The Seattle Times today had an AP wire story on the debate over gay marriages in Massachusetts. The legislature there is debating whether or not to amend the state constitution to state explicitly that there is no right to a gay marriage.

As I have followed the reporting, and some of the debate on this matter, it has become clear that the reporting does not understand the fundamental legal issues.

The first thing to keep in mind is that the Massachusetts Supreme Court’s ruling is limited to saying that the ban on gay marriages violates the Massachusetts State Constitution. The ruling does not address whether or not the ban violates the United States Constitution. There is a good reason for this.

The Massachusetts Supreme Court is considered the final word on Massachusetts law. The federal courts, including the Supreme Court of the United States will defer to the Massachusetts Supreme Court on issues of Massachusetts law. The Massachusetts Supreme Court, however, is not granted any particular deference on issues of federal law, including interpretation of the United States Constitution.

If the Massachusetts Supreme Court had ruled that the ban on gay marriages violated the U.S. Constitution, the opponents could have appealed all the way up to the Supreme Court of the United States. Each appeal would have had a judge, judges, or justices deciding for themselves whether or not the ban on gay marriages violated the federal constitution. Odds are the proponent of gay marriage would have ultimately lost.

By confining their ruling to the Massachusetts State Constitution, the Massachusetts Supreme Court has made its decision safe from further appeals. On issues of Massachusetts law there is no court to appeal to after the Massachusetts Supreme Court.

You may think this doesn’t matter to you, however, if you don’t live in Massachusetts. You would be wrong.

Article IV, Section 1 of the United States Constitution is the “Full Faith and Credit” clause. It states:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.”

What this means is that one state cannot ignore the laws and judicial decision of another state. If your company is a valid corporation in Delaware, for instance, it is a valid corporation in Nebraska. A money judgment entered against you in one state can be collected form you in another. This clause also means that a marriage in one state must be respected in others. This is the reason so many people avail themselves of Nevada’s lax marriage and divorce laws. Although it has never been tested, it seems likely that other states will have to recognize a gay marriage from Massachusetts.

Some states have attempted to avoid this problem by drafting laws recognizing marriage as between a man and a woman only. The AP story, to its credit, recognized this “If gay marriage takes place in Massachusetts, federal lawsuits would probably ensue as gay couples seek recognition in other states and by the federal government. While marriages performed in one state are normally recognized in other jurisdictions, 38 states and the federal government have approved laws or amendments barring the recognition of gay marriage.”

The problem with this approach is that pesky full faith and credit clause. The U.S. Constitution, by its own language, is the “supreme Law of the Land” and no federal or state law (or state constitution) can overrule it.

The Massachusetts legislature is now attempting to amend its state constitution. If this happens, the issue will go away for a while. It will come back, however, when the next state supreme court finds a right to gay marriage. It seems likely that the only way to stop de facto gay marriage in this country, however, is to amend the federal constitution.

Amending the U.S. Constitution requires a vote by two-thirds of both house of the Congress. Then the proposed amendment must be ratified by at least three fourths of the states. The President of the United States has no formal role in the amendment process. He can certainly encourage or discourage an amendment using the bully pulpit, but he cannot propose or veto any proposed amendment.

Interestingly “three fourths” of the states means thirty-eight states, the same number as have passed laws barring the recognition of gay marriage. Ratification of a constitutional amendment would not appear, therefore, to be a difficult task. The real fight will be when proponents of traditional marriage try to get a two-thirds majority in each house of the United States Congress.

Democrats hold just less than half the seats in each chamber and this issue is a political disaster for them. The Democrats can only lose if a vote is taken on a constitutional amendment to ban gay marriage. This issue splits their party just as it unites the Republicans. Smart Democrats will want to change the subject, therefore, rather than encourage a debate on the matter.

What makes this even more interesting is that all of this will play out against a backdrop of the presidential election in which the Democratic candidate will be a liberal Senator from Massachusetts. I wonder how he will vote on a proposed amendment to block what his own state’s Supreme Court is attempting to do? Just the thought must have Karl Rove smiling.
- posted by Thomas @ 8:42 PM