Full Faith and Republican Full Faith and Republican Guarantees: Guarantees:

Gay Marriage, FMPA, and the Gay Marriage, FMPA, and the CourtsCourts

By John C. EastmanBy John C. EastmanProfessor of LawProfessor of Law

Chapman University School of LawChapman University School of Law

Symposium on a Symposium on a Federal Marriage Protection AmendmentFederal Marriage Protection Amendment

J. Reuben Clark Law SchoolJ. Reuben Clark Law SchoolBrigham Young UniversityBrigham Young University

Provo, UtahProvo, UtahSeptember 9, 2005September 9, 2005

The Old LawThe Old Law

• Murphy v. Ramsey Murphy v. Ramsey (U.S. 1885)(U.S. 1885)"For, certainly, no legislation can be supposed "For, certainly, no legislation can be supposed more wholesome and necessary in the founding more wholesome and necessary in the founding of a free, self-governing commonwealth, … than of a free, self-governing commonwealth, … than that which seeks to establish it on the basis of the that which seeks to establish it on the basis of the idea of the family, as consisting in and springing idea of the family, as consisting in and springing from the union for life of one man and one from the union for life of one man and one woman in the holy estate of matrimony; the sure woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our foundation of all that is stable and noble in our civilization; the best guaranty of that reverent civilization; the best guaranty of that reverent morality which is the source of all beneficent morality which is the source of all beneficent progress in social and political improvement."progress in social and political improvement."

Recent CasesRecent Cases

• Lawrence v. TexasLawrence v. Texas (U.S. 2003) (U.S. 2003)– No “rational basis” for anti-sodomy lawsNo “rational basis” for anti-sodomy laws– Justice Kennedy specifically stated that it Justice Kennedy specifically stated that it

applied only to actions by consulting adults in applied only to actions by consulting adults in the privacy of their own home, but was it?the privacy of their own home, but was it?

• Kansas statutory rape case decided next Kansas statutory rape case decided next dayday

• Goodridge v. MassachusettsGoodridge v. Massachusetts (Mass. 2003) (Mass. 2003)

• San Francisco marriagesSan Francisco marriages

• Utah polygamy caseUtah polygamy case

• Colorado custody caseColorado custody case

Before Before GoodridgeGoodridge

Massachusetts Marriage Massachusetts Marriage LawsLaws• Chapter 207, Section 1 Marriage of man to certain

relatives– No man shall marry his mother, grandmother, daughter,

granddaughter, sister, step-mother, grandfather's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister or mother's sister.

• Chapter 207: Section 2 Marriage of woman to certain relatives– No woman shall marry her father, grandfather, son,

grandson, brother, stepfather, grandmother's husband, daughter's husband, granddaughter's husband, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother or mother's brother.

Holding of Holding of GoodridgeGoodridge

Seems simple enough … Seems simple enough …

But add in Massachusetts statutory prohibitions on But add in Massachusetts statutory prohibitions on incest, etc., which by their terms apply only to incest, etc., which by their terms apply only to opposition sex relationships, and you get …opposition sex relationships, and you get …

Then consider, if a brother can marry his brother, Then consider, if a brother can marry his brother, why not his sister? And even the existing why not his sister? And even the existing prohibitions will fall …prohibitions will fall …

… … to Chaosto Chaos

And the Massachusetts Court could find no rational And the Massachusetts Court could find no rational basis for limiting marriage to 1 man and 1 woman, basis for limiting marriage to 1 man and 1 woman, even “with respect to child rearing”!even “with respect to child rearing”!

From order ...From order ...

Where Does It End?Where Does It End?• San Francisco Chronicle, April 2004San Francisco Chronicle, April 2004

– ““Polyamorists say they related honestly to multiple Polyamorists say they related honestly to multiple partners”partners”

– "I wear a wedding ring for my husband," she explained, "I wear a wedding ring for my husband," she explained, "and a bracelet for Conly.""and a bracelet for Conly."

– ““Though Amsbury and her husband, Terrance Roff, did not Though Amsbury and her husband, Terrance Roff, did not involve Peter and Conly in their Alameda marriage involve Peter and Conly in their Alameda marriage ceremony, other polyamorous Unitarians have proposed ceremony, other polyamorous Unitarians have proposed church ceremonies to bless threesomes, foursomes or church ceremonies to bless threesomes, foursomes or moresomes.”moresomes.”

• Reuters, March 2004Reuters, March 2004– Dutch prosecutor declined to prosecute a man engaged in Dutch prosecutor declined to prosecute a man engaged in

bestiality, claiming that there was no law against it. bestiality, claiming that there was no law against it. – Those who called for adoption of a new law banning Those who called for adoption of a new law banning

bestiality did not contend that it was immoral, but that bestiality did not contend that it was immoral, but that – ““Sex with an animal is a far-reaching infringement of its

physical integrity and the animal can never consent to it. “

Here is one solution…Here is one solution…• Marriage licenses should be like fishing licenses.Marriage licenses should be like fishing licenses.• You want resident or visitor? Salt water, fresh, or both? You want resident or visitor? Salt water, fresh, or both?

Just for the weekend, 30-days, all year? Lifetime? Wow; Just for the weekend, 30-days, all year? Lifetime? Wow; brave soul!brave soul!

• Cotton to your brother or sister? Try the salmon stamp. Cotton to your brother or sister? Try the salmon stamp. Endangered species.Endangered species.

• Hey you, Oedipus! Try the Matriarch Special? Only Hey you, Oedipus! Try the Matriarch Special? Only fourteen dollars extra!fourteen dollars extra!

• Same-sex? You’ve got a choice of a pink or a blue stamp.Same-sex? You’ve got a choice of a pink or a blue stamp.• Plural marriage? Now you’re really talkin’! How many Plural marriage? Now you’re really talkin’! How many

stamps you want?stamps you want?• These are good only in California, of course. No Full Faith These are good only in California, of course. No Full Faith

and Credit or Supremacy problems here.and Credit or Supremacy problems here.• You want the Traditional Nationwide-Worldwide Special? You want the Traditional Nationwide-Worldwide Special?

We have a deal on that, this week only. We have a deal on that, this week only. • Proceeds from all stamps go to the Marriage Rights Proceeds from all stamps go to the Marriage Rights

Litigation Fund.Litigation Fund.• Wear your license on the front of your jacket or hat where it Wear your license on the front of your jacket or hat where it

can be seen by the Warden at all times, and remember, can be seen by the Warden at all times, and remember, anything too young has to be thrown back!anything too young has to be thrown back!

Let Me Suggest Two Let Me Suggest Two OthersOthers

Aimed at Judicial Tyranny Aimed at Judicial Tyranny ProblemProblem

Revival of Impeachment Revival of Impeachment OptionOption

Republican Guaranty ClaimsRepublican Guaranty Claims

How does the FMPA Further How does the FMPA Further These?These?• Pre-empts a U.S. Supreme Court decision judicially Pre-empts a U.S. Supreme Court decision judicially

imposing “gay marriage”imposing “gay marriage”

““Marriage in the United States shall consist only of Marriage in the United States shall consist only of the union of a man and a woman.”the union of a man and a woman.”

• Bars activist state courts from doing the same at Bars activist state courts from doing the same at the state level.the state level.

““Neither this Constitution, nor the constitution of Neither this Constitution, nor the constitution of any State, shall be construed to require that any State, shall be construed to require that marriage or the legal incidents thereof be marriage or the legal incidents thereof be conferred upon any union other than the union of conferred upon any union other than the union of a man and a woman.” a man and a woman.”

What the FMPA What the FMPA DOES NOT DOES NOT do.do.• Does not prevent State Legislatures from Does not prevent State Legislatures from

conferring, for purposes of state law, actual conferring, for purposes of state law, actual marriage or the benefits of marriage on marriage or the benefits of marriage on same-sex relationships if, in the same-sex relationships if, in the legislature’s judgment, such benefits legislature’s judgment, such benefits advance the health, safety, welfare and advance the health, safety, welfare and morals of the people.morals of the people.

• In other words, the FMPA is pro-federalism, In other words, the FMPA is pro-federalism, under a proper understanding of federalism under a proper understanding of federalism that rights are reserved to the states that rights are reserved to the states or to or to the people.the people.

• Massive policy changes cannot be Massive policy changes cannot be compelled by the unelected courtscompelled by the unelected courts

Other Advantages of the Other Advantages of the FMPA ApproachFMPA Approach

• Not a Fundamental Right to Marry Not a Fundamental Right to Marry Whomever, or Whom-so-ever-many (or Whomever, or Whom-so-ever-many (or Whatever?) you wantWhatever?) you want– So no slippery slope into claims of “right” to So no slippery slope into claims of “right” to

“polyamory” or other deviant sexual “polyamory” or other deviant sexual practicespractices

• Restoration of the people’s primary role Restoration of the people’s primary role in determining questions of public in determining questions of public policy.policy.

• In other Words, FMPA advances the In other Words, FMPA advances the rights guaranteed rights guaranteed to the people to the people under under the Republican Guaranty Clause.the Republican Guaranty Clause.