Must states recognize same-sex marriage?_120803

Posted: 12/05/03

Must states recognize same-sex marriage?

By Robert Marus

ABP Washington Bureau

WASHINGTON (ABP)--Will the Massachusetts Supreme Judicial Court's decision to legalize same-sex marriage lead to gay marriage in all 50 states?

Although many on both sides of the gay-marriage issue have predicted the Massachusetts decision will force gay marriage on the rest of the states, that outcome is by no means clear, according to two legal experts.

Some activists have insisted that one state's decision to legalize same-sex marriage would apply to the other states because of a part of the U.S. Constitution called the "full faith and credit clause." That clause requires states to recognize the legal decisions of other states.

"We don't have to recognize those marriages."
—Todd Gaziano, director of the Heritage Foundation's Center for Legal and Judicial Studies

That would seem to make it simple for a gay couple legally married in Massachusetts to move to Alabama and demand legal recognition of their union. However, according to a legal scholar at a conservative Washington think tank, full-faith-and-credit-clause law is a bit more complicated than that.

"The full faith and credit clause does not apply automatically for two reasons," said Todd Gaziano, director of the Heritage Foundation's Center for Legal and Judicial Studies.

The first reason, Gaziano said, is because the clause applies to judgments or court orders of the states--"and a marriage isn't a final judgment in a lawsuit or a court order in a lawsuit."

The second reason the clause may not apply to same-sex marriages, Gaziano noted, is because "Congress has the authority--and the states themselves have full authority--to take things outside the scope of the full faith and credit clause."

For instance, Congress already has passed a measure--signed into law by former President Clinton--that bans gay marriage at the federal level. The federal Defense of Marriage Act also became the model for similar same-sex-marriage bans on the state level. As of Nov. 18, the date of the Massachusetts decision, 37 states had their own state Defense of Marriage Act laws.

That could mean, according to Gaziano, that gay marriage "offends the public policy" of those states. If the courts agreed, then previous case law suggests such a state would not have to recognize a gay marriage performed in another state.

"Even without the federal legislation, the area of marriage recognition is one where the states have been able to reserve certain issues with respect (to) public policy," Gaziano added. For example, he said, some states allow first cousins to marry, while such a union would explicitly contradict the public policy of other states.

"We don't have to recognize those marriages," Gaziano said.

A supporter of same-sex-marriage rights agreed that the issue isn't entirely clear. Paul Cates of the American Civil Liberties Union's Gay and Lesbian Rights Project said gay-rights activists may have to rely on arguments other than the full-faith-and-credit one.

Referring to the U.S. Supreme Court's June decision in Lawrence vs. Texas overturning state bans on sodomy, Cates said, "while the court said in Lawrence that lesbian and gay people (were welcomed) into the American family and said that our relationships should be protected, they specifically said it didn't affect marriage."

Both Cates and Gaziano said an argument leading to legalized same-sex marriage in all 50 states may have to hinge on the due-process and equal-protection clauses of the Constitution.

However, one thing the Massachusetts decision almost certainly will do in the legal realm is provide gay couples, for the first time, with legal standing to challenge the federal Defense of Marriage Act in court.

"By operation of law, all married couples should be extended the more than 1,000 federal protections and responsibilities administered at the federal level," the Human Rights Campaign, a gay-rights organization, said in a Nov. 18 press release.

"However, the so-called Defense of Marriage Act purports to discriminate against same-sex married couples and deny them these protections. Because no state has recognized civil marriage for same-sex couples in the past, this law has not yet been challenged in court."

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