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 [The Massachusetts legislature has since repealed the anti-miscegenation law, and the state seems quickly to be becoming a marriage free-for-all.]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.