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If Gov. Deval Patrick was expecting to advance the cause of same-sex marriage by ordering state officials to record 26 same-sex marriages performed for out-of-state couples, he may be surprised at the long-term consequences.
Patrick’s predecessor had refused to allow the recording of out-of-state same-sex marriages based on a Massachusetts law that prevents marriages from being recorded if they would not be recognized in the couple’s home state. With that decision, Mitt Romney largely contained the same-sex marriage issue to Massachusetts.
The recording of those 26 marriages (and we can assume thousands of future ones) will not change the marriage status of the couples in their home states. The Federal Defense of Marriage Act (DOMA), signed by President Bill Clinton in 1996, allows states to refuse to recognize same-sex marriages performed in other states.
However, as more and more couples seek recognition of their Massachusetts same-sex marriages in their home states, the chances of a challenge to DOMA in the federal courts will grow. It’s a challenge that is likely to make it all the way to the Supreme Court and many legal experts doubt DOMA will survive the trip.
The real possibility that Massachusetts could impose same-sex marriage on the entire nation -- again by judicial fiat -- will almost certainly re-energize defenders of traditional marriage who have felt the definition of marriage was secure in their state. A federal constitutional amendment defining marriage as the union of one man and one woman will be the only clear response to this attack on marriage.
If there is any good news at all in this move by Gov. Patrick it is that, by raising the specter of the nationwide same-sex marriage, the governor may have, in fact, set back the cause of the gay-rights lobbies he openly supports.