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    June 02, 2008

    Gay marriage is a battlefield

    Posted by: Chris

    Gay_marriage_celebration The battle over same-sex marriage is about to go nuclear. Not because it may impact this year's presidential race, as some have worried. But because the skirmishes will now multiply into a multi-front struggle that will determine whether access to civil marriage for the rest of us comes sooner or much, much later.

    Much of the early aftermath to the California marriage ruling has focused on its possible impact on the general election contest between John McCain and Barack Obama. Democrats remember all too well how George Bush and Karl Rove in 2004 used the Massachusettes marriage ruling as a "wedge issue" to galvanize conservatives in swing states like Ohio.

    The possibility for a repeat exists, of course, since a gay marriage ban is already slated for the November ballot in Florida, a hugely important swing state, and conservatives hope a similar measure in California might put that reliably Democratic state in play. That's unlikely, however, since Republican Gov. Arnold Schwarzenegger has thrown his weight against the ban, and Obama's candidacy is likely to draw to the polls younger voters, who a recent Field Poll confirms back gay marriage by an almost two-to-one margin.

    Those who really care about the future of marriage for same-sex couples in the U.S. need to stop being distracted by the pretty, shiny bauble that is the Obama-McCain contest and focus on the battle in California itself, as well as the brush fires it's sure to spark throughout the country.

    The impact from California will dwarf that of Massachusetts because marriage laws in the two states differ in one important aspect: A 1913 law in the Bay State allows non-residents to marry there only if their marriage would be accepted in their home state. Gay activists failed to convince the Massachusetts Supreme Judicial Court -- the same one that struck down hetero-only marriage in 2003 -- that the 1913 law was also unconstitutional. As a result, the landmark 2003 ruling extended marriage only to those residing in Massachusetts and a few other states -- Rhode Island and New Mexico among them -- that certified they met the 1913 law's restriction.

    Not so in California. Non-resident gay couples may marry without restriction, and then go home and ask that their marriages be recognized in any number of contexts. New York Gov. David Paterson has already ordered state agencies there to recognize marriage licenses issued to gay couples in California, Massachusetts, Canada or the four other countries where it's legal. Gay-friendly governors elsewhere may quickly follow suit, especially after the November election cushions the possible blowback and (hopefully) cements marriage equality in California.

    It's long past time, for example, that D.C. Mayor Adrian Fenty to fulfill his campaign promise to make public the legal opinion of a former attorney general, gay himself, about whether the District should  recognize gay marriages from elsewhere. In fact, it's long past time for the D.C. Council to adopt marriage equality outright -- a majority already supports it and the Democratic leadership in Congress has pledged to allow marriage to be decided at the state level.

    In the other 48 states, gay newlyweds returning from California will over time be raising recognition issues that will challenge not just the state constitutionality of marriage bans but their federal constitutionality as well, along with the holy grail: the constitutionality of the federal Defense of Marriage Act. That infamous 1996 law, renounced by its own author Bob Barr now that he's the Libertarian Party's nominee for president, purports to allow each state the right to refuse recognition of gay marriages from other states.

    The U.S. Constitution has something to say on that matter, however, since the "Full Faith & Credit Clause" generally requires that states recognize the legal papers and judicial rulings of other states -- including marriages. There are all sorts of exceptions to the rule, as it has been litigated over 200-plus years, but that won't save DOMA. By saying each state may unilaterally reject gay marriages from other states under every conceivable context, DOMA is clearly unconstitutional, since the FF&C will require otherwise in at least some situations. And if DOMA falls by judicial fiat, as it should, expect calls for a federal constitutional amendment to ensue.

    So much will depend on the unpredictable circumstances of each challenge that the outcomes will be all over the map. Couples who travel to California from states with marriage bans written into their constitutions will likely find their new licenses worthless, since the FF&C clause has long allowed states to prevent citizens from escaping local marriage limits by simply crossing state lines and wedding elsewhere.

    On the other end of the spectrum, judicial rulings from California that recognize a gay marriage in circumstances like child custody or the right to sue for a spouse's injury or death will most likely be accepted -- perhaps even in the most hostile anti-gay states. That's because the federal Constitution's FF&C clause will trump DOMA and a state's marriage ban under the right circumstances.

    If you've followed me this far, you at least see the tremendous variety of ways the detonation of the California marriage bomb will scatter shrapnel throughout the union. For that reason, preserving the victory there ought to be priority No. 1 for all gay rights donors and political organizations.



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    1. SteveW on Jun 2, 2008 1:06:18 PM:

      This sounds like a job for Pat Benatar. :)

    1. Tim on Jun 2, 2008 2:30:09 PM:

      i concur, I'm glad you wrote the bit about challenging DOMA, for a long time I have wondered how it's stood up to any court challenge, given it's incredible scope for undermining, federalism. One would hope that the dems won't stab us in the back and say that they will repeal the California decision to gain votes with blacks and Hispanics. but I bet they do. Still it is a good idea to do some research and send some money and letters out west.

    1. Tim Hulsey on Jun 2, 2008 6:37:20 PM:

      The "full faith and credit" clause doesn't apply to marriage licenses. It's the famous "public policy exception."

    1. wj on Jun 2, 2008 7:50:23 PM:

      I'm not certain that it will go nuclear -- although I'm sure that the theocrats will try their best to make that happen.

      More likely, California will go much the way that Massachusettes did: lots of marriages, but little visible trauma. The only difference being from the on-going, massive impact that anything in California has on the popular culture of the rest of the nation (not to mention the rest of the world).

      There may be a few attempts at legal challenges in other states, based on California marriages. Possibly even some successful ones. But even without those, 3 years from now we will likely start seeing other states changing their laws. No doubt it will take a decade or more before the last ones join the 21st century. But there is no real question which way the popular mindset is going.

    1. Chris on Jun 2, 2008 8:13:41 PM:

      Tim Hulsey: That's not true. The FF&C and the public policy exception apply and don't apply to marriage no more and no less than to any other issue. For an excellent, in depth analysis of this issue check out this article by U. Penn. Law Prof. Tobias Wolff..

    1. Hawyer on Jun 3, 2008 2:14:13 AM:


      Excellent analysis - albeit quite convoluted which it certainly is!

      Bottom line: Has the steam gone out of the GOP wedge issue to put gays up for political target practice? While conventional wisdom says yes; polls indicate a razor thin margin of approval - that gays have the human qualities to participate as full-fledged citizens of this country.

      Exactly how we arrived at this consensus in the year 2008 remains altogether unexplained --- but NEVER underestimate the tenacity of the lunatic right to submarine our cause. Jesus does not approve of queers, for the Bible clearly says so. Nevermind the presidential disaster manifested in George W Bush.

      Here's hoping California's landmark judicial reversal brings the walls crashing down. While they focus on Barack Obama's presidential run --- here's hoping they lose focus on the gay-ball and we slide in for a home run.

    1. Ian on Jun 3, 2008 6:48:09 AM:

      Unless there is a stay granted by the CA Supreme Court, my partner and I plan to travel from MS to CA early in the fall to wed. We're not sure what the legal ramifications back in ole MS will be, but a window is opening (hopefully) and we plan to jump through it.


      Jackson, MS

    1. Strict Scrutiny on Jun 3, 2008 10:47:18 AM:


      You and your partner are more than welcome to come wed in CA. However, your marriage here will be of no legal consequence in MS. If you wish to take advantage of the legal rights and benefits of your CA marriage, you'll have to remain here or possibly relocate to NY, which recognizes same-sex marriages lawfully performed in other jurisdictions.

    1. Tim Hulsey on Jun 6, 2008 5:31:34 PM:

      Chris: I'm not sure Wolff's article says what you seem to think it does. As a matter of historical and legal precedent, marriage is subject to the "public policy exception," which means that a state is not required to recognize a marriage contracted elsewhere if that marriage contravenes state law. Wolff writes:

      Most scholars and commentators in the field of Conflict of Laws -- the area of law that deals with this kind of dispute across state lines -- agree that states should have the power to decline to give effect to an out-of-state marriage that is inconsistent with local laws, whether because that marriage violates public policy, because it was the result of a couple deliberately evading local marriage laws, or for some other reason.

      Your statement that "the 'Full Faith & Credit Clause' generally requires that states recognize the legal papers and judicial rulings of other states -- including marriages" is factually incorrect. The FF&C clause does require states to recognize the legal papers and judicial rulings of other states (and the recent case in Virginia of "Jenkins v. Miller" is a good example of FF&C in action). But the clause does not require recognition of marriages as such.

    1. Strict Scrutiny on Jun 7, 2008 12:05:54 AM:

      But the clause does not require recognition of marriages as such.

      Actually, Tim, I think it does, at least for opposite-sex marriages.

      However, I agree with you that the public policy exception would allow a state like Utah to deny recognition of a same-sex marriage lawfully contracted in California. That state, and many others, probably have something on the books that says it is their public policy that marriage is only between a man and a woman.

      Chris does make an interesting point, though, which he emphasized in bold, italicized letters -- the part of DOMA he talks about could be unconstitutional because it allows states to withold recognition of same-sex marriages FOR ANY REASON. That cannot be the case. A state must be able to show that it has a long-standing public policy against same-sex marriage. My guess is that most states could do this, but who knows -- maybe a few of them can't.

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