Marriage and States’ Rights
David Frum had a good piece in NRO recently explaining why a state-by-state approach to marriage would be problematic:
1) A Massachusetts man buys a condo in Miami. He marries another Massachusetts man. The condo purchaser dies before he can write a new will. Who inherits the condo?
2) Two Massachusetts women marry. One of them becomes pregnant. The couple split up, and the woman who bore the child moves to Connecticut. The other woman sues for visitation rights. What should the Connecticut courts do?
3) A Massachusetts man is accused of stock fraud. The federal Securities and Exchange Commission subpoenas his spouse. The spouse claims marital privilege and refuses to answer the SECÃ¢€™s questions. May the SEC compel him to answer anyway?
4) A Massachusetts woman marries another Massachusetts woman. The relationship sours. Without obtaining a divorce, she moves to Texas and marries a man. Has she committed bigamy?
I ask these questions to drive home this point: Americans may live in states, but they conduct their financial and legal lives in a united country bound by interstate institutions.
If a couple gets married in Massachusetts and that marriage goes truly unrecognized by any entity outside the state Ã¢€“ well then the Massachusetts wedding ceremony is just a form of words, as meaningless as the illegal weddings now being performed in San Francisco. If youÃ¢€™re not married outside Massachusetts, then you are not really married inside Massachusetts either.
Somehow I cannot imagine Andrew and those who think like him reconciling themselves to that outcome. I suspect that Ã¢€œletting the states decideÃ¢€ will over time gradually evolve into a demand to allow the most liberal states to impose their social values on the others through the mechanism of a million petty lawsuits on a thousand different issues.
Messy, to be sure.
Hat tip to Donald Sensing, who has a good discussion of the issue ongoing in his comments section.
Update: Matt Yglesias responded to Frum previously and his commentators provide some answers as well. I agree that some of the questions have technical resolution in existing law. But they’re not particularly satisfying answers in the context of a supposed marital relationship. As a public policy issue, having a couple 2% married is, at best, odd and certainly weakens the broader institutional concept of marriage.
Further, it strikes me that having gays 2% married is much more of a violation of the Equal Protection Clause than not allowing same sex marriage, period. Under the current situation, there’s at least nominal equality–heterosexuals aren’t allowed to marry others of their sex, either. Having mixed sex and same sex Massachussets marriages treated radically differently in the other 49 states and by the federal governmetn is essentially a separate but equal stance.