A BRIEF RETURN TO THE SAME SEX MARRIAGE TOPIC Reading OxBlog, I was directed to this article by Yale Law's Lea Brilmayer. Obviously, Professor Brilmayer knows what she's talking about, far more than me, so I'm hesitant to criticize her work. That having been said, here I go.
First off, I've always been and remain skeptical of the claim that there's nothing to worry about with regards to gay marriage and the Full Faith & Credit clause, since the clause has never been construed to require that states give full faith and credit to marriages performed in other states that are contrary to the public policy of their state. States can set marriage rules with regard to consanguinity or minimum age, and can refuse to recognize out-of-state marriages performed contrary to those rules. I understand that this is true with regard to how things have been in the past. I'm just not especially confident that this is how things will remain. I don't want to get into a long monologue now, but my basic point is this: we're not talking about a 15-year-old couple married in Kentucky who'll have to wait two years before their marriage will be recognized in New York.* Everyone, I would think, agrees that there has to some minimum age at which people can marry (no European-royalty-style infant marriages in the U.S., no sir) and, given that states draft the marriage laws in this country, the issue of where to draw the line is left to them. They may come to different conclusions as to what age is appropriate, but no one argues that whatever line they draw is a valid exercise of the state police power. The 15-year-old newlyweds aren't claiming that they have a right to be married, not even under the Kentucky constitution. Same-sex marriage is different: the whole claim is that a regulation that bars them from marrying is an invalid exercise of the police power. They are claiming that they have a right to marry, not just that the arbitrarily drawn marriage statutes of their home state encompass them. I'm not saying that this is necessarily a legally more persuasive argument than the juvenile couple's. But it is, I think, rhetorically and morally more persuasive, and I wouldn't be shocked if it persuaded a court. Think of Brilmayer's own example of how a patchwork system would work: that of interracial marriages. She says this comparison "will surely make opponents of same sex marriage uncomfortable," which is doubtless true. But you know who else might find setting up a patchwork system where certain marriages were recognized in some states and not in others, solely on the grounds of a moral objection to the nature of those marriages, with all the disturbing parallels to interracial marriage before Loving? I dunno, maybe the judges who have to decide the FF&C issue? Is any judge really going to say to himself, you know what? This patchwork system worked so well for interracial marriage, let's do it again. Our reactions to the treatment (or even potential treatment) of Arab- and Muslim-Americans after September 11th was heavily influenced by our reaction to (and our disgust with) what happened in thus country during the Japanese interment. We believed our forebears had acted wrongly, and above all else, I think, we did not want to repeat their mistakes. Will the judges who hear these cases feel any differently about the sins of their judicial ancestors?
My other problem with the article, the one that initially prompted me to post, comes at the end, when she says that the political branches should drop the problem of trying to manage whether and how same sex marriages move through the states through mechanisms like the Defense of Marriage Act. The Supreme Court, I think she's arguing, can provide a "far more nuanced" mechanism for solving this problem, as it did with Nevada's easy divorce laws in the past. As a empirical matter I think she's probably right, but I'm going to protest any way since I see her solution as one more step in the judicialization of the American government. One of the country's biggest latent problems is the willingness of people on all sides to use the courts as a forum of first resort in what are essentially political struggles. Can't get the state to issue you and your same-sex partner a marriage license? Don't start lobby to get the law changed in the legislature: sue! Can't get state funding for your education as a divinity student because the state has a "Blaine" amendment in its constitution? Don't start a movement to repeal the amendment: sue! Upset that your state's public university is using a race-conscious affirmative action program in admissions? Don't try to change the law through referendum or the legislature, or try to get the administration replaced with people who won't use such a system: sue! After all, why should we care what the legislatures have to say? It's not like they're the democratically elected representatives of the people, or anything. Now, I'm not advocating an end to judicial review, or anything like that. I'd just like to see a little judicial arms control. Can we agree to at least try to settle issues in the ordinary political process before we resort to using the courts? Don't do it for me. Do it for John Hart Ely.
You know, every time I try to say a brief word about same-sex marriage, I wind up rambling on forever. Proves me a liar. But, o intrepid reader, if you've made it this far I have a burried-lead present to reward you with. Today I proved those who called me "utterly unemployable" at least a little wrong. I got a job for the summer at the New Haven state's attorney's office, Geographic Area #23 (GO 23! WOOOOOOO! Geographic Area pride!). So if you're a non-violent drug offender or a speeder in the city of New Haven, consider yourself warned: come June 1, your reign of terror is over. There's a new sheriff in town, and he's a Fox.**
*These numbers and states are arbitrary and invented, mostly because I'm too lazy to do a little research. So sue me. **Note: the Fox is not actually going to be a sheriff. He's just an intern. But he's not a damn fox either.
First off, I've always been and remain skeptical of the claim that there's nothing to worry about with regards to gay marriage and the Full Faith & Credit clause, since the clause has never been construed to require that states give full faith and credit to marriages performed in other states that are contrary to the public policy of their state. States can set marriage rules with regard to consanguinity or minimum age, and can refuse to recognize out-of-state marriages performed contrary to those rules. I understand that this is true with regard to how things have been in the past. I'm just not especially confident that this is how things will remain. I don't want to get into a long monologue now, but my basic point is this: we're not talking about a 15-year-old couple married in Kentucky who'll have to wait two years before their marriage will be recognized in New York.* Everyone, I would think, agrees that there has to some minimum age at which people can marry (no European-royalty-style infant marriages in the U.S., no sir) and, given that states draft the marriage laws in this country, the issue of where to draw the line is left to them. They may come to different conclusions as to what age is appropriate, but no one argues that whatever line they draw is a valid exercise of the state police power. The 15-year-old newlyweds aren't claiming that they have a right to be married, not even under the Kentucky constitution. Same-sex marriage is different: the whole claim is that a regulation that bars them from marrying is an invalid exercise of the police power. They are claiming that they have a right to marry, not just that the arbitrarily drawn marriage statutes of their home state encompass them. I'm not saying that this is necessarily a legally more persuasive argument than the juvenile couple's. But it is, I think, rhetorically and morally more persuasive, and I wouldn't be shocked if it persuaded a court. Think of Brilmayer's own example of how a patchwork system would work: that of interracial marriages. She says this comparison "will surely make opponents of same sex marriage uncomfortable," which is doubtless true. But you know who else might find setting up a patchwork system where certain marriages were recognized in some states and not in others, solely on the grounds of a moral objection to the nature of those marriages, with all the disturbing parallels to interracial marriage before Loving? I dunno, maybe the judges who have to decide the FF&C issue? Is any judge really going to say to himself, you know what? This patchwork system worked so well for interracial marriage, let's do it again. Our reactions to the treatment (or even potential treatment) of Arab- and Muslim-Americans after September 11th was heavily influenced by our reaction to (and our disgust with) what happened in thus country during the Japanese interment. We believed our forebears had acted wrongly, and above all else, I think, we did not want to repeat their mistakes. Will the judges who hear these cases feel any differently about the sins of their judicial ancestors?
My other problem with the article, the one that initially prompted me to post, comes at the end, when she says that the political branches should drop the problem of trying to manage whether and how same sex marriages move through the states through mechanisms like the Defense of Marriage Act. The Supreme Court, I think she's arguing, can provide a "far more nuanced" mechanism for solving this problem, as it did with Nevada's easy divorce laws in the past. As a empirical matter I think she's probably right, but I'm going to protest any way since I see her solution as one more step in the judicialization of the American government. One of the country's biggest latent problems is the willingness of people on all sides to use the courts as a forum of first resort in what are essentially political struggles. Can't get the state to issue you and your same-sex partner a marriage license? Don't start lobby to get the law changed in the legislature: sue! Can't get state funding for your education as a divinity student because the state has a "Blaine" amendment in its constitution? Don't start a movement to repeal the amendment: sue! Upset that your state's public university is using a race-conscious affirmative action program in admissions? Don't try to change the law through referendum or the legislature, or try to get the administration replaced with people who won't use such a system: sue! After all, why should we care what the legislatures have to say? It's not like they're the democratically elected representatives of the people, or anything. Now, I'm not advocating an end to judicial review, or anything like that. I'd just like to see a little judicial arms control. Can we agree to at least try to settle issues in the ordinary political process before we resort to using the courts? Don't do it for me. Do it for John Hart Ely.
You know, every time I try to say a brief word about same-sex marriage, I wind up rambling on forever. Proves me a liar. But, o intrepid reader, if you've made it this far I have a burried-lead present to reward you with. Today I proved those who called me "utterly unemployable" at least a little wrong. I got a job for the summer at the New Haven state's attorney's office, Geographic Area #23 (GO 23! WOOOOOOO! Geographic Area pride!). So if you're a non-violent drug offender or a speeder in the city of New Haven, consider yourself warned: come June 1, your reign of terror is over. There's a new sheriff in town, and he's a Fox.**
*These numbers and states are arbitrary and invented, mostly because I'm too lazy to do a little research. So sue me. **Note: the Fox is not actually going to be a sheriff. He's just an intern. But he's not a damn fox either.
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