Our Unwritten Constitution and Proposals for a Same-sex Marriage Amendment

• Publication year: 2022

38 Creighton L. Rev. 271. OUR UNWRITTEN CONSTITUTION AND PROPOSALS FOR A SAME-SEX MARRIAGE AMENDMENT

Creighton Law Review

Vol. 38

WILLIAM R. CASTO(fn*)

I. INTRODUCTION

Last year's judicial opinions in Lawrence v. Texas(fn1) and Goodridge v. Department of Public Health(fn2) have sparked interest in amending the United States Constitution to address the issue of same-sex marriages. Whether a constitutional amendment is necessary is unclear. In fact, many see the interest in amendments as part of election-year politics.(fn3) Some argue that an amendment is premature until the Supreme Court of the United States has spoken.(fn4) Nevertheless, joint resolutions of amendment have been introduced in Congress, and hearings have been held.(fn5) This essay considers those amendments. In differing degrees, the proposals run counter to a strong congressional tradition that for over two centuries has entrusted the states with primary responsibility for defining and regulating family relationships. This tradition, which in effect is an unwritten principle of constitutional law, should not be set aside lightly.

The idea of a constitutional amendment to correct a judicial construction of the Constitution is not new. In the earliest days of our Republic, the Eleventh Amendment was promulgated and adopted to correct the Supreme Court's decision in Chisholm v. Georgia.(fn6) Since that time, five more amendments have been added to the Constitution to overturn or correct specific decisions by the United States Supreme Court.(fn7)

This essay addresses three specific proposals. The first in time is an amendment, commonly referred to as Musgrave I, sponsored by Representative Marilyn Musgrave in the House and Senator Wayne Allard in the Senate.(fn8) Musgrave I would forbid states to provide same-sex marriages or even civil unions with domestic benefits for their own citizens. Although the President enthusiastically endorsed this severe intrusion into state sovereignty, the proposal's sponsors decided that it was too extreme.(fn9) They have replaced it with a second proposal, Musgrave II, which leaves the states with some legislative authority to provide for civil unions between same-sex couples.(fn10) A third proposal has been suggested by Senator Orin Hatch.(fn11) Senator Hatch's basic idea is to assure that the issue of same-sex marriages and civil unions is left to the states free from federal interference. His proposal is commonly called the Federalism Amendment.(fn12)

The current proposed constitutional amendments are motivated by a negative attitude(fn13) toward same-sex marriage and address three issues of constitutional law. First, there is a concern that in the wake of the Goodridge case, when Massachusetts sanctions same-sex marriage, the Constitution's Full Faith and Credit Clause might require other states to recognize the validity of the new Massachusetts marriages. Second, there is a concern that the Lawrence case has put the nation on a slippery slope that eventually will constitutionally compel all states to make same-sex marriages available to their residents. All three proposed constitutional amendments would explicitly protect state sovereignty from these possible constitutional interpretations. Finally, there is some interest in providing a constitutional rule forbidding states to make same-sex marriages available to their own citizens. In particular, Musgrave I explicitly overrides state sovereignty in respect of same-sex marriages. Musgrave II and the Federalism Amendment also intrude upon state sovereignty but to a lesser degree.

II. THE FULL FAITH AND CREDIT CLAUSE

Does the Full Faith and Credit Clause require states to recognize a same-sex marriage that is valid under another state's law? This question is not new. The same issue arose about ten years ago when the Hawaiian Supreme Court held that Hawaii's restriction of marriage to heterosexual couples violated the state's constitution.(fn14) In that context, Dean Patrick Borchers wrote a lucid, thoughtful, and admirably balanced answer to the question.(fn15) Since that time Professor Ralph Whitten has ably supplemented and updated Dean Borchers' analysis.(fn16) The short answer surely is "no," as long as a state considers another state's marriage laws to be contrary to public policy.

Many Supreme Court decisions have recognized that the Constitution does not significantly restrain a state from refusing to give effect to another state's laws. For example, in a series of cases the Court has allowed forum state courts to ignore other states' workers' compensation statutes if the other state's compensation regime is "obnoxious" to forum state policy.(fn17) Although the word "obnoxious" suggests a rigorous standard, the Court has deferred to the states when it comes to weighing and balancing state policies.

In Allstate Insurance Co. v. Hague,(fn18) the Court addressed the issue whether Minnesota could ignore Wisconsin law on stacking an insurance company's liability for uninsured motorists. Assuming minimum contacts with Minnesota, all the justices agreed that Minnesota was free to prefer its own law over the other state's law. More recently in Sun Oil Co. v. Wortman,(fn19) the Court held that choice-of-law rules that were well established when the Constitution was adopted are a priori constitutional. The Sun Oil Court warned that "long established and still subsisting choice-of-law practices that come to be thought, by modern scholars, unwise, do not thereby become unconstitutional."(fn20) In effect, the Full Faith and Credit Clause allows individual states to prefer their own laws over the laws of another state.

The argument could be made that minor differences between workers' compensation schemes or the availability of stacking in insurance policies do not have nearly the social significance as the right to marry and form a legal family. If so, one state perhaps should be constitutionally disabled from ignoring another state's laws on this fundamental issue. Perhaps, but in a society committed to a market system for the allocation of goods and services, legal rights regarding the employment relationship and contractual rights cannot be dismissed as trivial. Moreover, if same-sex marriage does involve more significant policy interests than the workers' compensation cases or the insurance stacking case, the second state's interest in denying recognition is similarly more significant.(fn21) The Supreme Court's cases on this issue recognize that full faith and credit inevitably involves weighing and balancing policies, and the Court has held that the recognizing state should do the weighing and balancing.(fn22)

In any event, the Supreme Court is not the only actor in this constitutional drama. The Constitution specifically empowers Congress to enact rules prescribing the extent to which a forum state is required to give effect to another states' laws.(fn23) Using this grant of authority, Congress enacted the Defense of Marriage Act ("DOMA"), which provides:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.(fn24)

In other words, DOMA restates and bolsters the traditional understanding of the Full Faith and Credit Clause.

Given DOMA and the traditional understanding of the Full Faith and Credit Clause, one wonders what purpose a Constitutional amendment would serve insofar as Full Faith and Credit is concerned. Perhaps some are worried that the Supreme Court might overturn the existing understanding and create a new constitutional order significantly restricting the state's discretion in matters of choice-of-law. As a practical matter, however, a decision to construe the Full Faith and Credit Clause to require a forum state to recognize the validity of a Massachusetts marriage could not be restricted to the narrow issue of marriages. The Court's decision would have to extend generally to all types of legal issues and would in effect constitutionalize much of choice-of-law doctrine. In other words the Court - without the assistance of the lower federal courts(fn25) - would have to work out and enforce a substantial body of federal choice-of-law doctrine. Such a scenario is mathematically possible but wildly improbable.(fn26)

Some may not be interested in preserving state sovereignty. Instead, some may seek to abrogate state sovereignty. Under this latter view, proposed amendments might be intended to forbid a state to recognize the validity of a Massachusetts marriage.(fn27) For example, suppose...