"I find your lack of full faith and credit disturbing"

Former Representative Gerry Studds (D-MA), the first openly-gay member of Congress who “came out” when he was censured for taking a 17-year-old male page abroad, plying him with alcohol, and sodomizing him, may have died last weekend, but he left us one final “gift” with his passing. From beyond the grave, he managed to bring up the issue of gay marriage yet again, with all the thorny legal and ethical and Constitutional questions that come with it.

Studds, after serving in Congress for 24 years, retired in 1997 and started collecting a pension. Then, in 2004, barely a week after gay marriage was legalized in his home state of Massachusetts, he married his longtime companion, Dean Hara. And then, this past weekend, he passed away.

That left a rather thorny question: as the spouse of a former member of Congress, could Hara collect Studds’ pension?

The answer was quite simple in coming: no.

There are exactly two circumstances under which a spouse can not collect on a government pension: if either is convicted of espionage or treason, or the spouse is the same sex as the deceased. (The latter clause is due to the Federal Defense Of Marriage Act, signed into law by President Bill Clinton on September 21, 1996.)

In the case of Studds’ spouse, it was a simple decision: there was a clear conflict between federal and state law, and under the Constitution’s Supremacy Clause, the federal law clearly takes precedence.

But it brought to light that sooner or later, there will be a similar case. For example, here is a very plausible scenario:

Roy Scherer is works for the state of New Hampshire, but lives in Massachusetts. He marries his longtime love, Arthur Kelm. At the age of 65, Scherer retires and chooses to take a lesser pension in exchange for “survivor’s benefits” for Kelm. The state of New Hampshire, which refuses to recognize Scherer and Kelm’s marriage, refuses. And Scherer takes the state to court.

The state says it’s simple: the benefits are strictly for legally married couples, and New Hampshire law specifies that marriage is strictly between a man and a woman. State law says that it won’t recognize that marriage, and will not give any recognition, benefit, or approval to a gay marriage.

Scherer’s lawyer has his own argument: the two men were legally married in Massachusetts, and under the Full Faith and Credit clause of the United States Constitution, New Hampshire has to recognize the validity of that marriage — despite existing laws.

At that point, the actions of four-sevenths of Massachusetts’ highest court are on the verge of making policy for all 50 states, and trumping the voters of many of those states who specifically passed laws outlawing gay marriage. The alternative could undermine the Full Faith and Credit clause, which is how one can legally drive in a different state, get married (or divorced) in Las Vegas, or a host of different things.

The issue of gay marriage is a tough one, and happens to be one I support. But I want it done right, by and with the approval of the people. The way Massachusetts did it — through the decision of four of the seven judges on their Supreme Judicial Court because the cowards in the legislature repeatedly refused to act on it and repeatedly killed moves to get it on a statewide ballot — is simply postponing and worsening the inevitable public debate and decision on the matter.

Thank you, former Congressman Studds, for showing just what a mess it can be. It is only fitting and just that your last “public service” should be such a divisive and messy one.

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