Where a state has no specific statute preventing recognition of out-of-state same-sex marriages, courts could decide to recognize California marriages. The typical rule of recognition is that a marriage valid where contracted is valid everywhere. There are, however, important public-policy exceptions to that rule that are relevant where recognition would completely overturn the understanding of marriage in the state. Again, only time will tell whether judges in these states will respect that understanding — and recent history suggests that there will always be judges sympathetic to the project of remaking marriage.
States with marriage amendments or statutes will deny recognition, but same-sex couples that marry in California will now have standing to challenge those laws. Where there is a statute but no amendment, state courts may decide the matter; but there may also be a move to take this issue into the federal courts with arguments that state laws and amendments preventing recognition violate the U.S. Constitution. A same-sex couple married in California but denied recognition in their home state would presumably also have standing to challenge the federal Defense of Marriage Act. That Act provides that a state need not recognize another state’s same-sex marriages.
Although they believe same-sex marriage should be mandated by the federal Constitution, advocates of marriage redefinition have assiduously avoided federal courts on strategic grounds. Specifically, their concern is that they are less likely to succeed in the federal courts and may create unfavorable precedent for a later case. Personnel changes on the U.S. Supreme Court or other developments may change that calculation, though, and the California decisions sets the stage for a federal lawsuit when activists are ready to try and federalize same-sex marriage.
Despite the court’s blatant disregard for their opinion, California voters will be able to respond in November. Voters in Florida will be voting on a similar amendment. A proposed amendment in Arizona might also be on the November ballot — although it appears to be bottled up in the legislature for now. Perhaps the imminent threat from California might provoke some movement there and in other states.
Recent events in California seem to guarantee employment for lawyers across the country in the foreseeable future. But what is good news for lawyers is not always good news for society, and in California now, it’s definitely bad news for marriage.
– William C. Duncan is director of the Marriage Law Foundation.