Uncivil Disunion

States Won't Find It Easy To Resolve The Gay Marriage Issue. The Federal Government Could Make The Task Even Harder.
March 2004
By Jonathan Walters  |  Senior Editor
A Senior Editor of Governing, Jonathan has been covering state and local public policy and administration for more than 30 years.

Regardless Of Where One Stands On The Issue Of Same-Sex Marriage, There's No Denying That Sooner, Rather Than Later, It's Going To Become A Central Battle In The Intergovernmental Wars. With Vermont Having Already Passed Its Civil Union Law, And With New Jersey, Massachusetts And New York Embroiled In State Court Battles Likely To Lead To Some Form Of Recognition For Same-Sex Unions, Graduation To The Federal Arena Seems To Be Only A Matter Of Time. President Bush Increased The Chances Of A Showdown With His Comments Against Gay Marriage During This Year's State Of The Union Address.

Meanwhile, The Whole Issue Is Unfolding As A Fascinating Study In The Ways Culture, Religion And Tightly Held Notions Of Right And Wrong Get Hashed Out Through The State Legislative Process. Heart-Wrenching Stories Of Same-Sex Partners Being Denied Hospital Visits To Dying Loved Ones Compete With Heartfelt Concern Over The Continued Erosion Of The Institution Of Marriage Should Gay Unions Be Allowed Nationwide.

But What May Matter Most Is A Question That Has Far More To Do With Legal Technicality Than With Emotion: That Is, To What Extent Are One State's Actions On Gay Marriage Or Civil Unions Binding On Another State? The American Civil Liberties Union Takes The Position That The "Full Faith And Credit" Clause Of The U.S. Constitution Applies Here: "Full Faith And Credit Shall Be Given In Each State To The Public Acts, Records And Judicial Proceedings Of Every Other State." In Other Words, What Has Been Joined In Vermont, Let No Other State Put Asunder.

Anti-Gay Marriage Groups, Such As The Alliance For Marriage, Worry About That Analysis, Pointing Out That During The First Year The Civil Union Law Was In Effect In Vermont, Some 80 Percent Of The 2,000 Couples Participating In Ceremonies There Were From Out Of State. These Couples, In The Opinion Of The Alliance, "Will Eventually Sue For Quasi-Marital Status" In Their Home States, Essentially Using Vermont As A Pass-Through To Force Acceptance Of The Unions On Jurisdictions That Don't Want Them.

In Fact, That's Happening. In A New York Case, John Langan, The Surviving Member Of A Vermont-Sanctioned Civil Union, Recently Won Standing To File A Medical Malpractice Lawsuit In His Partner's Death. Now, In The Wake Of Goodridge V. Massachusetts Department Of Public Health--Last Fall's Massachusetts Supreme Court Decision Requiring The State Legislature To Come Up With A New Law Recognizing Same-Sex Unions--The Boston Bar Association Is Calling For " 'Federal Constitutional Claims' To Be Brought Against All State And Federal Marriage Laws" That Bar Same-Sex Unions.

David Buckel, Senior Staff Attorney With The Pro-Gay Marriage Group Lambda Legal, Says The Strategy Is To Go State By State, Either Using Equal Protection And Anti-Discrimination Laws To Push The Issue, Or Testing The Full Faith And Credit Proposition.

It Is The Latter Strategy That Portends The Most Challenging Interstate And Intergovernmental Conflicts. While The Vermont Civil Union Law Seems To Have Played Some Part In The Langan Case Ruling In New York, A Georgia State Court Has Repudiated The Idea That Vermont's Statute Requires Acceptance Elsewhere. In The Child Custody Case Of Burns V. Burns, The Plaintiff Has Argued That The Estranged Couple's Vermont Civil Union Gives Her Legal Standing In Georgia As A Parent. So Far, Georgia Judges Have Ruled Against Her.

The Judicial Route Is Not The Only One That Advocates Of Same-Sex Unions Are Pursuing In Their Campaign To Win Official Recognition. Lost In The Debate Over The Complex Court Cases Is The Fact That A Handful Of States Have Passed Legislation Accepting The Legitimacy Of Same-Sex Unions In Some Form. California, Connecticut, Iowa, New Mexico, New York, Rhode Island And Washington Now Extend Benefits To Same-Sex Domestic Partners Of State Employees, With Clear Implications For The Gay Marriage Issue.

On The Other Side, There Are The "Defense Of Marriage Acts," Or "Domas" For Short, Laws That Explicitly Define Marriage As A Union Between A Man And A Woman. Nearly Three Dozen States And The Federal Government Have Domas, And Those Are Stirring Up Legal Challenges As Well. Pro-Gay Marriage Factions Are In The Process Of Trying To Overturn A Nebraska Constitutional Amendment Considered By Opponents To Be The Strictest Of The State Domas Passed So Far. As A Counter To That, The Alliance For Marriage Is Pushing For A Federal Constitutional Amendment That Would Bar Legal Recognition Of Same-Sex Marriage All Across The Nation, Once And For All.

Ideally, Given The Strength Of The Emotions At Play On This Issue, It Might Make Sense To Use The States As An Initial Testing Ground Where Discussions Can Take Place, Rhetoric Can Be Tempered, And Perhaps Some Common Ground Can Be Reached Through A Little State-Level Civil Discourse. But Given The Rising Political And Cultural Visibility Of The Issue, That Probably Won't Happen. More Likely, The Federal Government Will Find Itself Unable To Resist Coming Down On One Side Or The Other, And Any Prospects For Peaceful Resolution At The State Level, However Slim, Will Simply Disappear.