CANADIAN COURT DECISION: David Frum

...From an American point of view, however, what may be most remarkable about the Canadian debate has been its disingenuousness. I've been participating in this argument since the late 1980s. At every step along the way, it was obvious what the next step was--and what the ultimate destination would be. At every step along the way, proponents of same-sex marriage passionately denied that the next step was coming--or was even contemplated.

That same spirit of disingenuousness has now crossed the border. Take a look at Andrew Sullivan's blog this morning. He has an item affirming his support for a "federal" approach to same-sex marriage. He even links to a story about two Massachusetts women who were married in Massachusetts and then moved to North Carolina where their marriage was not recognized. Andrew describes this as an example of the system working. But either he's kidding himself or he's kidding his readers.

Here’s how "federalism" on the marriage question really "works": Two Vermont women, Lisa and Janet, entered a civil union. One became pregnant. The relationship ended. The mother and child moved out of state to Virginia--a state that does not recognize civil unions. The non-custodial women sued for visitation rights in Virginia and lost. So she sued in Vermont and on November 20 won a custody order from a Vermont court. If the birth mother ignores the order, Vermont will hold her in contempt--and will then demand that Virginia enforce the contempt ruling.

Result: Either Virginia must accept the validity of a marriage that flagrantly violates the public policy of the Commonwealth--or else it ignores a facially valid custody order and violates the public policy of the United States in favor of comity between state courts. To put it more bluntly: the "federalist" approach to marriage will destroy either federalism (as states ignore each other’s judicial orders) or else it will destroy marriage (as individuals using their freedom of movement carry same-sex marriages with them into states that do not wish to recognize them).

And just as a footnote: I did a quick google search this morning and discovered that none of the self-described proponents of federalism have taken Virginia's side in the custody matter. No surprise there: For the advocates of same-sex marriage, federalism is a tactic, not a principle. It will be discarded as soon as it ceases to serve its purposes.

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posted by Eve at 6:09 PM VOTE

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