---

Full Faith and Credulous
...If Massachusetts legalizes gay marriage, the argument goes, the floodgates are open. Other states will have no recourse under the "full faith and credit" clause of the Constitution except to recognize Massachusetts marriages, such that one renegade state—led by a slim majority of four activist judges—will have foisted Adam and Steve's wedding registry upon an entire nation. The conservative response is equally extreme. Anti-gay activists have hastened to stir up voters, urging passage of a constitutional amendment that would obviate the possibility of such unions anywhere in the country....

...The way to avoid that fight is to make it constitutional, say the conservatives, by amending that document. This solution ignores one legal truth and one political truth: The legal truth is that conservatives never needed DOMA in the first place—hysterical posturing notwithstanding, it's by no means a given that other states would be forced to recognize Massachusetts marriages. For one thing, there is an established trapdoor to the full faith and credit clause: The courts have long held that no state should be forced to recognize a marriage sanctioned by another state if that marriage offends a deeply held public policy of the second state. States have been permitted to refuse to recognize marriages from states with different policies toward polygamy, miscegenation, or consanguinity for decades. At this point, 39 states have passed mini-state-sized DOMAs that proscribe marriage for gay couples, often elaborately saying that it violates their public policy. This strongly suggests that the public policy exemption would be triggered, and states would be free to choose for themselves whether to sanction gay marriages. At the very least it would make sense for the courts to rule on the constitutionality of DOMA and full faith and credit before amending the Constitution for only the 28th time in history....

...So what is the downside of letting Massachusetts set its own rules and letting the courts chew over the whole mess for a few years? A lack of uniformity. For a while, we'd have a crazy quilt of policies across the country, with some states permitting gay marriage and others banning it. So what? A lack of uniformity is the norm where marriage law is concerned. The only other negative, to the minds of the far right, is that some Americans might be allowed to live in states that accord them the right to marry.

We call that "federalism."...