by Jay Johansen | Dec 7, 2003
Both sides of the homosexual marriage debate appear to take as a given that the "full faith and credit" clause of the U.S. Constitution means that if any state recognizes homosexual marriage, that all other states will be obliged to recognize any such marriages.
The Constitution says, Article 4 Section 1, "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." The average American sees this clause in action most commonly when he drives across a state line: A driver's license issued in one state is routinely recognized by other states. I have never heard of someone being arrested in, say, New Hampshire, for driving without a drivers license because he doesn't have a New Hampshire license but only a Vermont license.
But more to the point, states routinely recognize marriages entered into in other states. If Andy and Betty marry in Vermont and then move to New Hampshire, New Hampshire recognizes them as married: They don't have to remarry in New Hampshire.
And so, both sides seem to agree, if Vermont recognizes homosexual marriage, and Andy and Bob marry in Vermont, then if they move to New Hamphire, under the full faith and credit clause New Hampshire must recognize this marriage. Advocates of homosexual marriage see this as a great tool to leverage one victory: win in one state, and that state can then become a "gay marriage haven" where people from other states can come, get married, and go back home. Every state would then quickly have growing numbers of such couples, and pressure would build to eliminate the awkward requirement of travelling to another state to get married. Opponents of homosexual marriage see this as a terrible danger, for exactly the same reasons.
But does this really follow? Does the full faith and credit clause allow a state to "export" its marriage laws?
Such logic surely has not been followed when "full faith and credit" is applied to any other subject. For example, in 1997, the Supreme Court ruled in the case of Nevada v. Hall that, "The Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy"....".1 Similarly, in April, 2003 the Court stated in Franchise Tax Board of California v Hyatt that, "The Clause does not compel a State to substitute the statutes of other States for its own statues ...".2 In these and numerous other cases, the Supreme Court has made clear "full faith and credit" means that states must recognize contracts and court settlements and the like from other states, but only as long as they are consistent with the states own laws and policies.
Suppose that some chemical used in industry was found to present a health hazard. Suppose that, say, New York responds by completely banning the use of this chemical, while Pennsylvania decides that the appropriate solution is to require anyone who uses this chemical to have a special license, presumably not issued until after they demonstrate that they can meet various safety standards. This is surely not an outlandish scenario: States have such differences in their legal response to various situations all the time. Now, suppose that someone who has a license to use this chemical in Pennsylvania moves to New York. Does the full faith and credit law allow this person to use the chemical in New York, even though New York law explicitly prohibits its use? Is New York obliged to recognize the Pennsylvania license? I strongly doubt that any court would take such an argument seriously. And if a court did force New York to recognize it, surely the New York legislature -- if not the populace in general -- would be outraged. Even those who didn't like the original law would probably be angry at this imposition on their right to make their own laws.
Simple logic would say that the same principle would apply to homosexual marriage. If one state changes its laws to provide for such marriages, that is presumably their legal right. But two men married in that state would not carry that states law with them when they moved to another state.
Advocates of homosexual marriage today routinely frame it as an equal rights issue: They are being denied rights that are available to others.
What are they talking about? I am not aware of any state that prohibits homosexuals from marrying or restricts them in any way that does not apply equally to heterosexuals. To the best of my knowledge, in every state a homosexual man is perfectly free to marry any woman who will have him. A lesbian woman is free to marry any man who will have her. The law gives them exactly the same rights that everyone else has.
No no, I'm sure the homosexual marriage advocates will reply. As a homosexual man, I don't want to marry a woman, I want to marry another man. And the law won't let me marry another man, it limits me to marrying a woman.
So how does the law discriminate? Homosexual marriage advocates are saying that "equal rights" means that they must have the right to do something that no one else has the right to do. The law says that others can do X. They don't want to do X, they want to do Y. So they say that "equal rights" means that if others are allowed to do X, they must be allowed to do Y. Huh?
The law says that paper money issued by the U.S. Treasury is legal tender that must be accepted in payment of any debt. Suppose that I don't want to use U.S. dollars, that I prefer to use French francs or pretty yellow and orange beads. Does the principle of equal rights under law really mean that store owners should be required to accept whatever I want to use as money? If others can use the money they want, that I should be able to use the money I want?
Indeed, the law has never said that any male may legally marry any female. I cannot marry a six year old girl. Could I argue in court that, as other people who are over the legal age are allowed to marry, that therefore age limits violate my civil rights? Surely the reply would be that "equal rights" means that the same age limits apply to me as to anyone else. I cannot legally marry a mannequin, or a poodle, or a character in a video game, even if she is female. Does this violate my equal rights? Indeed, there is at least one circumstance where I would not legally be allowed to marry a woman even though another man would be legally allowed to marry this very same woman. Surely it is a fundamental violation of the principle of equal rights if my neighbor is allowed to marry this woman but I am not. Right? But what if I am already married and he is not? Every state in the United States forbids bigamy.
The laws of every state place certain restrictions on marriage: You must be a certain age, you must have been a resident of the state for so long, neither of you can be married to someone else ... and you must be of the opposite sex. These same laws apply to every one. Whether you are white or black, Democrat or Republican, Christian or Buddhist or atheist, heterosexual or homosexual. The same laws apply to every one. There is no discrimination in present law.
When I was in college, my sociology textbook included a discussion of marriage, and mentioned that an effort in one state to make marriage legally become a three-year contract with options for renewal "was treated as a joke by the other legislators". When I read that I couldn't help but think, It was a joke. I mean, suppose that someone said that he thought that football would be a much better game if instead of using an oblong ball, we used a spherical ball; and instead of kicking or carrying the ball, we hit it with a heavy stick; and instead of playing on a rectangular field, we played on a diamond-shaped field; etc. We could certainly debate whether or not such changes would make a better game, but surely if we made such drastic changes, what we would have would no longer be football. It would be a lot more like baseball.
Marriage has historically been understood to be a permanent union between a man and a woman. To the best of my knowledge, every culture in the history of the world up to 1990 has understood this to be the definition of marriage. Even in those few cultures that have viewed homosexuality positively, I cannot find a single example of a culture where a homosexual couple would be considered "married".
Yes, there is variation in the marriage laws and customs of different cultures. Some have allowed a man to have more than one wife; a few have allowed a woman to have more than one husband. Some allow marriage of an adult to a child or between two children. A few have prohibited or discouraged marriage between people of different social classes or races. There have been different rules for for when divorce is permitted. (Other than bigamy, which has been widely accepted in many places at many times, all the other variations have usually been controversial wherever practiced.)
That's about it for the variety. I don't know of any culture that has ever viewed marriage as a three-year contract with options for renewal. I don't know of any culture where it was viewed as normal for a married couple to not live together. I don't know of any culture that allowed a person to marry himself. And I don't know of any culture has ever allowed a man to marry any sort of creature or being other than a woman: No culture has ever allowed a man to marry a goat or a box of rocks.
We could debate whether or not homosexuality is a good or bad or morally indifferent thing, or whether it is a good idea for two unrelated adults of the same sex to live together. But whatever you call such a relationship, it is not "marriage". Calling it "marriage" would simply be wrong. Not just morally, like stealing is wrong, but factually, like saying 2+2=5 is wrong.
One final thought: For at least the last 30 years, American liberals have been telling us that marriage is a constraining institution, that monogamy is unnatural and unhealthy, that trying to hold people to vows they made in their youth condemns millions to lives of misery, etc etc. Indeed, the feminist left routinely argued that marriage was oppressive, that it was a tool used by authoritarian men to dominate women.
Now all of a sudden these same people are telling us that homosexuals should marry. Apparently they want to abolish marriage, except for homosexuals.
1. In the Hall case, Nevada government officials on official business in California were involved in an automobile accident. Nevada tried to use a Nevada law limiting the liability of the state in such cases to $25,000. California said that as the accident happened in California, California law applied, despite the fact that it involved Nevada government officials, and California law has no such limit. The Supreme Court agreed with California.
2. In the Hyatt case, Mr Hyatt moved from Nevada to California. He claimed he moved in 1991, but California tax officials said he didn't really move until 1992 and so he owed California taxes on his late 1991 and early 1992 income. In the course of the dispute, Mr Hyatt claimed that California officials broke various laws trying to get money from him, so he sued them for damages. California didn't deny that they had used illegal tactics, but they claimed that California law made state agencies immune from such lawsuits. Nevada law does not give state agencies such immunity, and so the state of Nevada allowed Mr Hyatt's lawsuit. The U.S. Supreme Court agreed with Nevada: "Full faith and credit" does not mean that California law applies to actions that a person made in Nevada. Even if that someone is an official of the California state government, he does not bring California law with him when he travels to Nevada. (Maybe this was Nevada's revenge for the Hall case. Why is it that three of the five cases I could find on this subject for the last 10 years involved Nevada? What is it with Nevada, anyway?)
© 2003 by Jay Johansen