GAYS DEFEND MARRIAGE

Northwestern law Prof. Dr. Andrew Koppelman is one of the brightest minds supporting same-sex marriage. I wish more legal advocates defending man-woman marriage had his talent. He and I have exchanged thoughtful E-mails relating to gay rights, one of his academic specialties. Unlike most advocates of gay marriage, Dr. Koppelman agrees with me that the gay community’s rush to sue over marriage has serious drawbacks that endanger same-sex couples. He has called the California lawsuit known as In Re Marriage Cases “insane” and “ill-advised,” and compared its promoters to fools.

And in a new piece in the Chicago Tribune, Dr. Koppelman thankfully raises an underdiscussed topic forced upon everyone by the recent California decision: the portability of California and Massachusetts same-sex unions to states that have democratically decided to recognize only man-woman marriages as legitimate and valid.

His argument is that the 44 states that bar recognition of same-sex marriage ought to attenuate their stances and in some cases presumably amend their constitutions - even if they think the traditional definition of marriage is proper and necessary. Why? Because of the “state of chaos” that could arise from having different marriage laws in different states. For example:

Can Illinois residents get married on a weekend trip to California and then expect Illinois to recognize the marriage? Can someone married in Los Angeles safely run away to Chicago with the family’s assets? And what happens when someone from California is unexpectedly hospitalized here, and the hospital needs to know who is legally authorized to make the patient’s medical decisions? It is essential to know where one state’s laws end and another’s begin.

Dr. Koppelman asserts that “the consequences of blanket non-recognition” are “pretty nasty.” His conclusion? “The only way for states to avoid these weird and unjust results is to admit that they have to recognize same-sex relationships sometimes, for some purposes.”

Well, no.

What’s weird and unjust is the idea that eight opinionated robe-wearers in two states could force a radical change in public policy based on constitutions that are completely null and void outside Massachusetts and California on millions of voters and hundreds of legislators in 44 states whose constitutions contain no right to same-sex marriage. Instead, to respond to the problem Dr. Koppelman has articulated so well, it would be much more just and much less weird for both sides to agree that no state will implement same-sex marriage until it is passed at the federal level, or until states representing at least 50 percent of the population (instead of the present 14 percent) decide to implement same-sex marriage, at which point all states will recognize same-sex marriage.

If Dr. Koppelman’s argument is valid, what does that mean for the other 49 states if the Supreme Court of Wyoming rules that the Wyoming Constitution requires allowing a brother and a sister to marry each other (sorry, Wyoming)? It sounds like he is saying that brother-sister marriages must then be recognized not only in territory covering one-sixth of one percent of nation’s population, but for at least some purposes in the other 99.9 percent of the country too.

I think racial analogies in the gay-marriage debate are rarely helpful and sometimes needlessly insulting to African-Americans. But since Dr. Koppelman uses a racial analogy in his essay, I’ll use one, too. Before the passage of the Thirteenth Amendment, some states were slave and some states were free. The U.S. Supreme Court had to decide whether an enslaved person’s liberation upon visiting a free state (incidentally Dr. Koppelman’s Illinois) was portable back to his home slave state. The Court ruled that it was not. Any other decision, it said, “would give to persons of the negro race, …the right to enter every other State whenever they pleased, …the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

So I’d like to ask Dr. Koppelman - do you agree with the Dred Scott decision or not? If not, do you have a reason for your apparent inconsistency other than “slavery was bad and gay marriage is good”?

Dr. Koppelman writes that “consensus on this emotional and divisive issue is a long way off. In the meantime, we need a way to live together.” Absolutely. But the way to live together is not to expect the overwhelming majority of the country to adopt public policies it thinks are wrong, even “for some purposes.” The way to live together is for those advocating a radical redefinition of marriage to find some (gasp) humility and focus on creating change in places where it’s wanted, rather than constantly trying to shove something the rest of us reject down our throats.

UPDATE: Dr. Koppelman has written me, referring to the above as an “excellent question.” He says he plans to provide an answer in the next few days - and I’ll post his answer here on GaysDefendMarriage.com.