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Two women are relying on a clause in the Constitution that may prove a stretch.
By GRAHAM BRINK
Published July 26, 2004
Paula Schoenwether and Nancy Wilson have been together for 27 years, through job changes and parents dying.
On July 2, they married in Massachusetts. Last week, the two Bradenton women filed a federal lawsuit in Tampa asking a judge to force the state of Florida and the federal government to legally recognize their marriage.
The lawsuit, the first of its kind in the nation, hurls Schoenwether and Wilson into an impassioned and polarized debate. President Bush, most members of Congress and state legislatures, and most Americans oppose same-sex marriages.
And the law, at least in this case, does not appear to be on the women's side.
Andrew Koppelman, a professor of law and political science at Northwestern University in Chicago, said the suit "does not have a leg to stand on."
"I am a defender of same-sex marriage," he said. "I have every reason to want this couple to win. But this particular case sounds like a sure loser."
There's much more at stake for Schoenwether and Wilson than simply gaining society's stamp of approval on their marriage.
A General Accounting Office report this year listed 1,138 statutory provisions in which marital status is a factor in determining or receiving benefits, rights and privileges.
The benefits range from the obvious - collecting part of a spouse's Social Security after he or she dies - to the obscure - a landowner's eligibility to negotiate a surface-mine lease with the secretary of labor.
Other benefits include gift and estate taxes, probate rights, IRA rollovers, and protections that come with divorce, like the equitable distribution of property.
Contracts and wills allow same-sex couples to accomplish some of these financial benefits. Even then, they get only a fraction of the rights and benefits afforded married couples, said lawyer Karen Doering, a consultant to the gay rights group Equality Florida.
The lawsuit filed by Schoenwether and Wilson challenges the 1996 federal Defense of Marriage Act and a similar law enacted a year later by the Florida Legislature. Both acts define marriage as a legal union between a man and a woman.
The federal act adds that no state is required to recognize same-sex marriages performed in other states. And Florida's act says the state will not recognize same-sex marriages no matter where they were performed.
The lawsuit bases some of its arguments on the full faith and credit clause of the U.S. Constitution, which dates to the days when a young nation was reconciling the laws of the colonies. The clause says states should honor the public acts of other states.
Because Massachusetts legally sanctions same-sex marriages, "all the other states should be constitutionally required to uphold the validity of the marriage," the lawsuit states.
It's not that simple, legal experts say.
Historically, the full faith and credit clause has applied to judicial decisions, not legislation, said Koppelman, the Northwestern law professor. A Florida resident, say, loses a lawsuit and has to pay $1-million. Even if that person flees Florida, the full faith and credit clause makes that $1-million judgment enforceable anywhere in the country.
The federal courts have also made it clear that states do not have to acquiesce to everything another state might do. States can follow their own laws when it comes to public policy.
States do generally honor the marriage laws of other states. Florida, for instance, sets a minimum marriage age of 16, and then only with a parent's consent. But a 14-year-old Florida boy could travel to Massachusetts, which allows 14-year-olds to marry, and get hitched. Florida would likely recognize that marriage.
But think of that as a courtesy, legal experts say, not something the U.S. Constitution compels the states to do.
"A state need not recognize a marriage that violates its own public policy," said Cass Sunstein, a law and political science professor at the University of Chicago. "There has long been a public policy exception to the full faith and credit clause."
The lawsuit also claims that the federal and state defense of marriage acts violate Schoenwether and Wilson's constitutional rights to equal protection under the law and the implicit right to privacy.
Sunstein acknowledges federal courts could say that just as discrimination on the basis of race is unacceptable, so is discrimination on the basis of sexual orientation.
"It's not unimaginable sometime in the future," he said. "However, it would be very surprising if federal judges declare this to be the law of the land any time soon."
The federal judiciary is wary of radically renovating standing laws, especially ones with broad public policy implications, he said. The judicial decisions concerning gay marriage have come from a small number of state judges interpreting state laws, not federal laws.
Koppelman agreed federal judges don't ordinarily get out in front of public opinion. Most polls show that about two of three Americans oppose same-sex marriages. Many more states will have to follow Massachusetts' lead, Koppelman said, before the federal courts address the issue head on.
"There would have to be a big change in American culture," he said.
Sunstein uses the evolution of interracial marriage laws as an example. The Supreme Court banned laws against interracial marriage in 1967. But by that time only a group of Southern states still enforced laws against interracial marriage.
The same was true of the U.S. Supreme Court's recent ruling overturning laws making sodomy a crime. Sodomy prosecutions were already rare, Sunstein said, and few people were pushing to punish such sexual activity with jail time.
"The federal judiciary generally follows public opinion," Sunstein said. "It's much more likely that this issue will be decided politically than legally."
If some members of Congress have their way, the courts would not have a say in the matter. Last week the U.S. House approved a bill aimed at slamming the door on federal courts in same-sex marriage suits. The Marriage Protection Act, which opponents condemn as unconstitutional, would strip federal courts of jurisdiction in such cases. It has not passed the Senate.
Paula Schoenwether says she is not blind to the legal barriers she and Wilson face.
"We know this could be a long uphill battle and that this might not be the lawsuit that breaks everything wide open," Schoenwether said. "But we also believe that we should do what we can, that we have an obligation to at least try."
- Graham Brink can be reached at 813 226-3365 or email@example.com
[Last modified July 25, 2004, 23:47:19]