[Vision2020] Gay Marriage From Today'e New York Times

Wed, 17 Mar 2004 15:15:47 -0800

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NEWS ANALYSIS

Bans on Interracial Unions Offer Perspective on Gay Ones

By ADAM LIPTAK

Published: March 17, 2004  New York Times

Without a constitutional amendment banning gay marriages, President Bush
warned on Feb. 24, there is a grave risk that "every state would be forced
to recognize any relationship that judges in Boston or officials in San
Francisco choose to call a marriage."

The president invoked the Constitution's "full faith and credit" clause,
which requires states to honor court judgments from other states, as the
basis for his alarm.

But legal scholars say that an examination of the last wrenching national
debate over the definition of marriage - when, only 50 years ago, a majority
of states banned interracial marriages - demonstrates that the president
misunderstood the legal terrain.

"No state has ever been required by the full faith and credit clause to
recognize any marriage they didn't want to," said Andrew Koppelman, a law
professor at Northwestern University and the author of "The Gay Rights
Question in Contemporary American Law."

Indeed, until the Supreme Court struck down all laws banning interracial
marriage in 1967, the nation lived with a patchwork of laws on the question.
Those states that found interracial marriages offensive to their public
policies were not required to recognize such marriages performed elsewhere,
though sometimes they did, but as a matter of choice rather than
constitutional compulsion. That experience is instructive, legal scholars
say, about what is likely to happen when Massachusetts starts performing gay
marriages in May.

Attorney General Eliot L. Spitzer of New York has provided an example of
what the analogous patchwork in the gay marriage context might look like.
Mr. Spitzer, in an informal advisory opinion issued on March 3, said he
expected New York to recognize gay marriages from other states because they
are not "abhorrent to New York's public policy." Thirty-eight other states,
on the other hand, in enacting Defense of Marriage Acts, have expressed the
view that such marriages do offend their public policies.

Mr. Spitzer based his assessment on state law and not the federal
Constitution, and he based his description of New York's public policy on a
single decision of a Manhattan trial court last year that is still under
appeal.

There is a second reason same-sex marriages in Massachusetts are likely to
have a more limited effect than the president suggested. An obscure 1913 law
in that state makes void all marriages performed there where the couple is
not eligible to be married in their home state. That law, too, was born in
part from an effort to prohibit interracial marriages.

Last week, the California Supreme Court stopped the gay marriages being
performed in the second place cited by the president. The court will hear
arguments on the question later this year.

In 1967, when the United States Supreme Court struck down all bans on
interracial marriage, it acted on the most fundamental constitutional
grounds, saying that the laws violated both due process and equal
protection.

No one believes that the court is likely to say anything like that about gay
unions anytime soon.

What is notable about the 1967 decision for the gay marriage debate, then,
is that it did not mention the full faith and credit clause. Although the
case involved a Virginia couple prosecuted for violating that state's ban on
interracial marriage by visiting the District of Columbia, which allowed
such marriages, the Supreme Court did not suggest that Virginia was
obligated to recognize the marriage.

To the contrary, the decision affirmed that marriages are generally a matter
to be left to the individual states. That is consistent with hundreds of
decisions over centuries, based on state rather than federal law, that
allowed states to decline to recognize marriages that violated their own
strong public policies.

Indeed, in the context of interracial marriages, courts in states that
banned such unions routinely declined to recognize those performed in states
where they were legal.

But the decisions were not uniform. Indeed, the way courts treated
interracial marriages illuminates how gay marriages are likely to be
treated.

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NEWS =
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Bans =
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Unions Offer Perspective on Gay Ones
By =
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LIPTAK
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Published: March 17,=20
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Without a=20
constitutional amendment banning gay marriages, President Bush warned on =
Feb.=20
24, there is a grave risk that "every state would be forced to recognize =
any=20
relationship that judges in Boston or officials in San Francisco choose =
to call=20
a marriage."
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
The =
president=20
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to honor court judgments from other states, as the basis for his=20
alarm.
<o:p><FONT=20
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But =
legal scholars=20
say that an examination of the last wrenching national debate over the=20
definition of marriage =97 when, only 50 years ago, a majority of states =
banned=20
interracial marriages =97 demonstrates that the president misunderstood =
the legal=20
terrain.
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
"No =
state has ever=20
been required by the full faith and credit clause to recognize any =
marriage they=20
didn't want to," said Andrew Koppelman, a law professor at Northwestern=20
University and the author of "The Gay Rights Question in Contemporary =
American=20
Law." 
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
Indeed, until the=20
Supreme Court struck down all laws banning interracial marriage in 1967, =
the=20
nation lived with a patchwork of laws on the question. Those states that =
found=20
interracial marriages offensive to their public policies were not =
required to=20
recognize such marriages performed elsewhere, though sometimes they did, =
but as=20
a matter of choice rather than constitutional compulsion. That =
experience is=20
instructive, legal scholars say, about what is likely to happen when=20
Massachusetts starts performing gay marriages in May.
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
Attorney General=20
Eliot L. Spitzer of New York has provided an example of what the =
analogous=20
patchwork in the gay marriage context might look like. Mr. Spitzer, in =
an=20
informal advisory opinion issued on March 3, said he expected New York =
to=20
recognize gay marriages from other states because they are not =
"abhorrent to New=20
York's public policy." Thirty-eight other states, on the other hand, in =
enacting=20
Defense of Marriage Acts, have expressed the view that such marriages do =
offend=20
their public policies. 
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
Mr. =
Spitzer based=20
his assessment on state law and not the federal Constitution, and he =
based his=20
description of New York's public policy on a single decision of a =
Manhattan=20
trial court last year that is still under appeal.
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
There =
is a second=20
reason same-sex marriages in Massachusetts are likely to have a more =
limited=20
effect than the president suggested. An obscure 1913 law in that state =
makes=20
void all marriages performed there where the couple is not eligible to =
be=20
married in their home state. That law, too, was born in part from an =
effort to=20
prohibit interracial marriages.
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
Last =
week, the=20
California Supreme Court stopped the gay marriages being performed in =
the second=20
place cited by the president. The court will hear arguments on the =
question=20
later this year.
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
In =
1967, when the=20
United States Supreme Court struck down all bans on interracial =
marriage, it=20
acted on the most fundamental constitutional grounds, saying that the =
laws=20
violated both due process and equal protection.
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
No one =
believes that=20
the court is likely to say anything like that about gay unions anytime =
soon.=20

<o:p><FONT=20
size=3D4>&nbsp;</o:p>
What =
is notable=20
about the 1967 decision for the gay marriage debate, then, is that it =
did not=20
mention the full faith and credit clause. Although the case involved a =
Virginia=20
couple prosecuted for violating that state's ban on interracial marriage =
by=20
visiting the District of Columbia, which allowed such marriages, the =
Supreme=20
Court did not suggest that Virginia was obligated to recognize the =
marriage.=20

<o:p><FONT=20
size=3D4>&nbsp;</o:p>
To the =
contrary, the=20
decision affirmed that marriages are generally a matter to be left to =
the=20
individual states. That is consistent with hundreds of decisions over =
centuries,=20
based on state rather than federal law, that allowed states to decline =
to=20
recognize marriages that violated their own strong public =
policies.
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
Indeed, in the=20
context of interracial marriages, courts in states that banned such =
unions=20
routinely declined to recognize those performed in states where they =
were=20
legal.
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
But =
the decisions=20
were not uniform. Indeed, the way courts treated interracial marriages=20
illuminates how gay marriages are likely to be treated.
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
<o:p><FONT=20
size=3D4>&nbsp;</o:p>
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