In the United States, most social institutions depend on the law for their validity.  That does not mean that the institutions could not exist without the affirmative blessing of the law; only that if an institution runs contrary to the law, it will not be permitted to stand unless the institution or the law is changed.  We saw this in terms of Prohibition in the last century.   The law imposes its imprimatur on social institutions in the form of either  legislative enactments, judicial interpretation or the absence of any express prohibition on the same.

        Marriage depends for its legal validity on the enactment of law.  Parties cannot marry unless they are given permission to do so by law.  Whether this should be so or not is beyond the scope of this article.  What is so is that there are a significant number of legal matters, both at the federal level as well as in state laws, that turn on the legal relationship of parties in terms of marriage and the law imposes a definition of marriage to enable these matters to be more easily resolved.

        For the most part, marriage is the subject of state law.  However, there are overarching principles of federal law, including constitutional principles, that impact on the validity of those state laws.  Given the huge number of state laws and cased that relate to marriage and in order to give this article a wider view, I will discuss just some of the issues presented by some of the provisions of the United States Constitution and other federal laws and cases.

The Full Faith and Credit Clause

        Article IV, Section 1 of the Constitution provides:

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 bedrock strength of this nation is individual freedom--freedom to do what we wish (except what is prohibited by the law), freedom to succeed, freedom to fail and freedom to choose.  And inherent in the concept of individual freedom is the freedom of mobility and thus the need to have one’s marriage accepted by the laws of the other states.  If one’s marriage is limited to acceptance by only the state granting its validity, one of the said bedrock freedoms is substantially weakened.  No vacation houses in other states, as but one example out of many.

        Some history is in order.  You may remember from high school (and yes, this material may be on the midterm) the debate that took place around what form of government the newly independent colonies should have.  We wanted to stay away from anything that smacked of a king, with all that that represented in terms of uniformity of laws imposed from a single source—one man’s version of how we should behave.  That concern was expressed in terms of a distrust of giving too much power to the federal government since to do so would create that same sense of uniformity in law imposed on a newly formed nation that was created out of diversity.   In the end, what we ended up with was a system that provides, in its simplest form, that the powers of the federal government are limited to those powers either granted to it by the Constitution or powers that are prohibited by the Constitution as being state powers, and that all other powers were reserved to the states and to the people. This was embodied in the Tenth Amendment which provides:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
        One of these areas of state sovereignty has traditionally been marriage.   Thus the laws of one state regulating marriage are, on the face of things, entitled to the full faith and credit in all other states.  However, in interpreting the full faith and credit clause, the courts have said that states are not required to automatically accept another state’s laws if to do so runs afoul of the second state’s own laws.  In other words, the clause only requires that the second state enforce the first state’s laws only to the same extent as the second state enforces its own laws in the same matter.

        Thus, assuming the first state allows for same sex marriage, the enforceability of the first state’s laws in the second state depends on the laws of the second state dealing with marriage and the second state’s own “public policy” in regard to the same.  Public policy often refers to some form of collective state morality or ethic, sometimes embodied in actual laws, sometimes not.  Thus, the public policy and laws of the second state have to be at least co-equal or nearly so with the public policy and laws of the first state if the second state is to be required to enforce the same sex  marriage that took effect in the first state.

        Complex enough so far?

        It gets more complex still.  Overarching this issue is the federal law, enacted in 1996 under the Clinton administration, called the “Defense of Marriage Act.”  This law was enacted as part of the powers granted to the Congress under the Full Faith and Credit Clause above.  One part of the said Act added a section (28 USC Section 1738 C) to the United States Code that reads in part:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory,  possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. [emphasis added]
        The said section does not mandate that states not give full faith and credit to another state’s laws in regard to same sex marriage only that the other states are not required to do so.  And while this appears to make the Defense of Marriage Act neutral and appears to codify, as to same sex marriage, the interpretation of the Full Faith and Credit clause, it represents an incursion into the historic realm of state sovereignty in terms of marriage.

        But in fact, the Defense of Marriage Act is not neutral since it also added another section to the United States Code (1 USC Section 7) that reads in part:

Section 7. Definition of ''marriage'' and ''spouse''

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ''marriage'' means only a legal union between one man and one woman as husband and wife, and the word ''spouse'' refers only to a person of the opposite sex who is a husband or a wife.

        Thus the above definition, while not binding on the states, makes the said definition mandatory for all purposes under federal law.  As indicated above, there are a huge number of federal statutes, programs and the like that relate to the status of a party as married or not including many such programs and laws that overlap state programs and laws.

The Proposed Constitutional Amendment

        The text of the proposed amendment to the Constitution reads as follows:

Marriage in the United States shall consist only of the Union of a man and a woman. Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
        Under Article V, there are 2 ways to amend the Constitution.  One is when an amendment is proposed by the states but in this instance, the other method applies and that is when Congress proposes an amendment.  Both houses must approve the amendment by a two thirds vote and then it must be ratified by three fourths of the state legislatures.  Although not expressly stated in the Constitution, Congress has often imposed a 7 year time limit for such state ratification after approval by the Congress.

        Thus, the Defense of Marriage Act and the proposed Constitutional amendment seem intended to nationalize ideas, something we originally decided should not be done.  Can the king be far behind?  This does not mean that same sex marriage should or should not be allowed.  It only means that the decision should be left to the powers of the states and the people therein.

        NOTE: After this article was originally written and posted, the Senate defeated a bill to keep the said measure active.

Some Federal Cases

        There are some federal cases that have peripherally dealt with issues that are peripherally related to the issue of same sex marriage.  These cases do not speak directly to the issue but offer some interesting language that may be relevant to the debate.  For the sake of brevity, let me discuss only 2 such federal cases. There are also many state cases but, as indicated above, I am focusing in this article only to overarching federal issues.

Loving vs. Virginia

        In 1967, the United States Supreme Court ruled that a Virginia state law prohibiting parties of different races from marrying (and similar laws in 15 other states) was unconstitutional as violative of the Fourteenth Amendment.  Virginia had a public policy that was embodied in the said statute.  However, in that case, the Court stated:

The Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.
        And the Court went on to say:
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
        And finally the Court stated:
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.  [emphasis added]

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. [emphasis added]

        Lawrence vs. Texas

        In 2003, the United States Supreme Court ruled that a Texas law that prohibited certain sexual conduct between adult parties of the same sex, in this instance sodomy, was unconstitutional as a violation of the Due Process clause of the Constitution.   As in Loving, this statute was an expression of the public policy of the state of Texas at the time the statute was enacted.

        The Court stated:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
        And further, the Court, citing to another case, stated:
Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. [emphasis added] In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.
Keep in mind, however, that this was a law that regulated or in this instance prohibited private consensual conduct that, by implication, had no discernable ramifications outside the bedroom of the parties.   In that regard, the Court stated:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. [emphasis added]….The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
        Whether Loving vs. Virginia, Lawrence vs. Texas or any other decisions will be of any value for a case involving same sex marriage remains to be seen.   Among the issues in the same sex marriage debate likely to arise in the coming years is whether or not there is a legal distinction between laws that restrict the right to marry based on race versus those based on sexual preferences.  Both the Equal Protection and Due Process clauses allow for differences in how parties are treated under the law provided that those differences are relevant and reasonable to legitimate state interests and are not “arbitrary and invidious”differences.   Thus the questions will turn in part on what are the relevant state interests in preventing such same sex marriages and do those interests pass Constitutional muster.   Additionally, there will likely be many other issues including issues related to the constitutionality of the Defense of Marriage Act, the applicability of the Full Faith and Credit clause and whether or not the Constitutional amendment will be enacted.

        Where it will all end up is anyone’s guess.

        And maybe that uncertainty is actually the issue.  Not same sex marriage but uncertainty.

The Wider Lens

        The law exists because we all have agreed that the law should exist.  (Read “The Law.”)  Laws are not created in a vacuum.  Instead, laws generally reflect the views of the society enacting the laws and such laws are enacted in large part based on how the majority of the society views those issues (lobbying efforts and campaign contributions aside for the sake of this discussion).

        Laws also often reflect balances and choices that we have made in terms of what may seem to be conflicting rights among parties.  When seen in terms of a balance, what actually is the potential harm that can befall society, or any party in society, should people of the same sex be allowed to marry?  In other words, what are the legitimate state or other interests when compared to the freedom to choose of the individuals?

        Everything is about change.  The end to society has frequently been predicted as a result of change and the sources of the predicted end to society have ranged from the horseless carriage, to rock and roll, to women burning bras and, lately, to guys wearing baseball caps backward.   At this time, only the last seems to remain a distinct possibility.

        Change and its quickness of pace and uncertainty can be quite unsettling.   But passing laws does not prevent change and any sense of certainty those laws seem to provide can often be illusory.  (Let's again remember Prohibition.)  Whatever our society was when the nation began, it is not that society any more.  Demographics and ideas have changed and trying to go back to some form of early version of our society, real or, more likely, imagined, is simply not an option.

        The willingness to embrace change can be seen as a mark of trust in the inherent order of things.  And trust requires a significantly different sense of self than does trying to control change.

        In a sense, the debate about same sex marriage is not about same sex marriage.  The debate about same sex marriage is about change.

        And in that sense, the issue is not what others do in the privacy of their lives.

        The issue is what each of us does in the privacy of our own lives.

Copyright © 2004 Ivan Hoffman.  All Rights Reserved.


This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.


No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.



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