Private: Santorum, Same-Sex Marriage Nullification, and the Constitution

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. 

Forty-one states maintain mini Defense of Marriage Acts, or “mini-DOMAs.” The vast majority of these mini-DOMAs not only forbid creation of same-sex marriages, their plain language also would void or deny recognition to the marriages of couples who migrate from states where such marriages are legal. And so if Helen and Jenny live and marry in Iowa (where same-sex marriage is legal), then later move to Indiana (where such marriages are “void”), their marriage effectively disappears. So long as Helen and Jenny live in Indiana, the law regards them as legal strangers to each other. 

In my forthcoming article, I argue that when mini-DOMAs have this effect, they violate the Fourteenth Amendment’s Due Process Clause. Specifically, I suggest that an individual who legally marries in her state of domicile, then migrates to another state, has a significant constitutionally protected liberty interest in the ongoing existence of her marriage. 

This is not such a radical idea. After all, the law favors stability in legal relationships, vindication of justified expectations, and preventing the casual evasion of legal duties and responsibilities. Accordingly, every state adheres in some form to the common-law rule that a marriage, once validly created, should be recognized everywhere. Mini-DOMAs — most of them enacted in the last 15 years as political backlash against same-sex marriage — are a stark departure from this rule. 

The right of marriage recognition I propose is conceptually and doctrinally distinguishable from the constitutional “right to marry.” It is rooted in core Due Process Clause values: vindication of reasonable expectations and reliance interests; protection of marital and family privacy; respect for established legal and social practices (of which interstate marriage recognition is one); and rejection of the idea that government can use its coercive power to sever a legal family relationship or alter a legal status merely by operation of law.

Obviously Santorum is OK (*shrug*) with such coercive government power invading the lives of tens of thousands of gay and lesbian couples. I won’t attempt here to apply my theory to his proposal, which would require tangling with the question of whether one part of the Constitution (a federal marriage ban) could be trumped by another part (the Due Process Clause, Fifth Amendment version). Suffice it to say that support for a federal marriage ban has dried up as “[p]ublic acceptance of same-sex marriage has grown at an accelerating pace.”  Several credible polls in the last year have found majority support for marriage equality. 

We may not know for several more months whether the Supreme Court will be asked, and will agree, to decide whether the constitutional “right to marry” includes same-sex couples. In the meantime, Santorum has reminded us that marriage equality is not just an issue for gays and lesbians who aspire to be married. It is also an issue for tens of thousands of same-sex couples whose existing marriages lack the protection and security that virtually all heterosexual married couples take for granted.

Civil rights, Constitutional Interpretation, Equality and Liberty, Individual liberties, LGBTQ Equality, Supreme Court