GwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwD G G 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 D D GwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwD --- -- - -- --- -- - -- --- -- - -- --- -- - -- --- [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. --- -- - -- --- -- - -- --- -- - -- --- -- - -- --- 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 \---------------/ FYM -+- http://www.GREENY.org/ - editor@GREENY.org - submit@GREENY.org -+- FYM GwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwD