Did SCOTUS Just Legalize Gay Marriage in All 50 States?

Absent DOMA, the Full Faith and Credit Clause would seem to make gay marriage legal across the land.

gay-marriage-cake

Max Fisher notes that, even after today’s Supreme Court rulings, “same-sex marriage rights are weaker in the United States than they are in much of the Western world.” He adds, though, that it’s somewhat complicated:

The list of countries that grant full gay marriage rights is pretty short: 14 countries in all.

Most of those are in Western Europe: France, Spain, Portugal, Sweden, Norway, Iceland, Belgium and the Netherlands. They’re joined by two other Western countries: New Zealand and Canada. Also on the list is South Africa, famous for its progressive (but politically controversial) gay rights laws. And in South America, perhaps the most gay-friendly part of the world outside of Europe, both Argentina and Uruguay allow gay marriage. Brazil also looks like it might be on the verge.

Those countries are joined by 12 U.S. states and the District of Columbia. That’s actually pretty significant. It means that, even though most of the United States does not allow same-sex marriage, the country as a whole grants those rights to a relatively huge number of people. In all, 56.9 million Americans live in the states with same-sex marriage rights. That’s the population of Italy, which does not allow even same-sex unions.

It occurs to me, however, that the impact of Windsor is effectively to render gay marriage the law in all 50 states.

Recall that the chief motivating fear of the Defense of Marriage Act was to prevent a judge in one state—Hawaii, where gay marriage remains illegal, was thought to be the likely culprit—declaring limiting marriage to one man and one woman violated the Equal Protection Clause, people flocking to that state to marry, and returning back home and,  because of the Full Faith and Credit Clause, being deemed legally married at home.

Well, SCOTUS has now said that the Equal Protection Clause prevents Congress from discriminating against gays as a class, at least in the arena of marriage, which is fundamentally the province of states. Given that, then, doesn’t the Equal Protection Clause mean that residents of Alabama are now free to travel to California, tie the knot, and then able to demand recognition of their marriage back home?

If not, why not?

UPDATE:  Commenters point out that, despite the sweeping nature of the opinion, the Court only ruled on Section 3 of DOMA. That means Section 2, which expressly exempts states from granting Full Faith and Credit to same-sex marriages performed in other states, still stands as law.  Presumably, that’s a matter for a separate lawsuit, the result of which is not immediately clear. On the one hand, Justice Kennedy’s opinion relied heavily on the fact that marriage was historically a matter for the several States. On the other, the sweeping Article 5 language makes discriminating on the basis of sexual orientation highly suspect.

FILED UNDER: Crowdsourcing, General
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Why not?

    Because of Section Two of DOMA, which provides as follows:

    No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship

    As long as this part of the law is still on the books, and it was not affected at all by today’s ruling, then Alabama is not required to recognize that California marriage. The Federal Government, of course, would be.

  2. Brett says:

    Wrong. The court was very clear that they were only ruling on section 3. Section 2, which limits full faith and credit remains in effect.

  3. James Joyner says:

    @Doug Mataconis: @Brett: Ah. That makes sense. The sweeping Equal Protection basis of the ruling led me to think they were striking the whole law down.

  4. @James Joyner:

    Since Section Three was the only part of the law before them, that was the only thing they really had jurisdiction to rule on.

  5. Rachael MM says:

    @Doug Mataconis: Would the federal government be required to recognize the marriage of a couple who lived in a non-SSM state who traveled to a SSM state to be married, but returned home and resided in the non-SSM state? Yes, right?

  6. James Joyner says:

    @Rachael MM: Absolutely. It would be perverse, indeed, if two soldiers married while stationed at Fort Drum were considered not married if they were ordered to Fort Bragg.

  7. stonetools says:

    Expect a Section 2 challenge PDQ.

  8. RaflW says:

    But this does much more sharply point out the tension between marriage-affirming and marriage-banning states, and, in my very humble and non-lawyer opinion, the vulnerability of S.2.

    It should not be all that difficult for a SCOTUS case to be brought that points out that S.2 lacks rational basis. If IA recognizes MN drivers licenses, wills, contracts, etc, but singles out only same-sex marriages, isn’t that just animus and not a compelling state interest under what does now seem to be a higher bar of a protected class?

    The ACLU is right that today’s rulings will issue forth a bumper crop of lawsuits.

  9. Xenos says:

    @Rachael MM: This is exactly the point. This also applies to other marriages – a first cousin marriage solemnized and made legal in Rhode Island will not be recognized in Pennsylvania. But the federal government is still obliged to treat them as married, whether they later reside in RI, PA, or overseas.

  10. michael reynolds says:

    This was not Appomattox but it was Gettysburg, the point at which it became clear to any rational observer that continued opposition was just a waste of time and resources.

    SSM will sweep the north, midwest and of course the coasts, leaving only the hardcore red states of the south and mountains. The South will do as much damage as they can to their gay citizens and to core values of fairness, but in the end they’ll be dragged along like the spiteful dead weights they are.

  11. stonetools says:

    In a lot of the states, the “traditional” marriage definition is written not only into the law, but into their constitutions. Dunno how that affects a Section 2 challenge.
    We might have to gird ourselves for a long slog through amending 30 odd state constitutions before gay marriages are recognized everywhere in the USA.

  12. Xenos says:

    To clarify – the full faith and credit clause has never been applied to marriages. There was significant diversity between the states as to what is legal (eg cousin marriages, age of consent, miscegenation), and the compromise was that states were not obliged to accept marriages in other states.

    I can’t remember if this is based on something in the constitution or federal law, but the principle has been there since the very beginning.

  13. stonetools says:

    Maybe we liberals ought to take a page out of the Rove playbook and put pro gay marriage initiatives on ballots in 2014.
    Turnabout is fair play….

  14. RaflW says:

    @James Joyner: 50-state applicabiltiy depends: For immigration, federal law looks to the state where the marriage occurred, so applies in all 50 as long as they married in one of the 13.
    For SSI benefits, it looks to the state where the parties reside, so too bad in 37 states.
    I think I saw somewhere today that the military is going to allow military benefits for all legally married servicemembers, so they may have discretion on that and are going with the more generous (and fair!) analysis.
    Over time this disparity between states will be intolerable.
    If a married gay couple do any retirement planning at all, they’ll quickly figure out that the entire sunbelt (with the unclear exception of no-status New Mexico) bans SSI survivor benefits, joint tax filings, etc.
    During working life, there will be an almost immediate, very significant economic benefit for all married gays and lesbians to live in one of the 13 marriage-affirming states: insurance premiums paid by a spouse thru work will no longer be taxed as income to the other spouse in those 13 states. They can file tax returns jointly. They can exempt all spousal inheritance. I’m sure many more advantages will shortly be found (and yes, I know the joint filing is not always an advantage, but it often is).
    I say to that disparity: move to Minnesota! C’mon up, enjoy our excellent cultural and economic climate. Snow, yeah, but we’re really nice folks and we welcome you.

  15. @Rachael MM:

    As long as their marriage in the SSM-recognizing state were valid? Yes.

  16. @stonetools:

    That’s going to be far more difficult. The Full Faith & Credit Clause has actually never been held to require states to recognize all marriages performed by sister states. That is usually covered by a legal principle known as “comity.” Many states, though, have laws on their books that say that marriages that are valid in other states, but which violate the public policy of the state will not be recognized. This has been most commonly applied to first-cousin marriages, which are recognized in some, but not all, states.

    Section 2 of DOMA simply needs to be repealed.

  17. Xenos says:

    @RaflW: But wait: does the federal government care if the current state of residence accepts gay marriage?

    I can see that applying in SSI and Medicaid cases, as they are jointly run and funded projects of the federal and state governments. Federal employment law, however, clearly preempts state law. Same thing with taxes.

    An analogous situation happens to expats: two American men marry in France, then move to Russia. The IRS does not care whether they can file Russian taxes as married or not, it just treats them as married, because by US law they are.

  18. anjin-san says:

    I’m just going to take the day to enjoy this large step forward and be happy for my gay & lesbian friends who have had some of the weight lifted off of them. There will be plenty of time for analysis and figuring out where we go from here.

  19. stonetools says:

    @Doug Mataconis:

    Section 2 of DOMA simply needs to be repealed.

    Agreed. I think Section 2 likely will be overturned, by court challenge, based on the language of this holding.But we will still have to deal with all those anti-SSM state constitutional provisions out there. I think SCOTUS would flinch at a sweeping ruling overturning all those state constitutional provisions.
    Liberals may be able to make a virtue out of this necessity by putting pro SSM initiatives on the 2014 and 2016 elections as a way to drive turnout. That would be sweet schadenfreude for 2004.
    OTOH, it would drive conservative turnout too. Liberals would have to make a calculation as to whether it would benefit them overall.

  20. Alex says:

    The map at the link has Mexico colored wrong – same-sex marriage is fully legal in one state plus the federal district and such marriages are recognized nationwide, so Mexico should be colored some shade of blue.

  21. stonetools says:

    @RaflW:

    I say to that disparity: move to Minnesota! C’mon up, enjoy our excellent cultural and economic climate. Snow, yeah, but we’re really nice folks and we welcome you

    I know of one gay couple who decided to move to Canada, based in part on calculations as to the most SSM friendly place to marry and to live.
    There are gays that will not move to Texas, based on their anti-gay stance of the state government.
    I’m wondering if we will begin to see businesses start to move out of the Sunbelt, based on the anti-gay rights laws of most Sunbelt states.It will serve them right.

  22. PD Shaw says:

    @Doug Mataconis: @Xenos: I think the majority opinion confirmed that state freedom not to recognize the marriage laws of other states is the norm. Here is the passage, though YMMV:

    The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” Marriage laws vary in some respects from State to State. For example, the required minimum age is 16 in Vermont, but only 13 in New Hampshire. Likewise the permissible degree of consanguinity can vary (most States permit first cousins to marry, but a handful —such as Iowa and Washington —prohibit the practice). But these rules are in every event consistent within each State.

    (Locally, people are upset that Florida won’t recognize grandparent visitation rights given by an Illinois court under full faith and credit, but there doesn’t appear to be anything to do, short of invasion)

  23. John D'Geek says:

    @PD Shaw: Yeah, it seems to me that section 2 is simply redundant. If it’s not, we have much larger problems. For instance: there is, IIRC, one state that allows Polygamy. Should Polygamy be forced to be legal in all 50 states?

  24. Barry says:

    I’m genuinely surprised to learn that marriage was exempted so much from the Full Faith & Credit Clause.

  25. Barry says:

    @Barry: I’m also surprised that this hasn’t led to massive legal problems – for example, when a married couple with children moves to another state, it’s possible for their children to become illegitimate, by state law. What happens then?

  26. PD Shaw says:

    @John D’Geek: Polygamy is legal in one state? Are you sure you’re not thinking of Utah, which federal law required to ban polygamy as a condition of entry? I think that’s the question though — Are people comfortable with their own state’s law effectively adopting whatever any other single state adopts? Whether its Utah, Mississippi or Vermont?

  27. rudderpedals says:

    I’m not so sure about states getting away with SSM bans despite section 2’s survival. IIRC a state’s discrimination amongst its citizens rising to an equal protection violation is subject to the strictest scrutiny (compelling state reason for the discrimination; no reasonable alternative). Enunciating a compelling state interest is a problem because there aren’t any – the reasons are invidious or as in the case of referendums unknown.. Keep your fingers crossed and maybe Loving’s gay equivalent isn’t far off

  28. Grant says:

    Loving vs. Virgina IS the precedent that should vacate all remaining marriage discrimination laws across the country. The interpretation of due process in that decision cannot be swept under the rug any longer. It ties the right to marry directly to the Constitution and declares that citizens are free to marry as they please. Why this issue was not settled long ago is a mystery to me.

  29. Barry says:

    @PD Shaw: “Are people comfortable with their own state’s law effectively adopting whatever any other single state adopts? Whether its Utah, Mississippi or Vermont? ”

    You mean that the definition of ‘marriage’ is enlarged? Yes, I am comfortable with that.
    I don’t know WTF you meant by including Mississippi; Vermont and Utah were included for obvious reasons.

  30. John D'Geek says:

    @PD Shaw: Actually, I’m thinking of Arizona. But yes, that’s the question. Are we really comfortable allowing, to use a different example, a 13 year old girl to be married? (Vermont, I think; example given in one of these threads).

  31. rudderpedals says:

    I think the essential difference between state laws regarding cousin marriages or age restrictions and state bans on SSM is the state bans lack a rational basis other than hate whereas a state has an interest in minimizing costs associated with close cousins inbreeding and a compelling parens patriae (sp) interest in protecting minors.

  32. John D'Geek says:

    @rudderpedals: The “rational Basis” test is the reason I chose Polygamy as the example issue: no state has any rational basis to prohibit polygamy anymore. Child marriages, yes — definitely (monogamous or otherwise); but not Polygamous marriages.

    At this point, all states allow de-facto polygamy. They just won’t allow you to call yourselves “man (and wife)^n (where n > 1)”*.

    * or “spouse ^n (where n > 1)” for the politically correct.

  33. rudderpedals says:

    @John D’Geek: I don’t see a meaningful state interest in a ban on polygamy below a certain number of spouses and so long as everyone is aware. What that number of spouses is or how long it’ll take for de jure recognition no one can say but I think it’s inevitable.

  34. rudderpedals says:

    And assuming zero coercion, a very good thing.