March 03, 2004,
Gay marriage may soon be recognized in two American states: Massachusetts and.... Can you guess? No, I'm not thinking of California, although mayor Gavin Newsom's defiance of the law could easily bring court imposed gay marriage there. Nor am I thinking of New Jersey, although a Goodridge copycat case is working its way through the liberal New Jersey courts. Surprisingly, New Mexico could be the next state to recognize gay marriage. I'll explain why in a moment. First let's trace the big picture.
THE ROAD TO NATIONALIZATIONWhen gay marriage comes to Massachusetts in May, immense complications will follow. David Frum describes the coming legal chaos. Things like hospital visitation rights and divorce settlements in non-recognizing states are going to generate a continuous series of lawsuits. Advocates of same-sex marriage will use those suits to bolster support for nationalization.
The media is doing it's best to paint the emerging gay-marriage debate as a political ploy by the president. The reality of the situation will shortly overwhelm that claim. We are having this debate because gay-marriage advocates wanted us to.
Eight years ago, the people of Hawaii passed a state constitutional amendment to prevent their courts from legalizing gay marriage. After that, gay-marriage advocates systematically targeted liberal courts in states where constitutional amendments are difficult to pass. Vermont resulted. In Massachusetts, another state with liberal courts and a cumbersome amendment process, the intent was to insist on full gay marriage, rather than civil unions. Advocates understood that with only a single state to generate legal gay marriages, the path to nationalization would be open.
You have to imagine what it's going to be like once the stories of stymied hospital visits and nightmare property settlements start to hit the courts and the airwaves. The ongoing legal tangles and media firestorms are going to create tremendous pressure on the U.S. Supreme Court to put an end to the chaos by nationalizing gay marriage. That, in turn, will generate a countermovement to nationalize the traditional definition of marriage through the Federal Marriage Amendment. Once it becomes clear and it will that a state-by-state patchwork definition of marriage is legally and politically untenable, we'll see a race to uniformity. Either we'll have gay marriage imposed nationally by the Supreme Court, or a Federal Marriage Amendment.
You can't judge the prospects of the FMA by current polling. Right now, the polls show Americans opposed to gay marriage by two-to-one margins. Yet the public is reluctant to pass a federal amendment. That's because few yet understand how untenable a patchwork arrangement is going to be.
But the implications of Massachusetts are beginning to sink in. In state after state, measures to hold off recognition of Massachusetts marriages are being debated. Although three quarters of the states (enough states to ratify a federal constitutional amendment) now have Defense of Marriage Acts (DOMA's), only four of those states Alaska, Hawaii, Nebraska and Nevada have state constitutional amendments that define marriage as the union of a man and a woman. So states with statutory DOMA's are now considering constitutional amendments.
DOMA statutes can be overturned by the courts on state constitutional grounds. After all, California's statute (passed by a 61-to-39 percent ballot majority) is even now being defied by San Francisco's mayor on the grounds that the voters' will conflicts with the equal protection and due process provisions of California's constitution. These were the grounds for the Massachusetts Goodridge decision. Every state constitution has equal-protection and due-process provisions that can be used to overturn a statutory DOMA, a la Goodridge. Soon, Goodridge copycat cases will be everywhere.
The United States Constitution contains equal-protection and due-process clauses that could also be used to overturn even constitutional amendments in all 50 states. Only a Federal Marriage Amendment can prevent this. If you have no objections to Hawaii preventing its court from legalizing gay marriage by passing a state constitutional amendment, why should you object to the exact same thing on the federal level? The truth is, without a Federal Marriage Amendment, we are going to see the Supreme Court impose gay marriage on our nation, exactly as a state supreme court tried to force gay marriage on Hawaii.
Lawrence, after all, was not a five/four margin. Justices O'Connor and Kennedy were both in the majority. In fact, Justice Kennedy authored the (quite radical) majority opinion in Lawrence. Although the majority in Lawrence denied Justice Scalia's charge that they had effectively laid the groundwork for gay marriage, they certainly didn't preclude gay marriage. The Lawrence decision even mentioned choices about marriage when describing the protected sphere of personal autonomy.
Under pressure from the legal, political, and cultural chaos of marriages that fall apart on the interstate, a pragmatic justice like O'Connor is going to be moved to resolve the problem through nationalization. Even without O'Connor, Justice Kennedy would suffice to make a majority. In the absence of a Federal Marriage Amendment, this will happen within the next few years. And as the prospect of court imposed national gay marriage becomes ever more obvious, public support for FMA will grow.
The groundwork for the Federal Marriage Amendment's success is being laid right now, as state legislatures debate constitutional amendments and/or statutory DOMAs. These debates are driving home the point that Massachusetts has changed things. This will set the public up for more radical action, when it becomes evident that the courts are overruling the people. It's already happening in California.
Attempts by liberal pundits and the national media to pin the blame for this mess on the president are going to fall flat. A thousand news stories about local legislative debates are already driving home the message that it is not the president, but four liberal judges in Massachusetts, who have set the country on its ear. That is why the Democrats are going to be in trouble this year. And that is why the Federal Marriage Amendment is going to move from strength to strength as this process plays out. All right, we've seen how the end game is going to look. Now let's get back to New Mexico.
NEXT UPNew Mexico statute 40-1-4 states: "All marriages celebrated beyond the limits of this state, which are valid according to the laws of the country wherein they were celebrated or contracted, shall be likewise valid in this state, and shall have the same force as if they had been celebrated in accordance with the laws in force in this state." As a result of this statute, gay marriages contracted in Massachusetts may soon be recognized in New Mexico.
Of course, New Mexico was recently caught up in a copycat act of civil disobedience modeled on Mayor Newsom's actions in San Francisco. Sandoval County Clerk Victoria Dunlap (a Republican), issued marriage licenses to 26 couples before she was stopped by a declaration from New Mexico Attorney General Patricia Madrid that these licenses were invalid.
Despite the attorney general's declaration, the precise legal status of same-sex marriage in New Mexico is uncertain. Before she issued marriage licenses, Dunlap sought an opinion from County Attorney David Matthews. Matthews said that New Mexico law was unclear. New Mexico law defines marriage as a civil contract, but does not directly mention gender. And the Equal Rights Act of 1973 outlaws discrimination based on gender. On these grounds, Matthews said that state law may allow same-sex marriage.
State Attorney General Madrid, on the other hand, pointed to the use of the terms "husband" and "wife" in state marriage law. County Attorney Matthews conceded that the legally designated marriage form specifies male and female partners. (Recall that San Francisco's expunging of "husband" and "wife" on marriage forms is a key to the argument that the licenses issued to same-sex couples in San Francisco are invalid.) So there is a technical case to be made on either side of the notion that New Mexico law defines marriage as a union of a man and a woman.
Of course, the dispute itself is ridiculous. The terms husband and wife make it clear that New Mexico legislators simply assumed that marriage was between a man and a woman. They specified no further, simply because it never occurred to them that anyone would challenge this. But now, the technical ambiguity of the law can be used by the 26 couples who have licenses to take the whole matter before the New Mexico supreme court. And of course, equal-protection and substantive due-process grounds will be invoked as well.
New Mexico governor, Bill Richardson, mentioned as a possible Democratic vice-presidential candidate, takes the usual Democratic position on this issue. He claims to be against gay marriage, yet is also against doing anything to prevent gay marriage. Richardson says that no state constitutional amendment, and no new statutes, are necessary to protect marriage in New Mexico. Richardson wants to see the whole matter resolved by the courts. State Republican-party chair, Senator Ramsay Gorham, on the other hand, wants the legislature to put the issue on the November ballot in the form of a constitutional amendment.
Governor Richardson doesn't want either the legislature or the people to have a say in the matter: "It's a wedge issue. It's divisive." (Funny, but when Al Gore talks about "the people versus the powerful," or when John Edwards talks about "two Americas," it's never called a wedge issue.)
So what's really going on in New Mexico? The Democratic governor says he opposes gay marriage, yet also opposes either constitutional or statutory steps to prevent it. One suspects that Richardson and his fellow Democrats actually favor gay marriage, yet want the courts to create it, while they stand aloof. Because state law takes male/female marriage so for granted that it doesn't bother to specify it, in the absence of further legislation, the court could easily find an excuse to legalize gay marriage. Equal protection and substantive due process claims modeled on Goodridge could accomplish the same ends. In effect, the taken for granted nature of male/female marriage has left the institution vulnerable to judicial tampering. Because no one bothered to specify what everyone took for granted, the burden of proof, so to speak, has shifted to the status quo. Now it takes new law and/or a constitutional amendment, just to preserve what already exists.
And no one in Mexico has yet mentioned statute 40-1-4. For now, the New Mexico attorney general can rely on the statutory terms "husband" and "wife" to restrain a rogue county clerk. But as legally married couples from Massachusetts enter New Mexico, it is very likely that their marriages will have to be recognized. Although, technically, the statute in question refers to marriages performed in another country (not another state), the courts will almost certainly hold that there is no strong public policy in New Mexico barring recognition of foreign marriages of diverse type. This in turn will lead to recognition for out-of-state same-sex marriages.
Once out-of-state same-sex marriages are recognized the case for recognizing in-state same-sex marriages will be immeasurably strengthened. In state couples will claim that New Mexico is practicing outrageous discrimination by recognizing the marriages of out of state same-sex couples, yet prohibiting such marriage to couples in state. A media firestorm, and immense pressure on New Mexico's courts and legislature to define marriage uniformly one way or the other will result. And the very same conflict that will soon hit New Mexico is going to play out on the national level.
The movement for gay marriage is revolutionary. The legal and social implications are massive, and as yet unappreciated. The statuses of husband and wife, which now stand as last thin barriers to same-sex marriage, will be swept aside by the change. A child's need for a male or female parent will become legally irrelevant.
Whatever the media and the Democrats say, it will soon become glaringly clear that the president is simply responding to a deep and complex challenge that is sweeping out of Massachusetts. The framers of our constitution not only took heterosexual marriage for granted, they saw the traditional family as the foundation of democracy itself. It is false to claim that writing traditional marriage into the constitution is an affront to that document. On the contrary, it is an affirmation of the founders' own convictions.
Once the chaotic process kicked off by Massachusetts and New Mexico begins, it will become clear that it's going to be all or nothing. We will have either judicially imposed national gay marriage, or a Federal Marriage Amendment. And when the full legal and social implications play out, you will see support for the FMA dramatically climb. Give it time.