Some musings on same-sex marriage in the United States

Note: This post originally appeared in the Integrity Lightspeed email list a month ago or so. In addition, I’m not a lawyer.

One of the facts that turned the tide on interracial marriage back in the 1950’s and 60’s is the fluidity of the population of the United States. People get married in one state, go to live (and pay taxes) in another state, go to a third state and then adopt children, and finally in a fourth state, either divorce or one of the couple is widowed and has to pay inheritance taxes and do probate.

The backbone of the social fabric of the United States is the section of the Constitution that requires each state to give full faith and credit to actions of other states. Without that, a married couple (same-sex) in Massachusetts crosses the state line to New York and (for another month) is considered two single people living together. Their financial situation changes (they can no longer pay state taxes as a couple, for example) and their personal situation could change (adopted children might become un-adopted if the couple moved to Florida, for example).

If we change “same-sex married couple” to “first-cousin married couple” this would be an extremely common situation, as some states allow first cousins to marry, others do not. However, if first cousins are married in a state that permits it, and then they move to a state that does not permit it, they do not immediately become single people–their marriage is recognised.

When only relatively small states permitted same-sex marriage, the social consequences of moving from one of those states to another state were small. Now that a big state has legalised same-sex marriage, and in one stroke of Gov. Cuomo’s pen doubled the number of people living in states which permit it, the stakes are getting higher. If California’s Proposition 8 is invalidated, the stakes will be almost overwhelming.

If a same-sex married couple from Massachusetts moves to Texas and wishes to divorce, the obvious place for that divorce to happen is the civil courts of the State of Texas. If they were a mixed-sex couple, that is what would happen. For Texas to then arbitrarily say that marriages contracted in Massachusetts are of two different types, mixed-sex (which they recognise) and same-sex (which they do not recognise) is a legal nicety and certainly the proper subject of litigation.

Eventually (perhaps not the first time, or the tenth time, but eventually) the Federal courts will rule that Massachusetts (for the sake of example) has only one kind of marriage and other states will be required by the Constitution to recognise it.

And the simple reason is: simplicity. For states to keep two types of marriage around in order to uphold “traditional marriage” makes all sorts of social and legal interactions much more complicated. It clogs the courts (which courts dislike) and requires lots of legal picking of nits to support.

This is also the legal and social reason why civil partnerships (in the US sense of that phrase) are inferior. Texas could argue that civil partnerships (which Texas does not allow) do not have to be given the same legal status as marriages. I do not ignore the reason of natural justice and equal rights in saying that civil partnerships are inferior, but legally a civil partnership gives another state a good reason to not recognise it.

The historic argument that same-sex marriage somehow breaks or devalues mixed-sex marriage is being debased every time a same-sex couple marries in Massachusetts, New Hampshire, Vermont, Connecticut, Iowa, or (soon) New York. Mixed-sex marriage has not been devalued at all. The fact that mixed-sex couples in those states are still getting married, and see value in getting married, gives the lie to that argument. The fear of the Roman Catholic Church is that the more places where same-sex marriage is legal, and the more places in which it is seen as normal, the more pressure there will be for same-sex marriage everywhere. And once some states see that civilisation has not collapsed in those places, they will feel emboldened to follow the example of those places.

The sexual assault scandals in the Roman Catholic Church have also not helped. After discovering that bishops conspired to move around offenders rather than discipline them or protect minors from them, people wonder why on earth something as simple, edifying, and gracious as to allow same-sex loving couples to enjoy the same rights as their mixed sex brothers and sisters do is so reviled by the same clerics who allowed the rights and lives of young children to be ruined in the name of the reputation of the Church.

My prediction is that as more states allow same-sex marriage, the build-up of case law over social effects of marriage (divorce, adoption, taxation) will come to a height that the Supreme Court will be unable to ignore. To allow states to discriminate between marriages on the basis of who is married to whom is not going to be a good idea. The conservative justices will try to deny these cases on the basis of history, culture, religion, everything but the Constitution. My strategy (were I King of the World…) would be to get Obama re-elected, then after he appoints a few more justices, only then bring the test case. If the case comes to the Supreme Court too early, it runs the risk of being overturned on the first run, and then supported only 10 or 20 years later, like the sodomy law cases were.

On civil partnerships, by the way, they have been legal here in the UK from 2006. After five years, it is generally recognised in society that members of civil partnerships are married, rather than “civilly partnered”. People refer to HWMBO and me as married, do not do a double-take when I refer to him as my husband, and are generally happy to treat us in the same way they treat a mixed-sex couple. So, after only a few years, civil partnerships have been turned into marriage by society in general. The law is following after society in this case. I expect that the next “liberal” government will turn all civil partnerships into marriages and remove the distinction in law.

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