Monday, December 20, 2004
Has anyone else been following David Frum's argument that Federalism can't work for same-sex marriage, or civil unions, or whatnot? Because I have, and I don't get it.
To catch people up, here's the original article about the case that prompted Frum's comments here, which in turn prompted Walter Olson's correction here, and Frum's contention that his argument still stands in the abstract, even if it's not as applicable as he thought to this case in particular, here.
So, anyway, here's what I don't understand: what is special about same-sex marriage in this regard?
Doesn't varying divorce law present the same problems? If one state requires a finding of fault to win a suit for divorce, while another offers quickie divorces with no fault after a two-week visit to establish residency, does that mean divorce law must be nationalized?
Or adoption law. Suppose one state permits gay adoption and another does not, and a gay couple with an adopted child moved from the first state to the second. Does this present issues that imply that adoption law must be nationalized?
Or surrogate parenthood law. Suppose one state forbids contracts for surrogacy while another permits them. A contract is signed in the second state, and then, after the birth and after money has changed hands but before any formal adoption process is completed, the birth mother flees to the first state with the baby, leaving the intended adoptive mother high and dry. Does this possibility mean that law regarding surrogacy must be nationalized?
In the case of the lesbian couple, isn't there a simple clear solution? If the custody question was originally decided in Vermont, Virginia could decide to enforce Vermont's judgement - just as they might if a quirky Vermont judge decided to grant visitation rights to grandma after she had a falling out with her daughter. If the custody question was originally decided in Virginia, presumably the court would find, in accordance with Virginia law, that the Vermont-ordained civil union had no status, and therefore the only parent under Virginia law is the woman who bore the child, who would be granted sole custody. Each state could agree not to allow another state's judgement to be second-guessed, just as states with restrictive divorce laws recognized Reno divorces back in the 1950s. I'm at a loss to see why this wouldn't work, or would "require" Virginia or Vermont to violate their own laws.
Am I missing something?