Surprise - GWB doesn't understand the law

President Bush warned on Feb. 24, there is a grave risk that "every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage."

The president invoked the Constitution's "full faith and credit" clause, which requires states to honor court judgments from other states, as the basis for his alarm.

But legal scholars say that an examination of the last wrenching national debate over the definition of marriage — when, only 50 years ago, a majority of states banned interracial marriages — demonstrates that the president misunderstood the legal terrain.

"No state has ever been required by the full faith and credit clause to recognize any marriage they didn't want to," said Andrew Koppelman, a law professor at Northwestern University and the author of "The Gay Rights Question in Contemporary American Law."

In 1967, when the United States Supreme Court struck down all bans on interracial marriage, it acted on the most fundamental constitutional grounds, saying that the laws violated both due process and equal protection.

What is notable about the 1967 decision for the gay marriage debate, then, is that it did not mention the full faith and credit clause. Although the case involved a Virginia couple prosecuted for violating that state's ban on interracial marriage by visiting the District of Columbia, which allowed such marriages, the Supreme Court did not suggest that Virginia was obligated to recognize the marriage.

To the contrary, the decision affirmed that marriages are generally a matter to be left to the individual states. That is consistent with hundreds of decisions over centuries, based on state rather than federal law, that allowed states to decline to recognize marriages that violated their own strong public policies.