What Was The Law Pre-DoMA?

Highlighting last week’s victory for marriage in Massachusetts, and the likely pending victory in California, Andrew Sullivan’s Daily Dish has been examining the Defense of Marriage Act, its past, and its future. Yesterday he offered this post explaining the state of the law pre-DoMA. Because the full picture is more complicated, I offered this clarification, which hasn’t been printed, but I feel is still important.

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Andrew,

Although your source is right that “[t]he federal government had to recognize even a marriage that no other states would allow,” pre-DoMA, the states were, and still are, permitted to raise “public policy” as a defense to the recognition of marriages performed by sister states, or foreign jurisdictions. This would necessarily have also blocked federal recognition of the same.

However, the public policy defense is famously hard to meet. As the New York Court of Appeals found when deciding In re May’s Estate, a marriage valid at the place of celebration (lex celebrationis) is generally only void if “offensive to the public sense of morality to a degree regarded generally with abhorrence” (for your legal readership, the citation is 305 N.Y. 486 (1953)). Even incestuous marriages don’t meet that high level of (subjective) immorality. The general feeling, then, is that unless a state concludes that gay marriage is more offensive to public policy than incestuous marriage, a second jurisdiction has to recognize a gay marriage validly performed in another jurisdiction.

Most readings of the Full Faith and Credit Clause require the same conclusion as a matter of federal law — although there are honest, educated readings of the Clause that don’t require states to recognize marriages they otherwise would not (Linda Silberman, a professor at NYU Law and an expert on this subject matter, supported this theory in 1996, though I can’t remember if she still does).

In sum, then, because sister states are required to recognize marriages performed by other states, once Hawaii legalized gay marriage in the 1990s, the other forty-nine had a reasonable “fear” that they’d be forced to recognize gay marriages performed there, once the couple moved back “home” to, say, Georgia. From there, the states had two options. First, they could develop conflicts of laws theories that would allow them to reject marriages on a case-by-case basis: for example, if I’m a Georgia resident, and go on vacation to Hawaii for a day, where I marry another guy, Georgia could reject my marriage because it was clearly performed only to evade my home state’s law. There’s some legal basis to that theory, and it has the virtue of not offending an entire class of citizens. Or, second, they could support and secure passage of a showy, likely unconstitutional federal law designed to sate the anger of their culture-war-crazed constituents, and consign all gay Americans, nationwide, to permanent second-class status.

Sadly, the anti-marriage lobby took the road more traveled by. And when that wall comes crashing down, it will make all the difference.

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I’ll note that Andrew has a history of publishing emails from me in substantially redacted form; that’s all well and good, but this one (I’m the first) redacted the part that disproved his counterargument. Specifically, he understood enough from Kagan’s memos to be somewhat angry about them. Either they’re not that opaque, or he didn’t know what he was angry about.

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