A Throwback to the Future

Patience is one of the most challenging virtues. As marriage equality finds its home in state after state after various federal courts strike down exclusion laws passed amid political panic in the wake of Lawrence v. Texas, what seems a straightforward issue has observers on the edges of their seats.

Meanwhile, how about a throwback, just for nostalgia’s sake? You know, all of ten days.

That is to say, in the wake of the Supreme Court’s refusal to hear heterosupremacist appeals earlier this month, Steve Delchin, writing for the Sixth Circuit Appellate Blog maintained by the D.C. law firm Squire Patton Boggs, looked ahead to what is supposed to be a bated-breath decision coming from the Sixth Circuit sometime before winter arrives:

Some media outlets are calling today’s cert denials a surprise given the high-profile issue involved. But the denials are not really unexpected when you consider there has been little disagreement among lower courts over whether same-sex marriage bans are constitutional. Perhaps the Court is waiting for a split to emerge (as we predicted in prior posts and media comments). All eyes are therefore on the Sixth Circuit’s forthcoming decisions to see whether they will be in line with other courts or whether the Sixth Circuit will blaze a different path. We will continue to keep close watch.

Alaska, Losing

Perhaps the biggest mystery of the recent judicial avalanche in favor of marriage equality is the absence of Article IV in what are clearly Article IV cases. Consider Hamby v. Parnell, a case striking Alaska’s marriage ban.

Perhaps it is the lack of an Article IV claim, as opposed to Judge Heyburn’s decision in Kentucky that intentionally bypassed the Full Faith and Credit Clause of Article IV. Still, though, Judge Timothy M. Burgess, appointed to the District of Alaska by President George W. Bush, finds his way through to strike the ban according to Due Process and Equal Protection under Amendment XIV. Still, though, in a case in which four couples are demanding their marriages from other states be recognized in Alaska, it would seem Full Faith and Credit should be a glaring issue.

To take an example, my father has been married twice, once each to different women. In his first marriage, the couple lived in three different states and a foreign country over the years. They never had to remarry in any of those jurisdictions; the Washington state marriage was sufficient, an act and record of one state recognized in another. In his second marriage, the couple has lived in two states and spent an extended period in Mexico. They did not have to remarry in any other jurisdiction; their Oregon marriage sufficed for other states and, indeed, other countries. This, ultimately, is what is at stake. Perhaps Article IV won’t come into it until a state refuses another state’s marital record in order to force the couple to repeat the ceremony and pay out for licensing in the new state.

The bottom line, however, is that another state’s marriage ban has collapsed under constitutional weight. This much, at least, is hardly mysterious.

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Burgess, Timothy S. “Order”. Hamby v. Parnell. United States District Court for the District of Alaska. 12 October 2014.