Back in 2010, I wrote an article (published in January 2011) asking the question of, essentially, what if the states became stuck on the question of whether same-sex couples could get married? What if they divided, half of them banning same-sex marriages as an affront to the dignity of marriage, and half of them insisting upon the right of their citizens to marry someone of the same sex? Would the states be locked into a patchwork quilt of marriage and non-marriage, with married couple’s rights fading in and out of existence as they crossed the country, or was there some way out of the dilemma?
Our system was born federalist in 1789 but has been getting progressively more nationalist ever since. Most issues that divide the country can be resolved in some way at the national level, either by Congress passing a law under its increasingly expansive Commerce or Spending Clause powers, or by the Supreme Court wielding the Bill of Rights and the Due Process or Equal Protection clauses of the Fourteenth Amendment. But that does not cover the universe of potentially divisive issues. Particularly destabilizing are social statuses designated by state law but not one of the “suspect classifications” of the Equal Protection Clause. For example, same-sex marriage.
In my article, I considered a way to resolve the inevitable disputes that would arise if the system became stuck: half the states recognizing same-sex marriage, half not, and the Supreme Court unwilling to extend Equal Protection doctrine to cover sexual orientation. But towards the end, I noted another possible outcome: the dispute over same-sex marriage could follow the path divorce did in the early twentieth century. Divorce cases were once a regular part of the Supreme Court’s docket; from 1901 to 1957 the Court took 19 divorce cases. The difficulty arose in the situation where one-half of a married couple took up residence in another state, and then obtained a divorce in that state. Would other states, including the celebrating state, have to recognize the divorce under the Full Faith and Credit Clause? The Supreme Court went back and forth on that issue, in 1906 holding that other states did not have to recognize the divorce, in 1942, in Williams v. North Carolina (involving a quickie Nevada divorce) holding that they did, but in 1945 (again in Williams) holding that states could decide contrary to the courts of the divorcing state that the person obtaining the divorce had not resided long enough in that state to be a bona fide resident.
By 1957, the Court still had not determined a satisfactory answer to the question of when states have to recognize divorces granted by other states, such as Nevada, whose lax policies on divorce they disagreed with. But the dispute nevertheless faded from significance. It simply didn’t matter any more. While the Court was working on the comity question, a revolution in divorce law swept the nation; no-fault divorce became the standard. It didn’t matter any more that divorces were easy to obtain in Nevada, because they were easy to obtain everywhere.
There’s some indication that same-sex marriage is headed the same way, regardless of what the court decides in Hollingsworth v. Perry and United States v. Windsor, the two same-sex marriage cases before the Court today and tomorrow. California voters favor same-sex marriage by a margin of 61% to 29%. Voters in three states — Maine, Maryland, and Washington — approved same-sex marriage in 2012, and in a fourth they defeated a constitutional amendment that would have prohibited recognizing same-sex marriage. The military is ridding itself of its Don’t Ask, Don’t Tell policy, and Wisconsin just elected the first openly gay senator to serve in the U.S. Senate.
It may be the case in Hollingsworth and Windsor that, as Justice Oliver Wendell Holmes, Jr. wrote in Haddock v. Haddock about divorce, “I do not suppose that civilization will come to an end whichever way this case is decided.” In the case of same-sex marriage, as in the case of divorce, that’s likely because the change is coming no matter what the Court does.
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