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On the gay marriage anti-climax

Michael Springer/Stringer

On May 17,  by order of the state supreme court, the first same-sex couples in the United States will be legally married in Massachusetts. For many supporters of gay marriage, this is not only a cause for celebration; it is a manifesto for future litigation. Many people understandably see gay marriage as the great civil rights issue of this generation, and they are determined to extend it across the United States by any means necessary. Accordingly, using the legal victory in Massachusetts as a model, gay marriage supporters have already filed suits challenging the bans on same-sex marriage in California, New York, Washington, and Oregon.

Opponents of gay marriage, for their part, have ensured that ministers and county clerks across the country are enjoined from issuing marriage licenses to same-sex couples in defiance of state law. They’re equally prepared to fight against gay marriage in the courts and in state legislatures across the country. So it comes as little surprise that both supporters and opponents of gay marriage are anticipating a prolonged and messy battle following the first state sanctioned gay marriages in May.

But both sides’ expectations are exaggerated. “The earth shattering thing that’s going to happen after May 17 is nothing,” says Andrew Koppelman, author of The Gay Rights Question in Contemporary American Law. Massachusetts same-sex marriages will be available only to Massachusetts residents; and, when those couples travel outside the state, a series of well-developed judicial precedents, dating back to the anti-miscegenation era, will guide courts in their effort to carve out a moderate path, recognizing Massachusetts marriages for some purposes but not others. As long as judges follow existing precedent, predictions of a political or judicial bloodbath after May 17 are unlikely to materialize.

Opponents of gay marriage fear that, after May 17, same-sex couples will flock to Massachusetts from other states, get married, and return to their home states demanding recognition of their new marriages. These fears are unfounded, thanks to a provision of the Massachusetts marriage law that refuses to recognize marriages celebrated in Massachusetts if they take place between parties domiciled in a state that does not recognize the marriage as valid. This provision-designed to prevent out-of-staters from evading their own local marriage laws—means that a same-sex couple from New York traveling to Massachusetts for the weekend to get married should be turned away at the altar. And, despite the assurances of the New York attorney general that his state will recognize any valid Massachusetts marriages, the marriage would be invalid in New York even if the couple managed to return with a marriage certificate. Since the marriage can’t be valid in Massachusetts, it can’t be valid in New York.

The New York couple might try to get around this restriction by becoming Massachusetts residents. And gay marriage advocates will argue that same-sex couples shouldn’t have to spend much time in Massachusetts to establish the state as their domicile. In the old days of Reno divorces, the Nevada legislature passed a law in 1931 saying you could establish Nevada residency for the purpose of a divorce by spending just six weeks in the state. The Massachusetts legislature will face pressure from the bed-and-breakfast industry to pass a similar law, making Boston marriages available to out-of-state couples with the same ease as the old Reno divorces. But, given the legislature’s resistance to gay marriages in general, there’s little reason to think such a law would pass. (On March 29, the legislature approved a constitutional amendment that would overturn the Massachusetts Supreme Judicial Court’s Goodridge decision, but it can’t take effect unless it is reaffirmed by the legislature next year and then ratified by the voters in a referendum.) And, even in the unlikely event that the legislature bows to the tourism industry, a well-settled body of law says that states don’t have to recognize the marriages of their own residents who have traveled to another state to get married for the purpose of circumventing a strongly held public policy in their home state.

That means the only gay people who can celebrate valid marriages in Massachusetts for the foreseeable future will be legitimate Massachusetts residents. What will be the status of those marriages when the couples travel out of state? Here, too, the answer should calm moderates on both sides of the gay marriage debate. When a married Massachusetts couple travels to Georgia on holiday, for example, the couple won’t be recognized as married under Georgia law but also won’t be completely without rights. Here it’s instructive to consider the experience of Southern courts dealing with interracial marriages in the years before bans on them were struck down by the Supreme Court in 1967. As Koppelman notes, Southern states were even more fervent in their opposition to miscegenation than opponents of gay marriage are today: Interracial couples were guilty of a felony; by contrast, none of the 37 states that have passed bans on gay marriage today has sought to impose criminal punishments on same-sex couples.

Nevertheless, even the most racist Southern courts developed a series of precedents for dealing with the complicated questions posed by the interstate recognition of interracial marriages. Koppelman identifies three separate categories of cases from the anti-miscegenation era. First, there were “evasive marriages,” in which people left their home states in order to circumvent local restrictions on interracial marriages and then returned home. Southern courts always refused to recognize marriages in these circumstances, and, as noted above, courts in the anti-gay marriage states would be likely to do the same. Second, there were “migratory” marriages, in which couples were validly married in a state that allowed interracial unions and then moved to a state that prohibited them. In the two reported state cases, Southern courts were evenly divided on whether to recognize these marriages: One court held that interracial marriages were so obnoxious that they couldn’t be imported permanently under any circumstances, while the other held that, in light of the right to travel, it would be silly to conclude that a marriage must end merely because people move for legitimate purposes.

These are the most difficult cases, and there might be similar disagreement over the validity of gay marriages by people who change their residence today. If a Massachusetts couple tries to move permanently to Georgia, for example, it’s not obvious whether Georgia courts will recognize the marriage for benefits purposes. But, although there’s bound to be state-by-state disagreement about how Massachusetts couples should be treated when they permanently change their residences, this will affect a limited group of people who can make decisions about where to move based on how hospitably they are treated.

Finally, Koppelman identifies “extraterritorial” cases, in which traveling interracial couples never lived in a Southern state, but their marriage became relevant in litigation arising out of that state. In these cases, even the most enthusiastic Jim Crow courts recognized the validity of interracial marriages—allowing a surviving spouse to inherit property, for example, or recognizing the children of the marriage as legitimate offspring. Anti-gay-marriage state courts are likely to follow in their footsteps today, in the spirit of accommodating the views of states that hold different views about gay marriage. After May 17, for example, imagine that one member of a same-sex Massachusetts couple gets into a car accident on a business trip in Georgia. If he’s hospitalized and his partner shows up at the hospital demanding visitation rights and the right to make medical decisions, even the most conservative state courts are likely to recognize the marriage in this limited context.

Perhaps the biggest threat of a post-May 17 train wreck over gay marriage would arise if gay marriage supporters become impatient with fighting state by state and instead ask courts to strike down state laws banning gay marriage as a violation of the federal Constitution. If a court accepted the invitation, it would have the effect of nationalizing the gay marriage debate—raising the possibility that all state bans on gay marriage are unconstitutional and making it harder for the U.S. Supreme Court to avoid resolving the issue for the entire nation. It’s hard to say whether state or federal courts will be rash enough to take this step. But, ultimately, any attempt to fight the gay marriage battle this way is unlikely to amount to much. If a disagreement among lower courts forces the Supreme Court to intervene, it’s hard to imagine that the current justices would uphold the decision. In Lawrence v. Texas last spring, after all, a majority of the Court strongly suggested that it wasn’t ready to strike down bans on gay marriage across the country as a violation of the U.S. Constitution.

Rather than rushing to court, in other words, gay marriage supporters in California and elsewhere should make their case in the political arena. And California itself provides a model for legislative victories at the local level. A few weeks before his recall by the voters last year, Governor Gray Davis, without any judicial nudging, decided to consolidate his support among gay voters by persuading the California legislature to enact a domestic partnership law that gave gay and lesbian couples all the benefits of civil unions. The experience in Europe suggests that, when victories for gay equality come from legislatures rather than courts, they can eventually grow into something more: The legislature in the Netherlands initially recognized civil unions and, several years later, granted gays and lesbians the full benefits of marriage. Unless they are forced by courts to recognize gay marriage before the public is ready, state legislatures may move through the same progression, recognizing first civil unions and eventually gay marriage. For the moment, the best thing for judges to do is the thing they’re most likely to do, which is very little.

This article originally appeared in the May 3, 2004, issue of the magazine.