In the Public Square: Responsible Voices on Family Issues
Oklahoma Adoption Case Provides Warning for Legalizing Same-Sex Marriage
by William C. Duncan
Whenever legislators have the chance to enact legislation or constitutional amendments to preserve the definition of marriage as the union of a man and a woman, a typical objection from opponents is that such measures are unnecessary. These opponents suggest that a state or federal court would never mandate a new definition of marriage so a state amendment or the Federal Marriage Protection Amendment is not something on which government leaders need to spend time. At the same time, may of these opponents are seeking the very result they disavow by bringing lawsuits challenging the definition of marriage.
As the United States Senate nears a vote on the proposed Marriage Protection Amendment, we can expect to hear more accusations that the amendment is unnecessary and mean-spirited. This year, however, we should also pay attention to some important developments that show just the opposite—that some courts have already laid the framework for a redefinition of marriage not just in one state, but potentially in many.
The most recent development is in a case that doesn’t address marriage at all. In mid May, a federal district court in Oklahoma struck down a state law that prevented Oklahoma from recognizing adoptions by same-sex couples secured outside the state. Parts of the opinion were not controversial (such as the ruling that the law did not infringe anyone’s right to travel) and others less so. In the midst of the decision was an important point, the implication of which could be dramatic if not reversed on appeal.
The court held that the adoption law was targeted at same-sex couples and created a unique disadvantage for them. The disadvantage, according to the court, was that same-sex couples were being denied access to government. The court argued that by not recognizing adoptions secured by same-sex couples in other states, the state was keeping same-sex couples from seeking state assistance to secure recognition of legal relationships established in other states.
The implications of this kind of an argument for marriage are simple. Right now, only Massachusetts has redefined marriage. The effect of that decision has largely been limited to the state because Massachusetts’ law prohibits couples coming to the state to avoid the marriage laws of their home state. There are, however, cases pending in at least seven other states that seek a redefinition of marriage. These states do not have the same residency requirement as Massachusetts, so if they begin issuing marriage licenses to same-sex couples, there is no reason couples from many states will not come to that state to get married before returning home and seeking recognition of the marriage.
Under the logic of the Oklahoma adoption decision, couldn’t a court rule that a state that prevents such recognition has denied the couple of access to government by not allowing them to use the government to enforce the legal status they established in another state. This argument might sound far-fetched, but we now know at least one court is inclined to find it persuasive.
With the legal argumentation in place to support a radical redefinition of marriage, we should not be fooled by the arguments of those who will suggest that things are just fine and we have no need to worry. Marriage is vulnerable and its defenders should be wary.
Mr. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org)
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