FAQ: Gay Marriage

Your nagging questions answered.

President Bush formally announced Tuesday that he supports a constitutional amendment banning gay marriage. The announcement comes as the city and county of San Francisco continues to issue marriage licenses to same-sex couples, declaring that denying gays the right to marry violates the California state Constitution. And it comes approximately three months after the Massachusetts Supreme Court ruled that the state must recognize marriage for same-sex couples beginning May 17. USA Today handily answered a passel of questions raised by these developments, but a number of Slatereaders wrote in with queries about the legal fallout. Explainer offers the answers:

What are thelegal differences between a marriage and a civil union? Each of the 50 states defines who can enter into a “marriage” and the attending legal consequences of entering into that relationship. Currently, all 50 states limit marriage to heterosexual couples. Some states allow same-sex couples to enter into relationships that carry with them varying legal consequences. California and Hawaii, for example, have “domestic partnership” and “reciprocal beneficiary” laws, respectively. Right now, only Vermont allows same-sex couples to enter into “civil unions.” To a certain extent, the difference between domestic partnerships and civil unions is a matter of semantics—in theory, California and Vermont could provide same-sex couples the same legal rights under different names.

As it turns out, however, Vermont’s statute provides the most comprehensive set of legal rights to same-sex couples. The Vermont statute provides same-sex couples with “the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.” Thus civil unions, as the term has come to be understood in the light of Vermont’s law, have all of the same attending legal consequences as marriages; the only difference is their name. One caveat: Federal law treats “civil unions” and “marriages” differently. So for purposes of federal Social Security and tax law, for example, the U.S. government treats couples who enter into “civil unions” differently than couples who enter into “marriages.” (Married couples can file joint federal income tax returns, for example, while same-sex couples who have entered into a civil union cannot.)

Although the difference at the state level is only semantic, the Massachusetts Supreme Court ruled on Feb. 3 that the distinction is “not innocuous.” When the Massachusetts Senate sought their advisory opinion as to whether using different names for the same legal arrangement squared with the equal protection and due process requirements of the state’s constitution, they said no: “It is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.”

If Massachusetts (or any other state) passes a law saying that same-sex couples can marry, do all other 49 states have to give full faith and credit to that law? The full faith and credit clause of the Constitution states: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” This seemingly broad rule, however, is not without its exceptions. Importantly, a state may not have to give full faith and credit to a law that violates its “public policy.” That, of course, raises the question of what a particular state’s public policy is. Slate’s Dahlia Lithwick has noted that “states have been permitted to refuse to recognize marriages from states with different policies toward polygamy, miscegenation, or consanguinity for decades.”

Complicating the matter is the federal Defense of Marriage Act, which Congress passed and President Clinton signed in 1996. It states that “no State shall be required to give effect to a law of any other State with respect to a same-sex ‘marriage’ ” and then goes on to define “marriage” and “spouse” for purposes of federal law (for example, for purposes of federal income tax law). Adding another layer of complexity, 39 states have passed their own defense of marriage acts, which tends to support any argument that same-sex unions violate those states’ public policy. These issues will eventually play themselves out in the courts.

If same-sex couples legally marry in Massachusetts, and the state (or the federal government, for that matter) subsequently enacts a constitutional amendment banning such marriages, will the couples who wed in the interim remain married, or will their marriages dissolve? Nobody knows. Should such an amendment come to pass, the courts will have to struggle to work out this unprecedented area of law. Their answers will depend on the specific language of any constitutional amendment and on whether a state or the federal government passes it. A state amendment that tries to retroactively dissolve marriages could feasibly contravene our federal Constitution.

Will gay and lesbian married couples in Massachusetts and/or San Francisco be able to call themselves married on their 2005 IRS tax forms? As it currently stands, the federal DOMA prohibits same-sex couples from receiving any federal recognition of their union with respect to income tax or Social Security. As for state tax forms, that will vary, depending on each state’s laws. If Massachusetts residents are able to get married, they should be able to claim themselves as married couples on 2005 state tax forms.

In order to bring a lawsuit, don’t plaintiffs have to claim that they have suffered a concrete and particularized harm that is traceable to the action of the defendant? How can conservative groups in California have standing to bring charges against the city of San Francisco for issuing same-sex marriage licenses? Concrete particularized harm (i.e., “standing”) is a prerequisite to bringing claims in federal court, not necessarily in state court. Conservative groups are filing lawsuits in California state courts, which do not have the same “standing” prerequisites. States have wide latitude to open their courts to litigants as widely or narrowly as they want. California has a very liberal standing rule that allows taxpayers to sue any government official or employee who is allegedly violating the law by misusing taxpayer dollars.

Can a proposed amendment to the federal Constitution be declared unconstitutional? The short answer is no. The reader who posed it may be thinking of the process by which a provision of a state constitution can be declared unconstitutional.

Frequently, state amendments are declared unconstitutional because they are found to violate the U.S. Constitution. The “supremacy clause” of the federal Constitution states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Consequently, the federal Constitution trumps any state constitutional provision.

But it’s improbable that any court could declare an amendment to the U.S. Constitution unconstitutional, because the amendment itself would already be a part of the Constitution and would therefore be implicitly constitutional. Scholars might argue about whether it’s possible in the abstract. But as a practical matter, the courts are most likely to read a newly amended constitution as internally consistent, and try to reconcile any provisions that seem to contradict each other.

Explainer thanks Andrew Koppelman of Northwestern University School of Law and Vikram Amar from UC Hastings.

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