On Wednesday I noted that the questions raised by David Frum concerning interstate recognition of Massachusetts marriages also apply in one form or another to the matter of recognition of Canadian marriages. Some have commented that the Canadian situation is irrelevant because the concern is the Full Faith and Credit Clause of the US Constitution (Art IV, Sec 1). While the question of whether FF&C would require interstate recognition of marriages is an interesting one--and I hope to explain soon why legal experts do not think it does--that was not my concern in that post nor do I believe it was Frum's in raising the question to begin with. Frum did not mention FF&C at all. Rather he said he raised his questions to "drive home" the following point:
Americans may live in states, but they conduct their financial and legal lives in a united country bound by interstate institutions.
Eugene Volokh had already noted that laws already vary across all 50 states and that there are methods in place for dealing with these conflicts of laws. My point in that post was that we conduct our financial and legal lives across international borders as well as state borders. And thus these same policy concerns will occur even with a national policy against same-sex marriage. If Frum was concerned that nonrecognition of sister state marriages led to too many problematic situations, why wouldn't nonrecognition of marriages from our friendly neighbor to the North lead to the same situations? I don't believe Frum was saying the problem was the Massachusetts marriages must be recognized and the Candadian marriages don't. Rather I believe his point was that it is too difficult to not recognize the Massachusetts marriages in every situation. There are at least some situations where people would insist the marriage be recognized. I felt even stronger that this was Frum's point when he wrote in a follow up on Friday:
I’ve argued in this space that marriage long ago ceased to be a local institution – that the modern American economy and modern American government cannot cope with the possibility that two people can be married on one stretch of I-95 and unmarried an hour down the road.
With the modern international economy and NAFTA, though, why is it possible nevertheless to cope with the possibility of two people being married in Windsor, Ontario, but not across the bridge in Detroit, MI? I'm not saying that, if necessary, we couldn't cope with not recognizing fully Canadian marriages, or Massachusetts marriages for that matter. I think it would be much easier, and beneficial from a policy perspective, though, to recognize both. And that brings me to a final point that Frum seems to have been making. Frum claims he is also testing the good faith of certain SSM supporters. He writes:
And we’re going to test something else too: the good faith of the proponents of same-sex marriage in a single state....My own prediction is that the forces pressing for same-sex marriage in Massachusetts will not long remain content with Volokh’s answers, theoretically credible though they might be. So long as the battle over the Federal Marriage Amendment rages, they’ll swear devotion to the doctrines of local self-determination. But those vows will quickly become inoperative.
I'm not sure if I'm one of these SSM proponents to which Frum refers, but I do want to be clear on my view. I believe sister states should recognize Massachusetts (and Canadian) same-sex marriages as a matter of policy. Of course I think they should also allow SSM in their own laws as a a matter of policy. I do not think FF&C requires that these marriages be recognized under current law. I believe not recognizing the marriages raises some due process and equal protection concerns, but again not marrying couples in the first place raises the same concerns. I believe I have and will continue to act in good faith. I'm curious, though, as a matter of policy what Frum thinks the answers to his questions should be. I'm not asking what he thinks the law requires, but just as a matter of policy what he would like to see happen. Who does he think should inherit the Florida condo? Should the woman be able to marry someone else in Texas without first obtaining a divorce? Should the man on vacation be told of what is happening with his spouse who had a stroke? These questions will not go away just by adopting a national policy against SSM in the United States. Canadians vacation in the US, own property in the US, and some will even move to the US to start a new life.