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The Right Balance
When it comes to gay marriage, it's going to be all or nothing.


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Stanley Kurtz

The storm that will break over America after but a single state legalizes gay marriage will surely be a moment of decisive cultural reckoning. In the wake of that first legalization, the battle over gay marriage will be characterized by rapidly escalating confrontation, followed by a radical, nation-wide resolution. It’s too soon to tell which way the battle will go, but it’s clear that a patchwork solution — gay marriage legalized in some states but forbidden in others — is next to impossible.

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That’s not how Andrew Sullivan and Jonathan Rauch see it. These respected Washington journalists and long-time advocates of the “conservative” case for gay marriage maintain that supporters of the Federal Marriage Amendment (which defines marriage as a union of a man and a woman) are unreasonably panicked by the idea that legalization of same-sex marriage in a single state will lead to an imposition of the practice on the nation as a whole. Rauch goes further and accuses supporters of the Federal Marriage Amendment of being “disingenuous.” Opponents of gay marriage, claims Rauch, are hiding a decidedly un-conservative, anti-states’ rights position behind their groundless claim that judicial activism in a single state could easily lead to a national mandate for gay marriage.

Sullivan and Rauch are mistaken. There is every reason to fear that a legal mandate for gay marriage in but a single state will quickly result in the imposition of gay marriage on the nation as a whole. A federal amendment defining marriage as a union of a man and a woman is the only way to prevent this. And far from being an attack on states’ rights, the Federal Marriage Amendment is faithful to the principles of federalism — so faithful that the proposed amendment has already come under sharp attack from the conservative Family Research Council, precisely because it does not deny states the power to confer benefits upon homosexual couples. So on federalism, the Federal Marriage Amendment sits comfortably between the extreme and untenable positions of its critics on both the Left and the Right.

Yet according to Jonathan Rauch, conservatives have no reason to fear a national imposition of gay marriage. After all, Rauch claims, in 1996, Congress and President Clinton “foreclosed [the] possibility” of an imposed national solution by passing DOMA (the Defense of Marriage Act), which holds that no state need recognize a same-sex marriage performed in another state. And besides, says Rauch, three dozen states have passed pre-emptive legislative bans on gay marriage — almost 75% of the way to a national ban.

Yet it’s difficult not to think that it’s Rauch who’s being disingenuous here, since he surely knows, yet neglects to mention, that a veritable army of gay-rights advocates are poised to challenge the constitutionality of the Defense of Marriage Act, and of the various state bans. And after the legalization of same-sex marriage in even a single state, these legal legions will offer multiple arguments for imposed national recognition of gay marriage. David Coolidge, of the Marriage Law Project, puts it this way:

The major gay rights organizations have vowed to litigate everything — DOMA, civil unions, recently passed marriage amendments. We should take them at their word. They will throw in the constitutional kitchen sink. To the extent possible, they will select federal or state courts that are sympathetic to their cause, and it only takes one or two courts to throw everything up in the air.

Yet this is precisely what Andrew Sullivan denies. Sullivan claims that judgments legalizing gay marriage in a given state will have little effect on any other. Specifically, Sullivan takes issue with my claim that the U.S. Constitution’s Full Faith and Credit clause, (which hold that states must recognize the public acts, records, and judicial proceedings of other states) has the potential to override DOMA and force states that don’t recognize gay marriage to accept marriages celebrated in states that do.

According to Sullivan, anyone who reads the constitutional law section of his anthology, Same-Sex Marriage: Pro and Con, will see that supporters of the Federal Marriage Amendment are downright hysterical to claim that gay marriage in one state might force gay marriage onto another. After all, as Larry Kramer (the law professor, not the playwright and AIDS activist) argues in Sullivan’s reader, existing law already permits states to disregard a marriage performed in another state if that out-of-state marriage violates a clearly stated “public policy” of the first state. This “public policy exception,” insists Kramer (and following Kramer, Sullivan), is fully capable of protecting the right of a state to nullify same-sex marriages performed elsewhere.

Unfortunately, Sullivan’s assurances to conservatives are utterly unreliable. For one thing, Sullivan omits to mention that, in addition to Professor Kramer’s piece, his anthology is filled with articles suggesting legal scenarios by which a single state’s approval of gay marriage might result in the imposition of the practice on the nation as a whole.

But it’s worse than that. Even Professor Kramer’s law-review article — the very source of Sullivan’s claim that gay marriage will not be imposed by one state upon another — gives us very strong reasons to fear that exactly the opposite is true.

While Professor Kramer does indeed maintain that, under existing law, states may make use of the “public policy exception” to invalidate marriages performed in other states, Kramer also agues that the “public policy exception” is both nonsensical and unconstitutional. So whereas Sullivan points to Kramer’s law-review piece as evidence that the Full Faith and Credit clause poses no threat to either DOMA, or to “states rights,” the truth is exactly the opposite. Professor Kramer himself is actually an energetic advocate of the view that the very protections Sullivan is pointing to are unconstitutional, and therefore can and should be abolished.

It gets worse. Even Kramer’s assurances that existing law protects states against imposed gay marriage are anything but solid. For one thing, Kramer notes that legal advocates for gay marriage might very well succeed in persuading courts or legislatures to construe the “public policy exception” narrowly enough to force cross-state recognition of same-sex marriage. Kramer’s guess that these liberal successes will be relatively rare is — as he makes clear — a political judgment. But Kramer was writing almost five years ago, well before Vermont’s state supreme court mandated civil unions. If Kramer believed five years ago that a legal way around the “public policy exception” existed and might succeed in selected state courts, how much more do we have to be concerned about that legal maneuver now that the political climate has liberalized still further?

But the deeper issue raised by Kramer’s piece, and by the rest of the articles in Sullivan’s anthology, is the sheer impossibility of maintaining a state-by-state patchwork in the matter of gay marriage. While Professor Kramer is emphatic that the “public policy exception” is existing law, he also makes it clear that such exceptions are virtually never used — even when they are clearly embodied in statutes. In other words, even when they have a clear legal right to reject the legitimacy of marriages contracted in other states with different marriage laws, states almost never actually do so.

As a general matter, every state in the United States recognizes, and has always recognized, the validity of marriages celebrated in all the other states. There’s a good reason for that. Any other policy would lead to social chaos and an effective breakup of our federal system. Federalism is only partly about states’ rights. Federalism also requires that, whatever their differences, the states be transformed from separate sovereignties into a single nation.

Without the assurance that a marriage contracted in one state would be valid in another, our travel, and our legal-financial dealings would be thrown into a state of chaos. Imagine going on a cross-country vacation with your spouse and not knowing whether your marriage would be considered legitimate in a given state.

The truth is, there is simply no precedent for the national confusion that would follow on the acceptance of gay marriage by only a few states. Professor Kramer can argue that existing law would technically permit such a patchwork, but in practice, it’s never been tried. Sullivan points to national differences in miscegenation law as precedent for such a patchwork. But as another piece in Sullivan’s anthology makes clear, there have been only two cases in American history where a state that had banned miscegenation was forced to consider recognition of a mixed-race marriage, where the couple in question would actually reside in the state. (Mixed race marriage was rare, even in the North.) And despite an admitted “revulsion” at mixed race marriage, and a clearly stated conviction that miscegenation endangered civilization, in one of the two cases, the court actually recognized the racially mixed marriage. Why? Because the horror of miscegenation was outweighed by the fear of social chaos if parents and children could not be assured of their own legitimacy as they traveled from state to state. And the arguments over those cases took place over a hundred years ago, long before the automobile, telephone, and Internet shrank the country.

That is why, when it comes to gay marriage, it’s going to be all or nothing. Whatever current law technically is (and despite Sullivan’s assurances, that is by no means clear), a state-by-state patchwork of radically distinct marriage practices is unprecedented, untenable, and profoundly anti-federalist. Whether “conservative” advocates of gay marriage actually believe that such a patchwork is workable, I cannot say. But the idea of selective, state-by-state gay marriage is a fantasy.

As soon as even a single state legalizes same-sex marriage, the nation will be plunged into a furious legal, political, and cultural struggle. The bitter and ongoing polarization in even an exceedingly liberal state like Vermont is a clear foreshadowing of the conflict to come. As legal and political battles over traveling couples spread from state to state, the chaos will multiply and the courts, already inclined to mandate same-sex marriage, will grow increasingly receptive to arguments that the Full Faith and Credit clause demands national gay marriage. And the even stronger arguments for nationally mandated gay marriage under the Constitution’s equal-protection clause will also find favor with the courts.

Meanwhile, the drive for a Federal Marriage Amendment will quickly be transformed from an apparently unlikely crusade into the hottest issue in the country. As we saw in Hawaii, but this time on a national scale, a race between the liberal courts and a popular movement to amend the Constitution will ensue, with the final victor uncertain. But one thing’s for sure — one side or the other is going to win this one. It will be gay marriage everywhere — or nowhere.

Yet precisely because the Federal Marriage Amendment respects our federal system, that may not be the end of the matter. The amendment will still permit individual states to confer benefits short of marriage on homosexual couples. Because the conservative Family Research Council abhors such a possibility, they have criticized the Federal Marriage Amendment for not forbidding states to assign any benefits whatever to homosexual couples. Worries that liberal states may offer homosexual couples civil unions equivalent to marriage in all but name are justified. But out of respect to our federal system, the backers of the Federal Marriage Amendment understand that such battles will have to be fought democratically, on a state-by-state basis. An outcome in which some states offer limited partnership benefits to homosexual couples is a likely compromise, if imperfect in the eyes of both sides.

This intractable problem exists to begin with because the Founders took heterosexual marriage for granted. If they’d imagined the problem, they would surely have written heterosexual definitions of marriage into state and federal constitutions. But now that our cultural consensus on the meaning of marriage has been lost, we’re forced to craft an imperfect compromise. We need to do what is minimally necessary to insure consistent national law, while allowing for the possibility of greater variety in our domestic arrangements than the Founders would ever have thought possible or wise.

True federalism demands that we strike a balance between the rights of states in a culturally divided nation, and the social chaos that would inevitably follow if married couples could not rely on their married status as they moved from state to state. The Federal Marriage Amendment strikes that balance.



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