A Stitch in Haste

Now that (or “for the time being”) roughly 13% of the population lives in states with same-sex marriage (and another 6% lives in a state that does not offer but nevertheless recognizes gay marriage), the question is emerging in earnest whether the full faith and credit “nightmare” scenario of the anti-gay bigots will inevitably follow suit: What happens when, for example, a bona fide California married gay couple decides that they would rather be a bona fide Nevada married gay couple? What rights do a Massachusetts gay couple have whilst residing in their winter home in Florida? And so on.

Two real-world stories and one hypothetical for your consideration —

ITEM: Massachusetts legislators are preparing to vote on repealing that state’s 1913 law banning outsiders from marrying in Massachusetts if they could not marry in their own state (for background see this old post or this one). The statute was originally enacted to thwart interracial marriage. Note that California has no such law, so any out-of-state gay couple now has the option, for a while at least, to legally marry there, even if that marriage would not be recognized in their home state.

ITEM: Here’s a trick question. When is having your gay marriage recognized in your home state a bad thing? The answer: when your home state recognizes it — as a crime:

When Dick Myers heard that California was going to start issuing marriage licenses to same-sex couples, he and his partner of nearly 13 years considered traveling there to get married.

That is until Myers and his partner, Steve Brondino, learned of an obscure state law that makes it a crime for Wisconsin residents to enter into marriage in another state if the marriage would be prohibited here. The law imposes a penalty for those who enter into a marriage that’s prohibited or declared void in Wisconsin of up to $10,000 and nine months in prison.

Like the Massachusetts statute, the Wisconsin law was a sledgehammer approach to a specific concern — underage couples trying to marry in another state. Even a leading anti-gay Wisconsin legislator, one of the authors of that state’s bigot amendment (a particularly cruel “no nothing never” version, incidentally) admits that the law couldn’t be properly applied to a gay Wisconsin couple, since it would be impossible for them to hold out their marriage as valid in Wisconsin the way an underage straight couple could. That of course doesn’t mean that some activist prosecutor in some hick Wisconsin backwater couldn’t try to apply the law improperly. The result is that at least some Wisconsin gay couples are refraining from exercising their prerogative to at least symbolically marry in California. In any case, the basic principle that a state may not export its criminal law into another state (i.e., Wisconsin may only punish conduct occurring within Wisconsin and not in California) would seem to preclude criminalizing the mere act of “gay marrying” in another state without some attempt to utilize that marriage status in Wisconsin itself.

ITEM: A legal commentator, Steve Sanders, steps back from the state specific details, meanwhile, and suggests a way to summarily void all these impediments to exporting gay marriage across state lines —

While it is one thing for a state to decline to create a same-sex marriage, it is something quite different for a state to insist on its power to break up an existing legal relationship. Even if same-sex couples in most places have no right to get married, by what logic does it inevitably follow that they should have no right to remain married?
…
I do not intend to argue that the Constitution gives same-sex couples a “right to marry.” Instead, my argument is that if a same-sex couple already lives in a state that’s willing to license their marriage, then they simply have a right to remain married if they subsequently move someplace else. In terms of constitutional doctrine, the Fourteenth Amendment’s due process clause gives the couple a liberty interest in the ongoing existence of their marriage.
…
An enforceable, due-process-based place-of-celebration rule meets the test for a fundamental right the Supreme Court’s set forth in Washington v. Glucksberg [521 U.S. 702 (1997)]: it is “deeply rooted in this Nation’s history and tradition” — so deeply rooted, in fact, that every state observes it, and the vast majority of Americans have the luxury of taking it for granted. [Underline in original.]

Unfortunately, Sanders is simply wrong on that last point, as the Massachusetts and Wisconsin statutes sadly illustrate. And convincing a court that the “public policy exception” to full faith and credit (see my previous post) is summarily trumped by a purported Fourteenth Amendment “liberty interest in exporting one’s gay marriage” (i.e., even into a state with a bigot amendment) is hardly a “Glucksberg no-brainer.” Even I would not sign on to a such a decision, which in essence would mean that whichever state had the most lax marriage laws would end up setting marriage law for the whole nation (much as Delaware essentially sets corporation law). While I think that such a argument is plausible, I do not think it is any more likely to prevail than direct challenges to gay marriage bans based on the fundamental right to marry established by Loving v. Virginia* and confirmed by Zablocki v. Redhail**, or the newly reborn quest for suspect-class heightened scrutiny for sexual orientation discrimination in the wake of In re Marriage Cases (see my previous post). So while Sanders is to be saluted for his gay-friendly jurisprudential creativity, I don’t see much of a future for his proposal.

*388 U.S. 1 (1967)
**434 U.S. 374 (1978)

Filed under: Constitutional Issues, Gay Rights and Issues, Law Enforcement Abuses, Libertarianism, Society, Religion, Culture Wars