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State of chaos?

By Jack M. Balkin

The California Supreme Court?s decision that the state must recognize same-sex marriages doesn?t bring anything really new to the scene. Massachusetts has had same-sex marriage for years. What the California decision does is enormously increase the number of people in same-sex couples, because California has six times as many residents as Massachusetts . Also, unlike Massachusetts , California has no bar on out-of-staters entering into same-sex marriages.

There are five other states that give same-sex couples all the rights of married couples: Connecticut, New Hampshire, New Jersey, Oregon and Vermont. That?s a big chunk of the country, comprising a fifth of the population.

In New York , Governor David Paterson is pushing a same-sex marriage bill, and has ordered state agencies to recognize same-sex marriages from other states. What happens when people in those relationships cross state lines, as inevitably they will? Will those relationships ever be recognized in other states? Laws in 44 states declare that they will not.

Illinois, for example, has a law declaring: ?A marriage between two individuals of the same sex is contrary to the public policy of this state.? But these laws do not always resolve the issue because cases will arise that the legislatures and voters were not thinking about and certainly did not intend to reach. They were primarily concerned about couples from their home states who might travel to another state, enter into a same-sex marriage or civil union there, immediately return home, and demand that their marriage be recognized. It didn?t make sense to let people evade their home state?s restrictions so easily. But there are other situations where the equities are not so clear. It is easy to say that Illinois and California can each have their own rules. But people move around. Can Illinois residents get married on a weekend trip to California and then expect Illinois to recognize the marriage? Can someone married in Los Angeles safely run away to Chicago with the family?s assets? And what happens when someone from California is unexpectedly hospitalized here, and the hospital needs to know who is legally authorized to make the patient?s medical decisions? It is essential to know where one state?s laws end and another?s begin.

The consequences of blanket non-recognition, which is what many people read into the 44 state statutes, would be pretty nasty. People passing through a state, or even brought into the state against their will (think of parental kidnapping), would be summarily deprived of their family relationships. Someone in a same-sex relationship could move to another state and enter a heterosexual marriage without even having to disclose to the new spouse the existence of the old one. The only way for states to avoid these weird and unjust results is to admit that they have to recognize same-sex relationships sometimes, for some purposes.

This is not the first time that Americans have been divided about what kinds of marriages to recognize. Profound moral disagreements about marriage have involved differences in state laws concerning incest (for example, marriages of first cousins), marriageable age, remarriage after divorce, and above all, interracial marriage (what its opponents called miscegenation). In none of these situations did the courts adopt a blanket rule of non-recognition, either. Instead, the outcomes in court depended heavily on the facts of each particular case, and on one fact above all: Where did the couple make its home?

The most revealing of these disagreements concerned interracial marriages. This issue involved an exceedingly strong public policy: the Southern courts regarded marriages between blacks and whites as (in the words of the Virginia Supreme Court in 1878) ?connections and alliances so unnatural that God and nature seem to forbid them.?

The laws prohibiting such marriages were worded at least as strongly as those of the recent laws against same-sex marriage: They usually declared them ?void? and ?prohibited? and punished their celebration with criminal penalties. Yet even in this charged context, the courts rejected the blanket rule of non-recognition. In nearly every case that did not involve someone trying to evade their home state?s laws, the Southern courts recognized interracial marriages. The overriding policy was that interracial marriages could not be celebrated by the forbidding state?s own residents. If each state could determine the marital status of its own residents, then it was possible for states with very different moral views to live together, and for people to know what their rights were.

So in the cases discussed above, there are straightforward answers. You can?t avoid the Illinois law with a weekend trip to California . If Illinois residents want same-sex marriage, they have to do the hard political work here to get it. But Californians who unexpectedly find themselves in Illinois courts?or hospitals?have a powerful claim.

Consensus on this emotional and divisive issue is a long way off. In the meantime, we need a way to live together. At a minimum, we should not respond to our disagreements in a less civilized and humane way than we managed to do in the shameful days of racial segregation.

[The piece above appears on the op-ed page of today?s Chicago Tribune with the same title as above, but without the question mark. This is unfortunate, because the title then implies the opposite of what the article says. The central claim is that ? there are straightforward answers? to the questions raised when same-sex marriages cross state lines. In other words, the whole point was to contradict the claim that there will be chaos.]

Full post as published by Balkinization on June 06, 2008 (boomark / email).