Wednesday, June 26, 2013

The fall of DOMA raises an important legal question few are discussing

I have wondered about this but haven’t seen it discussed anywhere else before.  Michael Austin at Ars Politica raises an important issue deriving from the Supreme Court’s ruling that the Defense of Marriage Act is unconstitutional.  It has to do with Article IV, Section I of the Constitution, which says that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”  The question becomes: “If the federal government must recognize the legal marriage contract of a state that allows same-sex marriage, then would states that ban same-sex marriage have to do the same, even if that ban is written into their constitution?”  Austin notes that we are likely to see a considerable amount of litigation addressing this issue.

The legal definition of marriage has a lot to do with the types of legal judgments—about things like property rights, child-custody decisions, contracts, inheritances, etc.—that constitute the core purpose of the Full Faith and Credit Clause. The federal court system is going to have no shortage of difficult—and invariably interesting—questions to decide as these cases work their way through the system.

Today’s decisions put us on the road to one of those “house-divided” moments that Abraham Lincoln was always talking about. Thirty states now have a constitutional requirement NOT to recognize the legal actions of other states—a condition appropriate for a loose confederacy like, say, the Eurozone or the Delian League, but it is not how actual nations are supposed to work. The purpose of the Full Faith and Credit Clause is to prevent precisely this kind of situation from arising or being allowed to continue. Both Madison and Hamilton believed that, if we cannot be secure in our fundamental legal standing from one state to the next, we do not live in anything that can be legitimately called a nation. The next marriage battle, therefore, will not be about inheritance rights and property divisions; it will be about whether or not we are a country.

Let’s say a same-sex couple legally married in New York must move to Georgia because for example one partner is transferred by her employer.  Georgia has passed a constitutional amendment to ban same-sex marriage.  Even though it is illegal for same-sex couples to marry and enjoy the benefits of marriage under Georgia law, can Georgia effectively void or refuse to enforce or recognize the legal marriage contract granted this couple by the State of New York particularly now that the Supreme Court has ruled that the federal government has a Constitutional obligation to recognize the marriage contracts granted to same-sex couples in 13 states?  And, if states that ban same-sex marriage have to honor the marriage contract granted same-sex couples by other states, then does that not make the ban on same-sex marriage by some states moot?  A same-sex couple living in a state that bans same-sex marriage can simply travel to a state that grants same-sex marriage, get married, and return to the state that bans same-sex marriage with the right to enjoy all of the legal benefits of marriage.

These are interesting legal questions with tremendous ramifications.  

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