June 2003: Lawrence v. Texas

Foreign marriages and portability

2003 gets really interesting in June, when Belgium and some provinces of Canada begin marrying same-sex couples. Many American same-sex couples go across the border to get legally married, hoping to return home and have their marriages recognized by their own country some day.

By treaty, marriages are usually recognized by all other countries regardless of which country issued the license. This is an example of what’s called the portability of marriage: the ability of married people to travel from country to country and state to state and still be married. Most opposite-sex couples are unaware of this legal aspect of marriage and simply take it for granted. But it’s what allows an Iowa couple to fly to Fiji and get married, and return home to Iowa and still be married without having to get married again – and later, to move to California and still be married.

Treaty rights are trumped by social policy laws, however. So if a couple’s home country has a social policy law against recognizing their marriage, it won’t be portable. This is the situation that American same-sex couples find themselves in now: their Canadian marriages are not recognized in their home country because we have laws (DOMAs) that refuse to recognize them.

Privacy is more important than tradition

Also in June, the US Supreme Court strikes down (by a 6-to-3 margin) the last remaining sodomy laws in the US, in Lawrence v. Texas, thus guaranteeing a right of privacy to even gay people.

Although it doesn’t deal with marriage, Lawrence is significant in part because it overturned the Court’s own ruling in Bowers v. Hardwick from 17 years before. Justice Stevens wrote a dissenting opinion in Bowers saying that tradition does not outweigh privacy interests guaranteed by the Constitution. His language is revived now in Lawrence (and used by two later state courts when ruling about marriage):

[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.

But one of the justices strongly disagrees…

Timeline key: progress (green), no progress (red), pending court cases (purple),
events that are neutral, not directly related, or with both positive and negative effects (black)