Marriage Goes on Trial

July-August 1996

By David Orgon Coolidge

WASHINGTON, D.C.—Americans are now faced with an important question: "Should same-sex marriage be legalized?" Hawaii is the reason for the urgency of the question. In 1993, the Hawaii Supreme Court ruled in Baehr v. Miike that under the state constitution limiting marriage licenses to male-female couples is a form of sex discrimination. In sending the case back to the trial court, the Supreme Court instructed that same-sex marriages must be legalized unless the government can prove that there is a compelling state interest in retaining the present practice. This test, known as "strict scrutiny" in legal jargon, is almost impossible to meet: instead of Hawaii being free to define and regulate marriage according to its conception of what is best for the state, it must offer marriage licenses equally to all couples unless it can provide a compelling reason not to do so. The actual trial will commence on September 10.

There are at least two reasons why the rest of the country should be concerned. The first involves the common law principle of "comity, "under which states generally recognize the acts of other states. This means, for example, that if a same-sex couple marries in Hawaii and moves to Grand Rapids, and Michigan has no "strong public policy" in place against recognizing same-sex marriages, the courts of Michigan will be expected to recognize the marriage. Each state must now formally decide whether or not it has such a strong public policy; if it does not speak clearly, it may well be compelled to recognize these same-sex "marriages." Legislators in over thirty states have responded by introducing bills this year that would explicitly deny recognition to same-sex marriages.

The second reason the situation in Hawaii matters to the rest of the country is the principle of "full faith and credit." This term is found in Article IV, Sec. 1 of the U.S. Constitution, where it states that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." Some legal scholars argue that this text can and should be used to force the other forty-nine states to accept same-sex marriages if Hawaii allows them—regardless of those states' own policies!

In response to these concerns, some members of Congress have introduced the Defense of Marriage Act or DOMA (H.R. 3396, S. 1740), which explicitly states that full faith and credit does not require one state to recognize a same-sex marriage legalized by another state. DOMA also offers a definition of marriage for purposes of Federal law: "The word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

The question of how we define marriage is the key to whether we will move to legalize same-sex marriages. Americans are being presented with three competing models of marriage: traditional, liberal and postmodern. The traditional view, which might also be called the complementarity model, sees marriage first and foremost as a sexual community in which the procreation and nurture of children are a unique vocation. This view assumes an ordered universe with two sexes, male and female, who by virtue of their sexual difference come together and establish families, the fundamental unit of society. The existing marriage law of all fifty states is based on this model.

The liberal or choice model sees marriage as a sexual contract between individuals in which pleasure or fulfillment is the defining goal. This view assumes a universe which individuals can define and control in order to pursue their personal happiness. In this view, the sex of a marriage partner is an intimate personal choice, and the right of individuals to marry whomever they want should be constitutionally enforceable.

The postmodern or commitment model sees marriage as an intimate relationship in which a partnership of mutuality and caretaking is the defining purpose. This view assumes a universe which is socially constructed and whose inherited institutions should be reshaped to be inclusive of all manner of diverse, committed relationships. The reasoning here is that since marriage is a public tradition and not merely a private arrangement and since society wishes to promote commitment and discourage promiscuity, the institution of marriage should be open to all.

The choice among these models of marriage will determine one's response to the question, "Should we legalize same-sex marriage?" I believe a strong argument can be made that the traditional model of marriage is most consistent with biblical faith and human experience and ought to be the one embodied in our laws. Whatever government may also owe to citizens who engage in homosexual practices, the pluralist tradition which guides the Center for Public justice insists that government must recognize and legally safeguard the integrity of social institutions like marriage and the family.

[David Orgon Coolidge is Research Fellow at the Institute on Religion and Public Life, which publishes First Things magazine. An extended version of this argument can be found in the July-August issue of Crisis magazine.]