Few social issues arouse the fierce emotional response of same gender marriage. I have met clients and attorneys who fervently believe that same gender marriage is a right guaranteed by the Bill of Rights. I have also discussed the issue with individuals who steadfastly contend that it is a political issue and not a legal issue, including one judge who has declined to conduct any civil marriages whatsoever because some might involve same gender couples.
A federal appeals court will take up the issue in the wake of a rebellion by the Alabama Supreme Court which ruled earlier this month that Alabama’s judges must honor the
state’s ban against same gender marriage even though the U.S. Supreme Court ruled
two years ago that a federal law (the Defense of Marriage Act) was unconstitutional.
The Chief Justice of the Alabama Supreme Court got his 15 minutes of fame from the national media, which salivated at the unusual drama of a prominent state court justice thumbing his nose at the highest court in the land.
The story made for a colorful component to a 24-hour news cycle, but it was bad press for the civil justice system in this country. The issue of same gender marriage is actually a simple one, but judges and politicians have mangled it completely and have, in turn, angered activists on both sides of the issue and have confused the public.
There is an argument to be made that same gender marriage is not a guaranteed civil right,
that it is subject to a vote in the legislature in each state. There is also a colorable argument
that same gender marriage, like mixed race marriage, is a civil right that is guaranteed by the Constitution. The U.S. Supreme Court will ultimately decide the issue, but regardless of how the question is resolved, the result will be the same: same gender couples will be permitted to marry and their marital rights will be recognized in all 50 states. If same gender marriage is a civil right, then all 50 states must legalize it; if it is not a civil right, then the states that do not permit same gender marriage will still be required to recognize those who were married in states where the marriage license was issued.
The reason for this conclusion is a constitutional provision known as the Full Faith and Credit Clause. This portion of the U.S. Constitution states that each state must honor the judicial acts and official licenses of sister states. Thus, if a same gender couple obtains a marriage license in New Hampshire or any other state where the practice is legal, even those states that do not permit same gender couples to wed must honor the marital status of the couple that obtained a marriage license in another state that does permit same gender marriages.
So while the Alabama justices either assert their heartfelt convictions or grandstand for public support – depending on your point of view – their opinions ultimately have little meaning because the state is going to have to recognize the marital status of same gender spouses, even if they are married in another state.
Same gender couples in Alabama and in other states that do not recognize same gender marriage would obviously prefer that all 50 states pass laws authorizing same gender marriage, or that the U.S. Supreme Court rule that same gender marriage is a constitutional right that every state must recognize. That may eventually happen. But in the meantime, the legal fact remains that any same gender couple can get married in the U.S. and enjoy the legal right to be recognized as a married couple in all 50 states. The Defense of Marriage Act was a legislative vehicle, passed over the veto power of President Clinton, to get around this fact. Legal scholars widely criticized the law and the U.S. Supreme Court in 2013 struck down the applicable portion of the Act, recognizing that it violated the Full Faith and Credit Clause.
The U.S. Supreme Court and the media need to do a better job of explaining how the Constitution works in this and other cases. The high court acts as if it is isolated; it issues opinions and leaves it to the media to explain the opinions to the public. The Justices make no public appearances to discuss their thinking, make no attempt to truly connect with the public, save the occasional appearance on a panel televised by C-Span.
Perhaps the Supreme Court needs a spokesperson to hold a press conference to explain its rulings and take questions from the media. That would build a bridge between the judicial branch of government and the public, but I am afraid that it is a bridge that the high and mighty justices would never consider.