Galois

Models of Marriage

At MarriageDebate.com, Maggie Gallagher notes a significant development from the Lewis decision, especially from Judge Parrillo's concurrence.  The opinion cites work of Dan Cere to the effect that there are competing models of marriage out there.  The Massachusetts court in Goodridge espoused the "close personal relationship" model of marriage which the New Jersey court rejected in favor of what I guess is the "procreative" model of marriage.  I'm trying to figure out what model of marriage I would espouse.  My views on marriage are pretty well summed up by Maggie Gallagher and Linda Waite when they wrote in The Case for Marriage:

Despite changing attitudes toward sex and gender roles, the substance of the marriage vow as Americans understand it has changed surprising little.  Marriage is, above all, seen as a permanent union ("until death do us part"), which includes the promise of sexual union ("forsaking all others"), of financial union ("with all my worldly goods I do thee endow"), and of mutual support ("to love, honor, and cherish").
Each part of this public vow is part of the punch marriage packs, the secret to its power to change lives.  But if one part of this package is more important than the others, it is probably the promise of permanence.

The promise of permanence is key to marriage's transformative power. People who expect to be part of a couple for their entire lives--unless something awful happens--organize their lives differently from people who are less certain their relationship will last.  The marriage contract, because it is long-term, encourages husbands and wives to make decisions jointly and to function as part of a team.  Each spouse expects to be able to count on the other to be there and to fulfill his or her responsibilities.  This expectation of  a long-term working relationship between husband and wife leads to substantial changes in their behavior, of which the most important is, perhaps, what economists call specialization.

I believe that model of marriage, the "promise of permanence" model can and should be applied homosexual couples as well as heterosexual couples.  I don't believe that marriage is essentially a procreative union, although of course many married couples will procreate and marriage is the optimal setting for procreation because of how it transforms the relationship.

One Year Later

The decision of the SJC will go into effect Monday, May 17, 2004, at which time marriage as universally understood for millenia of human history will be forever changed. Chaos will ensue. Marriage has always been between opposite-sex couples, and for good reason. The incredible upheaval in Massachusetts is inevitable. - Appellant's Memo in Largess v. Massachusetts. 

I thought I would write a wonderful post in honor of the one year anniversary of marriage equality in Massachusetts.  Unfortunately, I'm a little short on time, so instead I provide links.  From today's Boston Globe editorial:

Another opportunity to measure the effects of gay marriage in Massachusetts will come this fall, when legislators again take up the constitutional amendment banning gay marriage -- but allowing parallel civil unions -- that they initially approved in March 2004. We are optimistic that the state's elected representatives will accept the thousands of individual commitments made in the past year and vote down the proposal. The legislators need not fear constituent anger: Every one of the legislators who voted against the ban last year was reelected; and three additional supporters of gay marriage won special House elections this spring.

It strains the imagination to see how a year of gay marriage has caused the state any discernible harm. Supporters even point to a modest economic boost due to tourism and other local spending on gay weddings. But the reason to toast today's wedding anniversaries has little to do with tax revenues and everything to do with the riches that come from extending civil rights to every citizen.

For more on the prospects of that amendment see this Globe article:

The erosion of support for the amendment, which won preliminary approval by four votes in March 2004, is caused by several factors, including the considerable clout of new House Speaker Salvatore F. DiMasi, a supporter of gay marriage; a net gain of four gay-marriage supporters in recent legislative elections; and increasing acceptance of gay marriage among the public....

A Boston Globe poll in March indicated that 56 percent of those surveyed supported gay marriage, 37 percent were opposed, and 7 percent were unsure. By comparison, a Globe poll conducted in spring 2004 indicated that 40 percent of those surveyed supported gay marriage. Those who either wanted to ban gay marriage and replace it with civil unions, or who wanted neither, represented 45 percent of those queried.

Like the majority of those surveyed, Lees, the state Senate's ranking Republican, said the relative lack of apparent societal damage caused by the onset of same-sex marriage has given him pause -- even though he was a coauthor of the amendment before the Legislature.

An even more recent poll (pdf) was comissioned by MassEquality and the results are great:

By a margin of 62% to 35%, voters say that gay or lesbian couples should have the right to enter into a legal marriage...fully 61% approve, and only 37% disapprove of the court’s decision to permit same-sex couples to marry...Fully 36% say legalized “gay marriage” has had a positive impact on Massachusetts, while compared to only 13% who say it has had a negative impact...with 68% saying that gay marriage has had a positive impact on gays and lesbians in Massachusetts (10% say it has had a negative impact), and 53% say it has had a positive impact on children being raised by gay and lesbian couples, compared to 17% who say it has had a negative impact...When asked about whether it is better for marriage or civil unions to be available to gay or lesbian couples, a majority of voters opt for marriage over civil unions by a margin of 50% to 32%, with 12% saying neither. This is substantial increase in support for marriage from the 38% to 23% margin (with 32% saying neither) in 2003.

The best thing I can leave you with today is a must read op-ed in the Globe by Anne and Chad Gifford who finally had the great joy of seeing their son marry the man he loves.  Please read it, but I will leave you with this brief excerpt:

Our initial period of concern and confusion and the subsequent learning has, at times, been tumultuous. But how could we as parents not do all we could to embrace our child? How could we not do all we could to strengthen our family? Many object to equal marriage because it represents an attack on family. This is tragic and wrong. Family means love and support for all, not the marginalization of one member of the family.

We have now had one year of legal same-sex marriage in our state. Despite predictions, we have not witnessed any threat to so-called ''traditional marriage." There has not been an attack on family, and almost all would admit that very little has changed. In fact, however, something has changed. Many of our citizens have experienced the joy of marriage for the first time where the laws of our state have said, ''You are equal." We have seen that joy in our son. To take that away would be an injustice. It would be devastating for our family and the real values we believe family should represent.

Bulletpoints of a Lost Post

This morning I had written a rather lengthy post concerning the Massachusetts "reverse evasion" law.  But I lost it.  I have neither the time nor patience to recreate the whole thing so here's what I remember saying recreated in quick bulletpoints.  Please forgive the laziness.

• I wrote in some detail about the law a few weeks ago.  Among other things I said out-of-state same-sex couples would generally be better off marrying in Canada, and I suspect the law itself is perfectly constitutional.
  
• From the Boston globe we have a story on Gov. Romney's latest actions to stop out-of-state same-sex marriages.  (This morning that was the latest, now the Globe has AG Reilly agreeing.)  Also a quick article on the role of race in the 1913 law.
  
• I agree with Romeny (for once) on quite a bit.  The law is valid and should be enforced.  I also agree with him when he said couples marrying contrary to said law are not hurting the commonwealth but are hurting themselves and their families by having a marriage of doubtful validity. 
  
• I would add that perjury and subornination of perjury are serious criminal offenses.
  
• I disagree wtih the Romney's characterization of the law as prohibiting marriage of all out-of-state couples.  The law specifically says the marriage may not be contracted if it would be "void" in their home jurisdiction.  Some states, like New York, Connecticut, and Rhode Island, do not say anything about same-sex marriages being void.  The Massachusetts law says nothing about requiring such marriages to be explicitly authorized in their home state.
  
• Thus I believe Stanley Kurtz is wrong when he says NY AG Spitzer's opinion implies the marriages "must be illegal" in Massachusetts.  Spitzer's opinion was that the legislature never authorized anyone to perform same-sex marriages in New York, but same-sex marriage was not on the list of void marriages under NY law.
  
• Likewise RI AG Lynch declared that  the only marriages deemed void under RI law were those that "involve bigamy, incest or mental incompetence, or marriages in which one or both parties never intended to be married."  Thus the Massachusetts law would not seem to apply to RI either.  Lynch  did not say the question of whether same-sex marriages were currently void was an open one.
  
• I agree with Justin Katz that legislators should not shirk thier duties just because a question is a difficult one and it is an election year.  I have been urging my CT legislators, for example, to uphold their oath to guarantee equal protection by passing a law explicitly allowing for same-sex marraige.  (I understand that they have their hand full in Hartford, though, with impeaching our governor.)
  
• It's worth mentioning, though, something Rep. Mike Lawlor (D-East Haven) said at the Quinnipiac Symposium on SSM in March.  He said the CT legislature was divided roughly one third for marriage equality, one third for some type of civil union, and one third for a DOMA.  No group was willing at the present to support  any of the alternatives so there was an understanding that they would  wait and see how things stand next session. 
  

Threre was more, but this is long enough as is.

Marriage Day

The day has arrived.  I wish those couples getting married a lifetime of happiness, but more importantly a lifetime together through all kinds of weather.  For more check out the Boston Globe.

UPDATE (7:45am):  Marc Rios at Granola Snorting Nixon has pictures from Cambridge.

UPDATE(11:45am): More photos courtesy of the Boston Globe.

On to Souter

The First Circuit Court of Appeals denied the Liberty Counsel request for an injunction to halt the weddings, but did agree to hear arguments on the case in an expedited manner.  You can read either the AP story or the opinion (.pdf) is only five short paragraphs.  The Liberty Counsel has said they will go to Justice Souter who hears emergency motions from the First Circuit.

The order quite succinctly gets to the meat of the issues with the Guarantee Clause that I have been discussing of late:

The central claim made by appellants is that the Goodridge decision erroneously interprets the Massachusetts Constitution and state law by appropriating to the court authority reserved to the legislature and, in consequence, violates article IV, § 4, of the United States Constitution guaranteeing to the states a republican form of government. For much of its history the Supreme Court has treated almost all claims under article IV, § 4, as non-justiciable political questions, see New York v. United States, 505 U.S. 144, 183-85 (1992) (collecting cases); Baker v. Carr, 369 U.S. 186, 223- 24 (1962), and while in recent years a few decisions suggest that the Court might alter its approach, e.g., New York, 505 U.S. at 185, one might expect that to occur only in an extreme case.
Further, appellants would also have to show not only that the state's highest court had in this instance misconstrued state law but, in addition, that a federal court should disregard the long- standing practice of federal courts to treat the decisions of the highest state courts as controlling interpretations of state law. Johnson v. Fankell, 520 U.S. 911, 916 (1997); Forysyth v. City of Hammond, 166 U.S. 506, 518-20 (1897) ("settled decisions" of the state's highest courts "regarded as authoritative by the courts of the United States") (citations omitted).
Finally, assuming that this barrier too were overcome, Goodridge does not establish permanent martial law or declare the Commonwealth a monarchy; and it cannot plausibly be argued that every disagreement about allocation of power within a state government--even a very important disagreement--raises a question under article IV, § 4. That this disagreement is important is obvious; but, at least so far, it is not obvious why its resolution one way rather than another threatens a republican form of government. 

A footnote referred to the added question of standing.  I was delighted the court mentioned the Forsyth case that I've been harping on here. 

Apocalypse Now

I've been following here the events in Massachusetts and particularly the federal lawsuit to try halt the upcoming marriages.  I thought today I'd share a few quotes from the appellant's memo in support of their emergency motion for injunction before the First Circuit Court of Appeals:

• "The decision of the SJC will go into effect Monday, May 17, 2004, at which time marriage as universally understood for millenia of human history will be forever changed. Chaos will ensue. Marriage has always been between opposite-sex couples, and for good reason. The incredible upheaval in Massachusetts is inevitable."
  
• "No one has the slightest clue what kind of an earthquake we will experience, but one thing is for sure – once we cross that bridge of May 17, the damage done will be virtually impossible to restore."
  
• "This cataclysmic train wreck must be enjoined pending this appeal to allow for a reasoned deliberation."
  
• "If same-sex marriage begins on May 17, Pandora’s box will be opened."
  

Denied

The motion to stop Massachusetts same-sex marriages in federal court was denied.  I'm reading the opinion now, more details shortly.....

OK.  A little surprisingly, the court took jurisdiction.  It decided, however, that the plaintiffs were unlikely to succeed on the merits, because the Massachusetts SJC did properly have jurisdiction and was not performing a legislative function by "redefining" marriage.  Rather it was performing a judicial function by "interpreting" the word marriage. 

What is amazing to me, is that the court decided it could review the opinon of the Massachusetts SJC as to whether it did indeed have jurisdiction under the Massachusetts Constitution.  That would seem to be at odds with Forsyth v. Hammond which I have been discussing recently.  Interesting.

UPDATE (4:45pm):  Liberty Counsel has already appealed to the 1st Circuit.  You can read their memo here.

Guarantee Clause Update

Yesterday I commented  on a lawsuit filed in federal court seeking to prevent same-sex couples from obtaining marriage licenses in Massachusetts.  I just want to give a quick update.  Since originally filing the complaint, the Liberty Counsel added several state legislators as plaintiffs.  This would probably resovle any standing issues that might have occurred.  They have also updated their legal memo in support of their motion.  Here is the updated memo.  They flesh out in more detail their arguments that the Guarantee Clause should be justiciable.  In a press release  they indicate that the judge in questioning yesterday seemed to agree.  Their memo lists a couple of cases where the courts have considered guarantee questions, but nowhere do they mention the case of  Fosyth v. Hammond which I discussed yesterday.  I certainly hope that the Assistant Attorney General brought it up.   

Desperate Measures

In a sign of how desperate they are to keep gays from getting married, the Florida based group Liberty Counsel filed suit in federal court on behalf of a Boston citizen who felt his rights under the US Constitution were being violated.  Which right would that be?  The right to a Republican Form of Government (Article IV, Section 4).  Let's put aside for a moment the fact the clause specifically says this a right of the State and not an individual right.  Known as the guarentee clause, the courts have routinely rejected such claims as political matters that are nonjusticiable.  That is one can't bring a claim to court based on this clause.  As FindLaw explains (link added):

On the ground that the issues were not justiciable, the Court in the early part of this century refused to pass on a number of challenges to state governmental reforms and thus made the clause in effect noncognizable by the courts in any matter, a status from which the Court's opinion in Baker v. Carr, despite its substantial curbing of the political question doctrine, did not release it.

Ah, but Liberty Counsel has seized upon something Justice O'Connor said in her majority opinion in the 1992 case of New York v. United States.  She noted that the Court might have read too much into an early case in which the Guarantee Clause was ruled nonjusticiable.  And that perhaps there might be some situation where a claim could be brought under that clause.   In support of that contention she listed several cases where the court seemed to consider such claims.  (Always rejecting, but at least considering).  The Liberty Counsel suggests that this is one of those times, and that the Mass SJC violated their plantiff's right to a Republican Form of Government by violating the separation of powers.  They claim the SJC had no jurisdiction in the matter, and that they performed what was properly a legislative function.  As noted there are quite a number of hurdles to clear before the federal court would even consider such an argument, but what I find most interesting is what happens when we actually look at the cases which J. O'Connor cited and on which the Liberty Counsel base their claim that the Guarantee Clause is justiciable.  One of those cases cited was the 1897 Supreme Court case of Forsyth v. Hammond.  The court wrote:

It may be true that the general rule is that the determination of the territorial boundaries of a municipal corporation is purely a legislative function, but there is nothing in the federal constitution to prevent the people of a state from giving, if they see fit, full jurisdiction over such matters to the courts and taking it entirely away from the legislature. The preservation of legislative control in such matters is not one of the essential elements of a republican form of government which, under section 4 of article 4 of the constitution, the United States are bound to guaranty to every state in this Union; and, whenever the supreme court of a state holds that under the true construction of its constitution and statutes the courts of that state have jurisdiction over such matters, the federal courts can neither deny the correctness of this construction nor repudiate its binding force as presenting anything in conflict with the federal constitution.  It is conceded that the judgment of the supreme court of Indiana in this controversy could not be reviewed by this court on writ of error; that the questions involved and decided by that court are not of a federal nature, or such as to vest any appellate jurisdiction in this court. But, if this court cannot set aside such judgment on the ground of error of law, it would seem to follow that no subordinate federal court has the power on the same ground to strike it down. What the highest court of the United States cannot do directly would seem to be beyond the reach of a subordinate court in collateral attack.

Somehow I don't think that case actually helps Liberty Counsel in this matter.  In any case, the district court judge is expected to rule Thursday afternoon or Friday morning.

That 1913 Law

So there is a lot of questions lately about a Massachusetts law dating from 1913 that reads:

No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.

One question is whether said law is constitutional, but another question is what does it mean even if it is.  Gov. Romney believes that it means that Massachusetts may not marry non-resident same-sex couples from any other state, and any such marriages performed are null and void under Massachusetts law.  He believes this follows since, to his knowledge, same-sex marriage is not legal in any other state of the union.   He even sent out letters to the govenors and attorneys general of the other states asking them to inform him if his assumption about their laws was incorrect.  Based on this reading, Gov. Romney is asking town clerks to ask for proof of residency and to deny licenses to out-of-state gay couples (except those from Ontario, etc.). 

There are other interpretations of the law, though.  Attorney General Reilly expressed the opinion that the 1913 law only applies to couples from the 38 states that have passed DOMA legislation expressly prohibiting same-sex marriage.  That is his opinion would still allow same-sex couples from New York, Connecticut, and the like to marry in Massachusetts.  This is quite an important distinction, because for example, New York's Attorney General Spitzer has issued an opinion that while local New York officials should not issue licenses to same-sex couples, they should recognize those marriages lawfully entered into elsewhere.  We see here a rather dizzying scenario for determining whether the same-sex marriage of New York couples entered into in Massachusetts is valid.  It's valid in NY if it was lawful in MA, and it's lawful in MA as long as it would not be void if contracted in NY. 

GLAD's Mary Bonauto, the lead attorney in Goodridge, presents yet another view:

Ms. Bonauto said that at most, the law would prevent the marriage of couples from the roughly 20 states where laws specifically say that a same-sex marriage would be "void." She said it would not, for example, apply to states like Alabama or Michigan, where the law says a same-sex marriage is "invalid," or Illinois, where the law says same-sex marriages are "prohibited."

"I really think the governor's painting with far too broad a brush in his interpretation," Ms. Bonauto said. "In any law the precise language used matters a great deal."

So right now the biggest confusion in Massachusetts is whose view must the town clerks follow (at least for the time being).  Some clerks have indicated that they would continue to do things the way they always have.  That is they would just ask the applicants if there was any impediment to their marriage.  Oh the confusion.  Eventually there will be some court rulings on the subject, but who knows what will happen in the meantime.  GLAD is asking non-Massachusetts couples to adopt a wait-and-see approach and to not make any immediate plans until things get worked out.  They promise to keep their website updated with information as it becomes available.

And what about the underlying arguments about the law's constitutionality?  There has yet to be a case filed on the subject, so of course there have been no briefs filed on it either.  In interviews Ms. Bonauto has said the law raises some constitutional issues.  Prof. Laurence Tribe has also expressed this view.  So far I have seen two concerns raised.  One is that Massachusetts has no business enforcing the discriminatory laws of other states, and the second is that such a law would unfairly treat non-residents differently than residents in violation of the privleges and immunities clause.  My initial reaction, though, is that both concerns are rather weak.  The SJC found there was no rational basis for prohibiting SSM under Massachusetts law.  That does not mean that anoter state might not have a rational basis to prohibit it under their own laws.  Nor is it the place of the SJC to rule on how other states should interpret their own laws.  As for the P&I clause, while it has been applied to limit the ability of states to discriminate against non-residents in matters to applying their trade, or in medical or welfare matters, it has explicitly not applied to areas of domestic relations.  It seems to me that the Supreme Court case of Sosna v. Iowa (1975) is quite relevant.  That case held that Iowa could require a one-year residency period before a person could seek a divorce.  Particulary relevant from the opinion written by J. Rehnquist is the following (internal citations omitted):

Such a requirement additionally furthers the State's parallel interests both in avoiding officious intermeddling in matters in which another State has a paramount interest, and in minimizing the susceptibility of its own divorce decrees to collateral attack. A State such as Iowa may quite reasonably decide that it does not wish to become a divorce mill for unhappy spouses who have lived there as short a time as appellant had when she commenced her action in the state court after having long resided elsewhere. Until such time as Iowa is convinced that appellant intends to remain in the State, it lacks the "nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance."  Perhaps even more important, Iowa's interests extend beyond its borders and include the recognition of its divorce decrees by other States under the Full Faith and Credit Clause of the Constitution, Art. IV, 1. For that purpose, this Court has often stated that "judicial power to grant a divorce - jurisdiction, strictly speaking - is founded on domicil."