A good example of how people’s failure to understand marriage laws prevents them from understanding the issues can be seen in the federal Defense of Marriage Act. Both supporters and detractors see it as an attempt to prevent states from being forced to recognize same-sex marriages from other states, but as Strasser explains it really doesn’t accomplish this task. Even if you assume that Congress had the authority to pass this law (which Strasser argues it didn’t), states already had the right not to recognize gay marriages from other states under the right conditions — for example, if their own citizens travel to a state for the express purpose of marrying.
They key is that the relevant laws are those of the state where the couple lives. A couple living in a state where gay marriages are declared void, as opposed to simply prohibited, cannot go to another state to enter into a gay marriage and expect that marriage to be recognized when they return. That’s how it was before DOMA and that’s how it is now. However, if a couple lives in a state where gay marriage is recognized and they move to one where they are declared void, even that state is forced to recognize the marriage — DOMA doesn’t change this.
- “The state can refuse to recognize the marriage of domiciliaries [residents of that state] celebrated elsewhere if that union is treated as void in the domicile. In that case, the marriage was never valid. However, the state cannot refuse to recognize the marriage of current domiciliaries if their marriage was recognized by their domicile at the time of the marriage. ... Allowing states to invalidate previously valid marriages would be a public policy disaster: the justified and settled expectations of the parties would be disappointed, the status of children would be unclear, title to property would be clouded, and third party creditors would be in a tenuous position.”
Thus, the DOMA doesn’t give states the power to do anything they couldn’t already and it doesn’t allow them to ignore gay marriages that they would have had to recognize before. In effect, nothing has changed — except perhaps that its supporters feel better and imagine that they have accomplished something. I didn’t know this and it’s one of the reasons why Strasser’s book is so good. It’s a real education about family and marriage law, both of which are critical to the gay marriage debate.
Imagine if states were able to ignore the validity of gay marriages from other states — would that mean they could ignore everything else associated with marriage, like spousal support or child custody? Opponents of gay marriage like to say that they are fighting to defend families and family values, but if a person can flee to an anti-gay marriage state because that state will refuse to recognize the authority of court orders from other states for the payment of spousal support or who has custody of a child, that will only end up tearing families apart. But those will be families with gay partners — perhaps the “family values” crowd doesn’t really care about them?
In the end, Strasser argues very effectively and credibly that the legal barriers to gay marriage have no real authority. He doesn’t get into the various moral, religious, or philosophical issues that are usually at the core of books on this topic. Instead, he dissects numerous laws, court decisions, and legal arguments on a variety of related matters.
His is purely a legal examination, one that is admittedly a bit difficult at times because it is dealing with a difficult topic. I would not hesitate to recommend it, however, to anyone with a serious interest in the question of gay marriage. It might require a bit more attention and effort to read than the other books, but you’ll learn a lot more because of it.
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