Imagine this: A state that allows same-sex marriage enacts a law insisting that it will require reciprocity from other states that don't permit such marriages.
Let’s use New York as our example of a state that allows such marriages and Florida as a state that doesn't. New York's reciprocity law, hypothetically passed in the fall of 2014 amid a gubernatorial race, stipulates that if Florida doesn't recognize New York's same-sex marriages, New York will no longer legally recognize weddings performed in Florida after the law's effective date in mid-2015. What happens next?
As a result of this month's non-hypothetical voting, the count of states authorizing gay marriage is up to nine (Maine, New Hampshire, Vermont, Massachusetts, Connecticut, New York, Maryland, Iowa and Washington), plus the District of Columbia. Voters in Minnesota, which does not currently allow gay marriage, rejected an amendment that would have cast that restriction in constitutional cement, while voters approved same-sex marriages in Maryland, Maine and Washington.
The tide of public opinion is quickly running toward allowing same-sex couples to wed. More than 30 states, however, still prohibit such unions. The Supreme Court is likely to step into the fray soon, with a ruling possible by the middle of 2013. The headline issue is the federal government's own refusal to recognize gay marriages under the Defense of Marriage Act (DOMA). Even more contentious and substantial, though, is the question of what obligation, if any, states have to honor the legal rights and recognitions afforded to couples by other states - in other words, the scope of the U.S. Constitution's "full faith and credit" clause in this arena.
That issue might not be fully resolved any time soon, leaving the hypothetical dispute between New York and Florida (or other states like them) up in the air. The Supreme Court may wait before it takes up the issue of same-sex marriage at all, or it may simply rule on DOMA and ignore the potential for a legal war between states. Yet while the justices might choose to run, they can't hide. Sooner or later, they must address the interstate conflict or watch chaos ensue instead.
Same-sex marriage is here, and it's here to stay. The concept that U.S. citizens can be considered married in one state but unmarried in another is patently unworkable. Too many property, family, medical and tax issues depend upon the legal relationship between two members of a committed couple. These issues cross state lines readily, even if not all marriage licenses do.
Further complicating the issue is the matter of marriages performed abroad. It just doesn't work to have a system where foreigners visiting, working or residing in the United States see their marriages flicker in and out of existence as they drive across the country. Equally problematic are the situations faced by couples married abroad in which one partner is a foreigner and the other is an American citizen. Such couples currently face a strange chimera of law, where they can be considered married in one partner’s country and in the other partner’s state, but not by the U.S. government.
Today’s status quo is impractical and unstable. It cannot last, regardless of what the Supreme Court does. The high court can merely get us to the inevitable endpoint with less trauma and needless heartache than we will otherwise face.
The kind of legislation I described, in which states that recognize same-sex marriage demand reciprocity from states that do not, probably won't happen right away. It won't happen at all if the Supreme Court finds that marriage is a constitutional right that applies to all couples, regardless of gender. But if the court finds that individual states have a right to decide the issue, I don't see how it can avoid extending that privilege to the states that authorize same-sex marriage, as well as to those that don't. The court may allow states to continue refusing same-sex couples the right to wed within their borders, but it may have little choice but to force them to recognize marriages that are validly performed elsewhere.
The same-sex marriage ship has sailed. Too many couples are married, and too many Americans and their states now recognize and celebrate such marriages, for the tide to turn back. I think the justices will agree. But if they don't, expect to see at least a skirmish, if not an outright battle, between state capitals with dueling views about the role of marriage and the rights of couples to partake in it.
It won't be a long fight, however. The final result has been preordained in the wedding chapels and, increasingly, at the polls.