Sunday, December 19, 2004

Federalists II

Walter Olson of the indispensable site Overlawyered.com corrects me on the procedural history of the lesbian custody battle I talked about last week.

I appreciate the correction, but contrary to what Wally seems to think, it does not affect the argument very much. The point is just this: Advocates of what's called a federalist approach to same-sex marriage keep insisting that if we just leave things alone, each state (or anyway each state's judges) will be left free to choose for itself whether to have same-sex marriage or not. That is simply not going to work, as the Miller-Jenkins case shows.

The point at issue in the case was whether the state of Virginia should uphold a custody decre issued by the state of Vermont awarding visitation rights to a child to the mother's former lesbian partner. The mother, now a resident of Virginia, has contested the validity of the decree in her state.

And my point was that the case presented the state of Virginia with a stark choice: If Virginia treats the custody decree as binding, then a little bit of Vermont marriage law has migrated into the law of Virginia. Had the Virginia court upheld the decree, then the law of Virginia would have been amended to read: "Vermont civil unions and their legal incidents are void in Virginia - except for custody decrees arising from those unions." Pretty soon there would be another case, and another demand for an exception: "Vermont civil unions and their legal incidents are void in Virginia except for custody decrees and child support awards." And so on, until the Virginia law on Vermont civil unions sounds like an adaptation of "The House that Jack Built."

Or, alternatively, Virginia entirely ignores the civil union, as its laws require and as the same-sex federalists promised they would allow Virginia to do. But if the civil union really is truly null and void, then the Miller-Jenkins case is one in which the Virginia courts are being asked to enforce the visitation rights of a woman who has no relationship of any kind either to the child or its mother - in glaring violation of the public policy of the state in favor of marriage and parental rights.

In short, we're back to my old dilemma: It is impossible to have same-sex marriage in just one or just a few states. If a Vermont custody decree means nothing outside of Vermont, then it means precious little inside of Vermont. Alternatively, if a Vermont civil union that is supposedly invalid in Virginia can nonetheless create rights that Virginia must respect - well then the underlying civil union has to be regarded as valid in Virginia after all.

To put it more simply: Either one state can force the other states to accept the rights created by its civil unions - or else those rights cease to exist the moment one party to the civil union migrates across the state line. In the first case, same-sex marriage in one state is tantamount to same-sex marriage in every state. In the second, same-sex marriage in one state is tantamount to same-sex marriage nowhere at all.

Same-sex marriage advocates who think seriously about the legal consequences of marriage must (I believe) perceive this. That's why I suggested that the federal approach is a tactic. It sets in motion legal changes that will cause courts even in states that oppose same-sex marriage to give partial or qualified recognition to out-of-state same-sex unions. Whether the voters of any state wish it or not, the institution of same-sex marriage will gradually interpenetrate their law. As has been said in the context of another great national debate, the country will become all one thing or all another.

12/19 09:54 PM