October 25, 2006

Will N.J. open the floodgates?

Posted by: Chris

As the clock ticks down to the release at 3 p.m. today of the New Jersey Supreme Court's ruling on same-sex marriage, this tidbit from the AP about the possible impact of a decision that orders the state to allow gay couples to marry:

"New Jersey is a stepping stone," said Matt Daniels, president of the Virginia-based Alliance for Marriage, a group pushing for an amendment to the federal Constitution to outlaw same-sex marriage. "It's not about New Jersey."

From a practical standpoint, the Massachusetts court decision made little impact nationally because the state has a law barring out-of-state couples from wedding there if their marriages would not be recognized in their home states.

New Jersey has no such law.

Massachusetts Gov. Mitt Romney, a Republican with his eye on a 2008 White House run, fought the legislature's efforts there to comply with the landmark state court ruling.  When he couldn't recruit a super-majority to enact a constitutional amendment overruling the court — a move backed by Sen. John Kerry, then a Democratic candidate for president — he pressured the state's clerks to enforce a 1913 law that blocks the issuance of marriage licenses to non-residents if their home state would also refuse to issue it.

Gay groups challenged the 1913 law all the way up to the Massachusetts Supreme Judicial Court but lost.  As a result, only the residents of a few states that don't have laws expressly limiting marriage to heterosexual couples can marry in Massachusetts.

New Jersey has no law limiting which non-state residents can marry there, which opens the possibility of gay couples from all over the U.S. coming to New Jersey to marry legally.  Then, when they return home, they would presumably challenge their home state to recognize the New Jersey marriage license under the U.S. Constitution's "Full Faith & Credit Clause," which generally requires each state to recognize the legal documents of the other 49.

Standing in the way of such out-of-state couples is the Defense of Marriage Act, passed in 1996 by a Republican-controlled Congress and signed into law by Democrat Bill Clinton.  In addition to blocking all federal recognition of state-issued marriage licenses to gay couples, DOMA also provides that no other state can be forced to do so either.  Of course, the U.S. Constitution trumps federal and state laws, so that sets up a legal challenge:  DOMA vs. the Full Faith & Credit Clause.  That's exactly what conservatives claim is the gay groups' game plan; again, from AP, quoting Mattt Daniels of the anti-gay Alliance for Marriage:

Daniels said gay-rights advocates are already looking ahead to such lawsuits. "Their game, of course, is they figure all they need to do is execute this maneuver in a half-dozen states and they'll have the momentum," he said.

In fact, that prospect is the worst nightmare for most gay rights strategists, and Daniels knows it.  If DOMA is struck down by the courts, then moderates in Congress will likely join with conservatives and enact a federal marriage amendment, writing into the U.S. Constitution a permanent ban on gay marriages that might reverse history in Massachusetts and New Jersey and perhaps even strike down civil unions issued by Vermont and Connecticut, and domestic partnerships from California, Hawaii, D.C. and dozens of local governments.

Most gay rights strategists prefer instead to win in a few key states, let the general public see that marrying gay couples doesn't threaten civilization as we know it, and then move incrementally, in the legislatures and the courts, extending the freedom to marry state by state, much as they have non-discrimination, hate crime and domestic partnership laws.

Either way, or a dozen other courses that things could take, there's a lot riding on the New Jersey court ruling today, long seen as the best bet among the ongoing lawsuits — others are pending in California, Maryland, Connecticut and Iowa — challenging state marriage laws.