Michelle Baines

PUBLISHED: Sunday, June 1, 2008 How will the law interpret increasing gay marriages?

By GLENN GILBERT
Of The Oakland Press

The question of the day is not whether gay or same-sex marriage is right or wrong.

Or whether is should be legal or illegal.

Today's issue is whether legalization is inevitable, and on what grounds.

What brings up the subject is a May 15 California Supreme Court ruling in which a voter-approved California law banning same-sex marriage was struck down as a violation of that state constitution's clause guaranteeing equal protection under the law.

Opponents of same-sex marriage are interpreting the California ruling as suggesting that states need more than a statutory ban of same-sex marriage; they also need a ban written into their state constitutions.

Thus, Michigan may consider itself well-armed against same-sex marriages because not only does it exclude the practice by law, but in 2004 voters also approved a constitutional ban on same-sex marriages, civil unions and public benefits for domestic partners.

But there is a valid question as to whether even that will stem what appears to be a growing tide.

State constitutional bans are necessary, some say, because of the full faith and credit provision of the U.S. constitution. Enshrined in Article IV, Section 1, it states that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

Bruce Leitman, a constitutional lawyer from Franklin, says this means that "when one state issues a judgment that is final, it must be enforced in another state."

This would seem to say that a same-sex marriage occurring in California or Massachusetts -- the two states where it is legal -- would have to be recognized in other states.

A precedent would be marriages occurring in Nevada. Nevada has turned quickie marriages and divorces into a tourist industry because it has no residency requirement. Nevada marriages have typically been recognized as legal in other states.

However, Jay Kaplan, a lawyer with the American Civil Liberties Union of Michigan, thinks the state's double-barreled approach ensures that Michigan will not have to recognize same-sex marriages that occur in another state.

"Full faith and credit is not absolute," Kaplan says.

Other constitutional specialists are not so sure.

That is why some same-sex marriage opponents say that only a federal constitutional amendment defining marriage as between a man and a woman will stop the spread of same-sex marriage. That seems as likely to happen, however, as a constitutional ban ..ion. Efforts to push such amendments through Congress have thus far failed.

The problem with the gay marriage debate is that so much emotion is attached to it. Even so-called strict constructionists -- those favoring a literal interpretation of constitutions -- seem to miss the point. A literal reading of the full faith and credit provision seems pretty plain. In fact, a New York appellate court ruled that New York must recognize a same-sex marriage legally performed elsewhere, though it cited a century-old state law and not the full faith and credit clause. But New York has neither a statutory nor a constitutional ban on same-sex marriage.

Lea Brilmayer, a Yale law professor writing in The Wall Street Journal, expressed frustration over her experience before a Senate subcommittee studying the gay marriage issue in 2004.

"Prepared to do battle over the correct interpretation of the Constitution's full faith and credit clause, I found myself instead in the middle of a debate about whether marriage is a good thing, and who really loves America's kids the most -- Republicans or Democrats," Brilmayer stated. She added:

"Like many political debates, the discussion was framed in absolutist terms. Conservatives say that without a constitutional amendment ... gays will travel to Massachusetts to get married and then their home states will be forced (under the full faith and credit clause) to recognize their marriages. Traditional marriage (apparently a frailer institution than I'd realized) will be fatally undermined unless we act now to prevent the Massachusetts Supreme Judicial Court from imposing its will upon the whole nation.

"The fly in the ointment was that nobody bothered to check whether the full faith and credit clause had actually ever been read to require one state to recognize another state's marriages. It hasn't. Long-standing precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy."

ACLU's Kaplan agrees, even though he says "it is a highly unusual thing not to recognize full faith and credit." He admits "there will be more complications as more states permit gay marriage."

"This is a huge win for the other side," Jay Sekulow, chief counsel for the American Center for Law and Justice in Washington, told the Los Angeles Times concerning the California ruling. "It has swung open the door to litigation all across the country. Since California doesn't have a residency requirement, you could have people from Georgia and Virginia and Montana go to California, get married and return home and ask for their marriage to be honored. The state will say 'no,' and they will go to federal court saying it is a denial of full faith and credit."

The bottom line is that it is not a stretch to presume that same-sex marriage will increasingly be permitted. That has been the trend of recent years. Americans may not like it, but as with so many other things, if we are unwilling to change the U.S. Constitution to clear up legal ambiguities, we are stuck with what we get.

To cast this as a liberal vs. conservative issue, or one in which courts are supposedly legislating against the people's will, is an oversimplification. The courts appear to be determining the issue on narrow, disputable, constitutional questions.

Isn't that what they are supposed to do?

Let's put it another way. If the legislature or the voters of Michigan approved a law banning possession of handguns, wouldn't you expect the courts to overturn such a measure as a violation of the Second Amendment?

After all, courts are there to protect the rights of minorities as well as majorities.

Glenn Gilbert is executive editor of The Oakland Press. Contact him at (248) 745-4587 or by e-mail at [email protected].