May 20, 2004,
Defiance of the law is rapidly becoming the leitmotif of the gay-marriage movement. It's not that gay-marriage supporters are generally less law-abiding than others. The root of the problem is that proponents of gay marriage see their cause as parallel to the civil-rights movement of the early 1960s. That analogy is badly flawed. But if you buy it, then it's perfectly alright to disobey the law in order to nationalize gay marriage.
This is why it's foolish to put faith in laws that supposedly prevent gay marriage in Massachusetts from spilling over into other states. When it comes to same-sex marriage, it barely matters how the law is written. Again and again, gay-marriage advocates have shown themselves eager to disobey any law that would prevent the spread of gay marriage from state to state. If you believe this process can be ended by anything short of a federal constitutional amendment, you are dreaming.
It took only a single day of legal gay marriage to reveal the worthlessness of assurances about this experiment's confinement to Massachusetts. Let's review the curious history of Chapter 207: Section 11, the provision of Massachusetts law that supposedly prevents the marriage of out-of-state residents whose marriages would not be legal in their home state.
When the Goodridge decision was handed down last November, Justice Greaney, who was in the majority, issued a concurring opinion containing the following claim:
The argument, made by some in the case, that legalization of same-sex marriage in Massachusetts will be used by persons in other States as a tool to obtain recognition of a marriage in their State that is otherwise unlawful, is precluded by the provision of G.L. c. 207, 11, 12, and 13.
That law states that if your marriage would not be valid in your home state (but would be valid in Massachusetts), you can't get married in Massachusetts without actually moving to Massachusetts. Justice Greaney is clearly assuming that this law is valid, and that it should and will be enforced by state officials.
That was in November of 2003. Three months later, journalist and gay-marriage advocate Andrew Sullivan touted the same law cited by Justice Greaney as proof that "federalism works." According to Sullivan, true conservatives those who believe in states' rights can see that there is no need for a Federal Marriage Amendment. The residency law will prevent same-sex marriages contracted in Massachusetts from being exported to other states.
Of course, with or without the specific approval of Justice Greaney or Andrew Sullivan, the law in question is valid in Massachusetts. So Attorney General Thomas F. Reilly announced on March 30 that the residency requirement would be enforced. At this point, however, the first bit of waffling emerged. Even though same-sex marriage is legal in no other state, Reilly would only definitively rule out marriages to same-sex couples from the 39 states with explicit laws defining marriage as the union of a man and a woman. Reilly was vague about whether marriages would be denied to residents of other states.
Governor Mitt Romney quickly filled in that gap. A spokesman for Romney explained that, since gay marriage is illegal in every other state, only Massachusetts residents would be eligible for same-sex weddings. Even so, the gray area that emerged in Reilly's statement raised the prospect that, contrary to Justice Greaney's assurances, Massachusetts marriages might indeed be "used as a tool" to obtain recognition for same-sex marriages in eleven states where such marriages were "otherwise unlawful."
THE CIVIL DISOBEDIENCE BEGINSNo sooner had the attorney general and the governor confirmed their intention to enforce the residency law than a torrent of criticism from gay-marriage proponents began. Boston Globe columnist Derrick Jackson slammed Reilly for "buckling." The law in question had been used to prevent the export of interracial marriages to states that had once forbidden such unions. (Jackson didn't mention that the original law was also meant to cover interstate differences on things like age of minority and parental consent.) Since the residency law was a relic of the odious days of segregation, said Jackson, it was obviously discriminatory and should not be enforced.
A few weeks later, a group of Massachusetts state legislators announced an effort to repeal the residency law. That, at least, was an attempt to work through democratic and legal channels. But one of the reasons given by Representative Robert Spellane for repealing the residency requirement is telling. Spellane claimed that the law ought to go because it is discriminatory and because it violates the Goodridge decision. So in just four months time, the residency requirement had morphed from something actually relied on in Goodridge to an outrageous piece of discrimination supposedly voided by Goodridge.
Next came the plans for civil disobedience. Why wait for liberal legislators to repeal the residency law when you can simply defy it? Town clerks in Provincetown, Worcester, and several other Massachusetts cities announced that they would issue marriage licenses to out-of-state couples. Then district attorneys in several localities said they would not prosecute clerks who violated the law. Norfolk County District Attorney William R. Keating said that because the original law was enacted in part to enforce prohibitions on interracial marriage, it was now effectively void. Keating made this claim, despite the fact that the original law was not about interracial marriage alone, and despite the fact that Goodridge itself actually relied upon the validity of the residency law.
And on the very first day that gay marriage was legal in Massachusetts, the residency law was in fact violated. In at least four communities, marriage licenses were issued to couples even if they said they had no intention of moving to Massachusetts. The mayor of Sommerville explicitly welcomed out-of-state couples. More than a third of applications in Provincetown were from out-of-state couples. Some made it clear on their applications that they had no intention of moving to Massachusetts. Others admitted later to the New York Times that they'd lied about their intentions.
Now let's shift from law-breaking in Massachusetts to law bending in New York. As of now, same-sex marriages cannot be legally performed in New York State. So says New York Attorney General Eliot Spitzer. Yet Spitzer has suggested to Governor Romney of Massachusetts that New York would recognize same-sex marriages of New York residents performed in Massachusetts. New York Governor Pataki disagrees. The stage is set for conflict.
Attorney General Spitzer's position is devious and contradictory. Spitzer acknowledges that same-sex marriages cannot be legally performed in New York. So under the Massachusetts residency law, the marriage of a same-sex couple from New York must be illegal in Massachusetts as well. But Spitzer suggested that Romney should marry same-sex couples from New York in Massachusetts (so that Spitzer can then recognize their marriages in New York). In effect, Spitzer is using Massachusetts marriages to make an end-run around his own state's laws. So with the connivance of New York State's own attorney general, same-sex marriage is in fact being "used as a tool" to obtain recognition of a marriage that would "otherwise be unlawful." (For more on Spitzer's strategy, see my "Courts vs. the People.")
RESPECT FOR THE LAW?In other words, the very thing that Justice Greaney assured us would not happen is in fact happening. Civil disobedience by public officials in Massachusetts is opening up marriage to out-of-state couples. And legal manipulation by officials in New York is being used to obtain recognition for same-sex marriages when no legislative or even judicial action legalizing such unions has been taken in New York.
As I write, new developments are playing out in Massachusetts. Governor Romney has ordered copies of the marriage applications filed in the four localities that publicly announced their determination to defy the residency law. But as a May 18 news report indicates, whether Romney will succeed in voiding the out-of-state marriages is an open question.
I have argued on NRO that the fundamental definition of marriage has never been a matter for the states. The question of Utah's admission to the union proves that. But those who believe this country can operate with basic differences in the definition of marriage must show that the law will be respected.
Again and again, however, the law is being violated. In San Francisco, in Sandoval County (New Mexico), in New Paltz (New York), and in Asbury Park (New Jersey), local officials have systematically defied the law. The mayor of New Paltz has lately been in court facing criminal charges for solemnizing marriages without licenses. And even as he called on conservatives to uphold federalism, Andrew Sullivan touted San Francisco's flagrant defiance of California law.
When it comes to same-sex marriage, federalism can't work because the advocates of same-sex marriage won't let it work. Andrew Sullivan can't credibly ask conservatives not to worry about the export of Massachusetts marriages when he himself supported open defiance of California law by the mayor of San Francisco. Massachusetts's Justice Greaney cannot credibly ask opponents of same-sex marriage not to worry about the export of Massachusetts marriages when officials of his own state systematically violate the very law that he points to.
EVERYWHERE OR NOWHEREWe're told the law doesn't matter here, because it's a question of fundamental civil rights. But that's the problem. The reason activist judges have usurped the legislative role on this issue is that they, too, see the question as one of fundamental civil rights. Any judge can void any state marriage law on grounds of equal protection or due process. Equal-protection and due-process claims have the potential to void Defense of Marriage Act statutes, and an equal-protection or due-process finding by the United States Supreme Court could overturn even marriage amendments to all 50 state constitutions.
So the civil-rights analogy makes the issue of same-sex marriage impossible to resolve by federalist principles. If gay marriage is really an issue of fundamental civil rights, you can't let some states prohibit it while others allow it. And gay-marriage advocates be they private individuals, municipal officials, or judges do see the issue as a question of fundamental civil rights. For that reason, they will defy or overturn any law that gets in their way.
Events have already made it clear that on the question of same-sex marriage, it's going to be all or nothing. Either we are going to have same-sex marriage everywhere, or we are going to have a Federal Marriage Amendment. After only a single day, assurances that federalism can work on this issue have proved hollow.