Ken Blackwell: A Supreme Constitutional Showdown
This op-ed originally appeared on Townhall.com on June 13, 2008
Few realize that two aspects of California’s same-sex marriages are unlike Massachusetts’, and could redefine marriage in every state. And most people might not realize it before November’s election.
On May 14, by a 4-3 vote, the California Supreme Court uncovered a previously-unnoticed right to same-sex marriage in their state constitution. Shortly thereafter, supporters of traditional marriage finished acquiring the signatures necessary to put a proposed constitutional amendment on California’s November ballot, defining marriage as between a man and a woman.
These supporters petitioned the California Supreme Court to stay their May decision pending the people’s vote in November. The California court denied that petition last week, making it certain that California will begin having same-sex marriages next week. Even if the proposed amendment is adopted this November, it will not undo the many thousands of same-sex marriages that will occur between June 17 and November 4.
There are two critical differences between what’s happening in California versus what happened in Massachusetts in 2003. And those differences could remake marriage across America.
First, California already had a civil-union law. Same-sex couples could already enter into civil unions that would grant every single legal benefit of marriage. The 4-3 vote was on whether giving every benefit of marriage is sufficient, or if the California Constitution instead demands that gays get more by calling it marriage. This lawsuit was not over equal benefits; homosexuals already had that in California. The lawsuit was over redefining marriage to include homosexuals.
Second, Massachusetts law requires a person must be a Massachusetts resident to be married there. California has no residency requirement. This means that starting June 17, homosexuals from all over the country can fly to California, get married, and fly directly back home.
Once there, they will file suit in federal court demanding that their home state recognize them as married.
This will lead to a constitutional showdown in the U.S. Supreme Court, and it is a lawsuit some legal analysts say that supporters of traditional marriage may very well lose.
Congress passed, and Bill Clinton signed, the Defense of Marriage Act (DOMA) in 1996. The law specifies that if one state creates same-sex marriage, then other states do not need to recognize that marriage. Same-sex couples from other states getting married next week in California will be able to challenge DOMA’s constitutionality in court.
The Full Faith and Credit Clause of the U.S. Constitution requires every state accept the legal enactments of other states. This includes marriage. That is why if you get married in Texas, then move to Ohio, the state of Ohio must accept you as a married couple even though you were not married in Ohio.
The Full Faith and Credit Clause requires marriage be respected even if the parties could not be legally married in their home state. For example, say a seventeen year-old lives in a state that requires him to be eighteen to be married without parental consent, but his parents object. He travels to a state where the marriage age is sixteen and gets married, then returns home. His home state must acknowledge the marriage.
The Full Faith and Credit Clause does not just apply to marriage age. It also applies to residency requirements, blood tests, marriage counseling, waiting periods, and any other requirements. If you legally get married in any state, then all fifty states must accept it.
Some say that the exact wording of the Full Faith and Credit Clause allows Congress to pass a law like DOMA. Others–including some conservatives–disagree.
That is an issue that will be resolved in federal court. And with lawsuits being filed over the rest of this year in every state in the country, same-sex marriage will eventually end up before the U.S. Supreme Court. When that happens, the outcome may well be that every state in America will have same-sex marriage, no matter what the people of each state want.
If that happens, then the only way to restore traditional marriage would be passing the Federal Marriage Amendment.
Unfortunately for conservatives, it may take two or three years before the U.S. Supreme Court decides this issue. Nothing will happen before November that will awaken Americans to what is at stake with the next president’s nominations to the Supreme Court. But if the American people make this an issue now, it could force the candidates to take a clear stand on marriage, giving voters something to consider when casting their vote.