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The most ingenious attack on same-sex marriage bans

By John Culhane
Slate

WILMINGTON, Del. Since the Supreme Court struck down the Defense of Marriage Act in June, gay couples have begun challenging state laws that don’t allow them to marry, claiming that they, too, are unconstitutional. This is just what Justice Antonin Scalia feared when he railed against the broad language about “dignity” and “equality” in the majority opinion in June.

The new suits range from a case pending in Texas in which a same-sex couple wants to divorce, to dozens of actions that more directly challenge state defense of marriage laws. The most ingenious of the lot is a modest suit filed last week in Philadelphia. Palladino v. Corbett is the first case to attack a state law that declares a same-sex marriage from another state “void.” That challenge is quite likely to succeed. If it does, it will effectively tear down the whole edifice of refusing to recognize same-sex marriage, and serve as a model for attacks across the country.

The plaintiffs, Cara Palladino and Isabelle Barker, married in Massachusetts in early 2005 and moved to Pennsylvania later that year so Barker could take a post-doctoral fellowship at Bryn Mawr College. Pennsylvania’s refusal to recognize their union has caused the couple a number of legal complications. They had to go through a multistep process so they could both become the legal parents of their child, and run an expensive (and all-too-familiar) gauntlet of estate planning, which legally married couples avoid. Their suit also emphasizes less tangible deprivations, arguing, with language drawn from the Supreme Court’s June ruling, United States v. Windsor, that their son is “humiliated” by the state’s refusal to “see” his parents’ marriage, and that they are denied “the dignity and status” that Pennsylvania otherwise “accords to married couples.”

Palladino v. Corbett gets at the Supreme Court’s deeper logic in Windsor. In his opinion for the majority, Justice Anthony Kennedy stressed that by refusing to recognize the marriages of gay couples in states like New York that recognize same-sex marriage, Congress “singles out a class of persons deemed by a State entitled to recognition and protection.” Kennedy said that “no legitimate purpose overcomes the purpose and effect to disparage those whom the State, by its marriage laws, sought to protect in personhood and in dignity.”

These statements easily translate to the argument that no state can refuse to recognize another state’s decision to protect its citizens by allowing them to marry.

It’s not that simple, though. Kennedy also said that it was particularly fishy for Congress to meddle in marriage, which traditionally has been mostly a matter of state law. So Gov. Tom Corbett, defending the Pennsylvania law (since Attorney General Kathleen Kane won’t), can say that if marriage is for the states to decide, his state has as much right not to recognize same-sex marriages as Massachusetts has to recognize them.

But is that right? If states can simply ignore out-of-state marriages they don’t like, the complications mount. What if, while still living in Pennsylvania, the couple broke up, and Barker then married someone of the opposite-sex? If she then moved to a state with full marriage equality, she would be legally married to two different people.

The Texas divorce case takes on this kind of absurdity, arguing that the state must grant a gay couple married in Massachusetts a divorce. But the court in that case can – and likely will – avoid the underlying question by holding that a divorce can be granted without recognition of the marriage. Weird, but possible. Palladino offers no such easy out.

These problems have come up before, for example, because of the differing rules among the states for common-law marriages, marriages between cousins, or marriages with minimum age requirements. The full faith and credit clause of the U.S. Constitution was designed to avoid the potential absurdities and uncertainties, by requiring the states to credit the “public acts, records, and judicial proceedings of every other state.”

But there is precedent for one state objecting to a sister state’s marriage laws. States that forbade interracial marriages often refused to recognize such marriages from other states. That lasted until the Supreme Court declared all bans on such unions unconstitutional in 1967, in Loving v. Virginia.

If Palladino and Barker win, and Pennsylvania has to recognize their marriage, the state still won’t have to authorize its own same-sex weddings. But that will soon become a distinction without a difference. Pennsylvania couples can plan their destination weddings elsewhere and head home knowing that their marriages are also legal and binding in the state of Pennsylvania. And once this strategy catches on around the country, we'll have gay couples living with the same rights and protections as straight couples everywhere – even if some states continue to pretend otherwise.

Culhane is professor of law and director of the Health Law Institute at Widener University School of Law.
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