SAME SEX, DIFFERENT STATES

Vol. 17 No.3 (March, 2007) pp.250-254

SAME SEX, DIFFERENT STATES: WHEN SAME-SEX MARRIAGES CROSS STATE LINES, by Andrew Koppelman. New Haven: Yale University Press, 2006. 224pp. Cloth. $35.00. ISBN: 0300113404.

Reviewed by Susan Burgess, Department of Political Science, Ohio University. Email: burgess [at] ohio.edu.

Don’t be fooled by the title. This clever little book is about much more than crossing state lines. Andrew Koppelman, professor of law at Northwestern University, seeks nothing less than to use the law to enable people with radically different moral views about same-sex marriage to live together peaceably. In order to do so, he recommends de-escalating the debate by shifting away from constitutional discussion to the more mundane and less controversial choice of law doctrine.

The ten short chapters of this book cover a wide range of topics, including a history of the same-sex marriage controversy, the legal rules governing marriage recognition, an argument against blanket non-recognition and recognition of same-sex marriages, a critique of the federal Defense of Marriage Act (DOMA), and a discussion of state “mini-DOMAs.” Nearly every chapter starts by contextualizing the conflict with a compelling story of real people with specific legal problems pertaining to marriage recognition occasioned by issues of inheritance, divorce, custody, travel, medical decision-making, and so on. In addition, the book is relatively short and highly readable. It would make a great supplemental book for any undergraduate and graduate course that devotes attention to the law and politics of same-sex marriage. I plan to use it in my Legal Theory and Social Problems course this Spring.

Initially Koppelman asks quite a lot from his readers. He wants them not only to put aside their firmly held moral beliefs about same-sex marriage (no small matter), but also to recognize anti-miscegenation cases as exemplary precedent. Presumably, most people are no longer willing to embrace cases grounded in white supremacy and manipulation of the law as model forms of interpretation. Koppelman recognizes this: “As these miscegenation cases arose out of a despicable regime, it can seem odd, at best, to invoke them as authority for anything in contemporary law. The very idea of legality was caricatured when judges reasoned out the consequences of that regime in this bland, workmanlike way” (p.49). Despite this, he insists that these cases are on point because “southern judges did have something intelligent to say about how to deal with deep moral disagreement” and about managing “at least the minimal level of decency and mutual respect that existed in the awful years of legalized racism”(p.49). He argues that choice of law doctrine compelled judges to practice neither blanket recognition nor blanket non-recognition of interracial marriages, even in the highly conflicted context of the Jim Crow South. This middle ground is the precisely the course that [*251] Koppelman will recommend for keeping the peace during the contemporary conflict over same-sex marriage.

Koppelman uses choice of law doctrine to distinguish the instances in which interracial marriages were recognized, and those where it was not. He breaks the cases down into four areas: evasion, visitation, extraterritorial and migration. Evasion cases are those in which couples leave their home state to marry in order to evade the state’s prohibition of their marriage, and then return home immediately. According to Koppelman, evasion cases are weakest for recognition because “states have the right to govern their own residents” (p.102). As a consequence, “Southern Courts always invalidated these marriages” (p.37).

On the other hand, Koppelman argues, extraterritorial marriages should always be recognized. These cases address marriages in which the couple has never lived in the state with a prohibition, but the status of the relationship comes into question due to litigation undertaken there, as for example when one of the partners dies and the other seeks to inherit the property her spouse owned in a prohibitory state. In this area, Koppelman argues, “the case law is unanimous” and these marriages were “routinely upheld” in the miscegenation cases (p.112).

Although the miscegenation era cases do not address the situation of visitors, Koppelman argues that these marriages also should always be recognized regardless of the public policy of the state. He argues that the case law is silent in this regard probably because couples in this situation likely would have been lynched rather than tried for miscegenation, “and the local police would have ignored or participated in the violence” (p.49). Since such a situation does not hold regarding same-sex marriage, Koppelman argues, federalism and the right to travel requires recognition across state lines.

Migration cases are the hard ones. These cases cover couples who never intended to evade the law when they married. Such couples marry legally in one state, and then some time later move to a state that prohibits same-sex marriage. While the latter states are never compelled to recognize such marriages outright, Koppelman’s review of the law leads him to conclude that such states should recognize “any right or obligation of marriage that can be recharacterized as a nonmarital right – such as a right to contract, or a parent-child relation, or an obligation created by a judicial judgment” (p.110). On this reading, “[i]f a right is one that the parties could have achieved via private contract under the forum’s law, then the forum cannot coherently be said to have a public policy against them enjoying that incident” (p.108).

In Koppelman’s view, DOMA and the Full Faith and Credit Clause are largely irrelevant to the issue of same-sex marriage. “States have always had the power to decline to recognize marriages from other states, and they have been exercising that power for centuries” (p.117). Just as being allowed to carry a concealed handgun in one state does not mean that one has a right to carry it in [*252] any state in the country, one may marry in one state and not carry those same rights to another: “[T]here is not a single judicial decision that holds that full faith and credit requires states to recognize marriages that violate their own public policies concerning who may marry” (p.118). Ironically, DOMA’s irrelevance also suggests that it is unconstitutional, because it assigns same-sex marriage “a legal pariah status that has never before existed in American history,” making DOMA unconstitutional” (p.135).

For Koppelman, the mini-DOMAs passed by various states are where the most interesting legal action promises to take place in the years to come. He divides these into three categories: those that were passed in the 1970s in response to same-sex couples who were beginning to apply for marriage licenses because nothing in the law of their states explicitly prevented them from doing so; those passed in the 1990s due to a fear that evasive marriages might follow if Hawaii began to recognize same-sex marriage; and those passed in the early 2000s due to a fear that other state supreme courts would follow the lead of Vermont and Massachusetts and compel recognition of same-sex civil unions or marriages.

Koppelman argues that the “most charitable interpretation of [the mini-DOMAs] is that they are defensive and seek only to prevent those states from having to recognize continuing same sex marriages within their borders” (p.150). Read this way, they appear to defend against evasive same-sex marriages. If such laws can be understood as a kind of self-defense, Koppelman argues, then the defense should be proportionate to that end, rather than hysterical and overblown: “What states may not do is what too many of them have done: flail wildly at the problem, like a man in a crowded room single-mindedly trying to kill a mosquito with a baseball bat” (p.148).

Baseball bat states include Virginia, Montana, and Michigan, which seem not only to ban same-sex marriage but also to bar same-sex couples from contracting with each other for any rights that approximate any incidents of marriage. Following ROMER v. EVANS and LAWRENCE v. TEXAS, Koppelman argues that singling out gay and lesbian couples for such adverse treatment is unconstitutional. Others states such as Florida, Georgia, Ohio, Texas, and West Virginia, do not recognize “judicial proceedings arising from same-sex marriage.” These statutes are also unconstitutional according to Koppelman, as they do not provide a minimum guarantee of full faith and credit. In a lighter moment, Koppelman suggests that Texas appears to abolish marriage itself, in declaring that states and its subdivisions “may not create or recognize any legal status identical or similar to marriage” (pp.147-148).

According to Koppelman, the choice of law approach is more desirable because it yields something for everyone: “For people who oppose same-sex marriage, it offers security against the wholesale importation of institutions they find morally repugnant” (p.xviii). In exchange, opponents of same-sex [*253] marriage should recognize gay couples’ “administrative interests,” in order to show that their position is not based on mere prejudice. Not only would such bigotry be unconstitutional under ROMER and LAWRENCE, it would also be politically unstrategic. In any case, Koppelman asserts that “[f]ew conservatives want to use the law to stamp out same-sex relationships as if they were the moral equivalent of slavery. They just don’t want such relationships to be given the special treatment that is given to heterosexual marriages” (p.80). What’s in it for gays and lesbians? Koppelman argues that his approach “offers relief from being national scapegoats. It is not in the interest of gays to make opponents of same-sex marriage feel that they must act aggressively in order to protect their local conceptions of marriage. At the end of that road is an amendment to the U.S. Constitution banning same-sex marriage” (p.xviii).

Given the fervor and influence of those on the religious right, it might be a stretch to suggest that only a few conservatives would resist recognizing same-sex relationships in forms other than marriage. Further, the choice of law approach did not seem to offer blacks much relief from being scapegoated, so there is reason to wonder whether such an approach would do so for gays and lesbians. The civil rights movement’s response to the Jim Crow South was to make the bigotry behind unequal treatment clear, not to legitimate it through law. In this manner, the movement hoped to persuade people of good will to resist such bigotry and to call for its excision from the law.

However, Koppelman seems to be betting that the grounds of the same-sex marriage debate have already shifted and are likely to change more significantly in the not too distant future. He seems to be asking same-sex marriage supporters to be patient and to take a bit of a political gamble. And he seems to be asking opponents of same-sex marriage to let go of any lingering prejudice in exchange for which he offers time, perhaps to adjust to a new political reality. Thus, he assures such opponents that “[s]ame sex marriage is not likely to spread very widely in the United States in the near future. Public opinion is too strongly against it” (p.152). But he also cites polls that indicate a shift towards greater acceptance of same-sex marriage over time, noting that the shift appears to be generationally based and concludes that “[t]he long-term hopes of the same-sex marriage movement are its best reason not to overreach and to accept more modest victories” (p.153).

Koppelman concedes that what he offers is not a permanent solution, but he does insist that it will allow us to live together peaceably in the meantime. Invoking the rhetoric of the civil rights movement, he argues: “Mundane legal answers will not bring us to the promised land, but they may make our present abode more habitable” (p.xviii). In the meantime, “each side should intensely compete to show that it is more reasonable than the other. At a minimum, we should not respond to our disagreements in a less civilized and humane way than we [*254] managed to do in the shameful days of racial segregation” (p.153).

By invoking the miscegenation cases, this clever book implies that gays and lesbians currently live in a Jim Crow-like context. In that context, law occasionally offered some relief, but violence always lingered as a threat in the background. Thus, Koppelman seems to put opponents of same-sex marriage in the uncomfortable situation of having to identify with cases that are clearly grounded in bigotry. However, he also seems to put gays and lesbians in the uncomfortable position similar to that of blacks in the Jim Crow South, who for too long had to wonder how long, how long? He may be right to say that this is simply the situation in which all of us currently find ourselves. He may also be right to say that choice of law doctrine may help us to adjudicate it for the moment. The question that arises is how does a blatant case of evasion such as LOVING v. VIRGINIA come to be seen as a bold stroke in favor of equal justice? Is an evasive same-sex marriage case likely to be transformed along those lines? While both sides await the answers to these questions, Koppelman provides a compelling story about how we may all bide our time together in relatively peaceful conflict.

CASE REFERENCES:

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

LOVING v. VIRGINIA, 388 US 1 (1967).

ROMER v. EVANS, 517 U.S. 620 (1996).

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