Should Marriage Be Left to the States?

My short answer is "no", but let me explain. Before answering what I think the situation should be, it is helpful to look at what the situation is. Currently family law is a matter left to a great extent to the states. States have the power to decide who may marry, the legal process required to do so, and what the legal consequences of that marriage are within the state. In all these matters states differ from each other. The state is limited in its actions, though, to the requirement of its own constitution as well as the constitution of the United States. What those constitutions require is often a matter of great debate, but the ultimate judge is the state's highest court for matters pertaining to its own constitution, and the Supreme Court of the US for matters in the US Constitution. In either case the constitution can be amended by a process laid out therein. So, for example, the US has ruled that a state may not forbid interracial marriages, or forbid inmates from marrying (except under compelling reasons). I am not aware of any argument claiming that the US Constitution currently forbids same-sex marriage, although there are arguments that it requires it either as matter of a fundamental right to marry, or as a matter of equal protection. It has been noted that the federal government has banned polygamy, but I don't believe this is quite true. The US Congress is ultimately responsible for the laws in DC and the territories. It thus banned polygamy in Utah when Utah was a territory. The Congress also the power to decide whether to admit a new state to the Union (both these powers are in Article IV, Sec. 3). Thus Congress refused to admit Utah to the union unless it's state constitution perpetually forbade polygamy. If Congres had thought it had the power to ban polygamy in the states, this would not have been necessary.

There is also the issue of section 1 from the above Article IV which guarantee Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. (Section 2 could also lead to some issues, but as it has been interpreted these issues seem minor). Here is briefly my understanding of how the SCOTUS has interpreted that clause, based primarily on my reading from Andrew Koppelman's book (see left sidebar) which devotes all of chapter 5 to this subject. Fulll Faith and Credit generally applies to judgements (assuming the original state had the proper jurisdiciton to make that judgement). This extends to judgements of divorce. It generally does not apply to statutes or to kinship status. See for example this 1915 case of Hood v. McGehee where the court ruled a Lousiana adoption did not give the children rights to inherit Alabama land. I do not believe the Supreme Court has explicitly addressed the issue of marriage recognition, but states have repeatedly refused to recognize marriages from sister states. A lower federal court in 1879 in Ex parte Kinney also addressed this issue and confirmed that a state need to accept a sister state marriage. That states generally do accept sister state marriages (and other foreign marriages) is a matter of local policy. There are good reasons for generally accepting marriages. That is why some states (like NY or CT) which do not have a policy against SSM are likely to fully recognize same-sex marriages from MA. Now FFaC would, as I understand it, require that a state recognize a valid court judgement from another state even if it stemmed from a suit which depended on the existence of a same-sex marriage. The guiding principle of FFaC seems to be that each state is sovreign and has the right to control the laws in its own state, but not those of another state. Still, as we are one union, a state is required to take into consideration the interests of a sister state, in addition to its own interests, in deciding matters where both states have an interest. Thus there seems to be almost no question that a state could, if it desired, invalidate the marriage of a couple which fled to another state, married, and then returned in order to evade the home state's marriage statutes. The real grey area arises from a couple who legally resided and wed in a state where a marriage was legal, and subsequently moved to another state that had a strong policy against such marriages. This issue did come up a number of times with regards to interracial marriages with results varying from state to state.

So my understanding of the current situation is that while a state does not need to recognize a same-sex marriage from Massachusetts for all purposes, (in particular if a couple evaded the state's statutes to marry), it would need to recognize it for some purposes (for example it would need to recognize a same-sex divorce decree). All of this is assuming, for the sake of argument, that the state has some interest in denying recognition to same-sex marriages. Of course, if the state had no such interest, it would probably be required to allow same-sex marriages in its own state because of equal protection and due process. I personally believe even the weaker form of equal protection found in the US Constitution should require states to allow same-sex marriage, hence my short answer "no". Whether the SCOTUS is likely to see things this way, I don't know.

That being said, there are some questions that arise about whether things should be different. For example, while marriage is currently generally left to the states, maybe this isn't such a good idea. Maybe we should have one national marriage policy to avoid the confusion that arises from 50 different policies. The same sort of argument can be made with regards to many issues besides marriage, and I generally agree. I'm not a big fan of state sovreignity or states' rights and I wouldn't mind a constitutional

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