June 13, 2008

LETTERS From CAMP Rehoboth

VIEWPoint

The battle over same-sex marriage is about to go nuclear. Not because it may impact this year’s presidential race, as some have worried. But because the landmark ruling in California will result in all sorts of skirmishes across the country that will decide whether civil marriage comes to the rest of America sooner or much, much later.

Much of the early speculation about the impact of the California marriage ruling has focused on its possible impact on the presidential contest between John McCain and Barack Obama. Democrats remember all too well how in 2004, George Bush and Karl Rove used the Massachusetts marriage victory as a “wedge” to galvanize conservatives in swing states like Ohio.

The possibility for a repeat exists, of course, since a gay marriage ban is already slated for the November ballot in Florida, a hugely important swing state, and in California itself, possibly even putting that reliably Democratic state in play.

A replay of 2004 is unlikely, however, since California Gov. Arnold Schwarzenegger, a Republican himself, is putting his muscle against the ban. The same is true in Florida, where Republican Gov. Charlie Crist opposes the marriage amendment and even backs civil unions. Obama’s candidacy is also likely to draw to the polls younger Californians, who back gay marriage almost two-to-one according to a recent Field Poll.

So it’s important for gay activists and gay groups to turn away from the shiny bauble that is the Obama-McCain contest and focus on the battle in California itself, as well as the brushfires it’s already sparking across the country.

The impact from California will dwarf that of Massachusetts primarily because marriage laws in the two states are different in one key aspect: A 1913 law in the Bay State prohibits non-residents from marrying there if their union would be illegal in their home state.

The same Massachusetts Supreme Judicial Court that struck down hetero-only marriage laws in 2003 upheld the 1913 law. As a result, Massachusetts marriage extended only to those residing there and in a few other statesRhode Island and New Mexco among themthat certified they met the 1913 law’s restriction.

Not so in California. Non-resident gay couples can marry without restriction, and then go home and ask that their marriages be recognized in any number of contexts. New York Gov. David Paterson has already ordered state agencies there to recognize marriage licenses issued to gay couples in California, Massachusetts, Canada or the four other countries where it’s legal. Gay-friendly governors elsewhere may quickly follow suit, especially after the November election cushions the possible blowback and (hopefully) cements marriage equality in California.

As gay newlyweds return from California with marriage license in hand, they will eventually raise recognition issues that challenge not just the state constitutionality of marriage bans back home but also the holy grail: the constitutionality of the federal Defense of Marriage Act.

That infamous 1996 law, renounced by its own author Bob Barr now that he’s the Libertarian nominee for president, purports to allow each state the right to refuse recognition of gay marriages from other states.

The U.S. Constitution has something to say on that matter, however, since the “Full Faith and Credit Clause” generally requires that states recognize marriages performed in other states. That rule is pockmarked with exceptions from over 200 years of litigation, but that won’t save DOMA.

Since the FF&C will require states to recognize gay marriages from other states in at least some circumstances, the blanket exception in DOMA is clearly unconstitutional. And if DOMA should fall by judicial fiat, as it should, expect calls for a federal constitutional amendment to ensue.

Much will depend on the unpredictable circumstances of gay couples asking home state judges to recognize their California marriage. Couples who travel to the Golden State from states with marriage bans written into their constitutions will likely find their new licenses worthless, since states have the power under the FF&C to prevent citizens from escaping local marriage laws by crossing state lines and wedding elsewhere.

On the other end of the spectrum, judicial rulings from California that recognize a gay marriage for child custody purposes or for the right to sue for a spouse’s injury or death should be accepted back at home, even in the most hostile anti-gay states. That’s because the U.S. Constitution’s FF&C clause trumps DOMA and a state’s marriage ban.

If you’ve followed me this far, you at least see the tremendous variety of ways the detonation of the California marriage bomb will scatter shrapnel throughout the union. For that reason, preserving the victory there ought to be priority number one for all gay rights donors and political organizations.

Chris Crain is former editor of the Washington Blade, Southern Voice, and gay publications in three other cities. He can be reached via his blog at www.citizencrain.com.

LETTERS From CAMP Rehoboth, Vol. 18, No. 07 June 13, 2008