The United States Constitution

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I am concerned about the direction of the United States economy and politics, and about our declining influence in the world. I feel we are losing our moral and ethical bearings.

Friday, October 27, 2006

Is a Massachusetts Gay Marriage Legal in All States?

  Ira Krakow - The United States Constitution - The United States ConstitutionThe United States ConstitutionShare your views about the Constitution with the world.
Share your views about the Constitution with the world.

I am a citizen of both the United States of America and the Commonwealth of Massachusetts.  Massachusetts is the only state (even though Massachusetts, like Kentucky, is technically a Commonwealth, for legal purposes Massachusetts is a state as well) where same sex marriage is legal.  Are all the other states, and the Federal government as well, required to recognize a Massachusetts same sex marriage?  I will also discuss civil unions, such as the recent New Jersey ruling, as a possible alternative to gay marriage.  My totally untutored legal brain, based on a simple reading of the United States Constitution, says "yes" to both questions.  Article 4, Section 1 states, in part:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

Getting married in Massachusetts (it's something I actually have done and it's still legal and binding as far as I know) is certainly a public act of Massachusetts.   If my wife and I  (we're a heterosexual couple) move to Florida, we're still married as far as Florida is concerned.  Is marriage a proper area in which Massachusetts can pass laws?  Absolutely!  Article 1, Section 8 specifically lists all the areas in which Congress can pass laws.  These are the so-called enumerated powers.  Last time I looked, marriage was not on the list.  Just to drive home the point, the 10th Amendment states that:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Each state is thus free to set its own marriage laws, free of Federal intervention.  By tradition, that's exactly what has happened, producing different rules for marriage and divorce, property rights, child custody, contract rights, estates and trusts, and so on, in each state.  For example, if you get divorced in California, a community property state, all the assets acquired during the marriage, no matter how the asset is titled, is deemed to be held 50/50 by each spouse.  In Massachusetts, the asset's ownership is based on how it is titled.  If the car is titled in my name I own it 100%, for example.  So if a homosexual couple marries in Provincetown, Massachusetts and later divorces in San Francisco, California, the same rules should apply as (perish the thought) a divorce action between me and my wife in California.

Another example - suppose a gay couple married in Massachusetts adopts a child in Massachusetts, moves to California, and one spouse refuses to pay child support.  Can the other spouse sue in California (or Massachusetts) for child support?  Will California abandon the child, or seize the child from the parents, or refuse to honor a Massachusetts child support order?  Certainly the child support obligations apply to my marriage and children, no matter what state I live in.

The Constitution seems clear.  The other 49 states, and the Federal government, must recognize the validity of any marriage under the laws of Massachusetts.  To do otherwise is to violate the original intent of the Constitution's framers.  To change this, you need an amendment to the Constitution.  Of course, an amendment is a difficult thing to pass, requiring a 2/3 vote of both houses of Congress and ratification by 3/4 of the state legislatures.

Opponents of gay marriage have tried to get around the amendment route by pushing for laws, at both the Federal and state level, to forbid gay marriage, or where it exists, to limit its scope in some way.  This opposition has been bi-partisan, with its start in the Clinton administration.  The Democrats have been particularly wishy-washy on this issue because they have significant support in the gay community.  However, for political reasons, they don't want to offend potential voters, such as devout Catholics, either.  So they flip flop, straddle the fence, and try to please both sides.

President Clinton, during his term, stated that he was opposed to gay marriage.  I assume that's still his position, as well as the position of his wife, the junior Senator from New York.   When Senator Kerry ran for President, he also stated that he was opposed to gay marriage, but that he supported civil unions.

The campaign to limit gay marriage started with the Defense of Marriage Act (DOMA),  passed by Congress by a vote of 85-14 in the Senate and a vote of 342-67 in the House of Representatives.   The Act was signed into law by President Bill Clinton on September 21, 1996.   Its main provisions (I'm quoting from the Wikipedia article) are:

  1. No state (or other political subdivision within the United States) need recognize a marriage between persons of the same sex, even if the marriage was concluded or recognized in another state.

  3. The Federal Government may not recognize same-sex or polygamous marriages for any purpose, even if concluded or recognized by one of the states.

The motivation behind the Defense of Marriage Act was a reaction to a Hawaii Supreme Court ruling in 1993 (the case of Baehr v. Lewin) in which the Court ruled that Hawaii needs to show a compelling state interest if it is to prohibit same sex marriage.  In other words, the DOMA was a defense against the possibility that a state might legalize gay marriage.

The Defense of Marriage Act is still on the books.  The Supreme Court has not ruled on its constitutionality, even though it has had opportunities to do so.  Federal agencies, such as the Internal Revenue Service, have issued rulings consistent with the Defense of Marriage Act.  In Massachusetts, same sex couples can file as married; however, they are not considered married for Federal income tax purposes.  This makes the determination of income and tax very complicated, as this document from the Massachusetts Department of Revenue illustrates.

The New Jersey Supreme Court ruled, on October 25, 2006, that homosexuals are entitled to the same benefits as heterosexuals, and ordered the state legislature to pass a law within 180 days to give equal rights to same sex couples.  This seems odd - the court ordering the legislature to pass a law, with a deadline no less!  I don't believe the United States Supreme Court can order Congress around like that.  New Jersey, like Vermont, already allows same sex couples to apply for domestic partnership status, like a civil union.  Civil unions seems to me a kind of inferior class, something like "separate but equal" than full marriage.  It doesn't feel like the right solution to me - grant either full marriage status or nothing.

Opponents of gay marriage are moving on a number of fronts.  A number of state legislatures have passed laws defining marriage as the union of one man and one woman.  Here's the current status, state by state, according to this Wikipedia article:

Connecticut, Vermont, and California have created legal unions that, while not called marriages, are explicitly defined as offering all the rights and responsibilities of marriage under state law to same-sex couples. Maine, New Jersey, the District of Columbia, and Hawaii have created legal unions for same-sex couples that offer varying subsets of the rights and responsibilites of marriage under the laws of those jurisdictions. In contrast, nineteen states have constitutional amendments explicitly barring the recognition of same-sex marriage, confining civil marriage to a legal union between a man and a woman. Forty-three states have statutes defining marriage to two persons of the opposite-sex, including some of those that have created legal recognition for same-sex unions under a name other than "marriage."

At the Federal level, if the Defense of Marriage Act is declared unconstitutional, proposals for a Constitutional amendment to define marriage as the union of one man and one woman have been written.  The Federal Marriage Amendment, which failed to pass the Senate, is one such proposal.

To me, the debate is a constitutional and legal minefield.   If the Federal government wants to use constitutional amendments to legislate morality, why stop at marriage?  The 18th Amendment, which outlawed the sale of alcohol "for beverage purposes" because of the danger to the public health, proved to be a disaster, requiring another amendment (the 21st) to repeal it.  Some opponents of gay marriage have cited the second clause of Article 4, Section 1:

...And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

to support the idea that Congress can overrule state action.  I believe this opens a Pandora's box.  Congress would be able to override any state law.  What if a state allows a color blind person to get a drivers license?  Could Congress pass a national driver's license law to overrule this?  What if I have a license from such a state and show up in another state to rent a car?  If the state refuses to honor my driver's license, this would seriously disrupt interstate commerce.

The bottom line is that the constitutionality of all these laws is yet to be tested and none of the Federal branches - the Executive, the Legislative, nor the Judicial - wants to touch this particular legal third rail.


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