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California's Gift

By Jack M. Balkin

The California Supreme Court decision striking down the state?s ban on same-sex marriages does more than change the marriage rights of the 10% of U.S. citizens living in the Sunshine state. The decision changes the legal rights of all Americans. Same-sex couples from Kansas and Connecticut for the first time have the option to go to California and to legally marry.

Massachusetts was the first state to legalize gay marriage, but California is the first state to let out of state couples to visit the state to get hitched. San Francisco may well become the Las Vegas of gay marriage. By staying just a few days to establish residency, a couple can visit, legally marry and return to their state.

For supporters of marriage equality, the decision truly is California?s gift to America. But new freedoms create new choices. The option to marry presents new choices not only for same-sex couples, but it also raises a new ethical choice for heterosexual couples as well.

Most directly, same-sex couples suddenly will have to choose whether they will legally marry. For some, hypothetical plans will now be put to the test.

Being legally married in California does not mean that your marriage will be recognized when you return home. But there are still strong reasons for same-sex couples to come to California to marry. Some will come to California for symbolic reasons. The right to marry is essential to basic human dignity, and some couples will seek the validation of a government?s imprimatur. Thousands of same-sex couples have entered into civil unions in Vermont. More than two thirds traveled from out of state. A sovereign state?s willingness to formal legal recognition of marriages should draw still greater numbers.

But more than symbolism is at stake here. Some same-sex couples will marry in California with the hope of assuming tangible marriage rights and responsibilities back in their home state. Whether they will obtain those tangible benefits is by no means clear. This question will take years to resolve, and it will be complicated by choice of law rules, the federal Defense of Marriage Act, and anti-recognition statutes and state constitutional amendments enacted in more than 35 states.

Some states may extend blanket recognition to same-sex couples married abroad; others may deny it. Still others may give recognition for some purposes (such as distribution of property upon termination of the relationship or death of one of the spouses) but not for others (tax advantages or other state benefits that turn on marriage status).

But gay couples need not be the only ones to flock to California. Environmental tourism has drawn travelers for years. California could enjoy a new wave of what we might call human rights tourism. Supporters of gay rights, regardless of sexual orientation, may want to reward the state for granting equal marriage rights. Instead of the negativism of boycotts, a supporter of equality might spontaneously organize a tourism "buycott" of California.

California?s new policy also creates a new ethical choice for different-sexed couples. Now that it is possible to marry in a jurisdiction that does not discriminate on the basis of sexual orientation, is it moral for heterosexuals to marry in a discriminating state?

Suppose you were living in Virginia when the state still prohibited interracial marriage. Even if you wanted to marry someone of the same race, wouldn?t you consider traveling to a neighboring state that did not discriminate? From now on, every heterosexual couple that wants to marry must face the same question:

Do I want to marry in a state that discriminates or one that does not?

After all, heterosexuals can now marry in a nondiscriminating jurisdiction without risking nonrecognition back in the U.S.

Proponents of marriage equality have long analogized the ban on gay marriage to a ?whites only? water fountain from which only heterosexual couples could drink. Most white Americans would walk across the street to avoid drinking from a white?s only water fountain. Now heterosexuals must choose whether they will travel across a state line to marry in a jurisdiction that has taken down the ?heterosexuals only? sign.

With a single stroke, the California Supreme Court has offered all Americans the right to marry without regard to sexual orientation or citizenship. The rest us of us are now challenged to construct an appropriate response.

Full post as published by Balkinization on May 16, 2008 (boomark / email).