Balkinization  

Friday, June 06, 2008

State of chaos?

Andrew Koppelman

The California Supreme Court’s decision that the state must recognize same-sex marriages doesn’t bring anything really new to the scene. Massachusetts has had same-sex marriage for years. What the California decision does is enormously increase the number of people in same-sex couples, because California has six times as many residents as Massachusetts . Also, unlike Massachusetts , California has no bar on out-of-staters entering into same-sex marriages.

There are five other states that give same-sex couples all the rights of married couples: Connecticut, New Hampshire, New Jersey, Oregon and Vermont. That’s a big chunk of the country, comprising a fifth of the population.

In New York , Governor David Paterson is pushing a same-sex marriage bill, and has ordered state agencies to recognize same-sex marriages from other states. What happens when people in those relationships cross state lines, as inevitably they will? Will those relationships ever be recognized in other states? Laws in 44 states declare that they will not.

Illinois, for example, has a law declaring: “A marriage between two individuals of the same sex is contrary to the public policy of this state.” But these laws do not always resolve the issue because cases will arise that the legislatures and voters were not thinking about and certainly did not intend to reach. They were primarily concerned about couples from their home states who might travel to another state, enter into a same-sex marriage or civil union there, immediately return home, and demand that their marriage be recognized. It didn’t make sense to let people evade their home state’s restrictions so easily. But there are other situations where the equities are not so clear. It is easy to say that Illinois and California can each have their own rules. But people move around. Can Illinois residents get married on a weekend trip to California and then expect Illinois to recognize the marriage? 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 here, and the hospital needs to know who is legally authorized to make the patient’s medical decisions? It is essential to know where one state’s laws end and another’s begin.

The consequences of blanket non-recognition, which is what many people read into the 44 state statutes, would be pretty nasty. People passing through a state, or even brought into the state against their will (think of parental kidnapping), would be summarily deprived of their family relationships. Someone in a same-sex relationship could move to another state and enter a heterosexual marriage without even having to disclose to the new spouse the existence of the old one. The only way for states to avoid these weird and unjust results is to admit that they have to recognize same-sex relationships sometimes, for some purposes.

This is not the first time that Americans have been divided about what kinds of marriages to recognize. Profound moral disagreements about marriage have involved differences in state laws concerning incest (for example, marriages of first cousins), marriageable age, remarriage after divorce, and above all, interracial marriage (what its opponents called miscegenation). In none of these situations did the courts adopt a blanket rule of non-recognition, either. Instead, the outcomes in court depended heavily on the facts of each particular case, and on one fact above all: Where did the couple make its home?

The most revealing of these disagreements concerned interracial marriages. This issue involved an exceedingly strong public policy: the Southern courts regarded marriages between blacks and whites as (in the words of the Virginia Supreme Court in 1878) “connections and alliances so unnatural that God and nature seem to forbid them.”

The laws prohibiting such marriages were worded at least as strongly as those of the recent laws against same-sex marriage: They usually declared them “void” and “prohibited” and punished their celebration with criminal penalties. Yet even in this charged context, the courts rejected the blanket rule of non-recognition. In nearly every case that did not involve someone trying to evade their home state’s laws, the Southern courts recognized interracial marriages. The overriding policy was that interracial marriages could not be celebrated by the forbidding state’s own residents. If each state could determine the marital status of its own residents, then it was possible for states with very different moral views to live together, and for people to know what their rights were.

So in the cases discussed above, there are straightforward answers. You can’t avoid the Illinois law with a weekend trip to California . If Illinois residents want same-sex marriage, they have to do the hard political work here to get it. But Californians who unexpectedly find themselves in Illinois courts—or hospitals—have a powerful claim.

Consensus on this emotional and divisive issue is a long way off. In the meantime, we need a way to live together. At a minimum, we should not respond to our disagreements in a less civilized and humane way than we managed to do in the shameful days of racial segregation.

[The piece above appears on the op-ed page of today’s Chicago Tribune with the same title as above, but without the question mark. This is unfortunate, because the title then implies the opposite of what the article says. The central claim is that “ there are straightforward answers” to the questions raised when same-sex marriages cross state lines. In other words, the whole point was to contradict the claim that there will be chaos.]

Comments:

The only way for states to avoid these weird and unjust results is to admit that they have to recognize same-sex relationships sometimes, for some purposes.

Or to allow the citizens of Massachusetts and California to join the citizens of Hawaii in reversing the judicial redefinition of marriage and reestablish unanimity in the United States.

The fact that a handful of lawyers in robes are creating chaos in this area does not compel the rest of the country to accede to their policy preferences.
 

"The California Supreme Court's decision that the state must recognize same-sex marriages doesn't bring anything really new to the scene."

While I understand your specific thesis (and agree with it), we must remember that something else, something "really new," most emphatically did come with this decision: Suspect classification and heightened scrutiny for sexual orientation discrimination.

Indeed, even if the anti-gay ballot initiative passes, that element of In re Marriage Cases will remain good law in the state in every context except marriage.

Which, of course, will open the door of "persuasive authority" in other jurisdictions, and perhaps even the Ninth Circuit for federal law purposes.

I'd call that "really new." =)
 

"At a minimum, we should not respond to our disagreements in a less civilized and humane way than we managed to do in the shameful days of racial segregation."

you mean, the "civilized and humane way" that we allowed blacks to be denied the vast majority of their rights for one hundred years after emancipation?

you really think that's the answer?

william lloyd garrison, firebrand abolitionist, said "counsel the mother to be moderate and gradual in rescuing her infant after it has fallen into the fire; then tell me to moderate my haste for abolition."

civility in the face of rampant discrimination can sometimes be too high of a price to pay--especially when it is primarily the victims of the discrimination who also pay the price of the civility.
 

perhaps a more liberal supreme court will decide to make good use of the full faith and credit clause and end this silly debate.

i believe these DOMA are unconstitutional on their face.
 

To be sure, existing practice has allowed states to refuse recognition to other states' marriage decisions. But this seems entirely inconsistent with the actual text of the Constitution: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." A civil marriage is by definition a public act, and the invocation of public policy in, e.g., Illinois seems to be irrelevant given what the Constitution in fact says.
 

Currently, there are no laws stopping a same-sex couple from attempting to conceive a child together, except in Missouri there is a law prohibiting the implantation of an embryo that was not created by the union of a man and a woman's gametes. But that is fairly useless, since it doesn't prohibit a same-sex couple from Missouri going to a lab in New Jersey or California to attempt to conceive together.

What we need is a federal law like the Missouri law that prohibits conceiving children any way except the fertilization of a woman's unmodified egg by a man's unmodified sperm. And another law that affirms that all marriages have a right to attempt to conceive children together, in case any state were to attempt to equate any marriage's conception rights to those of a same-sex couple.

The state of chaos need not waste so much of our time and energy (actual energy, greenhouse-gas-causing energy), we can enact the Egg and Sperm Civil Union compromise before the summer is over and resolve it. States should have Civil Unions that are defined as all the rights of marriage except a right to conceive together, and CA and MA and NH and NJ et al would have to convert all their same-sex unions to that, which could be done with a simple statute. This would help all states to settle on the same standard, and then same-sex couples would have the same protections.
 

I have an extended response to Dr. Koppelman up at my blog, gaysdefendmarriage.com. A few excerpts:

What’s weird and unjust is the idea that eight opinionated robe-wearers in two states could force a radical change in public policy based on constitutions that are completely null and void outside Massachusetts and California on millions of voters and hundreds of legislators in 44 states whose constitutions contain no right to same-sex marriage. Instead, to respond to the problem Dr. Koppelman has articulated so well, it would be much more just and much less weird for both sides to agree 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.

If Dr. Koppelman’s argument is valid, what does that mean for the other 49 states if the Supreme Court of Wyoming rules that the Wyoming Constitution requires allowing a brother and a sister to marry each other (sorry, Wyoming)? It sounds like he is saying that brother-sister marriages must then be recognized not only in territory covering one-sixth of one percent of nation’s population, but for at least some purposes in the other 99.9 percent of the country too.

I think racial analogies in the gay-marriage debate are rarely helpful and sometimes needlessly insulting to African-Americans. But since Dr. Koppelman uses a racial analogy in his essay, I’ll use one, too. Before the passage of the Thirteenth Amendment, some states were slave and some states were free. The U.S. Supreme Court had to decide whether an enslaved person’s liberation upon visiting a free state (incidentally Dr. Koppelman’s Illinois) was portable back to his home slave state. The Court ruled that it was not. Any other decision, it said, “would give to persons of the negro race, …the right to enter every other State whenever they pleased, …the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

So I’d like to ask Dr. Koppelman - do you agree with the Dred Scott decision or not? If not, do you have a reason for your apparent inconsistency other than “slavery was bad and gay marriage is good”?
 

David, no state allows a brother and sister to conceive together, so it's just not gonna happen that a state Supreme Court will rule that brother-sister marriages were allowed. On the other hand, all states but Missouri allow same-sex couples to conceive together, so that's why the courts that have ruled on their state's policy have found that same-sex couples ought to be able to marry.
 

Andrew said:

"In nearly every case that did not involve someone trying to evade their home state’s laws, the Southern courts recognized interracial marriages. The overriding policy was that interracial marriages could not be celebrated by the forbidding state’s own residents."

For what kind of specific purposes did the courts in anti-miscegenation states recognize "interracial" marriage?

Could you please provide a list that is illustrative if not exhaustive?

* * *

For example, the state court that dealt with the Loving case recognized their marriage as part of the defendant's original guilty plea.

The judge showed leniency (of a sort) by suspending the sentence of a year in prison (for both of them) and, in effect, permitted the Lovings to live elsewhere as a married couple.

It was their desire to permanently return to Virginia that forced the issue, of course, since the Lovings were both originally residents of Virginia who had married where the interracial ban was not in effect, because they could not do so in their homestate.

If their marriage had not made them felons, their marriage would have been nonexistent by Virginia law at the time.

But your remark about the anti-miscegenation system suggests that if they had been out-of-state residents originally and had married before migrating or travelling to Virginia, then their marriage could have been recognized by Virginia courts for some other purpose(s) than to pursue a "crime".

What kind of purpose(s)?

* * *

Of course, SSM is not criminalized by the affirmation of the man-woman criterion of marriage. So what did you have in mind when you talked about recognition for some purpose(s)?

* * *

As for parental kdinapping, SSM cannot bestow marital status on a second father or a second mother. So if the child's natural parent was travelling with the child it would not be kidnapping. If the parent's partner (SSM'd or not) was travelling with the child but without parental permission, that could be kidnapping. I suppose that you really mean to refer to an example where there has been an adoption -- which is not something that SSM does anyway.

As far as I know (and I could be wrong on the details for a given state), adoptions are not reversible or negated from one state to the next. Is this correct?

Likewise with hospital visitation. Even unions of husband and wife ought to do the paperwork to ensure the decision-making is clear in the case of inapacitation. But apart from that sort of extreme circumstance, visitation is not resolved by marriage alone. A patient can have visitors of his choice, basically.

I think you need stronger examples to better illustrate your overall point here, Andrew.
 

I think racial analogies in the gay-marriage debate are rarely helpful and sometimes needlessly insulting to African-Americans

That's silly. It isn't insulting to blacks to recognize sexism, or religious bias, or ethnic discrimination.

The only reason it would be insulting to blacks to recognize discrimination against gays is if one believes that such discrimination is justified. Selective bigotry is, of course, still bigotry.
 

Dilan, it is more than justified to discriminate between couples that can ethically procreate together and those that would require unethical genetic modification.
 

it would be much more just and much less weird for both sides to agree 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.

At that point, why even have states at all? I'd rather not sacrifice the freedom of states to have legislative discretion in order to quash a certain subculture's freedom to marry. Seems like an odd example of justice to me. :)
 

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