By Steve Sanders, who teaches Sexuality and the Law, Family Law, and Constitutional Litigation at the University of Michigan Law School.
Rick Santorum, the former Pennsylvania senator who currently sits near the top of the Republican presidential field, raised eyebrows over the weekend for comments to NBC’s Chuck Todd on same-sex marriage. It’s old news, of course, that Santorum opposes such marriages (he has compared them to child abuse and bestiality). What was noteworthy about these latest comments was Santorum’s casual observation that, under the sort of federal ban he supports, not only could new marriages not be performed, but all existing same-sex marriages would be nullified.
This comment largely disappeared into the rivers of hype and frivolousness coming out of this year’s Iowa caucuses. Nonetheless, it gives us the opportunity to think seriously about the difference between marriage creation and marriage nullification, and whether they differ as matters of civil rights and liberties. I address this topic in a forthcoming article in the Michigan Law Review titled, “The Constitutional Right to (Keep Your) Same-Sex Marriage.”
If a federal constitutional ban on same-sex marriage were approved, Santorum was asked, “What would you do with same-sex couples who got married? Would you make them get divorced?” He replied, “Well, their marriage would be invalid. I think if the Constitution says ‘marriages are this,’ then people whose marriage is not consistent with the constitution….” At that point, he literally shrugged. (See the video here.)
Granted, Rick Santorum is no one’s constitutional scholar. Still, it is stunning when someone who is being taken seriously as a presidential candidate (at least for this week) literally shrugs at the idea that the federal government might unilaterally void more than 130,000 perfectly legal marriages. After all, as a federal court observed in 1949, the “policy of the civilized world, is to sustain marriages, not to upset them.” Imagine the indignities and the hellish disruptions to lives, children, and property rights that Santorum’s policy would create.
Then, ponder the fact that right now we have laws in a majority of states that do pretty much the same thing.