Family Research Council

The legal revolution to make same-sex "marriage" the law of the land has been uncommonly swift. With the Massachusetts case Goodridge v. Department of Health,¹ lawyers for homosexuals have taken same-sex "marriage" from exotic suggestion to virtual reality in barely a decade.

The Massachusetts decision could scarcely have been more radical. It declared that our perennial understanding of marriage as the union of man and woman was irrational--in other words, utterly without foundation in reason. The court likened opposition to same-sex "marriage" to the racist prejudice against interracial marriage.² As if to emphasize the point, the court's date for the first same-sex weddings--May 17, 2004--is fifty years to the day after segregation was forbidden in Brown v. Board of Education.

The Same-Sex "Marriage" Strategy

There are various ways in which same-sex "marriage" might spread across the country. The first is piecemeal: one state at a time--similarly to how no-fault divorce laws spread during the 1960s.

Secondly, same-sex "marriage" might also spread by the migration of couples demanding recognition of their Massachusetts vows in other states; or finally, by a Supreme Court opinion declaring that the Constitution requires the recognition of their union.

As things now stand, the Supreme Court will have the last word on whether there is a constitutional right for two persons of the same sex to marry, as well as whether there must be interstate recognition of such unions. The only way to ensure that the Court as well as state judges and legislatures do not provide legal recognition of same-sex "marriage" is to amend the U.S. Constitution.³

The Defense of Marriage Act

One possible bar to homosexual couples exchanging vows in Massachusetts, moving to another state, and demanding that their vows be recognized there is the Defense of Marriage Act (doma).⁴ Enacted in 1996, this federal statute establishes that, for all federal purposes (such as tax returns, veterans' benefits, social security survivors' benefits, etc.), only a husband and wife count as spouses.

doma also addresses the "travel" question by specifying that no state shall be required to give effect to any act "respecting a relationship between persons of the same sex treated as a marriage under the laws of [any] other state." The intent of doma is to provide legal protection to states in danger of having these counterfeit marriages forced upon them by Massachusetts-wed same-sex "spouses" moving into their state.

The general legal rule in the United States is that marriage laws are entirely portable: Get married in one state, and you will be married in all the rest. This rule arises from various legal principles, among them "choice of law," comity among the states, and a constitutional doctrine called "Full Faith and Credit." doma makes an exception for same-sex "marriages".

It should be noted that doma does not reverse Goodridge and does nothing to relieve the citizens of Massachusetts (or any other state) of judicially-imposed same-sex "marriage". Rather, doma performs the limited but valuable service of protecting states from having to recognize such unions performed in states like Massachusetts. A state saddled by activist courts ruling for same-sex marriage--as in Massachusetts--would have to look elsewhere for relief. In such cases a state constitutional amendment would be required to correct the activist decision, as is currently being attempted in Massachusetts.

Under our Constitution, the laws and judgments of each state have some degree of influence in other states.⁵ Under this "Full Faith and Credit" clause, Congress is empowered to prescribe the effect given to, for example, a state judgment from Illinois in Ohio. However, there are exceptions and limitations to the extraterritorial effect of state law. We will examine below the relevant one--the so-called "public policy exception."

Will the Supreme Court Uphold DOMA?

There are three reasons for concern as to whether doma will be upheld when challenged in court. First, since there is no precedent for doma, we simply do not know what difference Congress's saying that states need not recognize out-of-state marriages makes. On the few occasions where Congress has used its power to prescribe effects of state acts, Congress required states to recognize other states' acts--not the other way around.⁶ doma, on the other hand, tells states that they are not required to recognize the marriage policy of another state.

Harvard Law School professor Laurence Tribe, a prominent constitutional commentator, vehemently denies that doma is constitutional. He says that Congress lacks the power to legislate a "categorical exemption" from the Full Faith and Credit Clause.⁷

A second reason to believe doma will not survive challenge in court has to do with an established exception to interstate recognition: public policy. The standard legal doctrine is that states are not obliged to recognize an out-of-state marriage that is contrary to a "strong [in-state] public policy."⁸ Many people suppose that so long as a state makes clear that marriage is intended to be for a man and woman, then its public policy is strong enough so it would not have to give legal recognition to Massachusetts-style same-sex "marriages".

The Erosion of Marriage Law

The reality is unfortunately not that simple. Some states that do not recognize same-sex "marriage" nonetheless believe they might be forced, under Full Faith and Credit, to recognize such unions performed in another state.⁹ But more importantly, whether a state's recognition of traditional marriage is actually a "strong public policy" is not settled by the mere assertion that it is.

State courts in Vermont, Massachusetts, Hawaii, and other states have in varying ways overturned their marriage laws despite long-established legal practice and custom that marriage is reserved to a man and a woman. The underlying problem is that so many concessions have been made to de facto "gay unions"--adoption, spousal benefits, and other incidents of marriage--that courts readily conclude that states do not consistently act on any coherent understanding of marriage.

The Goodridge court, for example, referred to the plaintiff couples (i.e., the gay wedding aspirants) as "families" and claimed that same-sex couples may be "excellent parents." If these folks are already families doing an excellent job with children, the court asked, why exactly are they prohibited from marrying like other couples who head families with kids?

By way of illustration, suppose a judge in Indiana hears the case of a same-sex couple "married" in Massachusetts that is challenging doma and suing to have their vows recognized in Indiana. The judge will ask the state's attorney to identify the rational basis for limiting marriage to a man and a woman. The likely reply will be:"because marriage is procreative."

This will invite the response by the court: "How is it that sterile couples are permitted to marry, and that there is no noticeable legal difference between how children born to married couples and single women are treated under the law?" The court, hearing no cogent response, will then likely declare that it is not the state's intent to promote marriage because of its link to procreation, and that the ostensible ground is really a cover for mere moral disapproval or simple prejudice, neither of which is a legitimate rational basis.

The state's attorney general might advance a second response: "The husband-wife marital home is where the state wishes to have childrearing take place." The court's reply could well be: "Then why does the state permit adoption by unmarried individuals, and even by same-sex couples?" And so on.

The preceding colloquy illustrates the reasoning that was, in fact, employed in Goodridge and in Baker v. State¹⁰ (the Vermont civil unions case from 1999), and it is likely to be employed in any state that has made any concessions to "gay unions."

Thus it is impossible to be certain how the question of the interstate portability of Massachusetts' same-sex "marriages" will be resolved in the courts. Since the proliferation threat is both real and imminent, the only way to assure a favorable outcome is to establish law so clear--and whose constitutionality is so solid--that even judges disinclined to follow it will have no choice but to apply it. Any federal statute such as doma does not, and cannot, do that. A well-drafted constitutional amendment can.

A New Constitutional "Right" to Engage in Homosexual Acts

Regardless of the intricacies of the Full Faith and Credit Clause, doma must pass basic constitutional tests. These tests include minimum standards of equality and rationality. Every law must serve a legitimate state purpose and rationally serve that end. This test provides the third reason doma is unlikely to survive a court challenge.

In Lawrence v. Texas (2003) the Supreme Court for the first time ruled that states may not forbid people to engage in non- or extra-martial sex acts.¹¹ The justices said that the Texas law lacked any basis in reason, and that therefore no legitimate state interest was involved.¹²

The Court made a significant--and radical--statement about a supposed constitutional protection for homosexual relationships. The reason why homosexual acts are protected, the Court said, is precisely because such acts may constitute a person's identity; because sexual conduct "can be but one element in a personal bond that is more enduring;" because penalizing sodomitical acts could lead to "discrimination both in the public and the private spheres."¹³

Therefore, the Court said, "persons in a homosexual relationship" have a right to the same constitutional liberty when it comes to marriage, procreation, and family that "heterosexual persons do."¹⁴ Lawrence is not about sodomy and privacy. It is about homosexual "bonds" and state respect for them.

The dissenting justices argued that such reasoning would "dismantle the structure of constitutional law" that has permitted legal marriage only between a man and a woman.¹⁵ Lawrence is a very forbidding warning that any law against same-sex "marriage"--doma included--is unlikely to survive.

The Federalist Approach to a Constitutional Amendment

Proposals to protect marriage by amending the U.S. Constitution fall basically into two categories. The first would seek to address only the interstate travel problem. This category of proposals would tolerate same-sex marriage in any state where it arose due to legal action within that state. Each state would thus determine its own definition of marriage.

This type of amendment appeals to the American tradition of federalism. Supporters of redefining marriage--as well as some of their opponents--criticize proposals to establish a national definition of marriage. They say that in our federal system of fifty states combined in one union, states have always been, and should remain in charge of determining marriage law.

However, there already exists a national definition of marriage everywhere in the United States. No one other than a husband and wife, for example, may submit a form 1040 to the Internal Revenue Service listing themselves as "married, filing jointly." In addition, at least until May 17, 2004, there has been one common definition of marriage at the state level.

Proponents of the federalist approach cite an 1878 Supreme Court case Pennoyer v. Neff, where the Court ruled that a state has an "absolute" right to decide the "conditions upon which the marriage relation shall be created."¹⁶ By 1971, however, the Supreme Court (in Boddie v. Connecticut) found the state's power to be much less "absolute": marriage was regulated by the states "absent some specific federal constitutional or statutory provision."¹⁷

For better or worse, the national government and the courts have by and large taken the power to define marriage out of the states' hands. The Supreme Court's promissory note in Lawrence v. Texas--that it will require same-sex "marriage" as part of everyone's liberty to express oneself sexually, without suffering discrimination--signals the final stage of this takeover.

The "Definition Approach" to Amending the Constitution

The other type of amendment seeks a constitutional definition of marriage as the union of a man and a woman. Nothing else in the United States could be a legal marriage. Any other definition of marriage in any state law would be void.

Once again, critics of a definitional amendment claim that defining marriage has always been the business of the states, and that it should remain so. But Lawrence already signals that we will soon have a single national definition of marriage, and it will be one in which every state will be forced to recognize same-sex couples as "married." As Robert Bork says, "One way or another, federalism is going to be overridden. The only question is whether the general rule will permit or prohibit marriage of same-sex couples."¹⁸

The False Comparison with Interracial Marriage

Before considering the defining features of marriage and the extent to which states have authority over them, we should examine a special case of national intervention in marriage. In 1967, the Supreme Court held in Loving v. Virginia that states could not ban interracial marriage.¹⁹ The language of Loving as well as constitutional logic means that in these United States, race (including ethnicity, color, and nationality) have nothing to do with the definition of marriage.

Regrettably, the Massachusetts court in Goodridge misinterpreted the intent of Loving. Goodridge said:"Recognizing the right of an individual to marry a person o f the same sex will not diminish the value or the dignity of opposite sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race."²⁰

This distinction is based on a fundamentally flawed analogy. One's race is irrelevant to whether one possesses the characteristics necessary to enter into marriage (which requires the sexual complimentarity of the spouses), i.e., that one is either a man or a woman. However, if both parties are of the same sex, neither of them can fulfill the necessary requirement, i.e., to be of the sex that is the opposite of the person one wishes to marry. Goodridge, with its fundamental misunderstanding of Loving, only serves to underline the necessity of a constitutional amendment before other courts issue similarly misguided rulings.

The Nature of Marriage

The defining features of marriage are a union between a man and a woman that is (a) monogamous; (b) sexually exclusive; (c) the morally legitimate context for raising children; and (d) permanent.

Individual states have limited autonomy with regard to each of these characteristics. Monogamy, for example, was imposed upon territories seeking statehood by the national government towards the end of the nineteenth century, in the course of the protracted struggle over polygamy. While it may be true that a state could, at least theoretically, recognize plural marriages, the certain effect of the polygamy cases decided by the Supreme Court is that no one has a right, even on the basis of sincere religious belief, to enter a polygamous marriage.

And then there is the "slippery slope" argument: If two men or two women can marry, why not three or more? Why not a group of men and women? In this extension of Lawrence's logic, states would be powerless to limit marriage to couples--or groups of any sort.

The central presupposition of many Supreme Court cases is that marriage is distinctively the sexual communion of a man and a woman, which results naturally in children. In condemning an Oklahoma law in 1942 that punished certain career criminals with sterilization,²¹ the Court referred to "marriage and procreation" as "one of the basic civil rights of man."²²

Before Lawrence, the states had protected marriage through laws against non- and extra-marital sex. This protective mantle also originally included laws concerning illegitimacy, which were designed to limit procreation to married couples.

The two types of laws are mutually reinforcing: They sought to limit sex to marriage and increase the chances that children will be born only to married couples. Even today, states that are defending marriage against the same-sex onslaught argue that they are upholding the time-honored link among marriage, sexual activity, and procreation. Vermont unsuccessfully pressed this argument in the civil unions case, Baker v. State, in 1999.²³ The linkage between "marriage, sex, kids" remains the traditional, common understanding.

But again, it was the national government that intervened. In Levy v. Louisiana (1968), the Court ruled that most legal distinctions based upon illegitimacy are unconstitutional.²⁴ Louisiana sought to justify such laws as attempts to make marriage the basis of family relationships. However, the Court seemed to have believed such laws constituted unfair burdens lacking in social value.²⁵

Finally, while the spread of no-fault divorce has severely weakened the permanency of marriage, it should be noted that the Court's language in Lawrence may make reform of no-fault divorce difficult. Here again, the national government limits what is purportedly a state law matter.

The Need to Experiment?

The most common justification for federalism is that, rather than straitjacket the whole nation with a single legal template, it is better to allow states to experiment with different legal solutions to social problems. Thus, we can eventually determine what works and what does not. Another common justification is that problems vary from state to state, and that these local variations demand different responses. One response might be appropriate for Utah, another for Arizona, and still a third for New Jersey.

Neither of these common justifications for federalism is relevant to the marriage question. The question is whether men can marry men and women can marry women. The common good requires everywhere a single answer, and that answer is no. Marriage is an institution that has an inherent meaning. Nothing peculiar to New York or to Wyoming makes any difference. There is no need to experiment, and indeed, it would be foolhardy to do so.

Conclusion

To save marriage, that is, to ensure marriage remains reserved to one man and one woman, will require amending the U.S. Constitution. In the absence of such an amendment, it is likely marriage will be fundamentally transformed through the judicial recognition of same-sex "marriage". This will happen either through application of the Full Faith and Credit Clause, or by the determination that same-sex "marriage" is protected, through substantive due process, as a liberty interest under the 5^th and 14^th Amendments to the Constitution.

Either through a Full Faith and Credit decision or through a substantive due process decision, it is all but certain the Supreme Court will legalize same-sex "marriage". It is highly unlikely that the Supreme Court will allow a federal statute such as doma to interfere with this newfound fundamental "right to engage in homosexual conduct." Thus, the sole remaining recourse against such runaway judicial activism is through an amendment to the Constitution of the United States. We delay at our peril.

Gerard V. Bradley is Professor of Law at the University of Notre Dame School of Law. William Saunders is Senior Fellow at the Family Research Council.

1 440 Mass. 309 (2003), 798 N.E. 2d 941 (2003)

2 Id. at p. 965.

3 "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound hereby, anything in the Constitution or laws of any State to the contrary notwithstanding." U.S. Constitution, Article VI.

4 Public Law 104-199 (104^th Congress), September 21, 1996: "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

5 "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." U.S. Constitution, Article IV, Section I.

6 H.R. Rep. No. 3396, 104 Cong., 2d Sess. (2004)

7 Laurence H. Tribe, American Constitutional Law (3 ed; 2000), Sec. 6-35 at 1247 n.49.

8 "The Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy." Nevada v. Hall, 440 U.S. 410, 422 (1980).

9 See, e.g., Letter of Caitlin Halligan, Solicitor General, State of New York, March 3, 2004.

10 744 A. 2d 864 (Vt 1999).

11 No. 02-102, slip op. at 1_(539 U.S.____(2003), 123 S.C. 2472.

12 Id. at p. 18.

13 Id. at p. 6, 13-14.

14 Id. at p. 13.

15 Dissenting opinion, J. Scalia, at pp. 20-21.

16 95 U.S. 714, 734-35 (1877).

17 401 U.S. 371, 389 (1971).

18 "Stop Courts from Imposing Gay Marriage," Wall Street Journal, Aug. 7, 2001, at A-14.

19 388 U.S. 1, 12 (1967).

20 440 Mass. 309, 798 N.E. 2d 941, 965 (2003).

21 Skinner v. Oklahoma, 316 U.S. 535 (1942).

22 Id. at p. 541.

23 744 A. 2d 864 (Vt 1999).

24 391 U.S. 68 (1968).

25 Id at p. 69.