N.B.: I started writing this post in the middle of August. Since then, current events have left me far behind, but the thought of rewriting the whole thing makes me want to decapitate myself, so I’ve limited myself to inserting editorial notes where appropriate.
Also N.B.: Depending on your interest in interpretations of the Constitution of the United States, you may find the beginning of this post very boring. If that’s the case, skip to the last few paragraphs.
In the days following E.S.’s marriage proposal, a few friends asked me, “Oh, did you cry? Was it just incredibly romantic?” I told every one of them, “Oh, God, yes, I was completely in tears, I couldn’t believe how beautiful the moment was.”
This was a lie.
Of course I was thrilled to have been proposed to, but, given that E.S. and I could not legally marry in any state of the Union, it was a theoretical proposal with a theoretical acceptance, because I said long ago that I wouldn’t get married until I could legally do so in this country.
Herewith a partial marriage-equality primer:
Until very recently, Massachusetts was the only state in which same-sex couples could marry, and only couples from Massachusetts and Rhode Island could do so. This is because shortly after the Massachusetts Supreme Court’s decision in favor of marriage equality, Governor Romney dusted off a 1913 law designed to prevent the spread of miscegenation—interracial marriage and reproduction—that prohibited couples from marrying in Massachusetts when the marriage would be considered invalid in their home states. Rhode Island was, at the time, the only state the laws and/or Constitution of which didn’t explicitly limit same-sex marriage, so it slipped in under the wire. It appears that the Massachusetts legislature may soon repeal the anti-miscegenation law, in which case the state will be, like California, a marriage free-for-all. [The Massachusetts legislature has since repealed the anti-miscegenation law, and the state seems quickly to be becoming a marriage free-for-all.]
Today, Vermont, Connecticut, New Jersey, and New Hampshire allow civil unions, which in theory grant all the rights and privileges of marriage (but which in actuality do no such thing). Oregon allows the same thing but calls it a domestic partnership. Maine, Washington, Hawai’i, and the District of Columbia grant limited rights to same-sex couples through domestic partnerships or reciprocal beneficiary laws. So E.S. and I had any number of options available to us.
Except we didn’t.
Because I have no interest in being civilly united. I have no interest in being domestically partnered. I have no interest in being reciprocally benefited. I have an interest in being married.
And the way I see it every single defense-of-marriage act—including the Federal one, which says that if two boys or two girls can get married in one state but not in another then the second state need not recognize as married two boys or two girls who married in the first state—is unconstitutional. Obviously there are many people who disagree and whose analysis of the issues involved is different, but naturally they are incorrect.
Article IV, Section 1 of the U.S. Constitution—also known as the “full faith and credit” provision—reads as follows:
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
What this means is that public judgments and acts enacted in state A must be considered valid in state B; that is to say, if a court in Minnesota rules that you do indeed have to pay your parking-ticket fine, you can’t slither out of it by escaping to West Virginia—a court in West Virginia will say that you still have to pay Minnesota the money you owe it.
What this also means is that a marriage contracted in state A must be considered valid in state B, whether it’s a heterosexual couple or not.
This is why I want to get legally married in a state of the Union. Because, by my lights, anybody who treats my marriage as invalid—including anybody acting in accordance with the Federal Defense of Marriage Act—will be violating the Constitution of the United States.
There are any number of objections to this point of view, none of which holds water.
The majority of these objections are based on something called the “public policy exception” to the Full Faith and Credit clause, whereby, when applying full faith and credit would violate the laws of state B, the laws of state B take precedence, and full faith and credit takes a back seat.
So, for example: “But by your argument, if a prostitute in Nevada, where prostitution is legal, sued a client in Maine, where it’s not, the Maine court would have to honor the Nevada contract and rule in favor of the plaintiff! Obviously that doesn’t happen, and shouldn’t happen, and since gay marriage is in the same category—legal in some states and illegal in others—the public policy exception applies here as well.”
The first sentence of the clause is “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
This means that the government has to be involved in the original proceeding. Since the prostitute’s contract with the client was a private one, Full Faith and Credit doesn’t apply.
Here’s what would have to happen for Full Faith and Credit to play a role in an interstate prosecution case:
A prostitute wins a case against a client in a Nevada court. The Nevada court orders the defendant to pay the prostitute X amount of money. If the defendant leaves the state and goes to Maine, Maine has a Constitutional obligation, under the Full Faith and Credit clause, to force the defendant to abide by the Nevada court’s judgment.
(I don’t know of any cases in which such an obligation has been challenged. I called my father, who if you’ll remember has won every case he’s ever argued before the United States Supreme Court, and asked him, and he didn’t know of any either. That doesn’t mean such cases don’t exist. But in any case even the most virulent anti-prostitutionist (okay, now I have to use that word all the time) ought to think twice about allowing one state’s government to override the rendered judgment of another state’s government.)
So now we’re rid of that particular objection, based on a misunderstanding of the Full Faith and Credit clause.
“But,” somebody might say, “if you want to play it that way, marriage is a private contract. So it’s not a public anything, and Full Faith and Credit doesn’t apply. You’re not marrying the government; you’re marrying your spouse.” That’s partially true. But what’s also true is is: the government is marrying you and your spouse. Hence the government-issued marriage license (a public Record) and the government-issued marriage certificate (also a public Record). The government is a party to the contract, which makes the marriage a public Act.
So now we’re rid of that objection, based on a misunderstanding of the concept of legal marriage.
“But wait,” somebody might say. “There are all sorts of state licenses that aren’t valid in other states. It’s illegal to practice medicine in Iowa if you’re licensed in New York.”
True. And here’s the reason:
A New York medical license authorizes a doctor to practice medicine in the state of New York and nowhere else. Iowa would be perfectly happy, I’m sure, to grant Full Faith and Credit to anybody’s license to practice medicine in the state of New York; that’s irrelevant, however, to his or her practice of medicine in the state of Iowa.
It’s true that Full Faith and Credit issues can get complicated—there are all sorts of unclear rulings in all sorts of cases about things like truck license plates and rating the quality of apples. But, as far as I can tell, each of those cases involves intricacies not in play when it comes to marriage equality in general.
Here endeth the marriage-equality primer.
So when E.S. proposed in December, it was nice but not particularly moving, given that there was no way he could fulfill (or, should it become necessary, be forced to fulfill) his commitment.
Then, on May 15 of this year, the California Supreme Court ruled the law banning same-sex marriage unconstitutional.
This meant that, according to the reasoning above, it was now possible for E.S. and me to get married and be married—DOMAs notwithstanding—anywhere in the country we chose to go. Of course very few places would recognize our marriage, but we would have the Constitution of the United States on our side.
If you had told me when I was eighteen that I would one day be in a position to marry the man I wished to marry I would have laughed in your face. Well, not really; I would have nodded and smiled politely and on the inside I would have mocked you.
So I read about the Supreme Court’s decision at about 1:00 in the afternoon and immediately began sobbing uncontrollably.
For once I’m not speaking hyperbolically; I really couldn’t control the sobbing. I sobbed and wailed and wept for an hour and a half, and every time I tried to stop I couldn’t, and I just got louder.
Finally I thought, All right, this is getting ridiculous. If I don’t do something soon I’ll dehydrate myself. I know, I’ll go grocery shopping. By the time I got to the grocery store I was no longer crying, though I have to imagine that other shoppers were worried that I might turn on them with no warning and start accusing them loudly of being in cahoots with the Elders of Zion.
But the thing is: shopping felt different.
I grocery shopped differently.
As I picked up a pint of ice cream, I thought, I am buying this ice cream as somebody with the right to be married. As I dropped the Keebler® Fudge Shoppe® Grasshopper® cookies into my cart, I thought, I am buying these cookies as somebody who will at some point in the foreseeable future be married. As I put the pound of M&Ms onto the conveyor at the checkout, I thought, I should put these back, or I may not end up getting married after all.
I don’t know how to explain it. I was no different than I’d been at noon. Federal law was no different. New York State law was no different [though our governor has since mandated that same-sex marriages performed legally in other states be recognized as valid here as well]. But I was living in a world that had become more just to me.
Now, as far as justice goes, this is not a particularly significant advance; far, far better to fix our rotting health care system or eliminate the widening income gap or quadruple the minimum wage, and if in some theoretical world it were possible to trade marriage equality for one of these things I’d do it in a heartbeat. Unfortunately, it isn’t.
But at least I’ll get some good china out of the whole thing.
Your thoroughness is impressive, but your reading of the full faith and credit clause is simply wrong. A court’s ruling is considered a “judicial proceeding”; a marriage is not.
Also, you are incorrect re: the public policy reading. It is widely understood that, for example, New York need not recognize a marriage between two children that might be sanctioned in another state. This is why the Supreme Court ruling that overturned anti-miscegenation laws relied on the Fourteenth Amendment, not the full faith and credit clause. Your reading is one that has simply never been adopted by the courts.
It’s still exciting though!
Gay Ninja Robot, Esq.
Gay Ninja Robot, I’m suggesting that a marriage be considered not a Judicial Proceeding but a public Act.
As for the public policy exception: Has the question of full faith and credit in res underage marriages ever been addressed by the United States Supreme Court? Because I would argue that such marriages should also be considered valid from state to state.
Of course, this whole post is about a Bizarro United States in which Justice Scalia doesn’t exist. Just because I believe that my interpretation is theoretically correct (which I do) doesn’t mean that the courts in the country as it is would agree.
I’m glad you think it’s exciting, though.
Faustus M. D., why didn’t you post this when you had started writing it. It is such a poignant post!
Like me, I too hope to get married to the man I love. I hope that it will be possible for gay aliens could marry American men and get the same rights as straight aliens would get.
I swear the next time an expatriate American here in London gets all ‘ever-so-witty -and-amusing’ about the British constitution I am going to make them sit there while I read them this description of a legalistic, federal, written constitution train wreck.
Mind you, as I ploughed on through (no crticism of your style F it is just an inherently claggy topic) I did begin to understand why gay and lesbian American’s are so hung up on ‘marriage’ as opposed to ‘civil union’.
I have to say that I can’t see much to recommend the federal system at least as it operates in this instance. Hoorah for living in a monarchy where Her Maj just points with her sceptre, hisses “Do it!” and, lo, it is done!
Kris: Since E.S. is very clearly an alien, probably from Mercury, I will keep you posted on this.
campbell: If you mean a federal state as opposed to a state with only one nationalized tier of government (as opposed to the fifty extra ones we have), then I am in complete agreement with you. If you mean a federal state as opposed to a state with separation of powers, I couldn’t disagree with you more. So I’m not sure where that leaves us.
Please tell me you did not eat the ice cream, Grasshoppers, and M&Ms in one sitting.
I’m getting married today in California. A reader pointed me to this post, and I’ve bookmarked it to quote back to people later. What a lovely, intelligent post. Thank you for this. Now get out here and get married!
“Obviously there are many people who disagree and whose analysis of the issues involved is different, but naturally they are incorrect.”
When I read this, all I could think was “Boo-yah!”
What Rachael said. A lot of us readers are looking forward to cheering you both whenever it happens.
I still don’t support SSM.
But I see the issue somewhat differently now than I did before reading this.
Your voice matters.
Brilliant though Faustus is, he appears not to have grasped that the Constitution sucks. He is, it’s all too obvious, suffering from an advanced case of constitutional fetishism. Daydreams about what the FF&C clause could mean under ideal circumstances are unworthy of a thinker like Faustus, who should instead be emancipating himself from these bourgeois delusions.
Could you just shut up, book Fanueil Hall and set a date already? My flower girl dress is going to go horribly out of fashion if you old biddies don’t break the fucking glass already.
(btw, you made me cry. I never thought I’d see this day either. You and e.s. have my best wishes and warmest regards.)
if a guy wants to marry another guy, or a girl wants to marry another girl, WHY should they be denied the freedom to wed?
I have never understood this. and I do not feel threatened by gay marriage; why the hell should I?
I hope you and e.s. set a date and live happily ever after!
(full disclosure – straight, married 16 years)
Every same-sex couple we know who decided being “domestically-partnered” wasn’t good enough, and who went ahead and actually got married, has felt nothing but profound happiness and excitement over having the same piece of paper all the heterosexual couples get to have when they marry their loved one. It’s such a simple thing, that piece of paper, but so phenomenally important in putting everyone on the same playing field, which is absolutely where we all belong.
Relationships and marriage are not easy; I don’t know how couples even manage to stay together without that license that takes it to an entirely higher level, that promise you make in front of friends and family (and God, if that is your belief). If my husband and I didn’t have that marriage certificate and all it means (okay, and kids), we would probably have left each other long ago and many times!
As Faustus suggested that just knowing he COULD get married put a bounce in his step as he did something as simple as buy groceries (or junk food as the case may be – have you ever eaten those Grasshoppers frozen???) – just think what it will do for you everywhere you go, every day of your life, to know you are married to the man you love, to be able to say, “we are married” and “this is my husband”. It’s huge and amazing. Do it! And we will continue to work for the rights and protections that need to go along with that, that everyone deserves equally as a citizen of our United States, all sharing the same Constitution.
Excellent expose. You’re brilliant. Congratulations for you and E.S. You’ll be brilliant together. And the china will be amazing.
So why aren’t you buying tickets to California for his birthday, rather getting him the same book you gave him three years ago? 😛
Also, I need to come to NYC for some Belgian Praline Spread.
Faustus, happy days to you and ES. If any consolation, my teenager and her friends can’t figure out why anyone gives a rat’s ass about what other consenting adults are doing – she and I figure marriage equality is an issue only for the next 20 years or so, until saner people with different experiences come to power. Not that the delay’s fair, or helpful, but there you are.
PS Handcuffs make a lovely gift.
You should get pregnant so he HAS to marry you.
Jeffrey: Okay. I didn’t eat the ice cream, Grasshoppers, and M&Ms in one sitting. There, was that convincing?
Rachael: Congratulations and best wishes!
Jeff M: Boo-yah right back atcha.
Kate: It’s too bad we can’t come out to Hawai’i and do it there.
Caliban Darklock: I’m honored, and I’m also pleased that people still exist who can listen to others in a way that makes a difference.
Cataline: Ah, the Constitution is among the greatest documents penned by human hands, its corruption by the venal and sociopathic notwithstanding. Though of course given your namesake I can see why you would take the view you do.
Aidan: We’re waiting until the dress comes back into fashion. Then you can be stylishly retro.
anne marie: I do not have the answer to your question. Perhaps you can take it up with the Log Cabin Republicans.
Esther: Oh, my God, frozen Grasshoppers! I totally have never tried those and now I can’t stop thinking about them. The grocery store is out currently (I must have bought the last box), but I will keep a close watch.
julian: Don’t count the china before it’s bought. You’ll jinx us.
DoctorWill: The book was much cheaper than plane tickets to California.
sarah palin: I’m glad to hear about your teenager’s opinion, but I hope you won’t mind my saying that given the information that’s transpired I don’t entirely trust her judgment.
Darling, all I can say is that you would make an elegant and beautiful June bride in any state of the union.
But seriously, after the ceremony you witnessed in D.C., my mentality began to completely flip as well. “I’m partially responsible for another human being’s well-being and happiness.” It’s an awesome and huge responsibility. And especially in the somewhat “loose” fashion we have conducted our relationships at various times of our youth to date, marriage takes out all the doubt, all the excitement, and all the “I can just leave” and creates a container and a laboratory in which to reach a new state of consciousness based on “You’re not leaving me, I must be good enough” (or alternatively “You’re crazy for loving me!”) and you can really explore life together. It’s pretty scary and pretty cool! And I hope it’s wonderful for both of you!
It’s a step – at least in the right direction. So yes, you should go around grocery shopping with a spring in your step. Even better, bring E.S. to carry the basket. Isn’t that what married couples do?
Screw you, Sissy. Whatcha waiting for? You aren’t going to get younger or thinner. Just do it.
He loves you, that much is clear. And you love you. You were meant for each other.
There is so much sadness and uncertainty in life. Why wait? Why take a chance?
The former, if you can remember that far back; so sweet harmony prevails.
At dinner some years ago I sat next to a very high-powered family lawyer who sat on the policy committee that the Labour party set up on gay marriage. I asked, all bristly and right-on, why it was ‘civil partnership’ not ‘marriage’. Her reply was that conversations with religious leaders made it clear that if they called it marriage they would have a fight on their hands. “Frankly we felt the rights on offer were too important to delay or imperil fighting an idiotic semantic battle with every religious idiot from Lambeth Palace on down”. I had to agree this seemed very much like wisdom.
I’m going to guess the wedding registry will be with either Nabisco or Mars Inc.?
Congratulations to you and e.s. If only you’d left off the last 2 paragraphs, it would have been a nearly-perfect post.
Perhaps Martin Luther King should have said: “I have a dream that, provided that universal health care is instituted first, one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.”
A sarcastic ‘thanks’ to you for being so eager to be, in your own construction, a ‘trader’ on civil rights.
Christopher: Thank you!
Paul: I’ve tried it, but then he gets the kind of cereal he likes instead of the kind I like and everything is ruined.
Aidan: Quite seriously, we’re in negotiations about a date.
campbell: I agree that that makes a lot of sense, but I also think the battle is about much more than semantics, so I would have been the bristly one.
David: Barnes & Noble.
ScottyMac: I’m truly sorry to have offended you. I wish I could apologize for my position but I stand by it. I’m going to e-mail you in a bit.