Part of the argument against marriage rights for gays has been that Massachusetts will change the entire country’s legal position. Such marriages will be forced onto other states, some argue. But this is simply untrue. First, the law and the constitution have always allowed states to refuse to recognize marriages in other states, if such marriages violate the public policy of said states. That’s why we had different standards for inter-racial marriages across the states for decades; and why we had different age-requirements; and different divorce standards. Marriage has never been federal in America. That’s particularly the case now because 38 states have their own “Defense of Marriage” laws, underpinning this fact. Think of it like a law license: it has to be re-credited in every state it is enforced in. Secondly, the federal Defense of Marriage Act makes this even more explicit. Thirdly, and less noticed, so do the regulations for marriages in Massachusetts itself. Here’s an obscure but vital provision in Massachusetts marriage law:
GENERAL LAWS OF MASSACHUSETTS PART . REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS TITLE III. DOMESTIC RELATIONS
CHAPTER 207. MARRIAGE CERTAIN MARRIAGES PROHIBITED
Chapter 207: Section 11 Non-residents; marriages contrary to laws of domiciled state
Section 11. No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.
So a couple from out of state wanting to take their Massachusetts marriage and make it legal in, say, Alabama, won’t even have a legal marriage to carry! Federalism, in other words, works. In a country as culturally polarized as this one, I’d say federalism is an essential safety-valve for cultural conflict. Why not have different rules for marriage in San Francisco and Provincetown than in Missoula or Baton Rouge? Can’t we live with diversity? We do not need this federal amendment. We do not need it at all. And true conservatives – those who believe in states’ rights – should be in the forefront of opposition.
The Dish 