THE GAY MARRIAGE ANTI-CLIMAX: Jeffrey Rosen

...But both sides' expectations are exaggerated. "The earth-shattering thing that's going to happen after May 17 is nothing," says Andrew Koppelman, author of The Gay Rights Question in Contemporary American Law. Massachusetts same-sex marriages will be available only to Massachusetts residents; and, when those couples travel outside the state, a series of well-developed judicial precedents, dating back to the anti-miscegenation era, will guide courts in their effort to carve out a moderate path, recognizing Massachusetts marriages for some purposes but not others. As long as judges follow existing precedent, predictions of a political or judicial bloodbath after May 17 are unlikely to materialize.

Opponents of gay marriage fear that, after May 17, same-sex couples will flock to Massachusetts from other states, get married, and return to their home states demanding recognition of their new marriages. These fears are unfounded, thanks to a provision of the Massachusetts marriage law that refuses to recognize marriages celebrated in Massachusetts if they take place between parties domiciled in a state that does not recognize the marriage as valid. This provision--designed to prevent out-of-staters from evading their own local marriage laws--means that a same-sex couple from New York traveling to Massachusetts for the weekend to get married should be turned away at the altar. And, despite the assurances of the New York attorney general that his state will recognize any valid Massachusetts marriages, the marriage would be invalid in New York even if the couple managed to return with a marriage certificate. Since the marriage can't be valid in Massachusetts, it can't be valid in New York. ...

Perhaps the biggest threat of a post-May 17 train wreck over gay marriage would arise if gay marriage supporters become impatient with fighting state by state and instead ask courts to strike down state laws banning gay marriage as a violation of the federal Constitution. If a court accepted the invitation, it would have the effect of nationalizing the gay marriage debate--raising the possibility that all state bans on gay marriage are unconstitutional and making it harder for the U.S. Supreme Court to avoid resolving the issue for the entire nation. It's hard to say whether state or federal courts will be rash enough to take this step. But, ultimately, any attempt to fight the gay marriage battle this way is unlikely to amount to much. If a disagreement among lower courts forces the Supreme Court to intervene, it's hard to imagine that the current justices would uphold the decision. In Lawrence v. Texas last spring, after all, a majority of the Court strongly suggested that it wasn't ready to strike down bans on gay marriage across the country as a violation of the U.S. Constitution.

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posted by Eve at 4:37 PM | link

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