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A law professor at the Northeastern University School of Law in Boston, Massachusetts named Melissa Etheridge. In 1996, after a divorce from her husband of six years, Etheridge became involved with a history professor at Northeastern named Holly Near. In June of 1998, Etheridge purchased a house in Cambridge. In December of 1998, Near moved into the house with Etheridge. The two women shared household expenses and starting in March 1999, Near made half the mortgage payments on Etheridge’s house, although title remained solely in Etheridge's name.3
On June 1, 2003, the Supreme Judicial Court of Massachusetts ruled that it violated the equal protection clause of the state constitution to deny the right to marry to same sex couples. In September, 2003, the legislature amended the marriage law to authorize marriages of same sex couples. On December 6, 2003, Etheridge and Near were married in the back yard of their home in Boston.4
The couple live together for ten years after their marriage. During that period, Near had two children through artificial insemination. Near arranged to work half-time and did the bulk of the child care. In November of 2013, the couple separated and in January of 2014, Near filed for divorce. A divorce degree was entered by the Massachusetts Probate Court in February of 2015. The court also issued a judgment providing for equitable distribution of the property acquired during the marriage and ordered Etheridge to make child support payments to Near. Because the house was in Etheridge's name and because Etheridge had consistently earned more money than Near, Etheridge was ordered to give Near one-half the fair market value of the house and twenty-percent of the money in her various money market accounts that had been accumulated during the marriage. In addition, the court ordered Etheridge to pay monthly alimony to Near for the next four years. Subsequently, Etheridge sold the home in August of 2015 and moved to Ann Arbor, Michigan, where she used the proceeds of the sale of the Cambridge house to purchase a new home.5
Near then sued Etheridge in state court in Michigan, seeking an order to enforce the Massachusetts court judgment ordering Etheridge to pay alimony and child support to Near, as well as the equitable distribution property award. Near argued that the Full Faith and Credit Clause of the U.S. Constitution, U.S. Const., art. IV, §1, required Michigan courts to honor and enforce the final judgment of the Massachusetts courts. That clause provides:6
Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
In addition, the Full Faith and Credit Statute, 28 U.S.C. §1738, provides that court judgments "shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken."8
Etheridge argued, in contrast, that the Massachusetts judgment could not be enforced in Michigan because the judgment was premised on the fact that the parties were married; absent a marriage there would have been no divorce, no alimony or child support obligation and no equitable distribution. Under Michigan law, she argued, no same sex marriage can be recognized "for any purpose." On November 2, 2004, the voters in Michigan voted to amend the state constitution to provide, at Mich. Const. art. 1, §25:9
To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.
Etheridge argued that this state law prohibits the Michigan courts from enforcing the Massachusetts court judgment. She also argued that this state constitutional provision did not violate the federal Full Faith and Credit Clause because Congress passed a federal statute, the Defense of Marriage Act, 28 U.S.C. § 1738C (DOMA), which provides, in Section 2, that11
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
And, although the Full Faith and Credit Clause of the U.S. Constitution appears to require enforcement of final judgments of other states, it also provides that Congress may "by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." The italicized language, Etheridge argues, gives Congress complete power to determine the extent to which state court judgments are enforceable outside the state. Near argues, in contrast, that this "Effects Clause" may give Congress the power to increase full faith and credit but it does not give Congress the power by statute to deny full faith and credit to state court judgments. Such a broad power would allow Congress to simply repeal the Full Faith and Credit Clause by legislation and that cannot be what the Founders intended. Etheridge argued that this is exactly what the Founders intended because the constitutional language does not provide any basis for finding that Congress can increase, but not decrease, full faith and credit and there is no other basis for determining when a statute would exceed Congress's powers under the Effects Clause.13
The trial judge accepted defendant Etheridge's arguments, finding that Congress had the power under the Effects Clause to pass Section 2 of DOMA, and that the Michigan constitutional provision should be interpreted to disallow enforcement of the Massachusetts court judgment in this case. The judge also held that the Supreme Court decision in United States v. Windsor, 2013 WL 3196928 (U.S. 2013), entitled Michigan to define marriage as it pleases and that Michigan's refusal to recognize same-sex marriages that are valid in Massachusetts does not deprive such couples of due process or equal protection of the laws.14
The appeals court reversed. It held, first, that the Michigan constitutional provision does not prevent the Michigan courts from enforcing the Massachusetts divorce decree. Rather, it interpreted the constitutional provision to be silent on the question of whether to recognize same-sex marriages from other states. Even if it did prohibit recognition of the Massachusetts marriage, that prohibition extended only to the question of whether to recognize a couple as married if they moved from Massachusetts to Michigan; it did not require the Michigan courts to refuse to grant property-based relief or child custody payments premised on a now-defunct marriage that was celebrated elsewhere and valid where celebrated. Second, the appeals court held that, while Congress has the power to pass legislation determining the "effect" of state laws, records and court judgments, it does not have the power to exempt states from recognizing valid final court judgments rendered in other states. Not only does this exceed Congress's power under the Effects Clause but a federal statute authorizing the Michigan courts to ignore the Massachusetts court judgment would effect a taking of property without just compensation, since court judgments awarding damages payments and property distributions constitute "property" rights within the meaning of the fifth amendment which prohibits Congress from taking property without just compensation. Finally, the court ruled that the reasoning of Windsor precluded Michigan from treating a same-sex married couple from Massachusetts differently than an opposite-sex married couple from Massachusetts.15
The case has been appealed to the Michigan Supreme Court. The Court must answer the following questions:16
1. Does Michigan law prohibit enforcement of the Massachusetts court judgment? Plaintiff Near argues that it does not; it should be interpreted not to prohibit enforcement of the equitable distribution, alimony, and child support orders of the Massachusetts court. Defendant Etheridge argues that it should be interpreted to prohibit enforcement of the Massachusetts court judgment.17
2. Is Section 2 of the federal Defense of Marriage Act constitutional as applied to this case? Specifically, does the "Effects Clause" of the Full Faith and Credit Clause, give Congress the power to authorize the state of Michigan to refuse to enforce the Massachusetts court judgment ordering equitable distribution of property, alimony, and child support? Plaintiff Near argues that Congress does not have the constitutional power to authorize Michigan to ignore the Massachusetts court judgment while defendant Etheridge argues that the Effects Clause does give Congress the power to pass Section 2 of DOMA and render the Michigan constitutional provision constitutional and enforceable.18
π = Holly Near19
∆ = Melissa Etheridge
April 17, 2018
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