The New York Governor's Same-Sex Decree

Slate's blog on legal issues.
May 29 2008 6:18 PM

The New York Governor's Same-Sex Decree

Memo to the New York governor:

Re: Your same-sex juggernaut.

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Regarding your decree for New York to be same-sex-marriage friendly —my, you are quick—too quick. Thanks to thoughtful comments received to my earlier expressed concerns about your action, let me remind readers upfront that I filed on the side of traditional marriage in the California cases. While the California opinion is long (more than 170 pages and thoughtful in many ways, it managed not to fully discuss either the procreative importance or religious significance of the traditional family). But unless the court reconsiders, which I doubt, or the people overturn by constitutional amendment, which is too close to call, California by its regular legal process is marching ahead—hopefully—in a way that strengthens community and marriage and, most importantly, families upon which so much depends.

Your executive memorandum by these terms seems imprudent. Here's why:

Article IV of the U.S. Constitution provides that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other state." It has been a much-debated question among legal scholars as to what exactly it means when one state—say, California—approves something highly controversial like same-sex marriage when another state—oh, say, New York—has strongly disapproved of the same issue in its highest court. You and your legal counsel have not, in my judgment, fully addressed either the meaning of Article IV against the backdrop of New York's public policy in your hasty directive, and, by your precipitous action, perhaps damaged your own position. 

Of course, as a matter of precedent, I know you got zero help from Massachusetts. A quirky old Massachusetts law limited its same-sex ruling to itself—that is, residents of Massachusetts. Imagine stodgy old Massachusetts approving same-sex marriage, but then refusing to marry nonresidents. 

California by contrast is made up of people who arrived here yesterday, so we are not that picky. No waiting periods, no residency requirement, and since we're not much bothered if others don't approve of us, no reciprocity required, either—that is, we're willing to issue same-sex licenses whether other states think them valid or not. California is thus hanging 10 on this surfboard all alone, so it's good of you to send us some New Yorkers to keep us company. But here's a question for you, governor, as you are welcoming back home your residents returning from Disneyland: Does your executive pronouncement also authorize New Yorkers who don't have the gas money for Route 66 or airfare to fly cross-country to Laguna Beach to get married in Massachusetts or not?

Oh, wait, that's really a question for the people of Massachusetts; indeed, the Legislature of Massachusetts. The Legislature actually still makes the laws in the Bay State. To someone, such as yourself, with rapid-fire executive pen, lawmaking by lawmakers may seem quaint, even retro. And get this, they are so into that John Adams HBO special, the tricorn-hatters in Massachusetts even have courts working out the kinky ambiguities in statutes. And kinks there can be, like whether the nonavailability of same-sex marriage in Massachusetts to nonresidents turns on whether the nonresident's state constitution does not mandate same-sex marriage (which is the view of the New York Court of Appeals about the New York constitution) or your rather unprecedented, if not unauthorized, order that out-of-state same-sex marriages simply be treated as valid.  A single lower-court benefits decision that was not appealed is too slender a foundation for remaking the public policy of the state as it has existed, well, since the state has existed, and as recently confirmed by your high court. 

At a minimum, you'll admit it's a question worthy of the final Jeopardy round. Oh, not perhaps for someone like yourself, governor, whose clairvoyant almost paranormal executive decision-making is, as we say in Malibu, way cool. By the way, just curious, but how exactly did you know to instruct New York on the need to handle California same-sex marriages the day before the case was decided?

But don't get us wrong—out here in "Cal-ee-for-nee-a," we like our action-figure governor (you two should "do lunch"), and of course, we're thrilled to be thrust into even an off-Broadway spotlight. We may complain about paparazzi and have Ken Starr drafting ordinances to keep 'em edgy, but we actually crave the attention. (Who knew, right?)

This "speed racer" disposition of yours is particularly generous since the same-sex marriage licenses we're minting today may not be worth a postage stamp after next November if the people of California decide to amend the constitution and overturn our Supreme Court. As I say, the outcome of that is uncertain and worthy of intelligent debate, and so, as busy as you are making, interpreting, and enforcing  laws—you might well hesitate on our ambivalent account. Moreover, governor, a few of your cranky bureaucrats may snipe at you for the massive administrative headache you may have just created in matters of tax, child custody, divorce, insurance, and such by giving full faith and credit to that which California may or may not decide in a few months is au passé . Trends are like that out here, so do try to keep up.

Or better yet, why not wait until the people of New York themselves can chat it up with those elected representatives in Albany? Way boring, I know—no carpe diem , no 15 minutes of fame. Nope, just listening to the people and governing in accordance with their usually sound inclinations. This won't get you Oprah—and definitely not Ellen. It will give you the satisfaction, however, that you kept your oath.    

Sure, the niceties of lawmaking and law interpreting and law enforcing could all be done in your office. If democracy were premised upon efficiency, rather than representation and deliberation, this would be a salutary thing.  As it is, Madison had a name for the usurpation of power and its unification in a single hand: tyranny.

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