Andrew Sullivan: Other States Wouldn't Have to Recognize a Gay Marriage License Issued by Massachusetts
There is, alas, one simple factual problem in Charles Krauthammer's thoughtful piece today. It is the following assertion:[B]ecause of the Full Faith and Credit clause of the Constitution (which makes every state accept"the public Acts, Records, and judicial Proceedings of every other State"), gay marriage can be imposed on the entire country by a bare majority of the state supreme court of but one state. This in a country where about 60 percent of the citizenry opposes gay marriage.
This is inaccurate. Historically, marriage has never been one of the"public acts, Records, and judicial Proceedings" that the Full Faith and Credit clause mandates are transportable from state to state. If that had been the case, we would never have had a struggle over inter-racial marriage. As soon as one northern state legalized it, it would have been legal in every Southern state. (Civil divorce, ironically, is such an institution. It is the result of a judicial proceeding. Civil marriage, in contrast, is a license.) It has long been established law that the states have a public policy exception to recognizing marriages from other states; and Massachusetts' marriage licenses, to cite the current controversy, are even issued on the condition that they are void elsewhere if unapproved in other states. So the notion that four judges in Massachusetts can impose civil marriage for gays on an entire country is simply mistaken. Some argue that activist courts these days will over-rule these precedents. But with 38 states explicitly saying they won't recognize such marriages; with the Defense of Marriage Act backing that up; the likelihood is minimal. And once you remove that premise, Charles' argument about who is the aggressor here is undermined (although I am glad that he wants to defend the Constitution from unnecessary meddling). In my view, the religious right amendment is both extreme - in that it bans any state from granting civil marriage rights to gays - and premature - in that the need for it on purely federalist grounds hasn't been in any way proven. Here's my offer, then, to my friend, Charles. If all legal precedent fails, if DOMA is struck down, if one single civil marriage in Massachusetts is deemed valid in another state, without that other state's consent, I will support a federal constitutional amendment that would solely say that no state is required to recognize a civil marriage from another state. By that time, we might even have had a chance to evaluate how equal marriage rights play out in a single state or two. How's that for a compromise?
A PREVIOUS MARRIAGE AMENDMENT: A letter writer to the Washington Post reminds us that marriage amendments have been introduced before."On Dec. 12, 1912, Rep. Seaborn Roddenberry (R-Ga.) proposed this amendment to the Constitution:"Intermarriage between negros or persons of color and Caucasians ... within the United States ... is forever prohibited." Ernest Miller provides some historical context.
Editor's Note: In a subsequent blog entry Sullivan noted that Roddenberry was actually a Democrat.
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