IN THE COURT OF APPEALS

STATE OF GEORGIA SUSAN VATRICE BURNETT BURNS

APPELLANT

vs.

CIVIL DOCKET NO.: A01A-1827 DARIAN GREGORY BURNS

APPELLEE

BRIEF OF AMICUS CURIAE

THE NATIONAL LEGAL FOUNDATION

INTEREST OF AMICUS

Amicus, The National Legal Foundation, is a public interest law firm that defends religious liberties, the traditional family, and pro-life causes wherever they may be challenged. Amicus has been involved in the defense-of-marriage movement since 1995. Amicus has assisted various states in the process of drafting their defense of marriage laws, which are aimed at preventing homosexual marriages or other homosexual unions from being recognized in these states. From this experience, Amicus is in a position to understand the conflict of laws issues that arise in this case when a party seeks to have a civil union from Vermont recognized in the state of Georgia.


SUMMARY OF ARGUMENT

Appellant’s putative Vermont marriage does not, in fact, meet the Vermont statutory definition of a marriage. Thus, Appellant’s relationship cannot be a marriage. Rather it is a civil union. Since Appellant’s relationship is not a marriage in Vermont, it should not be considered a marriage in Georgia. In the alternative, should this Court believe that Appellant’s relationship does somehow constitute a marriage, that marriage should not be recognized by Georgia under Georgia’s current conflict of laws approach, nor under any other conflicts approach.


ARGUMENT

I. THE SAME-SEX COUPLE IN THIS CASE COULD NOT HAVE BEEN MARRIED IN VERMONT BECAUSE THEY DID NOT FULFILL THE RESIDENCY REQUIREMENT FOR A VALID MARRIAGE THERE.

The Appellant, Susan Burns, ("Susan"), argues that her Vermont civil union is, in fact, a Vermont marriage. This cannot possibly be true for the simple reason that she does not qualify for a Vermont marriage. The Vermont legislature has clearly set out different requirements for a valid "civil union," which is only allowed for a same-sex couple, Vt. Stat. Ann. tit. 15, 1202 (2001), and for a valid "marriage," which is exclusively reserved for an opposite sex couple, Vt. Stat. Ann. tit. 15, 8 (2001). But even if, for the sake of argument, a Vermont same-sex civil union could sometimes be treated as a marriage, Susan would still not meet the requirements to have a valid marriage because she lacked Vermont residency. Therefore, Susan’s relationship must be a "civil union" and not a "marriage."

Vermont, like many other states, has a form of a residency requirement for marriage. This requirement is found in title 15, section 6 of the Vermont Code and states:

A marriage shall not be contracted in this state by a person residing and intending to continue to reside in another state or jurisdiction, if such marriage would be void if contracted in such other state or jurisdiction. Every marriage solemnized in this state in violation of this section shall be null and void.

As can be seen by the language in this statute, Vermont requires that for a valid marriage, a non-resident may only marry in Vermont if the state of residence would allow the marriage. This statute grants great deference and respect to the home state’s laws. Since Susan and her partner have admitted that Georgia was their residence at the time of their civil union, (Resp’t Br. in Opp’n to Def.’s Mot. for Contempt at 2.), they could only have a Vermont marriage if such a marriage would be valid in Georgia. However, they would not have a valid marriage in Georgia. Georgia has an evasion statute which states "[p]arties shall not evade any of the laws of this state as to marriage by going into another state for the solemnization of the marriage ceremony." Ga. Code Ann. 19-3-43 (2000). Furthermore, marriage between persons of the same sex is clearly prohibited and is declared against the public policy of the state. Section 19-3-3.1 (a) of the Georgia Code states: "It is declared the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state." Therefore, Susan, as a Georgia resident, is not eligible for a Vermont marriage. However, the Vermont civil union statute has no similar restriction. Thus, Susan must have a "civil union" and cannot have a marriage, for which she does not qualify.

Susan has directed this Court’s attention to the statements of Norton Davis, Justice of the Peace, in Vermont. Appellant’s Brief at 6. Davis stated that he could not think of any real difference between a Vermont civil union and a Vermont marriage except for the same-sex requirement for the civil union. Id. at 6. This statement is incorrect since Vermont’s marriage law clearly prohibits marriage to certain non-residents. Vt. Stat. Ann. tit. 15, 6 (2001). On the other hand, the Vermont civil union statute has no similar prohibition. Vt. Stat. Ann. tit. 15, 1202 (2001). Indeed, Susan herself has proved this point in citing to The Vermont Guide to Civil Unions. (Davis Depo., Exhibit 1.) This pamphlet clearly states in the "Frequently Asked Questions" section that non-residents are entitled to a civil union. (Davis Depo. Exhibit 1, FAQ’s #7.) Thus, this pamphlet contradicts the statement of Susan’s own expert, Norton Davis, by recognizing a difference between the residency requirement for a marriage and the lack of such a requirement for the civil union. (Davis Depo., Exhibit 1, FAQ’s #7.)

II. GEORGIA’S STRONG PUBLIC POLICY PROHIBITS RECOGNITION OF SUSAN’S PUTATIVE SAME-SEX MARRIAGE UNDER ALL CONFLICT OF LAWS APPROACHES.

Even though Amicus believes that there is no valid marriage or functional equivalent of a marriage (as argued in part I of this brief), should this Court disagree, Susan has proved too little. The strong public policy of Georgia will still prevent recognition of a same-sex marriage. In addition to the Georgia statute expressly prohibiting same-sex marriage, the legislature has enacted laws that prohibit the courts from recognizing and granting any rights to the people in these prohibited marriages.

Section 19-3-3.1 (b) of the Georgia Code states:

No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by person of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state. Any contractual rights granted by virtue of such license shall be unenforceable in the courts of this state and the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such marriage.

This statute and the code provisions discussed in part I of this brief make it evident that the strong public policy of Georgia is against allowing a same-sex couple to receive the benefits and rights of marriage with a foreign state marriage or otherwise.

Should this Court decide to treat Susan’s civil union as a marriage, this Court would be faced with a conflict of laws issue since Georgia’s law forbids recognition of such a marriage. The various approaches to conflict of laws all contain a public policy exception. In other words, under any approach, this Court should refuse to recognize Susan’s putative marriage since it is contrary to Georgia’s public policy.

A. Under the Restatement (First) of Conflict of Laws Georgia’s public policy will prevent recognition of Susan’s putative marriage.

Susan argues that under the federal DOMA, Georgia is not forbidden to recognize the putative Vermont marriage. Appellant’s Brief at 8. Assuming arguendo that this is true, Susan overlooks the fact that while DOMA may not prevent this, Georgia’s current conflict of laws approach does.

Georgia follows the original Restatement (First) of Conflict of Laws (1934) approach of lex loci in contracts and torts cases, Rayle Tech, Inc. v. Dekalb Swine Breeders, Inc., 133 F.3d 1405 (11th Cir. 1998), and has also followed this approach in recognizing marriages. Eubanks v. Banks, 34 Ga. 407 (1866). This principle was relied upon in Griggs v. Harris, 1981 U.S. Dist. LEXIS 18366 (N.D. Ga. Jan. 12, 1981). See also Barbara J. Cox, Same-sex Marriage and Choice-of-Law: If We Marry in Hawaii, Are We Still Married When We Return Home? 1994 Wis. L. Rev. 1033, 1088 (1994) (noting that Georgia uses the First Restatement approach for marriage law); Patrick J. Borchers, The Choice-of-Law Revolution: An Empirical Study, 49 Wash. & Lee L. Rev. 357, 371 (1992) (same).

The First Restatement 121 supports the general principle of lex loci, argued by Susan, that a marriage that is valid where contracted is valid everywhere. However, an exception to the general principal is found in comment (d) of 121: the law of the domicile state governs whether the marriage will be valid in that state. Exceptions to this general rule of lex loci are also found in sections 131 (dealing with remarriage after divorce) and 132 of the Restatement. Section 132 specifically states that marriages that are against the law of the state of domicile are invalid in the case of a "marriage of a domiciliary which a statute at the domicil [sic] makes void even though celebrated in another state."

Because Georgia has clearly prohibited same-sex marriage, Ga. Code Ann. 19-3-3.1 (a) (2000), under Georgia’s current approach, that of the original Restatement, Susan’s putative marriage cannot be recognized in Georgia.

B. Were this Court to follow the Restatement (Second) of Conflict of Laws, the laws of Georgia would still apply and prevent recognition of the same-sex marriage.

Even were this Court to decide to abandon the First Restatement’s approach in favor of the newer Restatement, that approach would also prevent acceptance of a same-sex marriage. This is because, under the Second Restatement, the public policy of Georgia should mandate non-recognition of Susan’s putative marriage. Restatement (Second) of Conflict of Laws 6 (1971).

The Second Restatement requires courts to analyze two main things to determine which law to apply. First, the court should apply the law of the state that has the "most significant relationship" to the parties and the issue of the particular case. Id. 283. Second, after making that determination, the court should also weigh whether declaring the marriage as valid will violate the "strong public policy" of the state with the most significant relationship to the marriage. Id. 283 (2).

Under this approach, several factors indicate that Georgia is the state with the most significant relationship. First, Susan and her partner were and still are residents of Georgia and were never residents of Vermont. Darian is a resident of Georgia. Also, the issue of visitation of the children in this case is a Georgia matter and is being litigated in the Georgia court system. It is clear, then, that Georgia has the strongest relationship with this same-sex couple, with Darian, and with the issue. Vermont’s only connection to this case is Susan and her partner’s quick visit to obtain a civil union. Under the "most significant relationship" approach of the Second Restatement, this Court should apply the laws of Georgia.

After deciding that Georgia has the most significant relationship with the parties, the next step in the analysis under the Second Restatement requires that the marriage not be recognized if it is against the "strong public policy" of Georgia. Id. at 283(2). As already established, same-sex marriages are indeed against Georgia’s strong public policy. See Ga. Code Ann. 19-3-3.1 (a) ("It is declared to be the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state."); Ga. Code Ann. 19-3-3.1 (b) ("No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage." Also stating "the courts of this state shall have no jurisdiction whatsoever under any circumstances . . . to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such marriage."). Since the language of these statutes is not vague and clearly establishes that same-sex marriages are against Georgia’s strong public policy, the Second Restatement approach would not allow recognition of Susan’s putative marriage.

C. Under a governmental interest analysis, Georgia’s law would apply and require non-recognition of any same-sex marriage.

A third conflict of laws approach is the "governmental interest analysis" theory developed by Brainerd Currie. See Brainerd Currie, Selected Essays on the Conflict of Laws 90 (1963). Under this approach, a court must determine which type of conflict it is dealing with in order to determine which state’s law to apply.

Currie divided the conflicts into three groups. These groups are false conflicts, true conflicts, and unprovided-for cases. Patrick J. Borchers, The Choice-of-Law Revolution: An Empirical Study. 49 Wash. & Lee L. Rev. 357, 361 (1992). False conflicts exist when the parties are from the same domicile. Id. at 361. True conflicts exist when more than one state has an interest and "benefit" in applying their law. Id. Unprovided-for conflicts arise when no state will benefit from the application of their state’s law. Id.

Under this approach, the conflict in this case must be considered a false conflict because both Susan and Darian are Georgia residents. Thus, Under Currie’s approach, Georgia law should apply to this case and this union cannot be recognized as a same-sex marriage because Georgia law expressly prohibits such marriages. Ga. Code Ann. 19-3-3.1 (a) (2000).

D. Under the better rule of law approach, neither the laws of Georgia nor the laws of Vermont would allow this civil union to be recognized as a marriage.

The final conflicts approach is Robert Leflar’s "choice-influencing considerations" theory. This approach allows a court more flexibility in deciding which state’s laws to apply in a conflict situation. Leflar’s theory directs the court to weigh several factors when deciding what law to choose. These factors include: "(1) predictability of result, (2) maintenance of interstate and international order, (3) simplification of the judicial task, (4) advancement of the forum’s governmental interest, and (5) application of the better rule of law." Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law. 41 N.Y.U. L. Rev. 267, 282 (1966).

The first factor, the predictability of the result, "includes the ideal that the decision in the litigation on a given set of facts should be the same regardless of where the litigation occurs, so that ‘forum shopping’ will benefit neither party." Leflar, supra, at 282-83. The second factor, maintenance of interstate and international order, usually implies that the forum state should apply "the ‘stronger law,’ meaning the law of the state that is in the best position to insist upon ultimate enforcement of its rule, as . . . possibly the state of the domicile when the existence of a familial status is at issue." Leflar, supra, at 287 (citation omitted). Georgia has the dominant interests in this case since it is the state of domicile for Susan and her partner and for Darian, and since the issue of the children’s visitation is also a Georgia matter. Therefore, since Georgia has the dominant interests, its law should apply in this case.

The third factor, simplification of the judicial task, is understood to mean that the court "should apply its own local law unless there is good reason for not doing so." Id. at 289. By having the court apply the local forum law its task is made much easier since the court is "already familiar" with the local law and is "already accustomed to administering it." Id. at 288. Under this factor, if the task of the court is not made more difficult by applying the foreign state’s laws then the court has more liberty to decide which state’s law it will follow. Id. at 289. Here, applying the foreign state’s law would make this Court’s task immensely more difficult. This Court would have to interpret a statute that is unknown to every American jurisdiction except Vermont. This Court would have to entertain and evaluate, without the benefit of any guidance from Vermont cases, Susan’s argument that Vermont’s civil union is the functional equivalent of marriage.

The fourth factor, advancement of the forum’s governmental interests, is rather a straightforward belief that the court "has a natural and largely justifiable primary concern with advancement of the governmental interests of its own state." Id. at 290. Thus, this Court should apply the governmental interest of Georgia. Leflar mentions that sometimes the state’s interest can be confusing and not stated clearly. However, Leflar states that if they are stated clearly "it is reasonable that in a choice-of-law situation a court will, and should, endeavor to effectuate these interest and purposes insofar as it can identify them." Id. at 290. Furthermore, Leflar mentions that "local public policy" should be included in deciding what the local governmental interest is. Id. at 290-291. As documented above (supra pp. 4-6), Georgia’s strong public policy is unambiguously against recognizing same-sex marriages and against allowing same-sex couples the benefits associated with marriage. Therefore, under this fourth factor, this Court should apply Georgia’s law and its strong public policy and deny recognition to Susan’s putative marriage.

The fifth and last factor consists of determining what the "better rule of law" is. This factor enables this Court to have more flexibility in the choice of law process. This approach works well when the forum law is "anachronistic, behind the times, a ‘drag on the coat tails of civilization,’ or [when] the law of some other state has these benighted characteristics." Id. at 299-300 (citation omitted).

The reason this more flexible approach was created and is sometimes preferred is that it allows courts to support progressive movements in other states and apply them to their own state as a better rule of law. Barbara J. Cox, Same-sex Marriage and Choice-of-Law: If We Marry in Hawaii, Are We Still Married When We Return Home? 1994 Wis. L. Rev. 1033, 1097. But even were this Court to follow the better rule of law approach, Georgia’s law is not "anachronistic, behind the times," or "a ‘drag on the coat tails of civilization.’" Rather, it was only recently enacted, in 1996. Ga. Code. Ann. 19-3-3.1 (2000). Its enactment was part of a national movement in this direction. At the beginning of 1994, no state had such a statute. As of today, thirty-five states have such laws. See State Information, http://marriagelaw.cua.edu/State_in.htm (last modified June 19, 2001). Two of these same states and one additional state have amended their constitutions to prohibit same-sex marriage during this same period. Id. Numerous other states have debated such legislation and amendments and one additional state has a constitutional amendment going before the electorate. Id; 2001 Legislative Summary, http://marriagelaw.cua.edu/2001%20Legislative%20Update.htm (last modified July 24, 2001).

Furthermore, even should this Court decide that Vermont is yet more progressive than Georgia and the other thirty-five-plus states, this Court would need to balance all five factors and not simply the fifth factor. Leflar, supra, at 304. Therefore, this Court, in weighing all factors, should follow Georgia law in this case. Finally, even should thid Court chose to apply Vermont law, Susan does not have a marriage under Vermont law (as discussed in part I of this brief).

Thus, under any conflict of laws approach, this Court should not recognize Susan’s putative marriage.


Conclusion

For the foregoing reasons, this Court should affirm the judgment of the Superior Court.

Respectfully submitted this day of August, 2001

Steven W. Fitschen

Counsel of Record for Amicus Curiae,

The National Legal Foundation
Virginia Bar Number: 44063
2224 Virginia Beach Blvd., St. 204
Virginia Beach, VA 23454
(757) 463-6133

CERTIFICATE OF SERVICE

I hereby certify that I have duly served the attached Amicus Brief in the case of Burns v. Burns, Civil Docket No. A01A-182700-795 on all required parties by depositing the required number of copies of the same in the United States mail, first class postage prepaid, at Virginia Beach, Virginia, on August 16, 2001 addressed as follows:

Adrian F. Lanser III
109 East Church Street
Cartersville, GA 30120

Representing Susan Vatrice Barnett Burns as Counsel of Record

Douglas D. Slade
P.O. Box 6037
Rome, GA 30162-6037

Representing Darian Gregory Burns as Counsel of Record

Steven W. Fitschen

Counsel of Record for Amicus Curiae,

The National Legal Foundation
Virginia Bar Number: 44063
2224 Virginia Beach Blvd., St. 204
Virginia Beach, VA 23454

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