Same Sex Marriages in Massachusetts

This is a partial transcript of "Special Report with Brit Hume", May 17, 2004 that has been edited for clarity.

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REV. IRENE MONROE, RELIGION COLUMNIST: You will now hear the justices of the peace say to us, I now pronounce you wife and wife, or husband and husband, or even spouse and spouse. But my favorite...


MONROE: But my favorite is this. I now pronounce you married.




BRIT HUME, HOST: The question tonight is how far-reaching what Massachusetts did today will prove to be? Will a gay couple married in Boston be recognized as married in Birmingham or Baltimore? If not, will the law that prevents that from happening be allowed to stand?

For answers we turn to our favorite law professor, Jonathan Turley of George Washington University.

A great many people are worried -- a great many people who oppose gay marriage are worried that now this is happening in Massachusetts, it will spread across the country. Why are they worried about that?

JONATHAN TURLEY, LAW PROFFESOR, GEO. WASH. UNIV.: Well, there's a reason to be worried. I mean this is really the battle royale that we've been talking about. All along, the most -- I should say, the shortest route to recognition of gay marriage is through a thing called a Full Faith and Credit Clause. This is a part of the Constitution most people are not familiar with.

HUME: We have actually a copy -- or at least the words of the Full Faith and Credit Clause. There it is on the screen now

"Full Faith and Credit shall be given in each state to the public acts, records and judicial proceedings of every other state." And then it goes on to say, "And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."

Now, the first part of it seems pretty clear. You've got a driver's license from Virginia; you can drive in Michigan, or somewhere else in the country. Does this mean natch -- I mean why should this not mean if you are married in Boston, it's good in Birmingham?

TURLEY: Well, there is a strong argument that -- that there should be Full Faith and Credit given to a marriage license. Traditionally, marriage licenses half fallen under this clause, they are recognized under this clause.

But there's also an exception recognized by many courts called a Public Policy Exception. And what that means is that Full Faith and Credit protects a state from another state forcing an issue of great public policy on them; forces them to change they are conclusion on an issue like gay marriage. And many scholars -- I happen to be one of them -- believe that the Full Faith and Credit Clause was never intended to allow one state to essentially dictate the public policies of 49 other states.

HUME: What does it mean when it says in the Full Faith and Credit Clause, that second part of it? " And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." What does that mean?

TURLEY: Well, that's actually more limited than it sounds. The Congress actually tried through a thing called DOMA, the Defense of Marriage Act, to rely on the clause to say that as a matter of federal law, one state cannot force another state to recognize same-sex marriage.

HUME: Now DOMA, that is now the law of the land.

TURLEY: It is.

HUME: It has not been addressed by the courts, is that correct?

TURLEY: It has not been fully addressed. That's correct. There is some question as to whether Congress has that authority.

HUME: Now in addition to Congress having passed this measure, saying that -- that no state can be forced to recognize a marriage performed in another state if it doesn't want to, a certain number of states; 38, I believe, ...

TURLEY: Thirty-eight, that's right.

HUME: Thirty-eight, have passed similar -- that means that most of country has an affect on -- on the state books, a law that says gay marriage recognized somewhere else doesn't apply in this state.

TURLEY: That's right. And I actually think that those state DOMAs, or what are called little DOMAs or baby DOMAs, are actually the more important of the two. The federal DOMA is an attempt to protect the state. But there's some debate as to Congress' authority to stipulate that.

But what the state DOMAs do is say this is a matter of public policy. We, as a state, reserve the right to define marriage, and we define it as between a man and a woman. And so those state DOMAs set up this Full Faith and Credit fight. That is, once the first license is brought to Florida, California, or another state, it will be denied. It will not be recognized. And then we will have a court fight.

HUME: And those are states, by the way, that you've been -- only a hand full of states, I believe it's: Connecticut, Massachusetts, New Jersey, New Mexico, New York, Oregon and Rhode Island. They're the only ones that don't -- you can see them on the map. The two larger states and a bunch of smaller ones in the East, including New York, not so small, they don't have DOMA laws. All the gold, rest of the country, does.

TURLEY: That's right. So if you take this license from Massachusetts and go to Florida, and you say we are now a married couple, it will be denied in Florida. And then there will be a court fight. And they will argue that under Full Faith and Credit that Florida must recognize that license.

But what Florida will say is this is a matter of great public policy. We have a state DOMA that stated what that policy is, and Massachusetts cannot force 49 other states essentially to become Massachusetts on this issue.

HUME: And one presumes this quickly gets into the federal courts and begins to work its way toward the Supreme Court.

TURLEY: That's right. And so what people have to recognize is that there's a couple parts of the Constitution that can ultimately recognize same-sex marriage. Full Faith and Credit is the fastest. The other one is the Equal Protection Clause, in which a federal court could conceivably someday say that as a matter of equal protection, it's unconstitutional to deny same-sex couples the title of marriage.

HUME: Well, that's essentially the reason the Florida Supreme Court - - I mean the Massachusetts Supreme Court used, right?

TURLEY: Yes. The difference is that the Massachusetts Supreme Court made the decision under state constitutional law.

HUME: Exactly. But it's the same sort of idea?

TURLEY: That's right.

HUME: It's an equal protection argument?

TURLEY: That's right.

HUME: But no federal court has gone that far anywhere in this country, has it?

TURLEY: That's absolutely right. And in fact, the U.S. Supreme Court seemed to go out of its way not to do that in the last major gay rights case.

HUME: So the thing to watch now is the Supreme Court on the various DOMAs?

TURLEY: That's absolutely right.

HUME: Jonathan Turley, always good to have you. Thank you.

TURLEY: Thanks, Brit.

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