July 26, 2004
"Yes, of course you can find some legal activists who want to try and use the Full Faith and Credit Clause to nationalize marriage immediately. But they won't succeed; they have no legal precedents; and their legal argument is extremely weak - as even they often concede. Yet the default position of the far right is the notion that marriage in one state automatically means marriage in every state. That argument is the one with resonance around the country, and it's an argument designed to foment a sense of urgency about stopping any state from amending its laws now. It was the sole reason for the appalling Defense of Marriage Act. And it's phony.
...My argument was simply that legal marriage for all citizens in one state doesn't mean it will be automatically extended to every other state. I was trying to rebut that notion - very slyly inserted into the debate by the far right (and some on the left) for the past several years. Now to the broader point: there is a big difference between saying that if marriage becomes legal in Massachusetts, the Constitution will make it legal in every state because of the Full Faith and Credit clause; and saying that one day the Supreme Court might rule on the matter on the grounds of equal protection, invalidating all bans on same-sex marriage. Theoretically, the Court could make such a ruling even if there's not a single state with equal marriage rights. In other words, it's a completely separate issue. And as a matter of law and politics, it's very, very unlikely that such a thing will happen any time in the foreseeable future.
...I think the denial of marriage rights to 3 percent of the population is a grotesque denial of a basic civil right - more profound than denying the right to vote, in fact. One day in the distant future, SCOTUS may see that. But that doesn't make it likely, or even conceivable within the foreseeable future.
I bring this up because the legislature is finally performing a task which they have always had the authority to do: reining in judges by taking away marriage from their purview. And this had Andrew in a tizzy why? Because despite his federalist protestations against the FMA, he wants the courts to decide an issue which he knows he cannot win at the ballot box. I guess that consistency was too much to hope for.
Update: Stephen Green fisks Sullivan. Since Stephen actually agrees with Andrew on the issue of gay marriage, this should get Sullivan's attention. Sadly, it won't.
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