SAME-SEX MARRIAGE; IF NOT NOW, WHEN?

Today, the United States Supreme Court (“SCOTUS”) released two opinions with far reaching social and economic effects. In United States v. Windsor, the Court found the Defense of Marriage Act (“DOMA”) to be unconstitutional. It reasoned that since the control of marriage is a function relegated to the states under the 10^th Amendment to our Constitution, and since New York State chose to protect the rights of same-sex couples to be married, DOMA unconstitutionally infringed upon “state’s rights,” as well as all other places under in which federal statutes and regulations would apply.  In Hollingsworth et al v. Perry et al, SCOTUS held that the private individuals who chose to challenge the federal district court’s overturn of California’s (so called) “Proposition 8,” limiting same-sex marriage in California did not have standing to appeal, thus indirectly affirming the lower court’s decision and allowing same sex marriage. These were two major, albeit incomplete victories.

Nowhere in either ruing did the Court hold that as a matter of principle, same-sex marriage must be recognized in every state, or even defining the LGBT community as a constitutionally protected class, thus providing the federal protections that other minority groups enjoy. Finally, since it was not presented to the Court, it did not decide the ultimate federalism question that will eventually have to be answered; is same-sex marriage protected under Article 4, Section 1 of the Constitution, commonly known as the “full faith and credit” section?

The U.S. Constitution states, in Article IV, Section 1, that “[f]ull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” This section is the reason why a heterosexual couple, married in one state, must have their marriage recognized in the other states, thus guaranteeing them their rights as a married couple, as well as the ability to divorce in those “other” states. If every state is required, under our Constitution, to accept the “public acts, records, and judicial proceedings” of every other state, and marriage clearly falls into that category, and same-sex marriage is now accepted by the federal government under Windsor, shouldn’t that mean that a same-sex couple, married in a state that recognizes such a marriage, must be accorded the same rights as any other married couple in every state? Shouldn’t now be the time?