Why don't we already have gay marriage in all of America?
I mean this as a simple question of law, not a matter of fundamental rights or justice. The reason I ask is because we already have legally recognized gay marriage in Massachusetts and Connecticut, and because Article IV of the U.S. Constitution contains the following clause, commonly known as the Full Faith and Credit Clause:
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.
The language of the clause is clear and unmistakable: any act or judicial proceeding that's valid in one state must be legally recognized by the other states. Marriage is a government act and comes under this definition, so why aren't all the states required to recognize gay marriages performed legally in Massachusetts? Even if they refuse to issue marriage licenses to gay couples, they have no grounds to deny the validity of a marriage license issued elsewhere, nor to refuse couples with a valid marriage license the same benefits offered to any other married couple.
The obstacle usually cited is that Congress already passed (and, disappointingly, President Bill Clinton signed) a law called the Defense of Marriage Act, which forbids the federal government from recognizing gay marriage and grants an exemption to any state which does not wish to do so. But a simple law passed by Congress can't overrule the Constitution, nor can the mini-DOMAs that many states have enacted on their own. DOMA is plainly unconstitutional, and it should be a no-brainer decision for any court to strike it down. I can't see how even a conservative court, especially one allegedly committed to textual originalism, could avoid coming to that conclusion.
The second sentence of the clause offers no support for DOMA. It says that Congress may prescribe how the validity of a state proceeding is to be proven, but does not give a blanket grant of power for Congress or other states to completely refuse to recognize a valid proceeding. (Analogously, the Constitution gives the government the right to impose some reasonable conditions on firearms possession - "a well-regulated militia" - but not the right to ban gun ownership outright, as the Supreme Court ruled in District of Columbia v. Heller). To read the clause in that sense would completely strip it of meaning and is an unreasonable interpretation by any measure. (Law professor Joanna Grossman agrees, calling such a reading of the clause "perverse").
Admittedly, this clause does give Congress the right to legislate what the effects of such recognition shall be. This conjures up the scenario of a legal contortion where gay marriage is "recognized", but offers none of the benefits or privileges usually associated with marriage. However, I don't think that scenario could ever come to pass. For Congress to grant the states a license to withhold benefits from gay couples, but not from heterosexual couples, would be a clear violation of the equal protection guarantees of the Fourteenth Amendment and would run counter to decades of clear Supreme Court jurisprudence. Again, I can't see even a conservative court engaging in such a sweeping negation of precedent by ruling otherwise. The religious right could obtain a Pyrrhic victory by stripping the benefits of marriage from all couples, gay and straight alike, but I doubt they'd consider that outcome a desirable one.
This seems like fertile ground for some enterprising civil liberties group to bring a federal lawsuit, but I haven't heard of any constitutional challenges being filed against DOMA. What's holding us back?
The stark fact that the Court would fudge the law in order to rule against homosexuals anyway. Sure, it would be the biggest travesty of an opinion since Bush v. Gore, but do you really think that would stop them? The current justices' commitments to religions that demand the definition of marriage remain narrow exceed their commitments to the law and the Constitution. Knowing that, the ACLU etc. don't want to bring the suit now and have an unfavorable precedent set.
Also, if sexual orientation discrimination were federally recognized as a violation of the Fourteenth Amendment (the way the MA and CA supreme courts decided under similar state constitution language) DOMA *and* state bans on gay marriage would both be unconstitutional completely independent of the FF&C argument. The SC will find some way to weasel out of this conclusion if the issue is placed before them - probably finding that marriage discrimination has a "rational basis", even though in reality, its basis is clearly irrational.
If you're not a bitter cynic about a court where Souter can be mistaken for a liberal by comparison with the rest of the bench, you just haven't been paying attention. The first act of Congress Obama signed into law, the Ledbetter Fair Pay Act, was only necessary because the Roberts Court had taken an equally, if not more, strained construction of existing civil rights law, for example.
Comment #1 by: Chris | February 4, 2009, 7:48 am