Gay Marriage Rulings Set U.S. on Road to Legal Mayhem

Nice work, everybody.

In the middle of a global financial crisis, two wars, and serious nuclear threats from Iran and North Korea, the Iowa Supreme Court and the Vermont legislature have just plunged the country into another round of culture war. Just what was needed now.

Courts and referenda have created a confusing and contradictory legal patchwork governing gay unions. A color-coded map illustrating the status quo would require every color in the gay-rights rainbow to account for all the statutory and constitutional variations.

Over-simplifying greatly:

Four states--Massachusetts, Connecticut, Iowa, and, as of Tuesday, Vermont--have legalized same-sex marriage. (Massachusetts for in-state residents only.)

Three more states--New York, Rhode Island, and New Mexico--(and probably soon the District of Columbia) do not perform same-sex marriages themselves, but recognize the validity of same-sex marriages that are performed in other states and foreign countries.

Seven states and the District of Columbia currently offer civil unions: same-sex marriages in all but name.

The rest forbid same-sex marriage with varying degrees of severity, as, of course, does the federal government.

This is not a stable equilibrium. First, because 11 of the anti-SSM states forbid same-sex marriage by statute only; their state supreme courts could overturn those statutes.

It's unstable, second, because seven of the states that have banned same-sex marriage in their constitutions leave open the possibility of civil unions. Indeed, two states with constitutions that ban SSM--California and Oregon--already have such quasi-marital civil unions.

There's nothing like marriage for generating unceasing litigation, with ramifications that are sure to cross state lines.

Today's equilibrium is unstable, finally, because of the unpredictability of the federal courts.

Since 1996, the federal Defense of Marriage Act has protected non-SSM states from being obliged to recognize same-sex marriages. But if same-sex marriage continues to spread, DOMA will become increasingly difficult to uphold.

Years ago, I drafted eight brain teasers that would arise in the event that some states recognize same-sex marriage and others do not. These problems have not become any easier to unscramble in the years since. Consider:

  1. A man from an SSM state buys a condo in a non-SSM state. He marries another man back home--but he dies before he can write a will. Who inherits the condo?
  2. Two women from an SSM state marry. One of them becomes pregnant. The couple splits up, and the woman who bore the child moves to a non-SSM state. The other woman sues for visitation rights. What should the state's courts do?
  3. A man in an SSM is accused of stock fraud. The federal Securities and Exchange Commission subpoenas his spouse. The spouse claims marital privilege and refuses to answer the SEC's questions. May the SEC compel him to answer anyway?
  4. Two women marry in an SSM state. The relationship sours. Without obtaining a divorce, one of the women moves to a non-SSM state and marries a man. Has she committed bigamy?
  5. Two married 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 maintain life support. Whom should it ask?
  6. A man from an SSM state marries a foreign visitor of the same sex. Should the foreigner be entitled to U.S. residency? What if the foreign man has also adopted the American man's child?
  7. A family in a non-SSM state sets up a trust for their son. The son moves to an SSM state, marries a man, and then gets divorced. The trust is the son's only financial asset. Should the courts of the SSM state take the trust into account when dividing up the couple's assets? If yes, what happens when the trustees back in the non-SSM state refuse to comply?
  8. A woman married to another woman wins a lawsuit against a corporation in a non-SSM state. The successful plaintiff dies without a will before she can collect her debt. Her closest blood relative demands that the corporation pay the relative, not the surviving spouse. Who gets the money?

When I wrote these riddles in February 2004, I concluded: "Americans may live in states, but they conduct their financial and legal affairs in a united country bound by interstate institutions."

That means that any or all of these hypothetical situations could lead to federal lawsuits that will push federal courts either to treat state same-sex marriages as dead letters or (more likely) to write, inch by inch, same-sex marriages into federal law.

Same-sex marriage proponents may dream of a modern-day equivalent of Roe v Wade: a bold federal decision overturning state laws all at once. However, the federal courts are unlikely to oblige them. To reach such a sweeping result, the courts would have to strike down not only state laws, but state constitutions--including state constitutions that have just been amended by voter initiative, giving them extra democratic legitimacy.

More likely is a series of incremental federal steps to smooth out the contradictions of two radically different definitions of marriage. These federal interventions are, each in their turn, likely to generate controversy and division. Say this for abortion: It's a geographically specific event, and once it's over, it's over. By contrast, there's nothing like marriage for generating unceasing litigation, with ramifications that are sure to cross state lines.

With their rulings on gay marriage, state courts have set in motion a cultural conflict that will embitter Americans and pit them against each other for years. It's now too late to prevent it and too baffling to imagine how to resolve it. So we are left with the even more daunting problem of finding ways to contain and mitigate it.

David Frum is a resident fellow at AEI.

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About the Author


  • David Frum is the author of six books, most recently, Comeback: Conservatism That Can Win Again (Doubleday, 2007). While at AEI, he studied recent political, generational, and demographic trends. In 2007, the British newspaper Daily Telegraph named him one of America's fifty most influential conservatives. Mr. Frum is a regular commentator on public radio's Marketplace and a columnist for The Week and Canada's National Post.

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