Upping the Stakes

Thursday, February 24, 2005

Upping the Stakes

Get ready for another blockbuster on marriage equality from the Massachusetts Supreme Judicial Court. The decision won't come down before late 2005, and (I would guess) will more likely arrive about a year from now. But it's the next big shoe to drop in the Hate Amendment debate.

Opponents of marriage equality obviously don't want same-sex marriage to be legal anywhere. But even if it is legalized in Massachusetts, they want to draw the line at that state's borders: they don't want other states to have to recognize same-sex marriages performed in Massachusetts. That was one of the two main functions of DOMA (the other being to ensure that the federal government would not recognize the marriage of a same-sex couple).

So far, the question of how legalization in one state will affect other states is largely unanswered. Some people think DOMA is enough to excuse states from granting "full faith and credit" to same-sex marriages in other states; other folks (including some DOMA supporters) think that it's at least arguable that the full faith and credit part of DOMA will be held unconstitutional. One of the stated purposes of "mini-DOMAs" and Hate Amendments in other states is to establish that same-sex marriage violates a particular state's fundamental public policy, bolstering the argument that the state doesn't have to give full faith and credit to a Boston marriage.

Against that backdrop, the SJC has agreed to review a challenge to the 1913 Massachusetts law that prohibits marriages in Massachusetts between non-residents if the marriage would be illegal in the states where the non-residents actually reside. In other words, two men from Pennsylvania can't go to Massachusetts for the weekend and get married.

Same-sex couples from various states, plus a handful of county clerks in Massachusetts, have sued to strike down that law. The trial judge ruled in favor of the state (i.e., it upheld the law), and the couples and clerks appealed. The SJC has agreed to hear their appeal in September.

If the SJC strikes down the law, I think it could give a shot in the arm to the now somewhat moribund drive for a federal Hate Amendment. Recall that proponents of that odious proposal have quite often mischaracterized it in one of two ways: it would just stop courts from imposing same-sex marriage against the will of the legislature and people; and it is needed to protect sister states from having to recognize same-sex marriages because DOMA might be held unconstitutional without it. Of course, the amendment as proposed would ban all same-sex marriages in every state, no matter how much the legislature or the people of that state wanted it, so it goes well beyond either of those two limited purposes.

But the rhetorical value of protecting Virginia from having to recognize Massachusetts marriages is considerable, and folks in red states who think their own state would never legalize same-sex marriages might become agitated if they thought that blue states were going to be able to force it on them. If the SJC strikes down the law, expect it to boost the intensity of the push for a federal amendment and to provide a rallying point for social conservatives heading into the 2006 midterm election. On the other hand, if even the court that legalized same-sex marriages upholds a ban on marrying out-of-staters, that will provide a rhetorical advantage for Hate Amendment opponents, who will say that the concern about one state's setting policy for the country is overblown (this will also be a misleading and overbroad argument, but it will be made; intellectual dishonesty isn't the sole property of the right).

Last point: I found this bit of the article interesting. It came as news to me, though maybe others already know this:
Critics of the 1913 law argued that it was drafted to block interracial marriages, but Ball [the trial judge] rejected that claim in her ruling. She wrote the attorney general's office had offered credible evidence that the law was passed "to prevent evasion of existing divorce laws, not the limitation of interracial marriages."
Since the last round of full faith and credit litigation over marriage (in the mid-20th century) involved whether states like New York and North Carolina had to respect "quickie" divorces from Nevada, the judge's conclusion does not sound implausible to me on its face.

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