David Frum cites several examples of potential legal thickets over marriage rights and asks me to say what I think of them. He asks whether the federal government would be required to recognize Massachusetts marriages. Right now, DOMA says no. For the feds, same-sex couples don’t exist. The rest are all versions of the same hypothetical: that some legal challenge might occur that involves the legal standing of a Massachusetts civil marriage of a gay couple in another state. For example: “Two married Massachusetts men are vacationing in another state. One of them has a stroke. The hospital concludes he will never recover. Local law requires the hospital to ask the next of kin whether to continue treatment. Whom should it ask?” Legally, the most apposite statute is the following one from Massachusetts, delineating the scope of a civil marriage from that state:
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 deliberate attempts to bypass other states’ laws on the matter would seem to me to be fruitless. But what about when one spouse of a Massachusetts marriage is inadvertently traveling elsewhere, and something happens, as in Frum’s vacation example? I’d hope, for humane reasons, that a spouse would not be denied access to a hospital room elsewhere or ruled out of a precious medical decision. But I’m afraid, given DOMA, given the public policy exception of most states, such a cruel decision would be fully legal in other states. It is possible, of course, that a handful of “legal incidents” of marriage could be upheld by courts in other states – but that’s a long way away from the actual marriage being fully recognized. In other words, I would reluctantly acquiesce in a married couple being torn apart if they traveled across state borders. That happened often when anti-miscegenation laws were valid in some states but not others (a full treatment of the miscegenation precedents can be found in my anthology, “Same-Sex Marriage: Pro and Con.”) I’m resigned to it happening again.
TURNING IT AROUND: But let’s turn the question around. In every instance Frum cites, he wouldn’t only be happy to prevent such basic protections from being recognized in other states. He would ban them outright in Massachusetts – or any other state – as well. Frum also opposes all civil unions laws and domestic partnership laws for gays. He would keep it impossible, in other words, for any gay man to have even an iota of the privileges he enjoys as a heterosexual legal spouse. Or am I wrong here? So my question back to Frum is simple: which of your 1,049 civil marital privileges would you be willing to grant a married gay couple?
The Dish 