Full Faith and Credit: Past Due

Article IV, Section 1, of the U.S. Constitution, more commonly known as the Full Faith and Credit clause, consists of just two sentences: "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 effects thereof."

Two lines: a bracingly absolute statement, followed by a qualifying statement that has historically acted the caveat when social progress in one state seems unacceptable to another. So while the Full Faith and Credit clause prohibits any state from rejecting the validity of a marriage performed in any other state, in the current social climate special dispensation is granted to ignore any state laws recognizing same-sex relationships, as was the case barely more than four decades ago regarding interracial marriages.

Contemporary public and legislative handling of same-sex relationships in the United States has spookily mirrored that of mixed-race relationships in the pre-civil rights era, with a high pitch of emotional volatility resulting in an indecisive rancor in our constitutional law. As with the Federal Marriage Amendment, the U.S. Congress never managed to pass one tidy nationwide law banning the marriage of interracial couples, despite three concerted attempts between 1871 and 1928. Instead, states passed their own laws aimed at curbing "miscegenation," a term coined by journalists during the Civil War -- as whites increasingly became sympathetic to antislavery causes -- to hype the looming specter of racial impurity, which many deemed against God's design for mankind and a certain ruin for the social fabric of the nation, a kind of fear-mongering right-wing static that sounds downright contemporary to gays today.

In the mid 20th century, 30 states maintained laws banning marriage between whites and blacks, with over half those laws restricting contracts between additional races. In the 21st century, 45 states have either a law or a constitutional amendment restricting marriage to a union between a man and a woman; 17 of those laws or amendments go a step further to ensure that no same-sex relationship of any kind may be recognized by the state. Then as now, rather than trusting voters to pass such laws on their strictly biased motives, supporters saddled legislation with titles insinuating that a core concept (race! marriage!) was under attack and needed defending: Virginia's Racial Integrity Act, the Defense of Marriage Act, the Marriage Protection Act.

Whether out of political expediency or embarrassment, once antimiscegenation laws began to fall, they fell swiftly. Nearly half the state laws banning interracial marriage were revoked in the two decades following the 1948 California supreme court decision Perez v. Sharp, in which a Mexican-American woman and an African-American man won the right to marry. In finding that the right to marry is a basic civil right and that the infringement of that right violates the Fourteenth Amendment of the U.S. Constitution, the California supreme court became the first in the 20th century to strike down an antimiscegenation law, presaging by 19 years the U.S. Supreme Court's 1967 Loving v. Virginia decision, which rendered moot all remaining such laws in the country, in the process removing race as an exempted class under the promised marriage protections of the Full Faith and Credit clause.

Perez Redux?

On March 4, 2008, Chief Justice Ronald George and six associate justices of the California supreme court heard 3 1/2 hours of oral arguments in a same-sex marriage case that the San Francisco Chronicle has compared in scope to that court's previous controversial landmark rulings on abortion, the death penalty, and interracial marriage -- specifically, its 1948 Perez v. Sharp decision. The modern case combines four lawsuits -- three by nearly two dozen gay and lesbian couples, plus a fourth brought by the city and county of San Francisco in the wake of the approximately 4,000 same-sex marriages licensed by the county clerk in February-March 2004 and voided that August by the superior court.

Atty. Gen. Jerry Brown, whose office is leading the defense of the marriage law, has explicitly said he doesn't wish to sacrifice principles to politics, but implicitly suggests the court do just that in warning that rulings that "ride roughshod over the deeply held judgments of society" can have unintended consequences. Currently sitting a 6-1 majority of Republican appointees with a median age of 65, Chief Justice George's court hardly seem like a group poised to run roughshod through a patch of daisies, much less the deeply held judgments of society. Still, no one can fault marriage equality supporters for holding out a little cautious optimism in these proceedings. At one point during the hearing on March 4, Chief Justice George quoted from the words of Justice Roger J. Traynor's Perez majority decision: "The essence of the right to marry is freedom to join in marriage with the person of one's choice."

San Francisco chief deputy city attorney Therese M. Stewart also alluded to Perez. Challenged by the court to justify extending marriage to a population who can already join in state-sanctioned domestic partnerships, Stewart asked whether it would have satisfied the state constitution in 1948 to instead allow mixed-race couples to join in "transracial unions," adding, "The name 'marriage' matters. ... That symbol has deep meaning."

California's high court wouldn't be the first to legalize same-sex marriage -- the Massachusetts supreme judicial court won that distinction in 2003. Still, this case is being watched closely from all sides, not least because it could have repercussions for the nation. Since its pivotal Perez decision, the California supreme court has become by far the most influential state court in the nation, with its rulings playing a direct role in shaping other courts' decisions more often than any other ruling body. According to a study published in December 2007 by the UC Davis Law Review, which analyzed the citation rates of 65 years' worth of high court decisions throughout the United States, the California supreme court was cited at nearly triple the median rate, and it beat runner-up Washington State by 25 percentage points. For all the talk of California's fruits, nuts, and flakes, it seems that there is reverence yet for our men and women in robes.

California's trailblazing isn't limited to the court. The state assembly -- having famously passed two marriage equality bills in recent years only to see them vetoed by Gov. Arnold Schwarzenegger -- created the nation's first domestic-partnership registry not mandated by a court order back in 1999. At its inception the registry conveyed little more than hospital visitation rights and health insurance coverage for registered partners of public employees. Firebrand lesbian senator Carole Migden, who authored the original domestic-partnership legislation as an assembly member, and fellow gay state legislators Sen. Sheila Kuehl, Assemblywoman Jackie Goldberg, Sen. Christine Kehoe, Assemblyman John Laird, and Assemblyman Mark Leno -- with straight assists from former assemblyman Paul Koretz and former governor Gray Davis -- have spent the intervening years doing their level best to give the legislation teeth. In fact, the 2003 legislation expansion was so sweeping that Governor Davis delayed its implementation until 2005 to give existing domestic partners a chance to dissolve their partnerships to avoid becoming entangled in more than they might have bargained for (such as joint responsibility for debts). With no small amount of wrangling at the Sacramento statehouse -- assembly floor debate over the latest bill reliably disintegrated into partisan infighting, with Republican Jay La Seur saying that extending the tax breaks of marriage to domestic partners represented further "erosion and dilution of morality in this state" -- California's domestic partners now have all the rights, privileges, and responsibilities of married partners, though only at the state level.

Even for those of us who enjoy state recognition, same-sex relationships are suspended in amber in the United States, with domestic partnerships, civil unions, and even same-sex marriages existing in a liminal phase of visibility. As we travel through the country -- and even as we prepare our taxes, filing, as my partner and I were compelled to this season, as "married" for state purposes and as "single" for the feds -- we are neither married nor single, because the relationship rights conferred on us by our home states are geographically and theoretically circumscribed by our extraordinary exclusion under the Full Faith and Credit clause.

Yet marriage equality opponents remain dogged in their attack on gay rights. On April 24 the anti-equality group Protect Marriage -- there's that prophylactic language again -- delivered petitions bearing 1.1 million signatures to California state officials in an effort to put a constitutional amendment banning same-sex marriage on the November ballot. California already has a law limiting marriage to a man and a woman, Proposition 22, passed by 61% of voters in 2000, largely in reaction to 1999's domestic-partnership law. It is the constitutionality of that law that is currently under scrutiny by the court, and it is on the strength of that law that Governor Schwarzenegger has vetoed both marriage equality bills passed by the legislature -- though, in an unexpected twist, Schwarzenegger called Protect Marriage's constitutional amendment "a waste of time" at a gathering of Log Cabin Republicans in April. He further predicted its defeat by voters -- alluding to recent polls in the state showing support for same-sex marriage in a virtual dead heat with opposition -- and vowed to fight against the amendment personally.

Regardless of society's baggage surrounding homosexuality and the marriage question, my partner and I and hundreds of thousands of other same-sex couples in the United States are already married, and we've been so by our own rules and through the strength of our own commitment for years if not decades. So while I recognize that marriage equality remains an emotional issue for many of our opponents, I think that the majority of us who actually stand to gain or lose rights in the struggle have moved past that phase. Our emotional and romantic relationships have always been forged independently of societal approbation, and that's not going to change overnight as a result of any legislation or court order. In the here and now, what we seek is economic and civil equality, and while I appreciate the leaps and bounds by which my domestic-partner rights have grown since 1999, they remain limited by nomenclature. In answer to San Francisco attorney Therese M. Stewart's question, it did not satisfy the constitutional concerns of the California supreme court in 1948 to banish interracial marriage to a wilderness under another name. Sixty years later, the court should not be satisfied to settle for less on our behalf. Here's hoping that the California supreme court, whose decision is expected May 15, can produce yet another precedent on that front, doing for us what Perez did for mixed-race couples -- even if that means we have to wait another 19 years for the U.S. Supreme Court to catch up, finally favoring our relationships as well with the Full Faith and Credit protections promised by our nation's Constitution.