Balkinization: Benkof on same-sex marriage

Benkof on same-sex marriage

Andrew Koppelman

David Benkof, in a post that appears on his own website and that of the Institute for Marriage and Public Policy, raises some interesting and important questions about interstate recognition of same-sex relationships, in response to my recent piece on the subject. I argued that, under normal and sensible choice of law rules, some states must recognize same-sex marriages sometimes, for some purposes. Benkof resists the conclusion vigorously, but in so doing actually helps my claims, by showing that to resist them, you have to (or, at least, he has to) reject basic concepts of federalism and choice of law.

Unfortunately, he muddles matters somewhat at the outset by bringing in the question about the role of judges in policymaking. It is true that the recognition of same-sex marriage in Massachusetts and California was mandated by the judiciary, and that domestic partnership legislation, with all the rights of marriage, was ordered by courts in Vermont and New Jersey. But same-sex relationships also are legally recognized in Connecticut, Oregon, and New Hampshire, with no nudging by judges. The judicial-activism point is tangential to his main argument.

Benkof has a strange idea of how federalism works. He proposes an agreement that “no state will implement same-sex marriage until it is passed at the federal level, or until states representing at least 50 percent of the population (instead of the present 14 percent) decide to implement same-sex marriage, at which point all states will recognize same-sex marriage.” Who would make this agreement? How would it be coordinated? It’s not even clear that same-sex marriage could be “passed at the federal level,” since states traditionally have had exclusive authority over family law.

He seems to think that it’s intolerable that any state have a different law on any important question than any other state, because then hard choice of law questions will arise. But choice of law problems are inevitable so long as the planet is divided up among different jurisdictions. They also are not new. There are clear answers to these problems. The sky is not falling.

He asks me whether I think Dred Scott is rightly decided. He’s a bit muddled about the issues in this case, which were not all choice of law issues (his quotation from the case doesn’t speak to that issue, but to the very different one of whether African-Americans can be citizens of the United States), but his real concern is whether free states had an obligation to recognize slavery. I talk about that question a bit in my book, Same Sex, Different States, pp. 69-81. The bottom line is that we’re not willing to apply choice of law analysis here, because we can’t tolerate federalism with respect to slavery. The Southern states were not entitled to be slave states. The institution of slavery had to be destroyed, by military means if necessary. However, almost nobody thinks that this is true of same-sex marriage. Even the most vigorous opponents of same-sex marriage have not proposed that we invade Canada to end the institution there.

Most choice of law issues are not as fraught as slavery. If Benkof thinks that the same-sex marriage issue is one of the extraordinary ones, in which states should absolutely refuse to cooperate with one another and make themselves havens for people trying to escape their obligations to their families, he should try to make that case, and then I’ll be glad to respond to it. But he needs to take responsibility for the nasty implications of what he is saying. Can someone married in Los Angeles safely run away to Chicago with the family’s assets? And what happens when someone from California is unexpectedly hospitalized in Illinois, and the hospital needs to know who is legally authorized to make the patient’s medical decisions? What omelet is so wonderful that it is worth breaking these particular eggs?

Posted 12:34 PM by Andrew Koppelman [link]

Comments:

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# posted by

KipEsquire : 1:17 PM

He proposes an agreement that "no state will implement same-sex marriage until it is passed at the federal level, or until states representing at least 50 percent of the population (instead of the present 14 percent) decide to implement same-sex marriage, at which point all states will recognize same-sex marriage."

Heck, while we're at it let's just abolish all state constitutions, and switch to national referendums on every issue too.

Isn't it amazing, though, that -- when the wind was at their back -- the anti-gay forces were screeching "let states set their own policies" but now that some states are, um, setting policies they don't like, suddenly they want national-this and federal-that and try to catalyze a faux panic over mundane choice-of-law questions that any third-year law student can easily resolve.

Whatever it takes to rationalize your bigotry, Mr. Benkof, whatever it takes.

# posted by

KipEsquire : 1:21 PM

I realize that the poster is deliberately understating his point, but I feel I should point out the obvious-- the problem is the assumption that anti-gay marriage folks are arguing in good faith.

The answer is they don't care about whether the legal system or a people's lives get fouled up because a married couple finds themselves in a state that doesn't recognize their marriage. The entire point of this debate, behind all the bluster, is that lots of people don't like gays and think the legal system should do various things, big and small, to make their lives more difficult (perhaps with the unstated hope that it might turn some gays into straights).

# posted by

Dilan : 1:48 PM

Benkof is not really anti-SSM, he is adamantly in favor of giving full marriage rights to same-sex couples, he just thinks that it should be done smoother, slower, and perhaps with a different name forever, so that gays can get more uniform benefits sooner in more states, and so that there is less effect on hetero couples and their children.

But he is adamant that same-sex conception remain legal, like all of the MarriageDebate bloggers.

Here is his quote, which he hasn't taken back yet after much prodding:

But the science fictiony same-sex procreation movement, while it should be legal, is horribly unethical and terribly cruel. It means a lesbian couple, for example, prioritizes the selfish preference that their child share both of their DNA sequences over the possibility that their own offspring will have a father. I wouldn’t want such lesbians to be arrested or fined for such an act, but I certainly wouldn’t want to be their friend, and I reserve the right to blog about their unbelievable mistreatment of their own flesh and blood.

I have more sympathy for the lesbian couple wanting to take advantage of legal methods to have a biological child, because wanting to have a biological child is a very primal feeling. If it is legal, then it must be OK, so it isn't really fair just to snipe at them for doing something you insist they have a right to do.

I think it should be illegal, and all parties involved should be severely punished for trying it, much like siblings are punished when they do things that might lead to conception.

No state should be allowed to offer cloning or GE or SSP services, it shoudl be a federal law that prohibits it. And, if Canada offers it, then we should take action against Canada, whatever it takes to get them to stop, and also punish any couples that seek to evade federal law against useing genetically modified gametes by visiting another country. They should have to move to Dr Moreau's island for the rest of their life.

# posted by

John Howard : 2:12 PM

Can someone married in Los Angeles safely run away to Chicago with the family’s assets?

Assuming that CA will not void that judicially created "marriage" in November, the "spouse" can get a "divorce" and a judgment dividing the assets in CA and enforce that division of assets in IL.

And what happens when someone from California is unexpectedly hospitalized in Illinois, and the hospital needs to know who is legally authorized to make the patient’s medical decisions?

Same as before the CA Four rewrote the the definition of marriage - enter into a contract.

# posted by

Bart DePalma : 3:39 PM

Same as before the CA Four rewrote the the definition of marriage - enter into a contract.

Again, this proves my point about bad faith. The real endgame here is about making life difficult for gays and lesbians, even if it means making the legal system less coherent to do it.

# posted by

Dilan : 2:26 PM