On gay mar­riage, mod­er­a­tion could be dis­as­trous

The Pak Banker - - OPINION - Noah Feld­man

CON­VEN­TIONAL wis­dom formed quickly this week af­ter oral ar­gu­ments in the two same-sex mar­riage cases be­fore the U.S. Supreme Court. The gist is that the court would duck the fun­da­men­tal ques­tion of whether the Con­sti­tu­tion guar­an­tees ev­ery­one the right to marry -- im­plied in the Cal­i­for­nia Propo­si­tion 8 case -- and strike down the Fed­eral De­fense of Jus­tice An­thony Kennedy, the peren­nial swing voter, might well pre­fer some grad­ual way to in­tro­duce gay mar­riage with­out pro­duc­ing the head­line "Court Grants Gay Mar­riage." But the prob­lem with this grad­ual strat­egy en­vi­sioned by court ob­servers and at­trib­uted to Kennedy is that it would cre­ate anom­alies lead­ing to a night­mar­ish bar­rage of new lit­i­ga­tion. In­stead of at­ten­u­at­ing crit­i­cism of the court by avoid­ing a sin­gle "Eureka" moment, the court would put it­self, along with lower courts, at the cen­ter of hun­dreds more head­lines for years to come. And they would all be of the same ilk: "Court Cre­ates Le­gal Night­mare; Ci­ti­zens on All Sides An­gry."

To un­der­stand the mess that would re­sult if the court struck down DOMA with­out find­ing a gen­eral right to same-sex mar­riage, con­sider what would hap­pen if the fed­eral government rec­og­nized mar­riages per­formed in states that al­low gay cou­ples to marry while con­tin­u­ing to deny mar­i­tal sta­tus to cou­ples in other states.

In the first, most op­ti­mistic sce­nario, one or sev­eral mar­riage-friendly states might al­low any­one from any state to get mar­ried there, cre­at­ing a Las Ve­gas-style busi­ness in same- sex mar­riage. Gay cou­ples would re­turn to their home states with a piece of pa­per that should, in prin­ci­ple, en­ti­tle them to fed­eral mar­i­tal tax sta­tus, im­mi­gra­tion ben­e­fits and more. But their home states would prob­a­bly de­cline to rec­og­nize those out- of­s­tate mar­riages, and deny them state-level mar­riage ben­e­fits.

If the Supreme Court's de­ci­sion to strike down DOMA de­pended on find­ing that states have an in­her­ent right to de­fine mar­riage in which the fed­eral government can­not in­fringe, then the home states' pol­icy would prob­a­bly be up­held. The re­sult would be cou­ples who are both mar­ried and un­mar­ried for pur­poses of the same tax re­turns, mort­gages and hospi­tal vis­its. Each of th­ese con­flicts would be brought to the courts. State and fed­eral courts would prob­a­bly ren­der di­ver­gent con­clu­sions -across all 50 states and 13 fed­eral cir­cuits. If this isn't le­gal chaos, noth­ing is.

If no state wanted to at­tract busi­ness by be­com­ing the same-sex-mar­riage hub for out-of-state res­i­dents, then the anom­aly would arise when legally mar­ried gay cou­ples moved to states that didn't rec­og­nize their unions. Pre­sum­ably they would nev­er­the­less bring their fed­eral ben­e­fits with them -- giv­ing rise to the same le­gal is­sues just de­scribed. The only dif­fer­ence would be that lit­i­ga­tion would build up slowly, rather than overnight. And what, pray tell, would hap­pen if some of those cou­ples wanted to get di­vorced but found them­selves in le­gal limbo be­cause their orig­i­nal states of mar­riage re­fused to ad­min­is­ter a di­vorce while they lived far away? Would the fed­eral government treat them as di­vorced even with­out a stateis­sued doc­u­ment to that ef­fect?

Some sce­nar­ios are down­right funny. Sup­pose I mar­ried some­one of the same sex in New York and that mar­riage wasn't rec­og­nized in Penn­syl­va­nia. If I then de­cided to marry some­one of the op­po­site sex in Penn­syl­va­nia, the state would pre­sum­ably rec­og­nize that mar­riage while New York rec­og­nized my pre­vi­ous one. And both mar­riages would be rec­og­nized by the fed­eral government, which would treat me as a law­ful bigamist. That would be good news for 19th cen­tury Mor­mons, who were de­nied a fed­eral con­sti­tu­tional right to plu­ral mar­riage -- but most peo­ple to­day would find the con­clu­sion truly bizarre.

The fed­eral government couldn't eas­ily get out of this bind by say­ing it only rec­og­nized one valid mar­riage at a time, be­cause in this sce­nario the court would have an­nounced that the def­i­ni­tion of mar­riage was fun­da­men­tally up to states. Rec­og­niz­ing only the New York mar­riage would vi­o­late Penn­syl­va­nia's right to ig­nore the New York de­ci­sion.

Ex­am­ples could be mul­ti­plied, but you get the point. To­day, non-recog­ni­tion doesn't have any real fed­eral re­dress or cre­ate the sit­u­a­tion where you are fed­er­ally mar­ried and not statemar­ried at the same time. To­mor­row, the prob­lems that al­ready ex­ist in a world where some states rec­og­nize same-sex mar­riage and oth­ers don't would be com­pounded and thrown into the fed­eral courts.

Newspapers in English

Newspapers from Pakistan

© PressReader. All rights reserved.