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Evan Wolfson: ANALYSIS: How will same-sex couples legally married in Massachusetts, Canada, or elsewhere be treated?

Freedom to Marry
May 20, 2004

We Americans don't think of marriage certificates as being like tickets that need to be validated before leaving the parking lot at the shopping mall, or like passports we have to get stamped when we cross an international border. Once a couple is married, they're married, and they live their lives as what they are—a legally married couple—regardless of where they held their wedding and regardless of where they live or travel.

Currently, only 26 states allow first-cousins to marry each other. But do those married first-cousins worry about whether their marriage is "recognized" if they move to or visit one of the 24 states that don't allow first-cousin marriages? Nope. Their marriages are considered marriages regardless of where they live or travel; no one today thinks the reasons to discriminate against their marriages outweigh the logic of respecting their families and marital status.

This cooperation between states is called "comity," and it is a result of states realizing—on a voluntary, rational, thinking-it-out basis—that there are simply better and more valuable reasons for honoring people's marriages than there are for destabilizing them.

It's common sense: We don't want couples to have to worry if they're married or not depending on where they are. We don't want kids to worry whether their parents are still married when they go on vacation. And we don't want banks and businesses to wonder whether their contracts are still good if their customers have crossed a border.

For more than 200 years of American history, states have taken these sound policy reasons for honoring marriages and made them into a general principle of law—a marriage that is valid where celebrated will generally be honored elsewhere, even in a place that would not itself have performed the marriage.

Even in the era of interracial marriage bans, when many states made it illegal to marry someone of the "wrong" race, they still almost always honored those marriages performed elsewhere. Even states (like the Lovings' Virginia) that made it a crime to perform such marriages or to engage in such a marriage in their state—the harshest form of legal disapproval—generally understood that when married couples were traveling from one state to another or were moving from one part of the country to another, their marriages should be left intact.

Battles over marriage and divorce in the past show us the historical pattern for what is to come. For a period of time, there will be a patchwork. Some states will honor the marriages between gay or lesbian couples because it makes no sense to sunder them and is wrong to treat one group of Americans' marriages differently from all others. Equally predictably, for a time other states—the resisters—will succumb to the right-wing crusade to reinforce their existing anti-gay laws and the denial of any protections or support to gay families. The anti-gay campaign formally underway since 1996 will continue its drive to make America a "house divided" in pursuit of these groups' own "culture war" agenda and political purposes. Employers, businesses, officials, and courts will grapple with the new reality of married couples standing before them, and some will find themselves constrained by discriminatory laws to deny these families, while others will find a way to do the right thing. The federal government, because of the so-called "Defense of Marriage Act," will, for a time, discriminate—second-class marriages for second-class citizens.

There will be litigation—though for every case in court there will be thousands of other day-to-day moments in which gay married couples and their kids encounter a mix of respect, discrimination, and uncertainty from the institutions and neighbors they deal with. Some of the discrimination and refusal to honor the marriages will be ugly, painful, and injurious; people will lose their jobs, face deportation, be denied health coverage, and more.

To guide same-sex couples in making decisions about how to deal with this discrimination, all of the leading lesbian and gay legal groups—Lambda Legal, GLAD, the National Center for Lesbian Rights, and the ACLU Lesbian/Gay Rights Project—have prepared advisories and Q&A's, which can be found on Freedom to Marry's website.

But faced with real, live, and legally married couples and their kids, more and more people, even recalcitrant states, and eventually the federal government will over time generally tend toward honoring these marriages. And the law will change, as the reality that ending marriage discrimination helps families and harms no one continues to sink in, and as more and more Americans in more and more states are touched, once again, by the better angels of their nature.

Never before in all this country's history of civil rights battles over marriage, never before amid all the discrepancies from state to state over who can marry whom and whether to permit divorce, never before has a president proposed to rewrite the federal Constitution so as to end the discussion or take the decision away from the states, lawmakers, and the courts. Bad as it is to force families to deal with a mix of respect, discrimination, and uncertainty such as inheres in a patchwork period, it would be worse to deprive states, our nation, and future generations of the chance to make thoughtful decisions about marriage equality.

America is one country, not fifty separate kingdoms. If you're married, you're married. Common sense.

Excerpted from Evan Wolfson's book "Why Marriage Matters: America, Equality, and Gay People's Right to Marry" (Simon & Schuster, July 2004)