Taking an eminently pragmatic position, the Wyoming Supreme Court has ruled unanimously in Christiansen v. Christiansen, 2011 WY 90, 2011 WL 2176486 (June 6, 2011), that a same-sex couple married out of state can seek a divorce in the Wyoming courts. Reversing a subject-matter jurisdiction-based dismissal by Niobrara County District Judge Keith G. Kautz, the court found that allowing access to Wyoming courts for divorces did not conflict with the state's policy against allowing same-sex marriages.
According to the opinion for the court by Justice Michael Golden, the parties, residents of Wyoming, were legally married in Canada in 2008. Paula Christiansen filed a divorce action in the Niobrara County District Court in February 2010. Judge Kautz dismissed the action, finding that in order to get a divorce, a couple must first be married, and that Wyoming law did not authorize same-sex marriages.
The Supreme Court decided that this reasoning was flawed. For one thing, Wyoming does not have a statute specifically forbidding recognition of same-sex marriages contracted elsewhere. Indeed, a statute, Wyo. Stat. Ann. sec. 20-1-111, provides that "all marriage contracts which are valid by the laws of the country in which they are contracted are valid in this state." This very statute was the subject of a heated debate in the Wyoming legislature recently over a proposal to legislate against recognition of same-sex marriages performed elsewhere, but the debate ended inconclusively without any enactment.
Unlike those states that have passed a so-called mini-DOMA that expressly denies recognition to all same-sex marriages, Wyoming's sole potentially relevant statute is the one upon which Judge Kautz relied, the Wyoming definition of marriage in sec. 20-1-101 as "a civil contract between a male and a female person."
Justice Golden's opinion first emphasized that the question of jurisdiction is rather narrower than the trial judge had contemplated. Noting the broad, general jurisdiction of Wyoming district courts to decide civil cases, and the specific authorization in sec. 20-2-104 for district courts to decree divorces "on the complaint of the aggrieved party on the grounds of irreconcilable differences in the marital relationship," the court said that "we start this discussion with the knowledge that the district court in this case has subject-matter jurisdiction to entertain the instant divorce proceeding unless a contrary showing is made."
The court opined that Judge Kautz had failed to give "proper respect" to the marriage recognition statute. "Obviously, the district court's determination that, despite a valid Canadian marriage, no valid marriage exists under Wyoming law, runs afoul of this statute. The district court's ruling thus creates a conflict between sec. 20-1-101 [the definition of marriage] and sec. 20-1-111 [the marriage recognition provision]. We do not agree that such a conflict exists in the context of a divorce proceeding."
Justice Golden noted that when statutes appear to conflict, the court first attempts to find a way to "harmonize" the two statutes. He said that the Supreme Court found that these two statutory provisions, "both relating to the creation of marriage, can co-exist in harmony in the context of the instant divorce proceeding." He found that the definition section "prevents a same-sex couple from entering into a marital contract in Wyoming" but that the recognition provision "expressly allows for the recognition of a valid Canadian marriage in Wyoming. On their face," he continued, "the two sections treat different situations and as such do not conflict."
Of course, the court acknowledged that the rule of marriage recognition is not "absolute," and that there is a widely-recognized common law exception to the recognition of marriages that were valid where they were performed, if such recognition would be "contrary to the policy" of the state's laws. In the past, this has been used to deny recognition to polygamous or incestuous marriages contracted in other countries where they might be lawful. But, wrote Golden, this exception is "necessarily narrow, lest it swallow the rule," and he drew a comparison to Wyoming's treatment of common law marriages. Wyoming is one of the majority of U.S. jurisdictions that require marriages to be solemnized with a state license and some sort of ceremony in order to be validly formed within the state. However, if a couple forms a "common law" marriage without such formalities in one of the minority of states that allows this method of marriage formation and then moves to Wyoming, the Wyoming courts have recognized the marriage for particular purposes. The court cited Jim's Water Service v. Eayrs, 590 P.2d 1346 (Wyo. 1979), in which it had upheld the validity of a common law marriage formed elsewhere in the context of determining spousal eligibility for benefits under the state's Workers Compensation Law.
"Likewise," wrote Justice Golden, "recognizing a valid foreign same-sex marriage for the limited purpose of entertaining a divorce proceeding does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages. A divorce proceeding does not involve recognition of a marriage as an ongoing relationship. Indeed, accepting that a valid marriage exists plays no role except as a condition precedent to granting a divorce. After the condition precedent is met, the laws regarding divorce apply. Laws regarding marriage play no role."
Since the two women in the case before the court "are not seeking to live in Wyoming as a married couple" and "are not seeking to enforce any right incident to the status of being married," the court saw no conflict in "respecting the law of Canada, as allowed by sec. 20-1-111, for the limited purpose of accepting the existence of a condition precedent to granting a divorce." This was not, in the court's eyes, "tantamount to state recognition of an ongoing same-sex marriage."
The court sent the case back to the district court "for further proceedings consistent with this opinion."
Paula Christiansen is represented in this appeal by Tracy L. Zubrod of Cheyenne and Mary Elizabeth Galvan of Laramie. No counsel appeared for respondent Victoria Lee Christiansen, although the Star-Tribune reported on June 7 that her attorney is Logan Heth of Lusk, who was unavailable for comment about the decision. According to Paula Christiansen's attorney, Tracy Zubrod, she has left Wyoming to pursue a job, but the divorce case is properly in Niobrara County where Victoria resides.
In a footnote, Justice Golden stressed the narrowness of the ruling: "Our analysis is expressly limited to the issue before us. Nothing in this opinion should be taken as applying to the recognition of same-sex marriages legally solemnized in a foreign jurisdiction in any context other than divorce. The question of recognition of such same-sex marriages for any other reason, being not properly before us, is left for another day."
It seems clear from reading the court's decision and considering its analogy to common law marriages that actually there is a good basis to argue that same-sex marriages contracted elsewhere should be more generally recognized as valid in Wyoming for purposes beyond divorce. In a very real sense, of course, the court was being a bit disingenous in stating that the parties "are not seeking to enforce any right incident to the status of being married," since the right to seek a divorce, invoking the powers of the court to make a disposition as to property and debts and parental rights (where applicable), in order to help a married couple to disentangle their relationship, has been highly valued as a "right incident to the status of being married."
The Wyoming court has not yet taken the step that has been taken by numerous courts (at both the trial and appellate levels) in New York, where the marriage statute has been construed by the highest court to forbid the formation of same-sex marriages, but where there is mounting judicial authority that same-sex marriages formed in other jurisdictions should be fully recognized as marriages under New York's long-established marriage recognition rule, which as stated in its common law formulation is very similar to the combination of statutory and case authority in Wyoming. (Since New York courts and some executive branch officials have begun recognizing same-sex marriages formed outside the state by New Yorkers, attorneys general in Maryland and New Mexico, other states that don't allow the formation of same-sex marriages, have also opined that such marriages would be recognized in their states.)
The big question left hanging by this decision is whether the Wyoming legislature will decide to revisit the proposal to enact a mini-DOMA statute or constitutional amendment to preclude the recognition of same-sex marriages for any purpose, or whether the limited approach taken by the court in this case will forestall such action. After all, this is a very pragmatic ruling on a question that is likely to recur as several U.S. jurisdictions and foreign countries such as Canada allow same-sex marriages and don't impose residency requirements to issue licenses.