The latest moves in the market for marriage law

When Hawaii, 15 years ago, looked like it was going to recognize same sex marriage, it also looked like the idea would sweep the country. Then the federal government and most states passed laws or constitutional amendments against it. At that point it looked like only the Supreme Court could give same sex couples the legal right to marry -- that the market for same sex marriage law was dead.

But same sex marriage is proving the dynamic nature of our federal system. All it takes to recognize a right is one state. Mobile parties can go to that state or contract for its law.  Then they can try to take their rights on the road, and challenge other states to either send them away or recognize the right. States can’t afford to send away either big firms or entire groups of people.

It worked that way for corporate law, as Erin O’Hara and I discuss in our Corporations and the Market for Law. And it’s unfolding that way for same sex marriage.

To summarize the state of play (also discussed in my most recent posts in my marriage archive):

• Massachusetts became the first state to recognize full-fledged same sex marriage. But out of state couples couldn’t use the law because of a century-old Massachusetts law restricting local marriages by out of state couples.
• Then California recognized same sex marriage. So NY couples had an incentive to settle in California.
• Then NY recognized out of state same sex marriage, thus giving same sex couples an incentive to come back to NY after they get married in California.
• Meanwhile, Massachusetts had an eye on those New Yorkers flying all the way to California. According to a story about all this in today’s NYT: "A June memo from the Massachusetts Office of Housing and Economic Development estimated that 21,000 gay couples from New York might go there to marry if the state allowed. That is about 43 percent of the estimated 49,000 same-sex couples in New York."
• Not surprisingly, Massachusetts, by a law signed Thursday, now lets out of state couples marry in Massachusetts instead of having to go to California.

Any bets on how long it will take for NY to allow same sex marriages to be performed in NY? When that happens, the marriages will be fully legal in NY, California and Massachusetts.

I've been writing on this subject for several years now, in this article (published in 2001 Illinois Law Review 561), and then in this 2005 article. Both articles anticipated the jurisdictional competition for couples that recently unfolded in California, NY and Massachusetts, and compared it to the corporate law competition that gave rise to liberalization of business association law. Now it's part of my forthcoming book (from Oxford) with Erin O’Hara on The Law Market.

I have always thought that the market for law was a better way of resolving contentious issues than trying to end the debate with a federal law. Those who thought that same sex marriage could not survive without federal constitutional protection were simply wrong, as we now know.

Of course many will argue that this right deserves to be recognized in every state. But these people have to confront those who think the right should be recognized nowhere (and who are just as wrong as those who want a federal law for same sex marriage). As I said in my 2005 article (footnotes omitted):

[T]he relevant question is whether the process is likely in the long run to disregard rights that deserve recognition. A decision invalidating laws against same sex marriage would leave many questions unanswered concerning potential differences between same sex and heterosexual relationships. Agnosticism is particularly important for family law, given the clash of normative views and the difficulty of getting reliable data. * * * Courts and legislators can observe the results, particularly as children grow up under different regimes. Evolution also permits the law to adapt incrementally to unpredictable future events and changing mores, provides feedback as to alternatives, and minimizes the cost of mistake compared to a Supreme Court decree.

In short, the 51-state (and worldwide, for that matter) market for law is the best way to work this out, and recent events are making this clearer than ever. 

Comments

[Pender]

This is a fine argument if you're willing to be consistent with respect to all rights-based arguments. Do you think that it was inappropriate or otherwise suboptimal that the legality of interracial marriage should have decided federally by the U.S. Supreme Court? Jim Crow? Slavery? It seems to me that all of your arguments apply equally as well there -- and yet most people would be repulsed by the notion that human rights violations like those should be allowed to continue to facilitate research and pluralistic harmony. Of course, you could try to draw a distinction by claiming that those things are true human rights, but marriage equality is not, but that's just begging the question. There's no way to dodge the question of what's a fundamental human right, I think; everyone believes in them to some extent, violations of them are non-negotiable evils that must be prevented wherever possible, and there is no objective, debate-free way to separate those things that are fundamental human rights from those things that aren't.