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Even without more, the Supreme Court’s grand finale is a work of stunning humanity. At the core of his opinion for the Court in Lawrence v. Texas,Justice Anthony Kennedy wrote, “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” But the law being the law, and lawyers being lawyers, there is always more. Literally before the June 26 opinion striking down the Texas law against gay sodomy had been announced, the debate began about what comes next. According to Kennedy, the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” That’s a load of bull according to Justice Antonin Scalia, who wrote in dissent, “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions.” So does Lawrencereally lock the Court into recognizing gay marriage? The answer isn’t quite, well, straightforward. A BASIC CIVIL RIGHT The most direct path to recognizing gay marriage would seem to be an analogy between the laws against gay marriage and the law against gay sodomy in Lawrence.If the Constitution recognizes couplings, shouldn’t it do as much for couples? Justice Kennedy wrote that the government cannot “demean [gays'] existence or control their destiny” through sodomy laws. Why should it be able to do the same thing through marriage laws? Significantly, the Court has called marriage “one of the basic civil rights of man, fundamental to our very existence and survival.” And that quote comes from Loving v. Virginia,the 1967 case striking down laws against interracial marriage. Unfortunately, the sodomy/marriage argument is something of a long shot. Most importantly, race is at the core of the 14th Amendment, and sexual orientation isn’t. Kennedy’s opinion, while using a formulation akin to the “strict scrutiny” that applies to laws involving race, did not recite it exactly. While strict scrutiny calls for a compelling purpose that requires the challenged law, Kennedy’s opinion asks whether the Texas statute has a legitimate purpose that can justify the law. For sodomy laws, the Court answered no. But for other types of laws, the Court might be more willing to listen to legislators. Another potentially big legal difference between sodomy and marriage laws is that sodomy laws are criminal, and marriage laws aren’t. Kennedy’s opinion dwells on the criminal nature of the Texas law. Even the Lawrence quote above, about the state being powerless to control the destiny of gays, is hinged to a crucial clause, “. . . by making their private sexual conduct a crime.” Whatever the similarities between the right to consensual sex and the right to marriage, it’s still not a crime to be single. So while the state does grievously harm gay partners by depriving them of the societal recognition and legal rights of spouses, the Court might well conclude that it’s still worse to have cops barge into bedrooms bearing handcuffs. And then there’s the nonlegal stuff. The justices might simply not want to push the issue directly. They struck down anti-gay laws in Romer v. Evans(1996) and Lawrence.And they pulled out the big guns of the 14th Amendment to do it. They might not want to push the bounds of equal protection and substantive due process still further. But that doesn’t mean they’ll be content to sit back and do nothing. The Court has other arrows in its quiver. OTHER STATES’ LAWS But to use them, the Court must wait. Right now, no state allows gay marriage (although the Supreme Judicial Court of Massachusetts is due to decide a case on the issue any day now). Eventually, one state probably will. And that’s when the fun begins. Because then the question becomes whether other states — some of which have passed laws refusing to recognize married gays from elsewhere — will have to recognize them. Enter the Constitution’s full faith and credit clause. Its two short sentences state, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” The point of the clause, essentially, was to help forge the separate states into a single nation. States have to recognize court judgments from other states and give at least some deference to the laws of other states. Doesn’t that wrap up the issue right there? If Massachusetts goes ahead and legalizes gay marriage, doesn’t Nebraska have to go along — either if its own residents take a weekend trip back east for their nuptials, or if married Massachusetts residents move to Nebraska? Not so fast. The first obstacle is the 1996 federal Defense of Marriage Act. The law has two parts. One denies federal marriage benefits to gay couples. And the other provides that “No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.” Now, the Defense of Marriage Act may just be a temporary roadblock. The law hasn’t been challenged in court yet because no state has legalized gay marriage. But when that happens, the act is vulnerable. First, both clauses explicitly pick out gays for special harmful treatment. That’s exactly the sort of government action that the Supreme Court in Romer held to be unconstitutional as a violation of the equal protection clause. And second, Congress enacted the law pursuant to the second sentence of the full faith and credit clause, the one that lets it pass laws regarding the “manner” and “effect” of state laws. Congress has hardly considered that sentence since 1789. But there’s a real question as to whether Congress has the power to use it, in essence, to swallow up the entire thrust of the first sentence. If Congress can pass legislation that one state judgment need not have any “effect” in other states, it seems to have taken one giant step away from implementing the clause, and one giant step toward ignoring it. TRICKY, TRICKY So let’s say then that, with the proper case, the Supreme Court strikes down the federal Defense of Marriage Act. What about the full faith and credit clause itself? Does it allow one state to ignore a duly recognized marriage from another on the basis that it violates the first state’s public policy? Kind of, sometimes. First, the easier situation. If a state has gay marriages, it will eventually have gay divorces. And some of these divorces will be contested in court. The resolution — whether it involves custody of children, or property settlements, or alimony — will in every sense be a full judicial judgment. Of these, the Supreme Court wrote in 1998 in Baker v. General Motors,“Our decisions support no roving ‘public policy exception’ to the full faith and credit due judgments.” Meaning, if there’s any litigation resulting from a gay marriage in one state, other states must recognize the judgment and, at least indirectly and possibly after the fact, the marriage. But marriages themselves aren’t judgments; they’re probably closer to administrative actions or licensing registrations. And to those, the full faith and credit clause doesn’t require so much deference. Right now, it’s the standard for states to recognize marriages celebrated in other states. But the Constitution does not require the so-called celebration rule. States could, for instance, recognize only those marriages celebrated elsewhere that otherwise comply with their own laws. That preserves a bar against gay marriage, but it comes with a catch. Marriage laws are not standardized across the country. For instance, some states allow divorced people to remarry sooner than others. With the celebration rule, this isn’t a problem. But with a rule applying a state’s own law to out-of-state marriages, some long-married heterosexual couples might no longer be recognized. Well, what if the state maintained the celebration rule for essentially everyone except gays? Could the state rely on the public policy exception to uphold that distinction? This comes back to the equal protection argument from Romerand from Justice Sandra Day O’Connor’s concurrence in Lawrence.The full faith and credit clause definitely allows the celebration rule. But, in light of the Court’s recent gay rights decisions, it might well require that the rule be equally applied to all, or to none. New York University law professor Larry Kramer made this point in a 1997 Yale Law Journalarticle — that the full faith and credit clause essentially incorporates an equal protection component. If so, anti-gay-marriage states have a tricky choice: either keep the celebration rule for all marriages, including gay out-of-state ones, or adopt a law-of-the-state approach, which will invalidate not only gay marriages but also (potentially) scores of straight ones. If the latter were to happen, popular outcry might force the state back to the celebration rule, equally applied. As O’Connor wrote in her Lawrenceconcurrence, “I am confident . . . that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand.” CHANGE IN THE AIR In other words, the Supreme Court might never be forced to declare gay marriage a constitutional right under the due process reasoning of Lawrence.Rather, the majority justices can sit back, let momentum from their decision take hold in the states, and then use a relatively obscure passage of the Constitution to nudge the ball across the line. A similar series of events played out in another core area of civil rights. In Brown v. Board of Education,the Court held racial segregation in public schools to be unconstitutional. Pushed along by the 1954 decision, the civil rights movement caught fire, eventually winning passage of the expansive Civil Rights Act of 1964. When that law came before the Court, it didn’t press forward with the equal protection reasoning of Brown.Rather, the Court relied on the more obscure commerce clause to uphold the act. So who’s right about Lawrenceand gay marriage? Strictly speaking, Kennedy’s right and Scalia’s wrong — Lawrencedoesn’t require gay marriage. But “the strong message was dignity and respect for this group of people, and that has an impact regardless of technical applications” of the law, as David Buckel, a senior staff attorney at Lambda Legal, puts it. Meaning, what the Supreme Court has done is to give political cover to the states to go ahead and legalize gay marriage. Once any state does, all the Court need do is to make sure that the entire country fully and faithfully honors those marriages as it does the other type. Evan P. Schultz is associate opinion editor atLegal Times. His column, “Controversies & Cases,” appears regularly. He can be reached at [email protected].

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