Gay Marriage

New Republic legal correspondent Jeffrey Rosen argues that there are built-in brakes on the spread of gay marriage from Massachusetts to the rest of the country. Opponents of gay marriage fear that gay couples will flock to Massachusetts, get married, and return home to demand that their marriages be recognized in their home states. Rosen points out that existing laws would seem to prevent that. Massachusetts state law, for example, “refuses to recognize marriages celebrated in Massachusetts if they take place between parties domiciled in a state that does not recognize the marriage as valid. This provision ?Edesigned to prevent out-of-staters from evading their own local marriage laws ?Emeans that a same-sex couple from New York traveling to Massachusetts for a weekend to get married should be turned away at the altar. And, despite the assurances of the New York attorney general that his state will recognize any valid Massachusetts marriages, the marriage would be invalid in New York even if the couple managed to return with a marriage certificate. Since the marriage can’t be valid in Massachusetts, it can’t be valid in New York.” Rosen anticipates that some gay marriage proponents will push for a low bar for “residency,” much as “the Nevada legislature passed a law in 1931 saying you could establish Nevada residency for the purpose of a divorce by spending just six weeks in the state.” But Rosen doesn’t think that the Massachusetts legislature will go for a provision such as this, despite “pressure from the bed-and-breakfast industry.”

Gay marriage proponents, Rosen thinks, will have to work state-by-state. The only other option would be to “ask courts to strike down state laws banning gay marriage as a violation of the federal Constitution.” Suits of this kind would of course pressure the Supreme Court to resolve the issue for the nation. But Rosen doesn’t think that the court will decide to strike down gay marriage bans: “In Lawrence v. Texas last spring, after all, a majority of the Court strongly suggested that it wasn’t ready to strike down bans on gay marriage across the country as a violation of the U.S. Constitution.”