Archive for category GLBT issues

The more I think about it, the more I’m seeing nightmare scenarios with regard to the Supreme Court tackling gay marriage in a “no big rulings like Roe v Wade” kind of way.

One nightmare scenario is a couple legally married in California or New York gets in an accident in Utah.  Utah refuses to recognize their marriage.  Since they aren’t legally married, one partner cannot make medical decisions for the other.  The state contacts the injured partner’s estranged family which promptly gets a restraining order and bars the spouse from doing anything, even having contact.  Another scenario: a legally married couple in one state can’t get divorced because they’ve moved.  Imagine millions of Americans in bizarre legal limbo – married here, not married there. 

From Noah Feldman:

If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions — across all 50 states and 13 federal circuits. If this isn’t legal chaos, nothing is.

The motivation to avoid a gay marriage Roe is based on the idea that a sweeping decision would result in a bitter continuation of the culture wars. Of course the next Democratic Congress will repeal DOMA which means even a do nothing approach by the court would only delay not prevent the kind of legal chaos Feldman envisions.  Rather than allowing the political process to sort out the question, the court would find itself deluged with legal cases.

The court’s supposed motivation to avoid declaring a general right to same-sex marriage is to allow the political process to take its course, and not impose a unified federal solution before everybody’s ready to accept it. Those with this cautious view like to cite Roe v. Wade as an example of a federal constitutional right that was granted before its time, creating a major backlash. Some would even go so far as to say that Brown v. Board of Education came too soon, as evidenced by Southern resistance to desegregation — this despite the court’s infamous declaration that its mandate should be implemented “with all deliberate speed.”

But this theory relies on the assumption that even a messy political process would be superior to judicial fiat because it would leave the courts out of the equation. A partial or split decision on same-sex marriage would have the opposite effect. Instead of promoting what the great Alexander Bickel called the “passive virtue” of judicial prudence, it would put judges front and center on the issue for the foreseeable future. From the court’s perspective, it would be easier just to do the right thing.

I’m not a lawyer or professor of law, but I can imagine of host of scenarios in which personal tragedy becomes even more devastating as there’s a patchwork of state laws about marriage.  We’re not talking about some sort of clean legal outcome.  A great many Utahns may hate it, but a sweeping decision striking down all anti-gay marriage laws might be best for eveyrone in the long run.

So much history in one life.  A courageous man.