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The full faith and credit clause of the U.S. Constitution was designed to avoid the potential absurdities and uncertainties, by requiring the states to credit the “public acts, records, and judicial proceedings of every other state.” Before DOMA, states mostly went along with this sensible uniformity.
But there is historical precedent for one state strongly objecting to a sister state’s marriage laws. States that forbade interracial marriages often refused to recognize such marriages from other states. That lasted until the Supreme Court declared all bans on such unions unconstitutional in 1967, in Loving v. Virginia.
It’s safe to say that Pennsylvania won’t be citing the interracial marriage bans to justify its declaration that Palladino and Barker’s marriage is void. But what will Gov. Corbett say? What public policy can he invoke? It’s hard to imagine how the governor can come up with a rationale that’s any better than the justifications for DOMA that the Supreme Court rejected as legislative gay-bashing. In 2013, simple dislike or disapproval of gay and lesbian couples isn’t good enough, legally speaking.
If Palladino and Barker win, and Pennsylvania has to recognize their marriage, the state still won’t have to authorize its own same-sex weddings. But that will soon become a distinction without a difference. Pennsylvania couples can plan their destination weddings in all of New England, New York, Delaware, Maryland, and D.C.—and head home knowing that their marriages are also legal and binding in the state of Pennsylvania. And once this strategy catches on around the country, we’ll have gay couples living with the same rights and protections as straight couples everywhere—even if some states continue to pretend otherwise.
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shaun james bockert 