HRC Blog

Ed note: Following up on our earlier video, this post - as part of our Equality in the Courts blog series - looks at the underlying legal issues related to marriage raised by questioning of Judge Sotomayor. Today is the fourth day of Supreme Court nominee Sonya Sotomayor’s confirmation hearing before the Senate Judiciary Committee.  Yesterday, Senator Chuck Grassley (R-IA) asked Judge Sotomayor about the precedential value of a 1972 marriage equality case called Baker v. Nelson.  (see yesterday’s blog post for more ) Today, Senator Lindsey Graham (R-SC) brought up same-sex marriage again in the context of the Full Faith and Credit Clause of Article IV of the U.S. Constitution.  This Clause requires states to honor the laws and judgments of other states.  In certain instances, the Supreme Court has allowed states a public policy exception to this requirement.  Although Graham did not ask Sotomayor a question about this issue, he noted that the public policy exception was relevant to the question of who may marry and who is most capable of making that decision.  For example, he said some states have different age limits for marriage, and the courts defer based on public policy. Actually, this is not common practice with regard to marriage.  In the vast majority of cases, states have recognized marriages from other states even when those marriages did not comply with their own public policy.  For example, as far back as 1875, in a case called Pearson v. Pearson, the Supreme Court of California recognized the marriage of a white man and black woman entered into in Utah that would have been invalid under California’s anti-miscegenation statute.  In 1936, in a case called McDonald v. McDonald, the same court recognized a Nevada marriage between a husband and his wife although the husband was only eighteen, a violation of California marriage laws. Senator John Cornyn (R-TX) also spoke with Sotomayor about same-sex marriage.  He wanted to know if the Supreme Court would be making law or interpreting law if it held that there was a constitutional right to same-sex marriage.  Sotomayor refused to answer because, she explained, to answer one way or the other would suggest that she had already formed an opinion on the matter.  Rather, she said, “I would look at that issue in the context of the case that came before me, with a completely open mind.” Sotomayor’s answer is consistent with the expectations laid out by the American Bar Association (ABA) for judges. While both proponents and opponents of marriage equality might wish for a more explicit answer, Sotomayor is bound by judicial ethics to not pre-judge an issue pending before the courts. Learn more about federal judicial nominations and follow our work on these crucial issues on HRC’s Equality in the Courts page Contributed by Emily Ames, Summer 2009 McCleary Law Fellow