Something to (Lex Loci) Celebrationis?: Federal Marriage Benefits Following United States v. Windsor

30 Pages Posted: 1 Jun 2014

Date Written: 2013

Abstract

Americans love weddings. Each year, Americans spend hundreds of millions of dollars on wedding celebrations. Hotels. Churches. Receptions. Marriage is about more than love. Marriage is also about money. The revenue generating potential of marriage is what ultimately convinced New York State to allow same-sex couples to legally marry. For New York, the question came down to dollars and sense, not politics. New York is purportedly hundreds of millions of dollars wealthier because of this decision.

Many same-sex couples have flocked to New York and its “gay-friendly” hotels to tie the knot. For these couples, the decision to marry likewise carries (usually beneficial) financial consequences. Same-sex jurisdictions celebrate the fact that tourism, for “destination wedding” purposes, is up. Same-sex couples celebrate the fact that they, too, can now marry. But, what happens when these same-sex couples return home to a state that does not recognize their marriage? Or, worse yet, what happens when individuals living in New York get married in New York but then move to a state where their marriage is not recognized? Is marital status portable? Is marital status dissolvable merely through travel? Who — for federal purposes — is legally married? This is the new question relating to same sex marriage. Not “who decides,” but who is married. Not what marriage should be, but what marriage is — federally speaking.

This article attempts to give a very simple and direct answer to the question: who should be considered married for federal law purposes? The federal government and many states have historically relied on the-place-of-celebration rule, or the Latin “lex loci celebrationis,” to determine who is married. Reliance on lex loci celebrationis ensures that married couples do not lose their marital status simply because they travel across state borders or relocate to a new home. Under lex loci celebrationis, if the marriage is legally valid where it was celebrated, then the marriage is legally valid everywhere else and for all purposes. This recognition continues even in states where the marriage could not have been originally performed.

The United States government has not spoken with a single voice regarding its reaction to United States v. Windsor. Instead, in piecemeal fashion, various federal agencies are beginning to announce who is considered married for certain federal purposes. The Office of Personnel Management quickly embraced lex loci celebrationis, indicating in a July 2013 advisory letter that federal benefits “[c]overage is available to a legally married same-sex spouse of a Federal employee or annuitant, regardless of his or her state of residency.” The Department of Defense followed suit in August 2013, affirming the military will embrace the place-of-celebration rule. The Department of Defense went further, though, in declaring its policy to provide same-sex couples with ten days of nonchargeable leave to enable such couples equal opportunity to reap the military’s many marital benefits. Most recently, in late August 2013, the Internal Revenue Service confirmed that it, too, will follow lex loci celebrationis.

JEL Classification: K19

Suggested Citation

Penrose, Meg Mary Margaret, Something to (Lex Loci) Celebrationis?: Federal Marriage Benefits Following United States v. Windsor (2013). 41 Hastings Constitutional Law Quarterly 41, Fall 2013. Available at SSRN: https://ssrn.com/abstract=2443865

Meg Mary Margaret Penrose (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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