The past few weeks have been exciting ones for gender parity in civil marriage, and it looks like there’s more to come. Iowa and Vermont have joined Massachusetts and Connecticut in ending the use of gender as a qualifier for marriage eligibility, and the legislatures of New Hampshire and Maine have passed their own bills that await the signatures of the Governors to become law.
These developments are great for people who want to be legally married, there’s no doubt about that. They are also great for law nerds in love with the Constitution, as a full-blown constitutional crisis is brewing with all these changes. Closer to home, and most significantly from a legal perspective, the District of Columbia just passed a bill (expected to be signed into law by Mayor Fenty in the next few days) that joins New York and makes explicit a recognition of all marriages performed in any state in the country. I say ‘makes explicit’ because the Full Faith and Credit Clause of the federal Constitution requires that states recognize the legal acts and proceedings of other states, which includes legal marriages and adoptions, as well as debts, wills, and the transfer of deeds to things like cars and houses. You wouldn’t, for example, expect to drive over a state line and no longer be the owner of your car. Every time a person has moved to a new state and filed their taxes as part of a married couple or enrolled their adopted child in school, they’ve relied on this provision.
Before the furor over people of the same gender marrying each other, it would have been ludicrous to suggest that a person could be married in one state but not the next one over, or could be the legal guardian of a child here but not there. Freedom of movement would be greatly constrained by such a position, and the Privileges and Immunities Clause would be similarly undermined. Yet this is the position that several states, Virginia among them, took in their zeal to block people of the same gender from marrying each other (many more states passed amendments limiting marriage to persons of opposite gender without explicitly denying recognition of the acts of other states). Instantly, a constitutional conflict was born, one that has only become more nuanced with time. When Massachusetts modified their marriage laws last year to grant licenses to non-residents, the Full Faith and Credit Clause moved front and center; what would happen to same-gender couples when they returned to their home states? (Opposite-gender couples would still be married, as they’d always been, as a matter of course.) New York was the first state to move to recognize all out-of-state marriages, via court rulings; the District of Columbia is the first jurisdiction to recognize all out-of-state marriages via legislation.
From a nerdy legal perspective all of this adds up to, I think it’s fair to say, the most interesting bundle of legal decisions to be made regarding the interpretation of the Constitution and the reconciliation of federal and state legislation since the Jim Crow era. There are, of course, the state-level conflicts regarding the granting of certain privileges to some while depriving others, both within a given state via amendments restricting marriage to people of opposite genders, and between two states as described above. Beyond those concerns, there remain the Equal Protection Clause issues of whether DOMA discriminates on the basis of gender and whether the federal recognition of some legal marriages and not others is a prima facie violation regardless of any gender stipulations (and of course, the even nerdier question of whether the clause can be addressed directly to federal legislation). May we live in interesting times, indeed!
Sadly, for those hoping to have their marriages recognized by the federal government and any state in which they might want to live and work, we’re not likely to have resolution to these questions for some time now, I’d say on the order of years. First, we need some test cases; the Massachusetts case challenging the federal recognition of some legal marriages but not others is a start. Getting a plaintiff with standing to challenge the violations of the Full Faith and Credit Clause is trickier from a practical standpoint; it’s asking a lot for a family to move to a place where their marriage rights (or better yet, the legal adoption of their child) will be summarily removed, and theoretical restrictions on movement are not enough to bring a case. Next, there will have to be conflicts for the Supreme Court to hear the case; in the instance of a direct challenge to the constitutionality of DOMA, that will probably happen. In the instance of differential state-level provisions, a Circuit-level difference of interpretation would normally be required; in this situation, the Court might choose to speak to that question while addressing DOMA, but realistically that would only happen if the Court were going to rule that DOMA violated the Equal Protection Clause. Which brings us to the last and most crucial step, having the case be heard by a Court committed to ruling on the legal questions rather than the social ones. It is no doubt the preference of the Court to leave marriage eligibility to the states, as has historically been done with voting eligibility, but the overt conflicts will require a ruling at some point.
Everything could be sped up and made easier for the Court if Congress were to overturn DOMA, as the Full Faith and Credit issues are the most clearcut. Without DOMA, the federal government would recognize all legally married couples regardless of gender. The laws in Massachusetts and Iowa, which grant licenses to out-of-state couples, create a situation where anyone with the means to travel to one of these states may become legally married and could gain access to federal marriage privileges. This course of action would leave to the Court the need to rule only on the relatively mundane legal issue of requiring states to recognize the actions of other states; as this is made explicit in the Constitution, it need not be controversial at all.