Yale professor Lea Brilmayer writes, in today’s Wall Street Journal:
[N]obody [has] bothered to check whether the Full Faith and Credit Clause had actually ever been read to require one state to recognize another state’s marriages. It hasn’t. Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The “public policy doctrine,” almost as old as this country’s legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses. . . .
If today’s proponents of a marriage amendment are motivated by the fear of some full faith and credit chain-reaction set off in other states by Massachusetts, they needn’t be. . . .
Unlike most other hotly contested social issues, the current constitutional marriage debate actually has a perfectly good technical solution. We should just keep doing what we’ve been doing for the last 200 years.
I actually agree with a good deal of Prof. Brilmayer’s other points, such as the value of leaving the matter to the states, and the impropriety of trying to save Massachusetts voters from their own Supreme Judicial Court’s interpretation of the state constitution. But the argument I quote above has an obvious weakness — it only works so far as courts are willing to recognize “longstanding precedent.”
Lawrence v. Texas shows that the Supreme Court is willing to overturn a directly on-point Supreme Court precedent that’s under 20 years old, and at the same time strike down statutes that have been seen as constitutional for centuries. Goodridge shows that some judges are willing to overturn a many-centuries-old practice of limiting marriage to male-female couples; sure, that was state judges interpreting the state constitution, but what state judges do now, federal judges might do later. On matters of gay rights, quite a few judges — not by any means all, but quite a few — are quite willing to set aside both precedent in the sense of traditional understandings and precedent in the sense of squarely controlling Supreme Court decisions. And of course many legal scholars in the gay rights movement has been assiduously arguing that courts should use the Fourteenth Amendment to require states to recognize in-state same-sex marriages, and the Full Faith and Credit Clause to require states to recognize out-of-state same-sex marriages. Judges might well listen to them more than they would to Prof. Brilmayer.
Now of course some people approve of Lawrence and Goodridge, and they may approve of reversing the longstanding precedent that Prof. Brilmayer points to (or they may have different interpretations of this precedent). Others might mildly support a state-by-state approach, and hope that courts stick to the precedent that Prof. Brilmayer describes, but not be too upset about a contrary outcome and thus not worry too much about the possibility of that outcome. (Remember, I’m arguing that federal courts might use the Fourteenth Amendment or the Full Faith and Credit Clause to require states to recognize same-sex marriages, not that they surely will do so.)
But if you think that the state-by-state approach that Prof. Brilmayer outlines is good, and the alternative of a judicially mandated decision is really bad, then you might well worry that assurances based on “longstanding precedent” aren’t that helpful. You might also think that now is the best time to reinforce that precedent with an explicit constitutional amendment. Today, about 30-40% of the public seems to support same-sex marriage rights; perhaps a Federal Marriage Amendment could be passed in the face of that. But if the number rises to, say, 40-45%, then it might be too late — if courts then reverse Prof. Brilmayer’s longstanding precedent, there’ll be nothing that the 55-60% (and many more in some states) could do.
So I can certainly see why people who are really worried about courts mandating same-sex marriage won’t be much relieved by Prof. Brilmayer’s argument. That shouldn’t be an argument, even for them, in favor of a really broad FMA, like the Musgrave draft, which would strip states of the power to decide the matter for themselves. But it would be an argument for them to support a narrower FMA, such as one based on the second sentence of the Hatch draft, “Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.” Such an FMA would make sure (or as sure as we can be) that courts will indeed allow the state-by-state approach that Prof. Brilmayer advocates.
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