NY’s decision to fully legalize same sex marriage (here’s a useful news roundup) can be seen among many other things as a demonstration of legal evolution in our federal system.
For some background on marriage and the market for law see Buckley and Ribstein (published 2001 Illinois Law Review 561), Ribstein 2005, and O’Hara & Ribstein, Chapter 8. The 2001 and 2005 articles anticipated the state law competition that unfolded at a time when the once-promising same sex marriage movement was floundering.
Three years ago I summarized the state of play, noting the ups and downs in the marriage law market. Fifteen years ago Hawaii looked like it was going to lead the nation. This spurred federal DOMA and the state DOMAs. But these developments left the “market” intact in any state that had not rejected same sex marriage, and therefore an opening for the same sort of evolution of choice of law as happened with corporate law.
Indeed, the market did develop. First Massachusetts, then California. This put pressure on NY, which actually adopted same sex marriage by gubernatorial decree in 2008 recognizing the validity of out of state same sex marriages. Then Massachusetts, with an eye on the lucrative market for marriage ceremonies, decided to let out of state couples marry in Massachusetts. At that point I asked “Any bets on how long it will take for NY to allow same sex marriages to be performed in NY? When that happens, the marriages will be fully legal in NY, California and Massachusetts.”
Then Connecticut went for same sex marriage via court decision. I said at the time, “this move by the state located between NY (which recently recognized out-of-state same sex marriages) and Massachusetts, and next to Vermont (which has quasi-same-sex-marriage), was predictable.”
As I said just before the 2008 election, when things seemed to be looking pretty good for same sex marriage:
Those favoring a particular legal regime can further their interests not just by lobbying a particular legislature, but also by “shopping” for law in other jurisdictions, including by getting married in the relevant state. These other jurisdictions have an incentive to supply law to attract residents, ceremonies, legal work. Even non-supplier jurisdictions have an incentive to enforce the foreign law because the “shoppers” (including affluent and productive same sex couples) can avoid non-recognizing states. We’ve seen this competition play out, among other areas, in corporations and commercial contracts, and it is happening in Europe as well as the US.
But then, as we know, Prop 8 happened, and the legal aftermath. The 2008 election was generally bad for same sex marriage, as significant Obama constituencies voted against it. (There’s no mystery why he’s still dithering on the issue.)
Although the NY decision may end up being a watershed, all indications for the future aren’t necessarily favorable for same sex marriage. Even NY couples aren’t so much better off than they were the day before yesterday. Basically what’s changed is they can get married at home rather than in Greenwich, benefiting NY caterers and hotels (which as just indicated may have figured in the political decision). But their marriages still may not be enforceable in 45 jurisdictions. Priests, ministers and rabbis don’t have to marry the couples (and this religious exemption might end up triggering invalidation of the NY law).
There is an increasingly strong temptation to clear up the legal chaos confronting same sex couples, added to the moral and philosophical reasons for legalizing same sex marriage. Moreover, NY’s recognition of same sex marriage is likely to register in public opinion which will directly affect Congress and perhaps even the Court.
On the other hand, as I said in my 2005 article (footnotes omitted):
[T]he relevant question is whether the process is likely in the long run to disregard rights that deserve recognition. A decision invalidating laws against same sex marriage would leave many questions unanswered concerning potential differences between same sex and heterosexual relationships. Agnosticism is particularly important for family law, given the clash of normative views and the difficulty of getting reliable data. * * * Courts and legislators can observe the results, particularly as children grow up under different regimes. Evolution also permits the law to adapt incrementally to unpredictable future events and changing mores, provides feedback as to alternatives, and minimizes the cost of mistake compared to a Supreme Court decree.
So what should happen now? About half of the country is still opposed even after having been exposed to it in the media and their daily lives. Many (particularly African-Americans) believe that recognition of same sex marriage would weaken marriage, which is still a valuable institution. On the other hand, same sex couples have increasing state law options, including but not limited to marriage, for supporting their relationships. On the third hand, their situations are far from ideal.
I personally favor same sex marriage and would vote for it whenever I have the opportunity. The plight of same sex couples registers more heavily with me than the more abstract objections that many have to same sex marriage. But, believe it or not, I don’t have a bottom line. I just have the observation that the market for law should have something to do with it.
