ABOVE AND BEYOND

Obergefell v. Hodges, in which the Supreme Court ruled that every state is obligated to issue same-sex marriage licenses, surprised me with its breadth. In it the Court dealt with two distinct but closely related big-picture questions. First, is a state obligated to recognize a marriage license, including those for same-sex marriage, issued by another state when it differs from their own practice for issuing licenses? Second, must every state issue same-sex marriage licenses by law regardless of their current policy? I confidently expected the Court to rule on the former and punt on the latter. They didn't.

For nearly 20 years I have argued that same-sex marriage is miscast as a moral issue and obfuscated with all of these irrelevant discussions of tradition and the nature of marriage in Western society. To me, the question is and always has been solely a matter of the Full Faith and Credit Clause of the Constitution. Period. The FFCC mandates that states must recognize "public acts, records, and judicial proceedings of every other state." The FFCC is the reason that you do not need to get a new marriage or drivers license when you cross state lines. Your New York drivers license is valid in New Jersey, and when you get married in New Hampshire you don't need a new marriage certificate when you move to Vermont (and, crucially, you also don't need to return to New Hampshire to get divorced if you choose to do so).

In this light, my opinion has always been that as soon as gay marriage became legal in one state – any state – it was effectively legalized everywhere. Even if Hawaii were the only state to issue gay marriage licenses, the FFCC obligates every other state to recognize it. I expected the Court to rule decisively in this manner, requiring every state to recognize all marriage licenses issued by any other state as valid for its own purposes. This would have allowed the Court political cover, sidestepping any discussion of the nature of marriage, the "moral" rightness of different types of marriage, and so on. The result, I expected, was that gay marriage would become similar to what divorce used to be in terms of interstate heterogeneity. Back before divorce was widely accepted, for example, Nevada was the only state to grant quickie no-fault divorces. So it was not uncommon for couples to file for divorce in Nevada, where the process was quick and easy, and return to their home state with a dissolution of marriage that every other state would be legally obligated to recognize. So, in such a ruling the Court would allow two men in Mississippi to drive four hours, get married just across the state line in Illinois (or any other state legally recognizing gay marriages) and then return to Mississippi, which would now be required to grant that marriage license full faith and credit. In this reality, you can imagine the ad campaigns: Gay Wedding Packages to Lovely Colorado! Come to California, all weddings performed, same day licenses! New York, a wedding destination that welcomes all!

Would that have been ideal? Certainly not. But it would have given every person who wanted to get married in a manner not recognized by their home state a reasonable method by which they could do so. Traveling across state lines obviously represents a burden, but one that the Court historically would not recognize as terribly onerous. Anything within the reach of a Greyhound Bus ticket is generally recognized as being accessible.

Had the majority limited itself to that logic, I think they might even have gotten Roberts on board. As it stands, though, the five-justice majority was far bolder and appears to have settled the entirety of the issue. In my opinion, despite the fact that I agree with their conclusions I fear that they made the opinion a bit more open to future undermining in the process. Kennedy's defense of the nature of marriage and its status as a basic right is eloquent but also subjective. It's the type of decision that a future Court with a radically different composition could have a field day reversing. But that will take quite a while, and it seems highly likely that within the next few years gay marriage will become ingrained as a social institution and so unexceptional to the vast majority of the population that objections will cease beyond the comparatively small world of die-hard religious fanatics. And as the Court ruling affects only civil marriage – religious institutions are wholly unaffected by this decision – they won't have a leg to stand on anyway.

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38 Responses to “ABOVE AND BEYOND”

  1. Andrew Says:

    I too was (pleasantly) surprised that the Court went as far as it did. I thought they'd stop with comity. BTW, the northernmost town in Mississippi and the southernmost town in Illinois are only 2.5 hours apart by car. Who knew? :)

  2. SeaTea Says:

    If I were in their position (and I'd like to think this is an empirical observation and not a biased one), I'd be feeling like writing is on the wall, historically, with regard to the gay marriage and gay equality issues.

    I'd be thinking how much I wouldn't want to be one of those crusty, out-of-touch douches who stood up and railed against Civil Rights, or the abolition of slavery, that the history books quote fifty or a hundred and fifty years later and generations of school children grow up thinking "What an asshole. How could anyone seriously think that way?"

  3. Skippper Says:

    The language in this is a little confusing. States have to recognize marriages performed in other states, but they don't have to recognize marriage licenses, the document you need to obtain before you're married. If you want to be married in CA — gay or straight — you have to have a California license before the ceremony.

    As far as Roberts, I don't know what's going on with him. While the usual suspects write dissents that were predictably stupid, Roberts' was embarrassing.

    Roberts is a total marriage moron

    http://www.theawl.com/2015/06/forget-scalia-justice-roberts-is-a-total-marriage-moron

    I've come up with two possibilities. 1. Roberts was sabotaged by someone who gave him or his clerk erroneous information. 2. Roberts wanted to vote with the majority, but was ordered not to by the Koch Brothers, and this was his way of signaling that he was being held hostage. It was kind of like eye-blinking "Help Me" in Morse Code.

  4. c u n d gulag Says:

    Our “Christian” conservatives blew the gay issue (pun fully intended).

    These are monogamous gay couples who only want the same rights as married heterosexual couples get.

    Our conservatives should have been FOR this!

    But, instead, thanks to Manichean “Christians” like the Jesus-grifting douche-canoe Huckster, they find themselves on the wrong side of history again, when they could have earned the respect and support of many if not most gay people, by advocating for monogamous gay marriage, and the adoption of children.

    The Dominionist-Evangelical Christians who Goldwater feared, Nixon tickled, and Reagan hugged to his bosom, are now the people who make the GOP stand for “Grossly Old (Testament White/Straight) People.”

    Heck of a cross you nailed yourselves to, Reich-Wingers!
    You “blew” the gay issue – figuratively speaking, of course!

    As Rodney Dangerfield once said in “Caddyshack:”
    “Hey everybody, LET’S GET LAID!!!!!!”

    And now, it doesn’t matter with whom.
    Just no dogs!

    Leave them to Rick Santorum and other “Christian” conservative deviants!!!

    Hey Rick, once you get tired of ‘man on dog sex,’ why don’t you try man on porcupine sex?

  5. Andrew Says:

    British PM David Cameron once said that he's not for gay marriage despite being a conservative, he's for it because he's a conservative. Conservatism is (or should be) all about encouraging widespread participation in social institutions, and marriage is definitely one of them.

    I've often said that given how well (opposite sex) marriage has worked out for me so far, what possible motivation would I have to keep others from participating in it?

  6. Greg Says:

    Kennedy – like Brennan- relies on substantive due process because it's fuzziness makes it hard to obliterate, even if it can be nit-picked gradually. Personally I'm most interested in seeing how long it will take the Equal Protection groundwork he tried to lay to take full effect. He noted homosexuality is an "immutable" characteristic, and he took pains to create a record of past harms to homosexuals as a class, yet stopped short of deciding on that basis. Both irritating and faintly fascinating.

  7. Andrew Says:

    I'm fairly sure all states require that a marriage ceremony be performed in the state where the license was issued before the marriage can be recognized. So strictly speaking, states do not recognize the marriage license (issued before the ceremony) from the other state, but recognize the marriage certificate (issued after) from that state.

  8. Skepticalist Says:

    Exploded heads of Rick Santorum and Mike Huckabee aside, maybe SCOTUS gay marriage is good for the GOP. After all, it isn't their fault and who knew the court would be so light in the loafers? Now they can get back to a real issue such as unraveling the inheritance tax.

    One interview with a Turd Brother amounted to his saying that he didn't care so much about social issues anyway. Let people have their fun. Anything to keep Prius drivers quiet.

  9. Khaled Says:

    @Andrew-

    It's been awhile, but yes, you have to get a marriage license in the state where the ceremony is taking place, even if you live in another state. I had a friend get married at a resort in West Virginia and he and his bride-to-be had to apply for a license in WV although they lived in Pennsylvania. People forget that the whole "marriage in a church" thing is only legal because the state has determined that the priest/pastor/rabbi/whatever should have that power. The documents are signed by all the important people and then mailed off to the state so that it can be "official" in the eyes of the law.

    The refrain, of course, from the "religious" right is that they are afraid that pastors would be "forced" to marry against their religious beliefs… which is insane, because priests, etc., refuse to marry people all the time. Ever tried getting married in a Catholic Church if you've been married and divorced?

  10. S M McBean Says:

    It's entertaining the Jindal, Huckster, Cruz, etc. are all screaming (wrongly) about preachers being forced to perform ceremonies they don't want to AND calling to abolish the court! What true patriots! The ultra-right always has to double down on fear with disinformation.

    BTW, someone in the previous discussion linked to an article on youreadygrandma saying Roberts didn't understand the difference between civil and religious weddings. That story was satire, but Scalia asks the same stupid question for real. Kagan had to jump in. See p.23 and following in the oral arguments: http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-556q1_7l48.pdf

  11. Andrew Says:

    @Khaled – I have yet to see a single case of a lawsuit making it past summary judgment where the complaint was that a religious institution refused to perform a religious marriage ceremony for any two individuals. A good friend was refused marriage services by countless rabbis because her intended was not Jewish. She finally found a rabbi willing to perform the ceremony, it was a lovely wedding, and they've been married 15 years so far and have two fantastic kids.

    My wife and I live in California, but she is from Indiana, and we decided to get married there so her family wouldn't have to travel to attend the wedding. As out-of-state residents, we had to pay a hefty fee for an Indiana marriage license, but one was issued, and the wedding took place in Indiana a day or two later. When we returned to California, no one questioned the validity of our marriage. Even our fundamentalist Christian friends who wouldn't let us sleep in the same bed at their house before we were married now do let us do that, though we're not "Christian married."

  12. Andrew Says:

    @S M McBean: Part of the confusion (though Supreme Court justices should be able to figure it out) is that religious weddings are legally binding in the US. So there is no established institution of "religious wedding" (legally irrelevant, get one if you want) vs. "civil wedding" (legally binding, mandatory if you want to be considered married, performed by a government official), like there is in many European countries.

    Personally, I'd be in favor of separating the two completely, or even doing away with government marriage entirely, but as long as we're going to have government marriage, the 14th Amendment requires all who wish to participate to be allowed to, in the absence of a compelling state interest (and "Gay sex is icky" does not a compelling state interest make).

  13. Sam240 Says:

    "Traveling across state lines obviously represents a burden, but one that the Court historically would not recognize as terribly onerous. Anything within the reach of a Greyhound Bus ticket is generally recognized as being accessible. "

    Three little problems.

    1) "Even if Hawaii were the only state to issue gay marriage licenses, the FFCC obligates every other state to recognize it." Hawaii is not within the reach of a Greyhound Bus ticket.

    2) Greyhound does not serve Alaska, either.

    3) What about all the isolated counties that Greyhound does not serve?

  14. Emerson Dameron Says:

    Filing this away. My gut says conservatives with any leverage realize that stopping gay marriage is a lost cause – maybe even the ACA, with Obama on the way out now – but last time I thought I could relax for awhile, we got the Tea Party.

  15. Andrew Says:

    If you live in an isolated area and lack a running car, or live in an urban area and lack the means to rent one (assuming you know how to drive and are licensed), you should probably prioritize other things besides getting married, but of course that decision would be up to the individuals involved.

  16. buckyblue Says:

    Not that I ever want to be quoted as defending these assholes but I believe I heard that the Koch Bros. were pro-Gay Marriage. They were the old socially liberal/economically feudalistic strain of the liber-terrierans.

  17. Nate Says:

    I think most religious people don't realize how easy it is to be able to marry people. All you need is a membership in the Universal Life Church. They don't care who you are or if you attend. It's like a $5 donation and poof! you're able to marry people.

  18. Jestbill Says:

    It's hard to correct historical accidents.
    The obvious solution from ->the beginning<- was to separate secular "Civil Union" from religious "Marriage." The atheist USSR had civil unions.

    Once you've made a bad beginning, all you can do is paper over the problems. Nobody wanted to change the old wording, nobody wanted to be in a "special" category.

    Full Faith and Credit wasn't good enough for mixed race weddings without Supreme Court involvement. Maybe the Court thought that would raise more questions than it answered. Coming up—marijuana legislation.

  19. Jimcat Says:

    Andrew: "Personally, I'd be in favor of separating the two completely, or even doing away with government marriage entirely…"

    Don't you mean doing away with *religious* marriage entirely? If we do away with government marriages, that would mean that no one can get married outside of a religious institution.

  20. Xynzee Says:

    Probably some of the more measured positions I've read on the topic thus far.

    For those who are planning their weddings I wish you the best.
    I won't be waiting for the invite ;)

    Of course this could be used to strengthen pro-marriage policies.
    Now that Adam and Steve and Alice and Eve are no longer disadvantaged by, for example tax benefits, these could be used to encourage more o/s couples to marry.

    This would be especially true for Australia which has liberal de-facto legislation.

  21. Andrew Laurence Says:

    No, I mean doing away with government marriage entirely. The government could offer legally binding civil unions to any two consenting adults who requested one, and religious institutions could offer religiously significant but legally non-binding marriage to those who seek it and who meet the institution's criteria, however discriminatory.

  22. Andrew Laurence Says:

    In the USA, married couples who both produce income pay MORE tax than they would if they remained single.

  23. Xynzee Says:

    Andrew L: that's just stupid. Only in 'Murka!!* do you scream about the centrality of the family, then F-'em like that. Is that for DINKs or across the board?
    If it's DINKs who intend to stay DINKs I could see a rationale—two can live cheaper than one. From a policy position how would you separate them from those who are saving for kids? You couldn't, so it makes no sense if you're trying to encourage families.

    *I'll need to check Oz's tax policy.

  24. Andrew Says:

    It's across the board. The only way you benefit tax-wise from being married is if only one of you produces income. If I make $60K as a single person, then I get married to someone who makes $0, I pay less tax on that $60K income than I did before I got married. But if I make $60K and my spouse makes $60K, we pay MORE tax as a married couple than we did as two single individuals. If we have children we get an exemption for each one, but that's just as true for single people.

  25. George Says:

    @Andrew

    Um Yeah…that's BS.

    http://www.learnvest.com/knowledge-center/when-should-a-married-couple-file-alone/

    95% of married couples do and SHOULD file jointly.

  26. Andrew Says:

    @George: I'm not talking about filing married joint or married separate. I'm talking about being married vs. not being married. My wife and I file a joint return, and we pay far more in tax than we would if we were not married. If we filed separately, we'd pay even more. Our tax situation is not complicated: two W-2 incomes, some interest and dividends, the usual itemized deductions for mortgage interest and state and local taxes.

  27. Jimcat Says:

    If you have a civil union that confers all the legal obligations and benefits of marriage… then people are still going to call it marriage.

  28. Andrew Says:

    @Jimcat: Apparently not. In Britain, where same-sex civil partnerships have been permitted since 2005, but same-sex marriage only since 2014, people are going for marriage in droves, even those who registered for civil partnerships before. Hardly anyone is getting a civil partnership anymore. So people do know the difference.

    My point was that we need to make it clear that government-recognized unions, regardless of their name, are for all consenting adults who wish one, but religiously-sponsored unions are for those who meet the requirements, which may or may not be more stringent, of the religious institution in question, and have no legal effect. Allowing clergy to perform government-recognized unions according to religious institutions' rules is a clear violation of the First Amendment and has blurred the lines to the point where many people can't see the issues correctly, regardless of their own opinion.

  29. Robert Says:

    My husband and I were illegally married in 1996, by a Baptist minister. Then we were legally married in 2008 (during the California Wedding Window) by a UCC minister. Strangely, it's the first one I have the anniversary of memorized.

    On a personal note, it's a bit disconcerting to have an entire nation talking about marriages like your own. To realize that the most normal, everyday part of my life actually works some people into a foaming froth – well, dang.

  30. Andrew Says:

    @Robert: I'm pretty sure nothing about your 1996 wedding was illegal, it was just not legally binding.

    I would be a lot more sympathetic to people who criticized gays for destroying the sanctity of marriage if they also criticized everyone else who doesn't appear to take marriage seriously, like the people who do it five or more times, or the people who get an annulment after a few weeks.

    I once got into an argument with someone who thought divorce should be harder to obtain. I disagreed (and still do) because I assume that people who are seeking divorce did everything reasonable to stay together, and it failed. But if they didn't, and they want a divorce the first time they have a quarrel, then marriage is not an institution for them, at least not at this time in their lives. And that's OK.

  31. democommie Says:

    "But if I make $60K and my spouse makes $60K, we pay MORE tax as a married couple than we did as two single individuals."

    So, what? Get a divorce and continue living together. If I was married to someone and both of us made 60K a year I would be fucking ECSTATIC!

  32. Andrew Laurence Says:

    In my area that is starvation wages. And why should we have to get divorced to enjoy equal tax treatment? I have no objection to the amount of tax I pay, merely the fact that I pay more as a married person than I would as a single person.

  33. Xynzee Says:

    Andrew,
    As I said, only in 'Murka!! do you get the Family! Family! Family! then screw them like that.
    Though Aus has a political party called "Family First" who want to cut the minimum wage and kill penalty rates—Aus pays extra for working weekends, evenings and holidays.
    I often wonder if any group that uses the word Family is in actuality a front group for some corporate interest. Sort of like all those astroturf groups the Kochs back.

  34. Sam240 Says:

    @andrew

    "(assuming you know how to drive and are licensed)"

    Not everyone is physically capable of driving. Also, some medications come with recommendations against using heavy machinery, and a car might qualify. It's heavy enough.

  35. Andrew Laurence Says:

    @Sam240: Thanks for pointing that out. I should have said "If you have a car, are licensed, and are physically capable of driving."

  36. democommie Says:

    "In my area that is starvation wages. And why should we have to get divorced to enjoy equal tax treatment?"

    Bullshit.

    I get about $1100 per month in SS and after paying out approximately 75-80% of that amount to several creditors* I have about $4-450 per month to pay for other stuff. Not easy, but I've done it for the last five or so years.

    $120K is a long ways from starvation, no matter what bracket you're in.

    The tax code, btw, is a fucking hosing for MOST people, except the desparately poor and the filthy rich. Sad, but true.

    * Yeah, that's sorta my fault–I wanted to insulate, wire, plumb and sheetrock the house I bought AND I didn't know that I would become physically incapable of holding a job in a very sudden sortaway.

  37. Andrew Says:

    @democommie: I'm afraid your math doesn't add up. If you get $1,100 per month and pay out 75-80% of it, you're left with at most $275. How do you pay rent/mortgage out of that? My mortgage alone is several thousand dollars per month, though little of that is interest these days. If I lived in an apartment, my rent would probably be $2,500 or more and would go up more or less constantly.

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