Explaining The Complicated “States’ Rights” Same-Sex Marriage Issue

05/14/2012 4:14 PM |

ssm.jpg

Over at the Atlantic, E.J. Graff has a long and very helpful primer on why she thinks Obama is supporting same-sex marriage the right way. It’s interesting reading all the way through, so maybe just go learn a thing or two. But generally, her argument is that same-sex marriage is more like no-fault divorce than it is like anti-miscegenation laws, and it makes a lot of sense to keep deciding it on a state-by-state basis.

What would de-federalizing marriage law do? It will make it possible for same-sex marrieds to be treated not just as married in their home states, but also in the United States. That’s what would happen if DOMA is either repealed by Congress — and Obama openly supports the Respect for Marriage Act, which would do just that — or is knocked down by the federal courts, as a number of lawsuits are seeking — and, again, which the Obama Justice Department also actively supports. Let us be 100 percent clear on this point: The administration is refusing to defend DOMA in court, and is filing briefs supporting the same-sex couples’ stands. When marriage law is de-federalized, returned to the states, then mixed-nationality couples will be free to marry in the six (and expanding) states that now marry same-sex couples — and the federal government will have to recognize that marriage for the purpose of the foreign-born partner’s immigration status.

Will other states have to recognize those marriages as well? That’s the open question: the lawyers tell me that full faith and credit doesn’t necessarily apply if another jurisdiction’s marriage law violates that state’s public policy. Would it be valid for a couple living in Texas to go to Connecticut or Iowa specifically to evade their home state’s marriage laws? Obama hasn’t weighed in on that yet. And thank God — if supporters of marriage equality want to win, it’s better to keep that question from being called up for public debate just yet, and better to keep Obama out of polarizing the debate. But given the administration’s record, my guess is that an Obama Department of Homeland Security and an Obama Justice Department would be on the right side of that legal question. It’s equally clear that a Romney administration would not. When Romney was my state’s governor, he put his administration to work unearthing and enforcing a 1913 law that refused Massachusetts marriage licenses to anyone from states where that particular marriage would not have been performed — a law written to prevent out-of-state mixed-race couples from marrying in Massachusetts if they couldn’t marry back home.

[What Straight Allies Need to Understand About Gay Marriage and States' Rights]

There’s more—so much more! And it is very helpful in explaining a lot of the legal intricacies of marriage law and how the piece fit together between states and federal that non-lawyer dummies like me don’t really get at first glance. Get your vitamin longreads for the day.