Gay Marriage Is a Battlefield
The battle over same-sex marriage is about
to go nuclear. Not because it may impact this year’s presidential race,
as some have worried. But because the landmark ruling in California will
result in all sorts of skirmishes across the country that will decide
whether civil marriage comes to the rest of America sooner or much, much
later.
Much of the early speculation about the
impact of the California marriage ruling has focused on its possible
impact on the presidential contest between John McCain and Barack Obama.
Democrats remember all too well how in 2004, George Bush and Karl Rove
used the Massachusetts marriage victory as a “wedge” to galvanize
conservatives in swing states like Ohio.
The possibility for a repeat exists, of
course, since a gay marriage ban is already slated for the November ballot
in Florida, a hugely important swing state, and in California itself,
possibly even putting that reliably Democratic state in play.
A replay of 2004 is unlikely, however,
since California Gov. Arnold Schwarzenegger, a Republican himself, is
putting his muscle against the ban. The same is true in Florida, where
Republican Gov. Charlie Crist opposes the marriage amendment and even
backs civil unions. Obama’s candidacy is also likely to draw to the
polls younger Californians, who back gay marriage almost two-to-one
according to a recent Field Poll.
So it’s important for gay activists and
gay groups to turn away from the shiny bauble that is the Obama-McCain
contest and focus on the battle in California itself, as well as the
brushfires it’s already sparking across the country.
The impact from California will dwarf that
of Massachusetts primarily because marriage laws in the two states are
different in one key aspect: A 1913 law in the Bay State prohibits
non-residents from marrying there if their union would be illegal in their
home state.
The same Massachusetts Supreme Judicial
Court that struck down hetero-only marriage laws in 2003 upheld the 1913
law. As a result, Massachusetts marriage extended only to those residing
there and in a few other states—Rhode Island and New Mexco among
them—that certified they met the 1913 law’s restriction.
Not so in California. Non-resident gay
couples can marry without restriction, and then go home and ask that their
marriages be recognized in any number of contexts. New York Gov. David
Paterson has already ordered state agencies there to recognize marriage
licenses issued to gay couples in California, Massachusetts, Canada or the
four other countries where it’s legal. Gay-friendly governors elsewhere
may quickly follow suit, especially after the November election cushions
the possible blowback and (hopefully) cements marriage equality in
California.
As gay newlyweds return from California
with marriage license in hand, they will eventually raise recognition
issues that challenge not just the state constitutionality of marriage
bans back home but also the holy grail: the constitutionality of the
federal Defense of Marriage Act.
That infamous 1996 law, renounced by its
own author Bob Barr now that he’s the Libertarian nominee for president,
purports to allow each state the right to refuse recognition of gay
marriages from other states.
The U.S. Constitution has something to say
on that matter, however, since the “Full Faith and Credit Clause”
generally requires that states recognize marriages performed in other
states. That rule is pockmarked with exceptions from over 200 years of
litigation, but that won’t save DOMA.
Since the FF&C will require states to
recognize gay marriages from other states in at least some circumstances,
the blanket exception in DOMA is clearly unconstitutional. And if DOMA
should fall by judicial fiat, as it should, expect calls for a federal
constitutional amendment to ensue.
Much will depend on the unpredictable
circumstances of gay couples asking home state judges to recognize their
California marriage. Couples who travel to the Golden State from states
with marriage bans written into their constitutions will likely find their
new licenses worthless, since states have the power under the FF&C to
prevent citizens from escaping local marriage laws by crossing state lines
and wedding elsewhere.
On the other end of the spectrum, judicial
rulings from California that recognize a gay marriage for child custody
purposes or for the right to sue for a spouse’s injury or death should
be accepted back at home, even in the most hostile anti-gay states.
That’s because the U.S. Constitution’s FF&C clause trumps DOMA and
a state’s marriage ban.
If
you’ve followed me this far, you at least see the tremendous variety of
ways the detonation of the California marriage bomb will scatter shrapnel
throughout the union. For that reason, preserving the victory there ought
to be priority number one for all gay rights donors and political
organizations.
Chris Crain is former editor of the Washington Blade, Southern
Voice, and gay publications in three other cities. He can be reached via
his blog at www.citizencrain.com.
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