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The Illogic of Wondrous Rigors



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Mike, let’s not confuse Rachel Maddow with Aristotle. The latter would find nothing contradictory in the codification and enforcement of two different rules of marriage in two different states. He would ask what is it that makes a state a state and conclude that sovereignty is one of the core elements. In the United States, all states are sovereign. Although the Constitution provides that states must give “full faith and credit” to each other’s “public acts, records and judicial proceedings,” there is a “public policy exception” which holds that states are not required to void their own statutes — the expressions of a sovereign’s public policy — in order to accommodate the conflicting statutes of other states. 

What would the non-contradiction principle say about the anomaly that, in your example, the state of Utah, on behalf of its citizens, exercises sovereign authority over all governmental affairs within the state except with respect to marriage of same-sex couples from New York? And when, say, Michigan starts recognizing sharia-endorsed polygamous marriages, will Texas have to green-light that, too, in deference to Ms. Maddow’s “principles of reason”? Is it really impossible for Ahmed and wife No. 4 to be married and not married at the same time, depending on whether they happen to be living in Cairo or Charleston?

One of the major arguments made by DOMA opponents, one that Justice Kennedy & Co. kinda sorta clutched at in their incoherent, result-driven opinion, is that marriage in our federalist system is a state law matter. As Ed Whelan and others have pointed out, there is nothing inconsistent in accepting that states are supreme in regulating marriage within their jurisdictions and holding that Congress may define marriage to the extent marriage status is relevant to federal law (e.g., for federal tax purposes). But the proposition that states may make their own marriage policies, in accordance with the mores of their own citizens, should be inarguable. (I say “should be” because it is clear to me that Justice Scalia is quite correct in observing that the Kennedy majority opinion in the DOMA case lays all the necessary groundwork for the imminent imposition of gay marriage on the states by judicial ukase.) There is nothing contradictory in recognizing that sovereignty allows different sovereigns to have different policies about many important things, and that if you choose to live in a sovereign state it is with the understanding that you will do so subject to its public policy.

On that score, married couples all over America make difficult choices involving work all the time — an economy in which both spouses typically work and cross-country transfers are common makes it inevitable that married people will have to make tough decisions about transfers that would uproot families and force the other spouse forfeit his or her job. Many decide that the marriage is more important than the job and stay put. Why can’t the same-sex New York couple decide that marriage is important enough to them to decline the transfer to Utah? I am not suggesting this is painless, but why should the same-sex couple’s interest in a novel arrangement recognized in few states outweigh the people of a sovereign state’s interest in preserving a traditional arrangement that has been the building block of civilization? 



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