[FoRK] "we don't want their kind"

Geege geege4 at bellsouth.net
Wed Mar 17 05:15:16 PST 2004

each issue that this administration federalizes eliminates one more "vote
with your feet" option. before we know it, "vote with your citizenship" will
be the *only* recourse.

Bans on Interracial Unions Offer Perspective on Gay Ones

Published: March 17, 2004

Without a constitutional amendment banning gay marriages, President Bush
warned on Feb. 24, there is a grave risk that "every state would be forced
to recognize any relationship that judges in Boston or officials in San
Francisco choose to call a marriage."

The president invoked the Constitution's "full faith and credit" clause,
which requires states to honor court judgments from other states, as the
basis for his alarm.

But legal scholars say that an examination of the last wrenching national
debate over the definition of marriage — when, only 50 years ago, a majority
of states banned interracial marriages — demonstrates that the president
misunderstood the legal terrain.

"No state has ever been required by the full faith and credit clause to
recognize any marriage they didn't want to," said Andrew Koppelman, a law
professor at Northwestern University and the author of "The Gay Rights
Question in Contemporary American Law."

Indeed, until the Supreme Court struck down all laws banning interracial
marriage in 1967, the nation lived with a patchwork of laws on the question.
Those states that found interracial marriages offensive to their public
policies were not required to recognize such marriages performed elsewhere,
though sometimes they did, but as a matter of choice rather than
constitutional compulsion. That experience is instructive, legal scholars
say, about what is likely to happen when Massachusetts starts performing gay
marriages in May.

Attorney General Eliot L. Spitzer of New York has provided an example of
what the analogous patchwork in the gay marriage context might look like.
Mr. Spitzer, in an informal advisory opinion issued on March 3, said he
expected New York to recognize gay marriages from other states because they
are not "abhorrent to New York's public policy." Thirty-eight other states,
on the other hand, in enacting Defense of Marriage Acts, have expressed the
view that such marriages do offend their public policies.

Mr. Spitzer based his assessment on state law and not the federal
Constitution, and he based his description of New York's public policy on a
single decision of a Manhattan trial court last year that is still under

There is a second reason same-sex marriages in Massachusetts are likely to
have a more limited effect than the president suggested. An obscure 1913 law
in that state makes void all marriages performed there where the couple is
not eligible to be married in their home state. That law, too, was born in
part from an effort to prohibit interracial marriages.

Last week, the California Supreme Court stopped the gay marriages being
performed in the second place cited by the president. The court will hear
arguments on the question later this year.

In 1967, when the United States Supreme Court struck down all bans on
interracial marriage, it acted on the most fundamental constitutional
grounds, saying that the laws violated both due process and equal

No one believes that the court is likely to say anything like that about gay
unions anytime soon.

What is notable about the 1967 decision for the gay marriage debate, then,
is that it did not mention the full faith and credit clause. Although the
case involved a Virginia couple prosecuted for violating that state's ban on
interracial marriage by visiting the District of Columbia, which allowed
such marriages, the Supreme Court did not suggest that Virginia was
obligated to recognize the marriage.

To the contrary, the decision affirmed that marriages are generally a matter
to be left to the individual states. That is consistent with hundreds of
decisions over centuries, based on state rather than federal law, that
allowed states to decline to recognize marriages that violated their own
strong public policies.

Indeed, in the context of interracial marriages, courts in states that
banned such unions routinely declined to recognize those performed in states
where they were legal.

But the decisions were not uniform. Indeed, the way courts treated
interracial marriages illuminates how gay marriages are likely to be

The decisions fall into broad categories, generally turning on whether the
couple in question intended to evade their home state's laws. That
principle, legal experts say, is likely to govern many disputes about gay
marriages performed in Massachusetts.

"The Jim Crow judges were horrifyingly wrong about many things," Professor
Koppelman wrote in the Texas Law Review in 1998, "but they did understand
the problem of moral pluralism in a federal system, and we can learn
something important from the solutions they devised."

Opposition to interracial marriage in the last century was in many ways more
vehement than opposition to gay marriage today. It was, for instance, a
criminal offense in many states. None of the 38 states that expressly forbid
gay marriage by statute today go that far.

Yet in cases where evasion was not at issue, courts were often surprisingly
receptive to the recognition of interracial marriages.

In some cases, an interracial couple who were legally married in their home
state moved, after years of living together, to a state where such marriages
were banned. Court decisions about whether to recognize such marriages were
about evenly divided.

In other cases, such a couple never left the state where they were legally
married but sought to use the courts in a state where their marriage was
theoretically invalid in an injury, property or inheritance case where
something turned on their marital status. In such cases, the courts very
often recognized the marriage.

William Rubenstein, a law professor at the University of California, Los
Angeles, said a theme ran through the cases.

"The less you look like you're playing games," Professor Rubenstein said,
"the more likely a court is to recognize the relationship."

The entire discussion may be academic in the case of Massachusetts, given
its 1913 law.

Linda Hutchenrider, president of the Massachusetts Town Clerks Association,
said her group was awaiting legal guidance on the meaning of the law and how
to enforce it.

"We're not the marriage police," Ms. Hutchenrider said.

But the law would seem, she continued, to void marriages of out-of state gay
couples. "It really seems to fit," she said.

She added that Mr. Spitzer seemed to have overlooked the Massachusetts law,
which appears not to allow New York couples to be married there in the first

"It becomes a chicken and the egg thing," Ms. Hutchenrider said.

Matt Coles, director of the American Civil Liberty Union's Lesbian, Gay
Rights and AIDS Project, said he was reluctant to compare the gay rights
movement to the civil rights movement.

"One struggle has never been like another, in overriding ways," Mr. Coles
said. "That said, interracial marriage draws a more powerful analogy than
any other."

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