By William C. Duncan
Published at NationalReview.com.
Extending constitutional protection to traditional marriage is hardly a narrow partisan affair.
Beyond their practical effects, the very fact that 30 states have amended their constitutions to protect the definition of marriage in just over a decade is remarkable.
This week, Arizona, California, and Florida joined the 27 states with existing marriage amendments. The most interesting campaign was in California where voter approval of Proposition 8 reversed a May decision of the California Supreme Court. That decision had purported to discover a previously unknown mandate to redefine marriage as the union of any two people in that state’s constitution.
The Florida amendment had faced a difficult hurdle because it needed the support of 60 percent of voters for approval. Despite a much lower-profile campaign than California’s Prop 8, Florida’s Amendment 2 managed to garner 62 percent of the popular vote.
Voters in Arizona had narrowly defeated a proposed marriage amendment in 2006. That amendment had included a prohibition on marriage-equivalent statuses and the campaign against it seemed to have convinced voters that existing benefits for cohabiting couples were at risk. This time, the amendment (Proposition 102) merely defined marriage and was soundly approved.
Two practical benefits of the amendments are obvious. First, they will prevent (or, as in California, reverse) judicial decisions redefining marriage. Second, they make absolutely clear that the enacting state will not recognize a same-sex marriage from another state.
This second effect is becoming increasingly important. The recent repeal of Massachusetts’ residence requirement for same-sex marriage and the impending issuance of marriage licenses to same-sex couples in Connecticut mean that couples from other states can go to either of these to marry before returning home to seek recognition.
Typically, a state will recognize a marriage valid in another state even if it could not have been contracted in the recognizing state. There is an important historical exception, however, for marriages that violate that state’s laws — against incest and polygamy, for example. The marriage amendments certainly preclude any question as to what a state’s public policy on same-sex marriages is.
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