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been a particular embarrassment to FMA

riage ruling, as in Massachusetts, would likely

supporters.

be based on the state, not the federal, consti-

Even if and when individual states recog-

tution. The immediate legal effect of the deci-

nize same-sex marriages, while other states

sion would be confined to the state itself.

refuse to recognize them, there is no reason

Could a pro-gay-marriage ruling in a state

to believe these discordant approaches will

affect the outcomes of such litigation in other

create insurmountable legal or public policy

states by influencing other state counts' sub-

problems. There is no uniform national fam-

stantive interpretations of their own constitu-

tions?21 Certainly such a ruling would not bind

ily law, just as there is no uniform national

property law or criminal code. Throughout

other states' interpretations of their own state

the nation's history, states have adopted their

constitutions. Although courts in sister states

own family law policies, including their own

might regard the pro-gay-marriage ruling as

requirements for marriage. These divergent

persuasive authority in the interpretation of

policies have not created intolerable levels of

their own state constitutions, they would also

confusion or conflict among the states.

have a much larger body of contrary authority

There is no reason to believe that the diffi-

from other states to follow. The lone state or

culties that may occasionally arise from

few states to recognize same-sex marriages will

There is no

diverse state policies on same-sex marriage will

hold the minority view for a very long time. As

uniform national

be any more intractable for state courts and

noted above, judges in most state courts are

other officials than they have been for other

both accountable to the state's voters and

family law, just

diverse family and marriage law policies. The

reversible by democratic processes. Both of

as there is no

existence of same-sex marriages will call for

those factors will likely make them reluctant,

uniform national

courts in sister states to respect the particular

as they historically have been, to impose gay

judgments of other state courts, as in child

marriage even in their jurisdictions. As dis-

property law or

custody and property disputes between same-

cussed above, very few state trial courts have

criminal code.

sex partners who divorce. But that does not

followed the lead of Massachusetts; most state

mean that same-sex marriage will spread from

courts have rejected challenges to state mar-

state to state; it merely ensures legal regularity

riage laws since Goodridge.

and predictability with respect to particular

The threat of "lawlessness" on the part of

disputes between spouses.

local officials is even more remote. In each of

Although respecting the power of the

the few locales where same-sex marriages

states to determine their own policies on

were performed in February and March 2004,

matters as fundamental as property, crimi-

those marriages were soon halted by the offi-

nal, and family law means there is a lack of

cials themselves, by higher state officials, or

uniformity in these areas, the corresponding

by state courts. Although more than 4,000

benefits of state experimentation and local

same-sex marriages were performed in San

control have always been regarded as over-

Francisco last February, for example, the

whelmingly compensating advantages of our

California Supreme Court subsequently nul-

federal system.

lified them, holding that the mayor did not

In any event, if FMA supporters are correct

have the power to order marriage licenses

that the amendment (in any of its forms)

issued to gay couples in defiance of state

law.22 A state court also put a stop to the

would permit state legislatures and Congress

to recognize civil unions or domestic partner-

issuance of marriage licenses to same-sex

ships granting some or all marital benefits to

couples by officials in Multnomah County,

Oregon.23 After a brief flurry of actions by

same-sex partners, the FMA will not solve the

"problem" of discordant laws across the

local officials recognizing gay marriages early

nation. After all, same-sex couples with a

in 2004, they have now stopped. The use of

"domestic partner" or "civil union" license in

these isolated and now defunct local actions

their home state will move to new states. In

to justify a federal marriage amendment has

6