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Same-Sex Marriage Laws are Entitled
to Full Faith and Credit

by Martin L. Haines
© 2002, Martin L. Haines

New Jersey does not recognize same-sex civil marriages. Neither do the other 49 states. Two states, Hawaii and Vermont, have come close. The Supreme Courts of both have held that same-sex marriages are entitled to the equal protection provided by their constitutions and that restrictions applying to those marriages, but not to others, were unlawful. Baehr v. Miike, 852 P2d 44 (Haw. 1993), and Baker v. Vermont, No. 98-032 (1998).

The Hawaii decision was reversed in 1999 as the result of a constitutional amendment. Vermont, however, adopted legislation authorizing “civil unions” that provide same-sex couples with nearly all the benefits enjoyed by heterosexual couples.

New Jersey is moving closer to recognition as its courts decide related issues. Examples: In 2000, its Supreme Court decided V.C. v. M.J.B., A -111, involving two women who once had a committed relationship, with children, akin to a marriage. M.J.B. was the children’s biological mother. Eventually, the couple separated and M.J.B. refused to let V.C. visit the children. V.C. sued and the Court, applying the best-interest-of-the-children test, awarded limited visitation to her.

In 2001, the Appellate Division, in In re the Name Change Application of Jill Iris Bacharach, A-0456-00T3, held that she had the right to change her last name to Bacharach-Bordman, thus adding her life-partner’s name to her own.

The trial judge had refused the application on the ground that approval would amount to recognition of a same-sex marriage, contrary to New Jersey law. The Appellate Division told him in effect that same-sex marriage was none of his business in a name-change case.

Finally, in In re Adoption of Two Children by H.N.R., 285 N.J. Super. 1 (App. Div. 1995), the court held that children may be adopted by same-sex partners.

Numerous municipalities and business organizations have adopted ordinances and policies permitting the extension of benefits — health coverage, for example — to unmarried employees who have domestic-partnership arrangements. A San Francisco ordinance so providing was upheld by a federal count this year in S.D. Myers v. San Francisco, 97-04463 CW (9th Cir. 2001).

Once again, the movement is toward, not away from, same-sex marriages.

Nevertheless, many movements run in the other direction. Anti-marriage zealots have pressed every state legislature to adopt laws making same-sex marriage illegal. Some have done so; most have not. New Jersey has had anti-marriage legislation pending since 1996. Its fate is uncertain.

The anti-marriage push has been successful in Congress, which passed the Defense of Marriage Act in 1996. The act defines marriage as “a legal union between one man and one woman as husband and wife.” It also 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.”

DoMA and a number of state laws are designed to frustrate the application of Article IV, Sec. 1 of the U.S. Constitution which provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

Opponents of same-sex marriages have been driven by the fear that a “marriage” in one state will have to be honored in every other state. The Supreme Court decisions in Hawaii and Vermont crystallized that fear.

The fear is realistic.

The U.S. Supreme Court has never applied the Full Faith and Credit Clause to a same-sex marriage. No Vermont civil union has been tested by the court of another state, although many out-of-state couples have solidified their unions in Vermont. This history, according to opponents of same-sex marriages, amounts to an interpretation of the clause — one that denies its application to such marriages, a very doubtful proposition.

Vermont’s legislation and the licensing of civil unions are “public acts” reflected in official records. A literal reading of the Full Faith and Credit Clause seems to require its application to them, but the law is otherwise in states having laws or policies opposing same-sex marriages.

For example: “[The Full Faith and Credit clause does not] compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate,” under Pacific Employers v. Industrial Accident Comm., 306 U.S. 493, 501 (1939).

“Judicial proceedings,” however, cannot be so easily excepted from the application of the clause. While no such proceedings have validated a same-sex marriage or its first cousin, a civil union, they must be anticipated. Litigation in Vermont requiring validation of a civil union, for example, dissolution proceedings (available only if the union is recognized), is bound to arise. When it does, the proceedings will have to be recognized by other states.

It is very unlikely that the U.S. Supreme Court, once it has the issue to decide, will deny application of the Full Faith and Credit Clause to same-sex marriages. It reads the clause broadly, saying its purpose is “to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation.” (Williams v. North Carolina, 317 U.S. 287 (1942).

Even if the Court refuses to apply the Full Faith and Credit Clause to same-sex marriages, it cannot avoid the application of the Constitution’s equal protection and due process clauses to them. (“[No State shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)

It predicted that application in Loving v. Virginia, 388 U.S. 1 (1967). Loving involved a Virginia law providing that “all marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process.” The Supreme Court, overturning the laws of 16 states, held that Virginia’s marriage restrictions were unconstitutional. It said: “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.”

There is no difference, constitutionally, between a skin color ban and a sex ban.

DoMA and similar state laws, which modify the Full Faith and Credit Clause, seem clearly unenforceable. Neither Congress nor any state legislature has the power to restrict the language of the federal Constitution.

The law aside, consider some of the arguments against same-sex marriages. Religious beliefs underlie some of them. The lower court in Loving, for example, in upholding the Virginia statute, said: “Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for [same-sex] marriages. The fact that he separated the races shows that he did not intend for the races to mix.” (Quoted in the Supreme Court opinion.) A long distance from impeccable logic and reliance on God’s supposed intentions as precedent is pure novelty.

Marriage is said to be about procreation, not possible with same-sex partners. The argument fails the reality test. Were this the rule, older men and women unable to have children could not marry. Heterosexuals have childless marriages; unmarried heterosexual couples have children. And homosexuals have children, to which numerous custody cases in the courts attest.

Recognition, it is argued, will adversely affect the stability of heterosexual marriages — a desperate contention. Same-sex couples have the same aspirations as other couples. While they seek the benefits available to heterosexuals, their first concerns are love, responsibility, family and stability.

No fair argument against the recognition of same-sex marriages can be generated. Opponents object because they have been taught by parents, peers, teachers, society and religion that homosexuality is offensive. They are wrong; it is bigotry that is offensive. Its elimination is in the best interest of our society.

© 2002, Martin L. Haines
This article was first published in the New Jersey Law Journal,
September 24, 2001, and is reprinted with permission.

The author is a retired Burlington County assignment judge
and former president of the State Bar Association.

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