The U.S. Supreme Court on April 28th heard oral arguments in Obergefell v. Hodges, marking the first time the high court has directly addressed the core issues surrounding same-sex marriage. Two questions are under consideration: whether there is a constitutional right for two people of the same gender to marry, and whether a gay couple legally married in one state is entitled to have that marriage recognized in a state that prohibits such unions. Almost universally, marriage equality advocates are rooting for, and expecting, a victory on both questions.
But it has occurred to me whether an unequivocal win on both questions might produce some adverse consequences that could arguably be avoided with a partial victory. Gay rights in this country have come so far, so fast – it’s almost unbelievable that less than two decades ago, a Democratic president (Bill Clinton) signed into law a federal statute defining marriage as between one man and one woman (the pernicious “Defense of Marriage Act”). DOMA has since been declared unconstitutional and public approval for marriage equality has steadily risen to the point where the majority of Americans believe gay and lesbian couples should receive the same marriage rights as heterosexual couples. Because of this progress – a virtual revolution – the question arises as to whether it is perhaps unwise (and ultimately less effective in the long term) to use the blunt instrument of judicial re-definition of marriage in order to force a social value on the few states that still oppose marriage equality.
Consider the nation’s experience with legalizing – by a Supreme Court edict – abortions. The high court’s ruling in the 1973 case Roe v. Wade announced that women in all states had the constitutional right to have a pregnancy terminated regardless of where she may reside. State laws outlawing, or tightly restricting the abortion procedure before fetal viability, were invalidated throughout the country. Immediately the anti-abortion (self-dubbed “pro-life”) factions across the country rose up in arms. In the last forty years, individual state legislatures have sought to chip away at abortion rights by defining “viability” as extremely early in a pregnancy and by limiting the number of providers who can perform the procedure. Moreover, public funding for abortion clinics is virtually nonexistent, which limits options for low-income women. Activists have rallied around opposition to the Roe decision and painted themselves as victims of federal overreach. Fanatics have even resorted to violence and murder.
Ironically, before Roe, the trend was clearly in the direction of legalization; quite a few states had already legalized abortion within their borders. Justice Ruth Bader Ginsburg, one of the most vehemently pro-choice members of today’s Court, has opined that the Roe decision was too broad and that “it seemed to have stopped the momentum that was on the side of change.” With the benefit of hindsight, I would agree.
The issues of abortion and gay marriage have a lot in common – namely that the majority of their opponents cite religion as the basis of their position. The Supreme Court’s sweeping decision in Roe was contentious and polarizing; the ruling might reasonably be seen, in retrospect, as a mistake. This time, there is an opportunity for the court to act more incrementally. The Court could pass on (that is, not decide) the first question (the constitutional right to marry in all 50 states) and simply proceed to the second question and rule that all states must recognize same-sex unions performed in other states. Such a ruling, under the lesser-known “Full Faith and Credit” clause of the federal Constitution, could bring about most if not all of the positive, but none of the negative, repercussions we witnessed after Roe.
Article IV, Section 1 reads: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” This essentially means that states have to respect the laws of other states. Under such a legal regime, if Joe and Jim are married in Massachusetts but move to Ohio, they remain a married couple entitled to all the benefits that status entails. Even if a few states hold out and refuse to perform gay marriages, with the passage of time (given the transient nature of our population), all 50 states would soon have a substantial number of gay married couples. Thus gay marriage would have arrived in the 50 American states without any state being coerced to do anything except recognize the acts and records of a sister state – a general duty they are already long accustomed to.
Gay marriage probably became all but inevitable the day the Supreme Court decided the appropriately-named case of Loving v. Virginia (1967), invalidating that state’s ban on interracial marriage. In the unanimous decision, Chief Justice Earl Warren declared marriage as “one of the basic rights of man.” But it is with the abortion experience in mind that some marriage equality supporters (myself included) think that it might be wiser policy to allow reluctant states to come to this conclusion themselves. By enforcing only the Full Faith and Credit clause, these states will eventually move into the 21st century, but will do so in a more organic way than if the Supreme Court forces them, all at once, to change their deeply held beliefs (and, yes, prejudices). In the meantime, anyone in this country wishing to enter into a same-sex marriage will be able to do so and then reside in the state of their choice, with full recognition given to their marital status.
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Equal rights have been a touchstone of my nearly half-century-long career as a lawyer and writer. I can well remember early in my career representing gay citizens who were mercilessly harassed by the authorities for conduct that was later legitimated by Massachusetts and federal courts. Eventually, equal rights legislation in the arena of sexual orientation followed. I recall doing a series of columns on gay marriage in my long-time role of “Freedom Watch” columnist for the late (and great) Boston Phoenix. In those columns I argued that the “equivalent” of marriage for gay couples was not enough. “To call the marriage of a lesbian or gay couple anything other than ‘marriage,’” I wrote in 2003, “realistically must be seen as imposing a badge of inferiority.” The notion of “equal protection of the laws” guaranteed by the Fourteenth Amendment to the U.S. Constitution should mean what it says.
But I also understood, as did the Supreme Judicial Court of Massachusetts in 2004 in the groundbreaking marriage equality case Goodridge v. Department of Public Health, that it made sense for the SJC to base its path-breaking decision on the equality guarantees contained within the Massachusetts Constitution, rather than to rely on any provisions of the U.S. Constitution. Why? Because a decision based on state constitutional guarantees, as long as it is not in direct conflict with federal law, is not subject to appeal to or review by the federal courts (including the U.S. Supreme Court). Goodridge was thus protected from federal interference, allowing the Bay State a lengthy period in which to prove to the nation that same-sex marriage is a blessing, not a curse, and a social benefit, not a burden. Massachusetts has served as an inspiration and a model for other states to recognize the fundamental right of marriage equality; most states have now legalized same-sex unions without federal intervention. I have no doubt that Goodridge has brought us to where we are today.
I will celebrate the victory if the U.S. Supreme Court rules in favor of equality on the primary equal marriage issue. (If it does so, the “Full Faith and Credit” issue becomes moot, since every state will be forced to perform and to recognize gay marriages.) But I will hardly consider it a defeat to win on only the second, “Full Faith and Credit,” issue. I might even consider such a limited victory to be, in the long run, the better course for liberty, equality, and equal dignity for all.
Harvey Silverglate is a Cambridge criminal defense and civil liberties lawyer and writer, and a long-time columnist for the now-defunct Boston Phoenix. He is “of counsel” to the Boston law firm of Zalkind, Duncan & Bernstein. His research assistant, Samantha A. Miller, assisted with this piece.
