March 04, 2004,
Everyday, the implications of legal gay marriage in only a single state become clearer. On Wednesday, New York State Attorney General Elliot Spitzer issued an opinion that clearly foreshadows the spread of gay marriage from Massachusetts to a significant number of states.
Spitzer's opinion has been awaited since last Friday, when the mayor of New Paltz, New York, married 25 same-sex couples. Although the press has greeted the release of Spitzer's opinion with headlines like, "New York attorney general says gay marriage illegal," the real story is that Spitzer's opinion lays the groundwork for the eventual recognition of Massachusetts's same-sex marriages by New York State. And Spitzer's opinion is very likely to foreshadow similar legal analyses in all twelve states without Defense of Marriage Acts. In fact, legal analyses modeled on Spitzer's opinion could quite possibly authorize recognition of Massachusetts's same-sex marriages, even in states with statutory Defense of Marriage Acts.
Essentially, Spitzer held that out-of-state same-sex marriages should (and will) be recognized in New York not because the full-faith-and-credit clause requires it, but on grounds of equal protection and due process. Given the federal constitution's provisions of equal protection and due process, given similar provisions in every state constitution, and given the precedent of Lawrence, such an analysis is entirely unsurprising. Above all, Spitzer's opinion shows how weak the "public-policy exception" will be as a barrier to cross state recognition of out-of-state same-sex marriages.
Conservative proponents of same-sex marriage have repeatedly argued that the "public-policy exception" will enable states without gay marriage to avoid recognizing same-sex marriages contracted in other states. The "public-policy exception" is a recognized principle of law that permits a state to withhold recognition for marriages contracted out-of-state if such marriages violate the "strong public policy" of the state in question. But remember, the public-policy exception (like the federal Defense of Marriage Act) only says that states have the right not to recognize out-of-state marriages. If a state decides that a same-sex marriage does not violate its strong public policy, then neither the public-policy exception, nor the federal Defense of Marriage Act, will stop cross-state recognition of same-sex marriages.
The public-policy exception is generally interpreted narrowly. In other words, only in the most rare and exceptional cases is the public-policy exception invoked. Specifically, in order to invoke the public-policy exception, there either needs to be a specific statute forbidding the marriages in question, or the union in question needs to be "abhorrent" to a state's public policy. Spitzer points out that the "abhorrence" exception is so narrow that only cases involving polygamy or incest within prohibited degrees have qualified in the past.
Is a same-sex marriage "abhorrent" to public policy in New York State? Attorney General Spitzer says it is not. Spitzer even has a legal precedent to cite. A New York court has already recognized a Vermont civil union for purposes of a wrongful death suit. And the New York court recognized that Vermont civil union on equal-protection and due-process grounds. In view of that precedent, Spitzer concludes that married same-sex couples from out-of-state must presumptively be treated as spouses for purposes of New York law.
So here is a case in which state courts, and a state attorney general, have relied on equal-protection and due-process grounds in order to circumvent the public-policy exception. At least in states without a specific DOMA statute, it seems likely that Spitzer's analysis will spread. In the absence of a specific DOMA statute, courts will rely on equal-protection and due-process grounds (citing both state constitutions, the federal constitution, and the precedent of Lawrence) to recognize out-of-state same-sex marriages and circumvent the public-policy exception.
This means that it is very possible indeed likely that gay marriage in only a single state will fairly quickly spread to all twelve states without DOMA statutes. In "The Next State to Drop," I laid out the scenario by which a specific statute in New Mexico would lead to recognition of Massachusetts same-sex marriages, and thence to recognition of in-state same-sex marriages. Spitzer's opinion makes it clear that such a scenario is now likely in all, or most, of the twelve non-DOMA states. Neither the public-policy exception, nor the federal Defense of Marriage Act, can put a halt to this process. In the absence of a Federal Marriage Amendment, the country will shortly be split into two large groups of states one of which will recognize same-sex marriages, and one of which will not. It will be the red/blue map in a whole new light.
And let it be noted that the mere existence of a statutory DOMA is no guarantee that a state will be able to invoke the public-policy exception, and thus refuse recognition to out-of-state same-sex marriages. As we've seen in California, even a DOMA statute passed in public referendum by a large majority is in danger of being voided by state courts on equal-protection and due-process grounds.
In short, two months before the first fully legal gay marriages take place in Massachusetts, a roadmap for the spread of the Massachusetts decision well beyond state lines is emerging. Increasingly, Americans will come to see that there are only two real choices on this issue. The United States is going to have a national definition of marriage. Either gay marriage will be imposed on the nation by the courts on equal-protection and due-process grounds. Or there will be a Federal Marriage Amendment.