Recognition of California’s Authoritaii

I don’t precisely know why the decision of the Supreme Judicial Court of Massachusetts in 2004 to require same-sex marriages did not get a reception like this year’s decision of the California Supreme Court to do exactly the same thing. But something about the fact that it’s California doing it seems to lend it more weight. I have some guesses, though, which I offer here.

I do this because New York’s Governor has directed that New York state agencies are to recognize and respect same-sex marriage licenses issued by other states. New York did not do this after Massachusetts’ decision. This does not mean that same-sex couples in New York can get married there — but they can fly out to California, get married here, and then go home and their California marriage license will be recognized by officials in Albany. Or they can cross the border into Canada and get married in Niagara Falls, and honeymoon in the Adirondacks. That seems like something from a 1950’s sitcom, except for the whole, you know, “gay” part of the equation.

Nothing illegal about this. 1 U.S.C. § 7, the Defense of Marriage Act, allows a state to recognize another state’s same-sex marriage licenses if it wants to — it just gives the state cover to not recognize the license if it doesn’t want to. I also note that California, New York, and Massachusetts have a combined population of over sixty-two million people — that’s more than 20% of America’s total population. One in every five Americans presently lives in a jurisdiction that recognizes same-sex marriages. (Yet somehow, the straight people in those states all all still just as married as they were ten years ago before this whole thing started, and getting married, or not, without caring about or even particularly noticing what their gay neighbors do. Sorry — I couldn’t resist taking the swipe. Why this should be a surprise to anyone is still absolutely beyond me.)

What is going on, I think, is that California is expected to produce a large enough number of marriage licenses that it will require other states to deal with the issue systematically, where the number of people leaving Massachusetts let other states deal with the Massachusetts licenses on an individualized basis. New York, at least, is shying away from systematizing and reducing to a matter of policy its discrimination against gays.

Certainly California is a more diverse state and one in which the judges are elected and accountable. And the grounds upon which the decision was made in California are different than the grounds used in Massachusetts — although both decisions ultimately rested in interpretations of the respective state constitutions.

We Californians flatter ourselves that this could also be partially the result that, despite the criticism levied at California in certain wrinkles of popular culture, California is still recognized as a national leader in the field of law and politics — in a way that Massachusetts is not. I think proper credit has to go to Massachusetts for having same-sex marriages for four years and proving that life as we know it there will not come to a stop. And Vermont gets the real credit for blazing open the trail for equal rights at all in 1999. But California is going to be the place where it starts to catalyze into the popular consciousness. And if our voters reject the constitutional ban on same-sex marriage in November, as they just might, then that will mean that the largest state in the country, representing over one-tenth of our total population, will have democratically accepted the idea of same-sex marriage.

That just might catalyze some change at the Federal level.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.