THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Wednesday, September 11, 1996 TAG: 9609110445
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY MATTHEW BOWERS, STAFF WRITER
LENGTH: 100 lines
The prospect that same-sex marriages could be legalized in Hawaii delights some people in Virginia, just as it dismays many others.
The reason that a possible change in the laws of a state five time zones away interests Virginians is found in Article IV, Section 1 of the U. S. Constitution, known as the ``Full Faith and Credit Clause.'' It says in part that states must recognize the judicial decrees of the other 49 states.
This includes marriage, which is a legal status. It's why a couple lawfully married in Maryland is still considered married if they move to Virginia or anywhere else in the United States.
If renewed legal proceedings that began Tuesday do indeed lead Hawaii to become the first state to rule that homosexual marriages are legal, people for and against such unions argue that the Full Faith and Credit Clause will force other states to recognize such marriages, like them or not.
That's not necessarily so in Virginia, state legal experts say.
Virginia long has had a ``public policy'' exception to following other states' legal rulings. It's a murky area, but outside laws deemed to violate what Virginia called its public interests have been ignored before, or followed only in part.
``I don't think a lot is going to happen in Virginia,'' said Neal Devins, a professor at the William and Mary Law School in Williamsburg. Many legal experts have said they expect Hawaii to eventually approve such marriages.
Hawaii's Supreme Court declared unconstitutional three years ago the state's ban on gay marriages unless the government can show a compelling state interest in retaining the ban. That ``compelling state interest'' argument took a hit this spring when state lawmakers failed to pass a law prohibiting such marriages.
In its 1993 ruling, the state Supreme Court said to use its new ``compelling state interest'' standard when it sent back for a new trial the cases of three homosexual couples - one male and two female - who sued the state after being denied marriage licenses. This new trial began Tuesday and is expected to last two weeks. No matter who prevails, appeals - to the same Supreme Court - are likely.
The case has created a social, religious and political furor across the United States. Sixteen states this year have passed laws to refuse recognizing same-sex marriages performed elsewhere, while 18 other states rejected such laws. A similar bill proposed in Virginia this year was quickly withdrawn before being considered.
Congress also acted, with the House of Representatives in July approving the ``Defense of Marriage Act,'' which would define marriages as being between only men and women, and would deny federal recognition of gay marriages and allow states not to recognize such marriages licensed in other states. The U. S. Senate on Tuesday passed the bill. President Clinton has said he will sign it.
Under Virginia law, marriage between persons of the same sex is prohibited. Until 1968, so were marriages between African Americans and Caucasians, even though most other states had long abolished their miscegenation statutes.
``You have to recognize a judicial decree, but it's not so clear that you have to recognize a marriage if it offends a state's strong public policy,'' said Walter J. Wadlington, a family-law professor at the University of Virginia in Charlottesville.
Keeping the races separate was the public policy of Virginia then. The country's miscegenation laws were overturned in 1967 by the U. S. Supreme Court, which deemed they violated the Equal Protection Clause of the Constitution.
In that case, a Virginia couple of different races went to marry in Washington, where it was legal, and returned to Virginia, where their marriage wasn't recognized, and in fact was a felony.
``The fact of it is, some states would probably recognize Hawaii's same-sex marriages, and some would not,'' Wadlington said. ``Whatever happens, it's going to produce litigation in a lot of states.''
Most legal experts say the Constitution doesn't require allowing same-sex marriages, but it certainly doesn't forbid them, Wadlington said.
Historically, states sometimes recognized otherwise illegal marriages for limited purposes. Virginia, for instance, would treat a spouse in a mixed-race marriage as the legal widow for probate purposes, if the property was here and she lived in a state where the marriage was valid.
Proponents of homosexual marriages say they want, aside from public affirmation of their relationships, the same legal benefits as heterosexual couples, from lower taxes to receiving insurance and pension benefits to being able to see each other in hospitals that restrict visitors to family.
If nothing else, same-sex marriage laws passed elsewhere will have a symbolic effect and increase the pressure in Virginia for such laws, William and Mary's Devins said. But considering Congress' quick efforts to oppose such marriages, the professor didn't expect things to change any time soon.
``I think it's a testament to the fact that we're not at a point in our culture . . . where we're willing to recognize same-sex marriages,'' Devins said.
Patrick W. Heck, legislative coordinator for Virginians for Justice - a statewide lobbying group seeking equal rights for homosexuals - agreed that passage of a same-sex marriage law doesn't mean automatic changes elsewhere in the country, particularly Virginia.
``Courts have an amazing capacity to rationalize their homophobia,'' he said.
Heck added that he expected many years and many court cases to pass before the issue was settled in Virginia. He said he worried that in the meantime it would detract attention from other issues important to the gay community, such as equal opportunities in employment and child custody, and the repeal of sodomy laws. MEMO: The Associated Press contributed to this report.
KEYWORDS: HOMOSEXUALS SAME-SEX MARRIAGES by CNB