – where one member of a same-sex couple, legally married in New York, dies there intestate, and a New York court awards land in Ohio to the surviving spouse – the situs doctrine allows the Ohio court to deny the New York court’s disposition of the land, because the partner would not be a spouse for the sake of Ohio’s intestacy law. Furthermore, the Restatement of Judgments offers the view that “[w]hen in two actions inconsistent final judgments are rendered, it is the later [. . .] judgment that is accorded conclusive effect in a third action . . . .” This would imply that Ohio’s disposition of the land would be final.
However, an 1873 Ohio Supreme Court case, Burnley v. Stevenson, held that a foreign court – Kentucky – had jurisdiction to dispose of land in Ohio pursuant to trust or contract terms. This case indicates that if the New York court in the hypothetical above disposed of the property pursuant to an Ohio trust, its disposition of the property would be accorded full faith and credit by an Ohio court. Yet the public policy exception of the Full Faith and Credit Clause would appear to allow Ohio to reject the judgment of the New York court if an Ohio court determined that the state’s public policy against same-sex marriage was more important than the right to dispose of property, and that enforcing the decree from New York violated its public policy against same-sex marriage.
This type of scenario might be further complicated by a contract dispute over business or personal property in a state that does not recognize same-sex marriage. Hypothetically, after the death, in New York, of one partner, legally married in New York, intestate, the New York court’s disposition of the property according to the contract would be binding under Durfee. This arguably would withstand the result of any subsequent litigation in Ohio that was contrary to the New York court’s judgment and any attempt by Ohio to claim that its public policy allowed it to ignore the New York court’s judgment. Of course, this scenario might be cured by the general rule that full faith and credit is strongest when there is a judgment, or by Burnley, but the former is unsure and the latter is unique to Ohio. With these contradictory lines of reasoning, a similarly situated same-sex couple has no clear legal guidance, since marrying in a state that grants marital rights to the couple may not entitle the surviving spouse to those rights elsewhere. Furthermore, whether or not the intent of the decedent in the trust is carried out depends on Ohio’s prioritization of its public policy, and this policy may or may not give more respect to a business contract.
The Border State Battle
Such a scenario is just as difficult if it occurs between neighboring states like New York and Pennsylvania, in a case similar to Durfee. In this case, if New York were adjudicating the estate of an intestate same-sex marriage decedent and the court disposed of land on the Pennsylvania border that it determined to be situated in New York, Durfee would direct that a subsequent court in Pennsylvania may not challenge this decision, as long as the issue was fully and fairly litigated in New York. But, Pennsylvania could make a strong case that it may refuse to recognize the judgment of the New York court because it would be against Pennsylvania’s strong public policy on same-sex marriages. In light of Durfee, however, Pennsylvania would likely not be successful in asserting such a position, as long as the issue of jurisdiction had been fully litigated in New York, because the public policy exception to the Full Faith and Credit Clause would not trump settled Supreme Court jurisprudence on the issue. Yet since same-sex couples in a similar situation would have little clear guidance from the law, this hypothetical demonstrates that gays and lesbians might face another protracted court battle in the near future.
The Improvidence of Wait and See
Although advocates of same-sex marriage are justifiably enthusiastic about the increasing rate at which gays and lesbians are allowed to marry across the country, there are still many obstacles to overcome. The temporary restraining order in Obergefell is promising for same-sex couples in Ohio, but even initial success in that case would simply switch one state’s law in the bifurcated mess of same-sex marriage laws throughout the nation. Moreover, the final decision in that case likely will not come down until next year, and even then might be stayed pending appeal to the Sixth Circuit and potentially the Supreme Court. As the Obergefell case demonstrates, the national split on same-sex marriage recognition has created myriad legal headaches. Consequently, same-sex couples attempting to dispose of real or personal property face a host of legal dilemmas, and even more problems if one partner dies intestate. However, same-sex couples can reduce or even eliminate some of these problems by recognizing what is settled in the law. That is, the highly respected right to dispose of property dictates that same-sex couples ought to at least make wills to dispose of their property after death. And, since the law of the state in which the property is located often creates the problems, couples and their lawyers must look outside the state where the couple lives or is married. Of course, state uniformity or national constitutional recognition of same-sex marriages would be the best resolutions to these problems, because at least the latter would completely erase conflicting state laws on the issue. But even if this does eventually happen, it is likely years away. In the meantime, same-sex couples and their attorneys must struggle to make their way through the morass of conflict of laws jurisprudence and conflicting state laws with little help from supposedly “settled” law.
 See United States v. Windsor, 133 S.Ct. 2675 (2013), which held DOMA’s definition of marriage as between one man and one woman unconstitutional as an improper restriction and disability on a specific class – gays and lesbians – whom New York had sought to protect by its marriage laws.
 U.S. Const. Art. IV, § 1.
 See, e.g., Pac. Emp’rs Ins. Co. v. Indus. Accident Comm’n, 306 U.S. 493 (1939).
 Clarke v. Clarke, 178 U.S. 186, 191 (1900), reaffirming the situs doctrine, that “the law of a State in which land is situated controls and governs its transmission.”
 Fall v. Eastin, 215 U.S. 1 (1909).
 Durfee v. Duke, 375 U.S. 106 (1963).
 Texas is dealing with one such battle created by an out-of-state gay couple’s attempted divorce there. See In re J.B., 326 S.W.3d 654 (2010), reconsideration denied, In re Marriage of J.B. & H.B., 326 S.W.3d 654 (2010) (en banc), 2010 Tex. App. LEXIS 9635, reh’g denied, In re Marriage of J.B. & H.B., 2010 Tex. App. LEXIS 10060, petition for review granted, In re Marriage of J.B., 2013 Tex. LEXIS 608 (Aug. 23, 2013). For a summary and analysis of this case, see http://uclawreview.org/2013/09/24/will-divorce-equality-bring-marriage-equality/.
 See, Ohio Rev. Code. § 3101.01(C)(2)&(3) and Ohio Constitution Art. XV, § 11.
 James Obergefell, et al. v. John Kasich, et al., Case No. 1:13-cv-501 (S.D. Ohio, 2013).
 Id. at 15.
 Id. at 13.
 Fall, supra note 9.
 “Dying without leaving a valid will. Also death without making an effective testamentary disposition.” Ballantine’s Law Dictionary (LexisNexis 2010).
 Restatement (Second) of Judgments § 15 (1980).
 Burnley v. Stevenson, 24 Ohio St. 474, 478 (1873).
 Durfee, supra note 10, at 111.
 Burnley, supra note 13.
 Durfee, supra note 10. Lawsuits are currently pending in Pennsylvania seeking to overturn the state’s ban on same-sex marriages. See http://www.post-gazette.com/legal/2013/07/09/Same-sex-couples-ACLU-file-lawsuit-to-overturn-Pennsylvania-ban-on-gay-marriage/stories/201307090179 for one example.
 Durfee, supra note 10, at 111.
 See 23 Pa.C.S. § 1704, “It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman.” (Emphasis added.) Pennsylvania courts would have reason to follow the Texas appellate court’s reasoning in In re J.B., supra note 3, at 665 (holding that same-sex marriages are against the state’s public policy as evidenced by the Texas Code).
 See, e.g., Jonathan Clements, Same-Sex Marriage: Federal Law Changes but Headaches Remain, https://online.citibank.com/US/JRS/pandt/article.do?ID=JC97 (last visited Nov. 8, 2013).