Tuesday, March 16, 2004

Liberal Professors Invent Bad Law

I'm pleased that someone else challenged Yale Law School Professor Lea Brilmayer--because I was sure she was nuts. Brilmayer published an Op Ed in the March 9th WSJ (mirrored here) making the extraordinary claim that authorizing gay marriage in one state would not necessarily affect any other state:
[N]obody bothered to check whether the Full Faith and Credit Clause had actually ever been read to require one state to recognize another state's marriages. It hasn't. Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The "public policy doctrine," almost as old as this country's legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses.
She said the same in a February 15th WaPo Op Ed and when testifying before the Senate Judiciary Committee in early March. At about the same time, I concluded exactly the opposite, based on an hour of legal research. Clearly, one of us was wrong.

But first some background about Professor Brilmayer. A Boalt Hall graduate, she specializes in international law and conflicts of law. She's published books (e.g., American Hegemony: Political Morality in a One-Superpower World (1994)) sharply critical of US policy since becoming the sole-superpower, and several articles (e.g., International Justice and International Law, 98 W. Va L. Rev. 611 (1996)) championing global treaties and bureaucracies instead. Brilmayer's an anti-globalist theorist and condemns torture (who doesn't?). But she also opposed U.S. intervention in Afghanistan, doubting
the legality of a U.S. offensive against the sovereign state of Afghanistan given the "private actor" status of the terrorists. 'What responsibility does the government of Afghanistan have?' she asked. 'Do they have to turn him over? Former war criminals of other countries live in the U.S.'
Forewarned is forearmed.

Ok, back to the law. Remember, Brilmayer claimed the Full Faith and Credit clause of the Constitution would allow courts of one state to ignore an out-of-state marriage that violated the "public policy" or "morality" in the state where the court was located. She cited a half-dozen refusals to recognize out-of-state marriages, only one of which--Catalano v. Catalano, 170 A.2d 726 (Conn. 1961)--was decided after 1950. By contrast, I conceded older rulings did indeed say that, but more recent cases narrowed the scope of any "public policy" exception (citing a 1953 New York case that recognized a Rhode Island marriage between uncle and niece, both of whom were New York residents, despite a law prohibiting uncle-niece marriages in New York). I also claimed that any residual exception to Full Faith and Credit was unlikely to survive last year's Lawrence v. Texas decision of the United States Supreme Court, which seemingly invalidated morality as a basis for law:
The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).
And, I challenged the oft-cited analogy to the (aptly named) Loving v. Virginia decision, where the Supreme Court overturned Virginia's refusal to recognize an out-of-state interracial marriage that was unlawful within Virginia--that case was decided under 14th Amendment "equal protection," not the Full Faith and Credit clause.

So who's right? I am. I've double checked. And I'm supported by Matthew J. Franck, a professor and chairman of political science at Radford University. Writing in today's NRO, Franck accused the liberal Yalie of distorting the law for political purposes:
Professor Brilmayer's argument was actually a clever piece of misdirection, a bit of legerdemain in which we were invited to fix our attention on the left hand while the right hand picks our pockets.
Franck also confirmed that cases undermine the continuing constitutionality of any public policy exception. He cited two Supreme Court decisions:
Romer v. Evans (1996), where Justice Kennedy concluded that "anti gay" laws could never have a "rational basis" because they were based on "of animosity toward the class of persons affected."

Lawrence v. Texas (2003), where Justice Kennedy (again) invalidated Texas law for failing to show sufficient solicitude for "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."
Given these decisions, Franck concludes--and I agree--that a refusal to recognize an out-of-state gay marriage (based on "public policy" or "morality") would likely be unlawful.

I still oppose any national definition of marriage--either including or prohibiting gay marriage. But I'm really steamed when lawyers lie. Particularly when law professors lie for liberalism, without investigation or challenge by the mass media. So, I say again: under current law, one state's adoption of gay marriage will decide the issue for the entire country. That's why we need a Constitutional Amendment ensuring marriage remains a state-law issue. Such an amendment has been suggested by Vice President Cheney, is being mooted by Senator Orrin Hatch, championed by fair-minded conservatives and proposed by others, including former Senators and young-ish conservative journalists. And me--because devolving controversial decisions to the smallest feasible unit of government (the principle of "subsidiarity" for you legal theory fans) is the least coercive solution.

In the current National Review, John Derbyshire wonders why "homosexual marriage -- an idea that seems not to have occurred to anyone at all in the entire span of human history until about five years ago -- is now a daily topic in our newspapers and TV programs." I'm kinda confused about that too. But the founding fathers made America a federal republic, meaning that issues not specifically allotted to the national government must be resolved by citizens under state law. Neighboring states may differ--but such a "laboratory" of varying approaches helps everyone understand the merits, and consequences, of their decisions.

Federalism's worked exactly as the founders intended for over 225 years. You don't junk the jurisprudence just because you disagree with one or the other outcome. Let 50.1 percent of the voters in each state decide.

America's constantly promoting the rule of law and voting rights in the Arab world and elsewhere, for example urging an Iraqi federal state permitting Shias, Sunnis and Kurds to co-exist. The same advice applies here at home. Democracy--it's the American way.


Today's New York Times parrots the same wishful thinking as Professor Brilmayer. The Times' article quotes gay rights advocate Andrew Koppelman, a law professor at Northwestern University and the author of "The Gay Rights Question in Contemporary American Law." Koppelman concludes that "[n]o state has ever been required by the full faith and credit clause to recognize any marriage they didn't want to." I have no idea how Koppelman can be so positive, or even whether he's considered the Lawrence and Romer cases. But, as usual, the Times writes the lede before researching the story: Koppelman's argument "demonstrates that the president misunderstood the legal terrain."

No it doesn't. It just "demonstrates," as usual, that the Times doesn't fact-check liberals but will use any excuse to bash Bush. Why should anyone still believe the NY Times?


Reader, and 10th Amendment fan, Michael Y disputes my narrow focus:
Why should the federal constitution single out marriage and not any other issue of states rights? Are the only things that are worthy of a constitutional amendment protecting states rights booze and sex? If you must have an amendment to preserve the states as laboratories (. . . I agree with you on the merits) I propose something more general: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people, AND THIS TIME WE REALLY MEAN IT!”
I like it! Still, a marriage-only amendment has a better chance.