Date: Tue, 14 Feb 1995 21:25:32 -0500
From: DavidN1327@aol.com

The following is the text of a memorandum which was written by Brigham Young
University Law School Professor Lynn D. Wardle and delivered by facsimile on
Jan. 19 to Republican Utah Rep. Norm L. Nielsen about amending the Utah Code
section 30-1-4 "Validity of foreign marriages." Rep. Nielsen introduced
legislation on Feb. 7 known as H.B. 366 "Recognition of marriages," which
would ban recognition of same-sex marriages regardless of where those
marriages are performed. The bill hasn't yet been drafted by the state Office
of Legislative Counsel and Research, so the Wardle memorandum is the most
reliable construct of probable language we have yet.

Note: All grammatical, legal,  punctuation and style errors are in the
original.

The Wardle memorandum reads:

Utah Code Annotated (UCA) x 30-1-4 needs to be amended during this session of
the Utah legislature. Section 30-1-4 provides:

Marriages solemnized in any other country, state or territory, if valid where
solemnized, are valid here.

I believe that this provision needs to be amended by adding the following
language: "unless the marriage would violate strong Utah public policy."

There are two reasons why this amendment is needed at this time. First, x
30-1-4 missttes the long-established American rule regarding recognition of
marriages because it omits the long-recognized, still-followed exception for
marriages which violate strong public policy. Second, unless changed, it
could lead to Utah courts having to recognize as valid in Utah same-sex
marriages.

To take the second reason first, there is a strong movement to legalize
same-sex marriage. Denmark, Norway and Sweden have enacted very broad
same-sex domestic partinership laws permitting homosexual couples to register
as domestic partnerships and treating those unions for most purposes in law
(except adoption and joint custody) as marriages. In the United States, the
California legislature passed a domestic partnership bill in 1994 that would
have provided official state recognition of same-sex couples and extend to
them limited marital rights and privileges (re: hospitals visitation, and
power of attorney); however, Governor Wilson vetoed the bill. Lawsuits have
been filed recently in the District of Columbia, and Arizona seeking judicial
legalization of same-sex marriage.

In 1993 the Hawaii Supreme Court ruled that Hawaii's marriage license law
allowing only heterosexual couples but not homosexual couples to obtain a
marriage license constitutes sex discrimination under the state constitution
(equal protection provision and the Equal Rights Amendment). Baehr v. Lewin,
74 Haw. 530, 852 P.2d 44 (1993). The Hawaii Supreme Court held that the
heterosexual-marriage-only law can be upheld only if the state proves that it
is necessary to effectuate a compelling state interest. The remanded case is
scheduled for trial this year (1995). Given the tremendous lobbying and
advocacy effort that gays and lesbians have launched, it is quite possible
that the Hawaii trial court could rule that Hawaii must allow same-sex
marriage. If that were the court's ruling, it is likely that immediately many
same-sex couples would fly to Hawaii to be united in "marriage."

Thus, before the end of this year it is possible that Utah courts could be
faced with cases in which homosexual couples with valid Hawaiian same-sex
marriages demand that the Utah courts recognize their "marriage." They would
cite UCA 30-1-4: "Marriages solemnized in any other country, state or
territory, if valid where solemnized, are valid here." Since their "marriage"
had been solemnized in a state where it is valid, they would argue that the
statute makes the marriage "valid here."

Utah law does not allow same-sex marriage. Utah Code Annotated (UCA) x 30-1-2
specifically provides that a marriage is "prohibited and declared void" if
"(5) between persons of the same sex." However, it is generally presumed that
state legislation was meant to cover acts done within the jurisdiction only.
And UCA x 30-1-4 is the specific provision that governs questions regarding
validity of marriages performed out-of-state; it says if valid were
solemnized the marriage is valid here.

Those arguing against recognition of the same-sex marriage might argue in
court that same-sex unions are not within the definition of "marriage." They
might argue that UCA 30-1-4 was not intended to repeal the historic, common
law "exception" for marriages violating strong public policy. But if the
court looked only at the face of the statute, it might reject those
arguments.

For many decades the established rule in American law regarding recognition
of marriages contracted out of the jurisdiction has been to apply the law of
the state of celebration to determine whether a marriage was valid (lex loci
celebrationis), subject to the exception that if the out-of-state marriage
violates strong public policy of the forum, courts of that state will refuse
to recognize the validity of the marriage (particularly if it was a state of
domicile of one of the parties at the time of marriage). See generally Robert
A. Leflar, American Conflicts Law x 221 (4th ed. 1986); Vol. 1, Lynn D.
Wardle, Christopher A. Blakesley, & Jacqueline Y. Parker, Contemporary Family
Laws x2.03 (1988); Russell J. Weintraub, comentary on the Conflict of Laws
230-233 (3d ed. 1986); William M. Richman & William L. Reynolds,
Understanding Conflict of Laws 362-363 (2d ed. 1993).

The Restatement (Second) of Conflict of Laws x283(2) (1971) state the general
rule as follows:

A marriage which satisfies the requirements of the state where the marriage
was contracted will everywhere be recognized as valid unless it violates the
strong public policy of another state which had the most significant
relationship to the spouses and the marriage at the time of the marriage.

Id. While the Restatement's proposed "most significant relationship" standard
is not accepted by all states, the statement of the general rule of marriage
validation and the general public policy exception noted by the Restatement
are.

UCA 30-1-4 correctly states the general choice of law rule of lex loci
celebrationis, but it fails to also express the well-established exception.
The amendment that I propose above would bring Utah law back in line with the
established choice-of-law rules. It would also insure that Utah courts would
not have to subordinate strong Utah policies just because a party got married
in a State or nation with another policy. Same-sex marriages is not the only
issue. In some nations of the world children may be "married;" in other
nations polygamy is legal, including some forms of marriage that are
essentially concubinage; and other nations allow other marriage customs that
deeply contradict strong public policy in Utah. The amendment would preserve
the presumption of validity, but allow room for courts to deal with the
exceptional cases.