10 May 2013

Commentary on Marriage v. Citizenship

The following new law review article's abstract (from here) deserves interlineated commentary, because it is so wrong in so many specifics.

While the "Big Idea" in this article of comparing marriage status and citizenship status has some merit, the author's premises shows a weak command of citizenship law, and hence an impaired analysis of what the analogies considered imply.  This article is a good example of the michief that a "hedgehog" can create in "fox" territory.

The article is Govind Persad, What Marriage Law Can Learn from Citizenship Law (and Vice Versa) (Law & Sexuality, Vol. 22, 2013) (emphasis added, bracked bold material inserted editorially).
    Citizenship and marriage are legal statuses that generate numerous privileges and responsibilities. Legal doctrine and argument have analogized these statuses in passing: consider, for example, Ted Olson’s statement in the Hollingsworth v. Perry oral argument that denying the label “marriage” to gay unions “is like you were to say you can vote, you can travel, but you may not be a citizen.”
    [This isn't unprecedented.  New Zealand allows non-citizen residents to vote.  Many nations, including the United States, place no travel restrictions on non-citizens that are more onerous than those placed on citizens.  Only a handful of U.S. constitutional rights such as the right to vote and the rights under the privileges and immunities clause are dependent upon citizenship; most apply to "any person."]

    However, the parallel between citizenship and marriage has rarely been investigated in depth.

    [This may be true in the U.S. context, but not necessarily in general.  The first section of the Civil Code of most countries is entitled "Of Persons" and groups the concept of personal status of all kinds as a single concept to be applied generally.  Also, of course, the two concepts are frequently deeply intertwined with marital status in many contexts being pivotal in determining citizenship status.  For example, historically, at least, the wife of a French citizen automatically became a French citizen herself by operation of law without any further bureaucratic action at the moment she was married.]

    This paper investigates the marriage-citizenship parallel with a particular focus on three questions prompted by recent developments in law and policy:

    1) Should we provide second-best statuses? Some couples — in particular gay and lesbian couples—have been offered permanent statuses, like civil unions, that bear legal privileges but fall short of full marriage equality. In contrast, similar differentiations within citizenship are generally resisted.

    [This simply isn't true, even remotely.  The United States has multiple statuses.  The U.S. constitution's provisions related to the Presidency distinguish between "natural born citizens" and naturalized citizens, and also distinguishes between U.S. citizens based on their parallel state citizenship status.  Citizenship law also makes a distinction between "U.S. citizens" and "U.S. nationals" (such as residents of certain U.S. territories outside any state) who have slightly different rights when a territory gains independent as its own sovereign outside the United States.   The status most analogous to a Civil Union is probably lawful personal resident status (i.e. "green card holders").  Holders of a wide variety of other visas, some of whom are "resident aliens" and some of whom are "non-resident aliens" (and in times of war, sometimes "enemy aliens") have a variety of more limited rights that vary by visa type.  At the bottom of the heap, apart perhaps from enemy aliens, are "illegal" or "undocumented" aliens, and "persons without a country."  Official representatives of another nation, such as ambassadors, likewise have a constitutionally defined special citizenship status that permits them to have certain rights within the United States.  The U.S. Supreme Court also held just this month that U.S. citizens of one state may be treated differently legally from U.S. citizens of another state in matters that are not "core" privileges and immunities such as the right to make a state FOIA request.  It is not clear that this is fully hierarchical either.  A current hot spot in legal distinctions based upon citizenship-like status is the increasing practice of affording resident non-citizens privileges that are denied to non-resident citizens (such as in state tuition rates at public colleges run by a state).  Long arm jurisdiction concepts similarly, unlike general jurisdiction, apply laws normally applied to a jurisdiction's citizens or residents to others as if they were citizens or residents.]

    The history of citizenship may presage the increasing unacceptability of differentiations within status in the gay marriage context.

    [If the analogy were followed faithfully, the opposite conclusion would follow.  In this particular instance, it is likely that the author has reached the right conclusion for the wrong reason, but a stable national divide on this issue, like the one seen over slavery is not unthinkable.]

    Meanwhile, the history of marriage equality efforts may help present-day citizenship advocates choose legal strategies.

    2) Should statuses be a gateway to rights?

    [One of my law professors used to say that every right flows from some premised status.  The question is not really whether statuses should be a gateway to rights, as it is which statuses should be gateways to which rights.  For example, in the area of child custody, we have moved from a regime in which maternal marital status governed rights to one in which primacy is afforded to genetic relationships and bona fide social relationships for the most part, almost to the exclusion of maternal marital status as a factor in many cases.]

    Some early gay rights advocates unsuccessfully argued that advocates should challenge the primacy of marriage, rather than seek access to the institution. Advocates attempting to expand the rights of current noncitizens face similar choices: should they seek to give current noncitizens greater access to citizenship, or challenge the reservation of important rights to citizens?

    [True.  In both circumstances, a mixed strategy has been employed in a fairly path dependent way dependent upon what is possible in practice, often in the absence of any clear policy reason for choosing one approach rather than another.  Ideally, the nature of the right ought to be logically linked to the status from which it derives and frequently it is more just and equitable to define the status that is relevant as broadly as possible - affording it to all "natural persons" (e.g. the right to be present in a public space), or even to "all persons" (e.g. freedom of speech).]

    3) Can status relationships be plural? Many critics of dual and multiple citizenship argued that allegiance to multiple states was immoral, unadministrable, or both.

    [The United States embraced multiple citizenships right in the constitution in with individuals simultaneously being citizens of the United States, citizens of the U.S. state in which they reside, if any, and sometimes in the cases of Indians who are taxed, also citizenship in an Indian tribe.  Under modern U.S. law, dual or multiple citizenships in different countries exist when one qualifies as a citizen of multiple countries under each respective country's citizenship laws subject to certain acts that have the effect of proclaiming an allegience to one country to the exclusion of another, such as becoming a commissioned officer in a country's military, or formally renouncing citizenship in the United States.  Generally, the point is forced only when the ambiguity or multiplicity truely is immoral, unadministrable, or both, rather than at the point where the existence of a dual or multiple citizenship initially arises.  To a great extent this is governed by "bureacratic" logic with unintended consequences in a system with multiple inconsistent bureaucracies, rather than a single overarching system.]

    More recently, polygamous marriage has become a topic of legal and political discourse, first as a foil in anti-gay marriage arguments and later as a political possibility in its own right. I will consider whether polygamous marriage advocates can profitably draw on arguments for multiple citizenship, and how multiple-citizenship advocates should responsibly respond to the analogy with polygamy.
    [This isn't a very helpful analogy and doesn't obvious lead to any very helpful conclusions.  Indeed, one of the essential difficulties involved is that there is more than one way to be polygamous or polyamorous and these ways of being polygamous are not necessarily mutually compatable with each other.  Rather than treating polygamy and polyamory as unified coherent legal structures, the current trend has been to divide and conquer by decriminalizing the relationship, analytically segregating issues related to children addressed in a marriage neutral way from issues related to property and maintenance, and honoring otherwise contractual and property title form without regard to the status of the parties as polygamous or polyamorous much as one would in cases involving unmarried distant relatives - much as same sex couples did prior to civil unions and same sex marriage.  In principle, one can create a legal structure that looks a lot like a particular conception of polygamous marriage, for example, without a statute enacted specifically to address it.  But, the intuition about what makes sense in any particular instance where marriage is a necessary factor - like Social Security benefits is hard, short of ignoring the existence of the relationship, without more clarity and consensus about what understanding the people involved in the relationship have of their relative obligations.  At best, if one must be general, one needs to give courts broad equity jurisdiction to tailor remedies to the relationships in fact.]

No comments: