November 19, 2003
The MA Ruling:
What did the court actually do?: The Massachusetts Supreme Court court said to the state legislature, and I quote, “This whole only-straight-people-get-the-pretty-cake business is a load of bull-honky.” They gave the legislature 180 days to create a civil marriage status for gays with the exact same legal rights and privileges as heterosexual marriage.
What could happen next?: The Mass. legislature has two choices — 1) Suck it up and do what the court told them to. 2) Create a constitutional amendment codifying marriage as being between a man and a woman, nullifying the court’s ruling.
What happens if they choose Door #1?: Gay people in Massachusetts get married, they move elsewhere, and immediately begin testing the other states’ bans on gay marriage, through the Full Faith and Credit clause of the Constitution.
What’s the Full Faith and Credit clause?: It says that every state must recognize the “public acts, records, and judicial proceedings” of every other, but that Congress is free to make “general laws” regarding the “effect” of these acts.
What does that mean?: In 1996, Congress passed the Defense of Marriage Act (DOMA, or as one wonderful law professor nicknamed it: Dumb and DOMA), which said that no state has to recognize the “effect” of another state’s gay marriages.
But is that Constitutional?!: Many think it’s not, but we’ll see. What might happen is that a couple gets married in Mass. and moves to another state where their marriage isn’t recognized. Then they challenge the state in court, and the state uses DOMA as a legal defense. Then, they challenge DOMA, and that challenge winds its way towards the Supreme Court, which ultimately decides if DOMA’s constitutional or not.
A gay couple gets married and divorced in Mass. Their divorce involves splitting assets that are under another state’s jurisdiction. Since divorce is a judicial proceeding, it has more legal sanctity under Full Faith and Credit than a legislative act, and that other state might be forced to fulfill the terms of the divorce, essentially recognizing the marriage.
So what if they choose Door #2?: Well, they’d have to wait three years before doing that, because in Massachusetts, state constitutional amendments must be approved by two consecutive legislatures.
But that could happen, right?: Chances are, a horde of Mass. state legislators are already drafting the amendment. But three years is a looooong time for an issue to be on the table, considering America’s shooooort attention span. And if the legislature responds to the court’s mandate and gives these couples marriage licenses in the next six months, and the people who are against gay marriage gradually begin to realize that The World As We Know It has not ended, support for the constitutional amendment is going to dwindle.
What’s the difference between this and Vermont’s ruling in 1999?: Vermont basically gave gay people Marriage Lite. VT’s civil unions have most, but not all, of the protections and privileges of marriages, and, most importantly, aren’t recognized by any other state. The civil marriages that the Mass. court is demanding would ostensibly have to be recognized by other states.
Anything else we need to know?: Regardless of how you slice it, there’s a years-long legal battle ahead. Even if the legislature does the right thing and chooses Door #1, the resulting legal challenges to other states’ laws and to federal law will take years to resolve.
What does this portend for the ongoing political battle?: This is an issue that favors the Republicans in the short term, and the Dems in the long run, as long as the Dems have the sense to actually grow a spine about the deal. No matter what anyone thinks, in 20 years, we’re going to look like homo erectus for even still having to discuss the legal rectitude of gay marriage; and if the Dems position themselves on the progressive side of this issue now, they spare themselves massive agita later. But I’ll post more on this.