The Right Coast
March 10, 2004
EV on gay marriage
By Tom Smith
Eugene makes a very good point against professor Brylmeyer's argument in the WSJ that federal marriage amendments supporters needn't be worried that full faith and credit will require all states to recognize out of state gay marriages. Full faith and credit has never been applied to marriages that violate local public policy, says Lea. But Eugene makes the very good point that this is reassuring only in a world where judges are bound by precedent. If the US Supreme Court can overrule Hardwick in the recent Lawrence decision, why not go against a couple centuries of precedent and tradition in reading the full faith and credit clause? It certainly doesn't sound as controversial as saying homosexuality is protected by privacy rights.
To this I would add one modest point. If it is true that the amendment is not necessary, then an amendment that only said full faith and credit would not apply to state marriage laws, would not do any harm either. But of course, we know that most opponents of the amendment oppose it in part because they fear it would foreclose exactly the possibility that they hope for--that the Supreme Court, perhaps with some new members, would declare that all states had to recognize gay marriages made in Massachusetts or, coming soon perhaps, California.