Married in California…Married Anywhere Else?

I kind of scratched the surface of beginning a discussion about gay marriage on LWY’s blog the other day.  Obviously, it was spurred by the recent decision by the California Supreme Court that essentially decided that it was unconstitutional to deny gays the right to marry, which was decided as a fundamental right, and deny them any of the rights and privileges of other married couples.  The court also decided that from now on, discrimination based on sexual orientation would be a suspect class and subject to strict scrutiny (an argument I made almost two years ago, by the way):

The majority opinion, by Chief Justice Ronald M. George, declared that any law that discriminates on the basis of sexual orientation will from this point on be constitutionally suspect in California in the same way as laws that discriminate by race or gender, making the state’s high court the first in the nation to adopt such a stringent standard.

The argument wasn’t so much about the right or wrong-ness of same-sex marriage, but about how this will play out in the future.  LWY said that marriage is, and should stay, a local concept, and that the federal government should stay out of it.  I agreed to an extent, but pointed out a problem with this idea.  Namely, the Constitution of the United States and a federal law called DOMA.

First, let’s get to DOMA. (I’m writing this in reverse order, essentially, to build the suspense.  If this was a law school paper, I would lead with the Constitution.)

DOMA is the Defense of Marriage Act (28 U.S.C. § 1738C), signed into law in 1996 by President Clinton.  It says:

1. In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

2. 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.

What is basically says is that marriage is between a man and a woman and that one state doesn’t have to recognize a same-sex marriage from another state.  Case settled, you say.

Well, no.  Not exactly.

You see, Article IV of the Constitution says:

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.

Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

Section 1 is generally known as the “full faith and credit” clause.  What it essentially means, in the context of this argument, is that if you get married in one state, the rest of the states must acknowledge and respect that marriage.

So how does DOMA jive with Article IV?  It doesn’t.  I can’t think of a single argument that could support the constitutionality of DOMA.  I know Nephtuli (who told me this by email) wrote a note on the constitutionality of DOMA, so I’d be curious to see what arguments he came up with.  And I know that there have been a couple of minor challenges to DOMA (mostly in Bankruptcy courts) that have upheld it (mostly as a dodge, that the Bankruptcy judges were not mixing into this one).  But it’s not been challenged in SCOTUS.  And it will be, soon.

I have no doubt that a test couple if going to get married in California and move to, say, Nebraska, where gay marriage is not recognized, and gay couples are specifically not given the rights of married couples.  Then, they will apply for something or other, whether it’s to file a joint tax return, or request benefits, or for hospital visiting hours, or something tied to marriage, and it will be denied.  And the couple will sue to have the State of Nebraska or whoever else recognize their marriage, and the case will hinge on DOMA and Article IV.  And it’ll eventually get to a Circuit Court and a cert petition to the Supreme Court.  And then the Justices will have to settle the issue.  (Unless the voters in California vote to amend the California constitution, then this will be all moot.)

And they can, without even getting into the Privileges and Immunities clause of Section 2 of Article IV, and what it means for denying to homosexuals rights that are granted to other citizens.  And that’s without even having to get into Equal Protection and declaring sexual orientation a suspect class (something I wish the Supreme Court would do, but am not rosy about those chances).  They can overturn DOMA simply because DOMA is the kind of law that Article IV of the Constitution was designed to protect against.

Like I said, I can’t see a valid legal argument to suggest that DOMA doesn’t exactly and specifically contradict and run afoul of Article IV.  Hopefully, SCOTUS will see it that way, too.

Advertisements

24 responses to “Married in California…Married Anywhere Else?

  1. I am not going to spend the time giving myself a refresher on the full faith and credit clause but the argument by the DOMA side will be that you’re taking that clause too far. States can have rules and laws that won’t be protected by other states and which everyone would agree shouldn’t have to be protected by other states. This won’t be satisfying to you but I don’t want to take the time to think of a crazy example. I’m sure you can think of a wacky example. Let me know when you have one, please.

  2. States can have rules and laws that won’t be protected by other states

    While this may be true, how can that possibly be explanation enough? I’m not taking FFC too far. I’m taking it one step, where it was meant to go. It the burden of the law that violates the constitution to somehow show why that would be OK, not the other way around.

  3. The argument, by the way, (and I think it’s weak) is that marriage specifically is limited by the public policy exception. But there has to be a strong public policy against a specific marriage (the example generally is incest) in order for states not to have to recognize it. There is, and ought not be, any public policy argument against SSM.

  4. I didnt read the whole post yet, but just wanted to say I have no problem with what a man and another man do behind closed doors. So long as I am not that other man.

  5. There is, and ought not be, any public policy argument against SSM.

    Why not?

  6. EDS,

    Are you saying that you’re OK with being the first man so long as you’re not “the other man?”

    I know this is a close reading but it sure would explain a lot.

    I don’t have time to look at the content of this post in detail and will therefore pass on the constitutional analysis but any good constitutional analysis should cite Lopez and/or the Commerce Clause even if irrelevant.

  7. I know you hate to bring religion into these arguments but I can’t believe you said there ought not be any public policy against SSM. Does the word “to’eivah” mean anything to you? If the law changes w/r/t statutory rape, would it become less reprehensible to you in the cases of children who are, say, under the age of seven? Your boundaries on acceptability have been warped by a certain presidency. I say that seriously. Certain things are deemed wrong by the Torah. I am shocked that you can’t fathom why this might be deemed “abonimable,” let alone that you don’t just accept that it is problematic simply because the Torah says it is. The Torah doesn’t say you are prohibited from doing this. It says it’s abonimable.

  8. Noyam – can you remind me – what level of scrutiny does the Supreme Court give to laws that discriminate on the basis of sexual orientation? Because the Court could always take a different tact and reverse the California ruling.

  9. Also, Noyam… any way you can make the font bigger?

  10. Sorry for three posts in a row. I didn’t read the full California ruling. Did the court say that the discriminaton violated the California consititution, or the US Constitution?

  11. Noyam – There is, and ought not be, any public policy argument against SSM.

    That statement imposes your values on other people. While I agree with your values, I don’t think you can impose them on people in other states. That’s a local decision to be made consistent with local customs and values.

    This discussion is leading nowhere, because ultimately I’m going to say there is no constitutional right to same sex marriage, and you’re going to say that there is. And my argument is going to be that the authors and ratifiers of the constitution could not possibly have included same sex marriage as a constitutional right, because they never heard of such a thing. And your argument will be that that doesn’t matter. And we’ll hit a dead end. You’re welcome for saving us all the time and aggravation.

  12. Ezzie: Why yes? I don’t think there is because I don’t think there’s anything harmful about it (as opposed to incest, which is biologically bad).

    Adam: Re: the values, yes and no. There are many values that at one time or another certain states have had, and yet they’ve been determined by the court to be “bad” and therefore not worthy of protection, (see Loving v. Virginia). So while that may be my personal value, it’s not out of line to call for the court to protect it.

    As for the framers argument, you’re right, they likely could not have envisioned same sex marriage. but the same could be said for interracial marriage. Or freeing slaves, for that matter. or letting freed slaves vote. Or any other one of a million changed realities. That doesn’t preclude them from being true and protected.

    Last one for Adam: they decided based on the California constitution. See the decision here.

    YehudaArye: the Jewish religious implications are irrelevant to a discussion and contemplation of American law. Nonetheless, I think you are falling back on classic “anti-gay” arguments that aren’t as strong as you think they are.

    First of all, Does the word “to’eivah” mean anything to you? Actually, what the word “to’eivah” means is quite unclear. Some other things the Torah calls “to’eivah” that aren’t railed against quite as much: haughtiness, lying (Mishlei 6:16-18), idol worship (several places), using false weights (cheating in business) (Devarim 25:13-16). So what exactly does it mean to you? Do you rail about every Jew who does one of these that he/she is an abomination? Do you insist that people who aren’t perfectly honest in business not be allowed to attend their high school reunion in an Orthodox school? What about every instance of the word “sheketz” which has a similar meaning? Do you reserve such harsh words for people who eat shrimp? I’ve never heard it, if you have. Yet, that’s exactly the kind of treatment you reserve for homosexuals. Why the different standards? Why the old fall-back of “to’eivah, to’eivah” only with regard to homosexuality, but nothing else? Either use the word consistently or fairly, or open yourself up to being called a bigot. The fact is, “to’eivah” meant something different then than what we use abomination for today, and you can’t use the two words interchangably. And I am not so quick to cry out that homosexuality is, by virture of that one word, the worst sin in the torah, or worse than any other sin in its category. So, yes, in my opinion, the Jewish position on homosexuality is slightly more nuanced than perhaps yours is. I don’t think that’s a bad thing.

    Finally, If the law changes w/r/t statutory rape, would it become less reprehensible to you in the cases of children who are, say, under the age of seven? I’m not sure what you are even getting at here. In all seriousness, are you saying that all homosexuals are pedophiles? Or are you saying that my willingness to allow homosexuals the right to marry somehow means that I am permissive in all matters of sexuality, including pedophilia and pederasty? Because that’s an unfair and completely unfounded leap. If you can’t see the difference between consenting homosexual adults and pedophilia, then you are the worse off, not me. Even bringing that up is a complete strawman that adds nothing to the substance of the argument.

  13. The slaves analogy is a bad one. There were constitutional amendments for that

  14. There is, and ought not be, any public policy argument against SSM.

    Well there is. In fact almost 30 states amended their constituion to prohibit SSM. So I’d say that DOMA isn’t unconstitutional, as it falls within the public policy exemption.

    As a pragmatic matter, I can’t see the SC striking down DOMA and requiring FFC for SSM. That would in effect, allow a 1 person majority in in Massachusetts and California supreme courts to dictate social policy for the rest of the country. It’s not going to happen. And if it does, you’ll see a constitutional amendment version of DOMA.

  15. LWY, what each individual state does to its own constitution doesn’t create a public policy exemption for the federal government to enact DOMA. The public policy exemption allows one state not to recognize a specific judgment or marriage because it would violate that state’s own public policy. It’s not a general carve out for Congress to enact a law specifically in contravention of the Full Faith and Credit clause.

    And what you’re saying about a 1 person majority dictating social policy, that wouldn’t exactly be true. If SCOTUS finds DOMA unconstitutional, the next step would be for a particular state to bring an action that it’s own policy could provide it protection from another state’s SSM. Then it might be up to the court to decide whether blocking SSM is a legitmate public policy to protect.

  16. And I think it would be exceedingly difficult to pass a constitutional amendment of DOMA.

  17. And I think it would be exceedingly difficult to pass a constitutional amendment of DOMA.

    Why? DOMA passed by a very comfortable margin. Almost 30 states have their own constitutional amendments barring SSM. All DOMA does is prevent using the FCC to impose SSM on other states. I think it could pass.

  18. Just looking at the FFC, it’s not so clear why you think DOMA is unconstitutional. The FFC states,

    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.

    Why isn’t DOMA permissable as per the bolded clause above? DOMA is a Congressional determination of the effect of the “acts, records, and proceedings” of SSMs around the country.

    It’s been a few years since I’ve looked at this stuff, but what am I missing?

  19. There is, and ought not be, any public policy argument against SSM.

    -Why not?
    by Ezzie


    Ezzie: Why yes?
    by noyam

    –Thank You, Noyam!

  20. LWY – Passing a bill and ratifying a constitutional amendment are vastly different. The latter is much more difficult.

    Nephtuli – The bolded clause refers to the manner in which “they are proved,” DOMA goes to the substance of the acts. That’s the difference.

    G – You’re welcome, I guess. 🙂 Not sure what you’re thanking me for.

  21. G – Note he gave a reason. 🙂

    Noyam – He hates my use of “why not” in general. I hate his use of “why yes”. In this case, I think the onus is on those who wish to change the status quo, which (regardless of right or wrong) currently has SSM as nothing. I don’t think that “there’s nothing harmful about it” is a particularly convincing argument, considering that it is a values argument far more than anything else. You’d need something a lot stronger than that, particularly to push it on other states as Adam noted above.

  22. Ezzie – that’s an interesting point, but I think it cuts the other way (at least the way I think about it). To use talmudic terms, in my opinion this is a case of ze nehena v’ze ain chaser, and, considering that one camp wants to deprive the other of rights, it’s akin to hamotzi ma’chavero alav hara’aya.

    Also, considering that the movement is to specifically define marriage as between and man and a woman, and to specifically amend constitutions to block SSM, I would argue that the status quo is the opposite of what you pose, and that the onus to being on those that wish to alter it rests the onus on those that wish to ban it.

    As with “pushing it on other states,” allow me to use an example to illustrate that this isn’t as bad as some make it out to be:

    consider that the age of consent to marry (without parental consent) is almost universally 18. Except in Mississippi, where it is 15 for a girl and 17 for a boy. If a 17-year-old couple marry, fully legally, in Mississippi, the FFC would assert that that union would have to be recognized in NY, even though NY would not have married them. That’s the point of the FFC (otherwise, in this situation, one of them could flee the jurisdiction to avoid marital obligations). NY has a policy reason to not allow those younger than 18 to marry. But MI can still “push” their younger age on other states. Something tells me this would not make you, LWY, Adam or Kenny quite as indignant, would it?

  23. considering that one camp wants to deprive the other of rights, it’s akin to hamotzi ma’chavero alav hara’aya.

    …except it’s not at all. The rights are currently deprived, and the onus is still on the SSM side to bring a ra’aya that those rights should be given.

    Also, considering that the movement is to specifically define marriage as between and man and a woman, and to specifically amend constitutions to block SSM, I would argue that the status quo is the opposite of what you pose, and that the onus to being on those that wish to alter it rests the onus on those that wish to ban it.

    Pre-emptive motions after seeing court rulings in other states that took the reverse position, right or wrong. The status quo is still against SSM.

    And no, I’d argue as strongly in that case that the other states should not have to accept the marriage from Mississippi.

  24. Nephtuli – The bolded clause refers to the manner in which “they are proved,” DOMA goes to the substance of the acts. That’s the difference.

    But it also says “and the effect thereof.” Is it the effect of the proof of the public acts, records, and judicial proceedings or the effect of the public acts, records, and judicial proceedings themselves? I guess that’s where the interpretation comes in.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s