Two important articles take aim at the misconception, widely promoted by opponents of same-sex marriage, that a constitutional amendment is needed because once Massachusetts makes such marriages legal, other states would be forced to recognize them. Clearly wrong, writes legal analyst Stuart Taylor Jr in the National Journal. He quotes not only our colleague Jonathan Rauch, but Professor Lea Brilmayer of Yale Law School who said in congressional testimony on March 3: "Marriages have never received the automatic effect given to judicial decisions. They can be refused recognition in other states without offending [the Constitution's full faith and credit clause]." Taylor then goes on to argue:
By no stretch of the imagination...is the proposed amendment behind which Bush has placed his prestige an appropriate way to protect representative government. Quite the contrary. ... This amounts to an anti-democratic, anti-federalist effort to ban all state legislatures, for all time, from experimenting with gay marriage -- even if and when most voters in most states come to support gays' right to wed.
And the New York Times reports:
What is notable about the 1967 decision [by the Supreme Court, striking down bans on interracial marriage] for the gay marriage debate, then, is that it did not mention the full faith and credit clause. Although the case involved a Virginia couple prosecuted for violating that state's ban on interracial marriage by visiting the District of Columbia, which allowed such marriages, the Supreme Court did not suggest that Virginia was obligated to recognize the marriage.
Thus, the main thrust of the anti-gay, anti-federalist
opposition to letting states decide gay marriage is built on a
misconception -- or a lie (I'm shocked,
shocked!).