Jackie Gardina is a professor at Vermont Law School. Her writings on same-sex marriage include “Same-Sex Marriage in Bankruptcy: A Path Out of the Public Policy Quagmire” and “The Perfect Storm: Bankruptcy, Choice of Law and Same-Sex Marriage.”
For those couples living in the 36 states that prohibit same-sex marriages, history provides a small glimmer of hope: States have never imposed a blanket non-recognition rule on marriages that violate their laws. Even in the highly charged anti-miscegenation era, when statutes went so far as to criminalize interracial unions, several states that prohibited such marriages were willing to recognize them in certain circumstances. Given this, neither the federal government nor same-sex couples residing in states where laws ban their marriage should assume that such unions are automatically void.
Throughout the anti-miscegenation era, state courts implicitly accepted limitations to their authority to invalidate marriages. In 1879, a federal court in Virginia reluctantly conceded that the state could not exclude interracial couples or enforce its marriage prohibition laws on couples who lived elsewhere but were visiting Virginia. In 1913, the Florida Supreme Court upheld the inheritance right of a widower whose wife owned property in the state but whose interracial marriage was “unlawful and void” under the Florida constitution and state statute. Likewise, in 1948, the Mississippi Supreme Court also recognized an interracial marriage for inheritance purposes, despite a state law and constitutional provision to the contrary. In these cases, the courts understood that recognizing a marriage with only a tangential relationship to the state did not violate the state’s public policy against interracial unions.
States even validated interracial marriages that violated their laws when the couple had married elsewhere and then moved to the state. As early as 1877, the Supreme Court of North Carolina recognized a marriage between a black man and a white woman despite a state law declaring such marriages void. The court relied on the “decided weight of English and American authority” that, if the marriage was valid where the couple lived at the time of its inception, it remained lawful. Courts in Kentucky, Massachusetts, South Dakota and Washington employed the same reasoning when interpreting the breadth of their marriage laws.
The only marriages that states seemed comfortable declaring void were “evasive marriages,” in which couples traveled to a different state to marry and then returned home. Because the state had a declared interest in regulating the marriages of couples living within its borders at the time of those marriages, courts were willing to enforce prohibition laws. Perhaps the most famous such case involved Mildred Jeter, a black woman, and Richard Loving, a white man, who upon returning to Virginia after marrying in the District were sentenced to one year in prison for violating Virginia’s Racial Integrity Act. But even this story eventually had a happy ending: The couple challenged their criminal convictions, and in 1967 the Supreme Court declared anti-miscegenation laws unconstitutional.
Congress appeared to recognize the limitations of state power when it passed Section II of the Defense of Marriage Act, the provision that authorized states to reject marriages validly performed elsewhere. The House report that accompanied the legislation identified an important constraint on this power. Specifically, the state seeking to invalidate a marriage must be the one with the most significant relationship with the couple at the time of their marriage. The report identified only evasive marriages as in this category. This limitation holds with existing understanding of how states interpreted and implemented their other marriage-prohibition statutes.
While some may chafe at comparing the prohibition of interracial marriages to bans on same-sex unions, the two sets of laws have important parallels regarding a state’s professed interest in enforcement. States that prohibited interracial marriages used the same language of moral condemnation heard today in relation to same-sex marriage. In Loving v. Virginia, the trial court judge upheld Virginia’s anti-miscegenation laws on the grounds that God never intended the races to mix. During that trial, Virginia presented scientific data — since debunked — about the maladjusted progeny of interracial couples. The same questionable arguments were proffered in California’s Proposition 8 trial in 2010 and echoed again by Justice Antonin Scalia during the Supreme Court’s oral argument this year.
Few states have had the opportunity to interpret their legal prohibition on same-sex marriage, and none has done so in the shadow of the Supreme Court’s decision last month in Windsor v. United States . Applying the reasoning from the anti-miscegenation-era cases, the states and the federal government should question whether the public policy animating a state’s marriage-prohibition law is undermined if the federal government recognizes a same-sex couple’s marriage for purposes of federal benefits. While a state may have an interest in, and the authority to deny a couple, state marital benefits, it defies logic to suggest that its interest extends to denying federal marital benefits.
But there is no guarantee that states will act in ways consistent with this precedent or logic. To ensure consistency, Congress must amend federal law to recognize all legal same-sex marriages regardless of where the couple resides. Only then will the U.S. Constitution’s demand for equal dignity under the law be realized.
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