Written by: Tom Borton
Researched by: Jeff W. Richards
Edited by: Jay D. Hall, Stefanie Herrington, and Amy E. Seely

Over the past few centuries, this country has seen vigorous debate about what kinds of marriages should be recognized valid. As early as 1664, anti-miscegenation laws criminalized marriages between whites and black slaves. In 1862, Congress passed the Morrill Act, which prohibited polygamy. Since the 1970’s, courts have permitted laws limiting marriage to opposite-sex couples. Today, anti-miscegenation laws have been fully repudiated, but debate continues regarding same-sex marriage, and recent events in California and across the nation have fueled the fire.

On May 15, 2008, the California Supreme Court decided In Re Marriage Cases, allowing same-sex couples to marry. That decision has stirred two old debates back to life. First, if a same-sex couple legally marries in one state, must other states recognize that union? Will statutes banning same-sex marriage soon be just a speed-bump on the U.S. road to marital bliss? Second, will state recognition of homosexual marriages lead to anti-polygamy laws bring overturned? Will plural marriage follow from gay marriage? The path ahead is unclear. Is Gay Marriage a Slippery Slope or an Even Playing Field?

The Current State of Gay Marriage

Only two states currently allow same-sex marriage: California and Massachusetts. Four states (Connecticut, New Hampshire, New Jersey, and Vermont) allow civil unions for same-sex couples, and four others (Maine, Hawaii, Oregon, and Washington) allow couples to register as domestic partners. However, after Massachusetts began allowing same-sex marriage in 2003, twenty-three states reacted quickly by passing constitutional amendments prohibiting it. Four states already had such constitutional provisions. All but nine states have statutorily prohibited same-sex marriage (as did California, until the recent decision). At the federal level, there have been unsuccessful attempts at amending the U.S. Constitution to prohibit same-sex marriages.

After the California Supreme Court granted same-sex couples the right to marry in that state, a tricky question was again raised: do same-sex couples who obtain a legal union in one state have a Constitutional right to have those unions held valid in other states? There are arguments on both sides, and some courts have decided that at least certain rights of state-recognized couples must be recognized. Many of these arguments are based on the Full Faith and Credit Clause of the U.S. Constitution. The clause, found in Article IV, Section 1 of the Constitution, dictates:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

This provision, at a glance, would seem to require all states to recognize a marriage, civil union, or domestic partnership performed legally in any other state, including same-sex unions. A state that refused to recognize such a union would not only be refusing to grant a right to that couple, but would also be allowing individuals to escape the obligations of their legal same-sex marriage in another state.

However, two obstacles may prevent such an application of the clause, the first of which is a long-recognized public policy exception. In Pacific Employers Insurance v. Industrial Accident, the Court stated, “there are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy.” States may refuse to recognize the law of another state that violates the state’s own recognized public policy. However, the Court has required states to enforce other states’ judgments with no public policy exception. For example, a court in a state other than Nevada must enforce a judgment for payment under a prostitution contract formed in Nevada, despite any qualms it might have with prostitution. Similarly, Oklahoma was required to recognize the validity of an out-of-state adoption by a same-sex couple because the adoption decree was a judgment. If a marriage is considered a “judgment,” then it is one that must be recognized in all other states, regardless of public policy arguments.

The Defense of Marriage Act

In 1996, many same-sex marriage opponents worried that states would soon begin permitting such unions. Fearing that the Full Faith and Credit clause could be used to force other states to recognize these marriages, Congress passed the so-called “Defense of Marriage Act” (DOMA). The Act declares that no state “shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such a relationship.” The Act also explicitly defined marriage for the purposes of all acts of Congress as only between a man and a woman.

The Constitutionality of the Act has been debated vigorously since its passage. Proponents of DOMA cite the “effects clause” of the Full Faith and Credit provision, which states that Congress has the authority to determine its manner of application and its effect. Opponents argue that DOMA exceeds Congress’ authority under the clause, and also that it violates the Equal Protection and Due Process clauses. Many states have now adopted their own DOMA provisions. In fact, California’s provision was struck down with the In re Marriage Cases decision.

Future Battle: The California Ballot Initiative

Following In Re Marriage Cases, a group gathered enough signatures to place a constitutional amendment on the ballot in November, 2008, to limit marriage in California to opposite-sex couples. However, that initiative may already be a dead letter. One scholar argues it may violate the state constitution: California voters may only “amend” the state constitution by initiative, and may not “revise” it. A revision must be passed by the state legislature or by constitutional convention. A 1978 case outlines what exactly constitutes a revision:

“[A]n enactment which is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.”

Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 22 Cal. 3d 208 (1978). Therefore, claims Norte, a pitched legal battle awaits the proponents of the California initiative.

Future Battle: Slippery Slope To Polygamy?

Some legal analysts feel that judicial action to legalize same-sex marriage will create precedent that could lead to the overturn of polygamy laws. Justice Scalia once stated, in a dissent to a case striking down a sodomy law, that following that decision all morals legislation was vulnerable to attack: first homosexual sex, then “fornication, bigamy, adultery, adult incest, bestiality, and obscenity.”

However, due to the way the California Supreme Court has classified sexual orientation, there is a significant difference between the same-sex marriage and polygamy. In deciding In Re Marriage Cases, the court declared that laws based on sexual orientation would receive “strict scrutiny” review, meaning that such laws must be narrowly tailored to achieve a compelling government interest. As polygamists are not a protected class, like homosexuals, they do not enjoy that level of review. Instead, the government may limit polygamy by proving simply that such laws are a rational method of achieving a legitimate government interest. The method need not be the least restrictive method of achieving that interest. The government interests in prohibiting polygamy that are often asserted are: the danger of statutory rape associated with polygamy; the danger of incest; and the subjugation and abuse of women in such relationships. These are legitimate interests and a ban on polygamy is generally seen as a rational means of accomplishing those ends.

The California Supreme Court even addressed the slippery slope issue directly:

We emphasize that our conclusion that the constitutional right to marry properly must be interpreted to apply to gay individuals and gay couples does not mean that this constitutional right similarly must be understood to extend to polygamous or incestuous relationships. [T]he state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment.

Federal appellate court Judge and author Richard Posner discussed another argument for the slippery slope in his review of a pro-same-sex marriage book by Evan Gerstmann. The argument is that marriage has been deemed a fundamental right protected by the Constitution. Therefore, claims Posner, a person has a right to marriage, however that person chooses to define marriage, including marriage to multiple partners. Novel as it is, this argument has yet to succeed in reversing anti-polygamy laws.

As voting season approaches, only time will tell if California’s same-sex marriage allowance will stand as a decision that no man or woman can tear asunder. If it stands, it remains unclear whether those marriages will be recognized in other states and, even more unclear, whether that decision will be a springboard to polygamy advocates.