Friday, June 28, 2013

Same-sex marriage now the law of the land

With the Supreme Court decisions of June 26, 2013, thirteen states and the District of Columbia are free to recognize and perform same sex marriages. But that still leaves 37 states, almost 3/4 of them, that don't recognize same sex marriages.

Or does it?

I refer you to Article IV, Section 1 of the U.S. Constitution, which says, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Something that's been legitimized according to the laws of, say, New York, can't be de-legitimized by a state like, say, Texas.

Some historical examples are in order. I'm not sure if it's still true, but there was a time not too long ago when the state of New York required a several-day waiting period before a couple could get married. Even a few days was obviously too long for some people to wait, though, and it was a common practice for couples in a hurry to drive down to another state that had no waiting period (I believe it was either Delaware or Maryland) and get married there at once. It could be done in less than a day. The newlyweds could then return to New York. Even though they hadn't been married according to New York's rules, New York had to accept  the rules of the other state. The newlyweds were then considered legally married in every state in the Union.

Another example: Again, not too long ago, most states made it very difficult for couples to get a divorce, usually requiring things like proof of infidelity. In those days, it was a common practice to "go off to Reno," where a 6-week stay was all you needed to qualify you for legal residency. Then, under local law, you could get a "quickie" divorce--what we generally call a "no-fault" divorce today. When you returned home, you were no longer married, no matter what the divorce laws were in your home state. Reno had quite a thriving little industry going before the other states also liberalized their divorce laws and spoiled Reno's party.

What do these historical examples mean today? If an opposite-sex couple gets married in New York and then moves to Alabama, Alabama must recognize their marriage as being legitimate. The couple doesn't suddenly have to get married all over again according to Alabama's rules.

Section 2 of DOMA tried to get around the "full faith and credit" provision of the Constitution by saying that one state couldn't be forced to recognize same-sex marriages from another state. But DOMA is dead. Justice Kennedy's decision didn't mention the "full faith and credit" provision; it merely said the federal government couldn't pass a law saying that one kind of marriage was valid and another kind performed in the same state was not. It's a state's right to decide who can get married inside its borders and what rules they have to follow.  And once the marriage legally occurs in one state, it's legal everywhere in the U.S.

Take the case of two married couples from Iowa, one same-sex, one opposite-sex. Both couples, say for reasons of employment, end up moving to Arizona. Do you think Arizona can say that the second couple is married but the first is not? I'm sure there will be some test cases over the next few years, especially in states that changed their constitutions to deny gay marriages, but they won't be upheld. Those states can't deny the laws of the states where the marriages took place. The U.S. Constitution doesn't allow it.

In fact, it's already been tried at least once. A same-sex couple, legally married elsewhere, was now living in (I believe) Texas. The couple wanted to get a divorce. The state where they now lived tried to say that they couldn't get a divorce there because it didn't consider them legally married in the first place. The court refused to buy that argument, and said the couple had to use the exact same legal procedure as all other married couples in the state. The state had to recognize an out-of-state marriage so it could be dissolved. That's exactly what should be incorporated in the phrase "marriage equality"--even in dissolution.

Justice Kennedy's decision did not say that every state must allow same-sex marriages to take place. Quite the contrary; his argument was based firmly on states' rights, and states have the right to decide who can get married inside their borders. But states don't have the right to overturn the laws of other states. If one state says a couple is married, another state can't say, "Oh no they're not."

How will this play out in the future? Well, for a while the hard-headed conservatives will stick to their bigotries and refuse to let same-sex couples get married within their states. And, as in the case of New Yorkers who eloped to a nearby state without the waiting period, gay couples will elope to states that allow them to marry, then return home again, legally married--and there's not a damn thing the home state can do about it.

This is a cumbersome, expensive, and unfriendly solution. Many same-sex couples will have trouble affording the trip elsewhere, and many will miss out on having their friends and loved ones present at the ceremony. That will be painful. But there will be enough determined couples that the home state's  same-sex married population will grow continually. (And meanwhile the home state's wedding industry--florists, formal-wear rental agencies, photographers, caterers, wedding chapels, etc.--will be losing money to their counterparts in more enlightened states.)

It will take years, possibly even decades, before the diehard old fossils realize they're fighting a losing battle. (I believe there are still places in the country that cling to "dry" laws from Prohibition times.) The evil, bigoted laws will quietly be repealed. As has been the case with laws against interracial marriage, fifty years from now people will wonder what all the fuss was about.

But in the meantime, the decision to declare DOMA unconstitutional has guaranteed that the acceptance of same-sex marriage will become the unquestioned and inevitable law of the land.

1 comment:

  1. Thank you. About time logic prevails.