So far, the debate over same-sex marriage has been
dominated by bruising fights over the definition of marriage and the
role of governments in controlling conjugal configurations.
While the upstairs battle over substantive law rages,
Michigan State University College of Law professors Mae Kuykendall and
Adam Candeub have been quietly tinkering in the basement of procedural
law. They’re coming up the stairs with a potentially subversive legal
device they call “E-marriage,” to be laid out in the upcoming University
of Michigan Journal of Law Reform.
At first blush, the proposal sounds like a practical nod
to a mobile, technology-driven society. A state that adopts e-marriage
would design procedures to allow couples outside its borders to marry
under its laws, using the latest video technology.
E-marriage would allow a same-sex couple to throw a
wedding shindig in Michigan, or any other state where same-sex marriage
isn’t recognized, without leaving home soil. The couple would get a
marriage license from a state that does have gay marriage — New York,
say — and throw the party at home, hooking up with an officiant in the
licensing state via two-way video system, such as Skype.
The marriage still wouldn’t be recognized in Michigan, so
what good is it? Kuykendall cited several benefits to the married
couple. It would save the expense of herding friends and family to a
same-sex-marriage state and let the couple stand their ground in their
home state, loudly and proudly as they please.
“In part, it would be a form of expression,” Kuykendall said.
She pointed out that gay and lesbian couples are already
going to Vermont, Massachusetts and New York to get married, then
returning to their home states, where the marriage isn’t recognized.
“Whatever it is they get out of traveling there to do it, it would be that and more,” Kuykendall said.
When a hot-button issue is involved, changing procedural
rules can be a quiet wedge for bigger change. Law professors love to say
that procedural law drives substantive outcomes, just as technology
(the internal combustion engine, the computer chip) drives the
surrounding culture (suburbs, social networking).
Kuykendall and Candeub hope e-marriage
will begin to erode state “monopolies” and nudge the nation toward
uniformity on local marriage rules, while sidestepping the legislative
knock-down-drag-outs that feed the culture wars. On the procedural
level, it would demonstrate the nation’s almost arbitrary patchwork of
marriage residency requirements. At the substantive level, it would give
a prick of shame to the states where e-marriages take place.
“There wouldn’t be anything Michigan could do about the
fact that people were having big celebrations right here in Michigan in
connection with having a marriage officiated under the laws of
Massachusetts,” Kuykendall said.
Kuykendall said she’s talked to Michigan legislators about setting up e-marriage procedures, but found no sympathetic ears.
There’s only been one conspicuous same-sex e-marriage in
the United States so far, but it seems to bear out the professors’ claim
that e-marriage has the potential to affect the broader culture. On
Oct. 10, 2010, Texas residents Mark Reed and Dante Walkup married after
10 years together. Because Texas does not recognize same-sex marriage,
the couple flew to Washington, D.C., to get a marriage license,
believing an e-marriage would make them “present” enough to satisfy
fuzzy D.C. marriage requirements. They returned to Dallas to throw a
wedding ceremony for family and friends at the W Hotel in Dallas. They
hooked up with officiant Shiela Reid-Alexander at another W Hotel, in
Washington, via Skype.
If nothing else, the ceremony made a case for the value of e-marriage as a public statement and political theater.
“At one point, all of a sudden (Reid-Alexander) had to
appear behind us like Oz,” Walkup told Marketplace Tech Report for a
Nov. 18 story. “Everybody in the audience was clapping and giving high
fives. When she showed up, she talked to us, we talked to her, she was
crying, we were crying, the audience was crying and yelling. It was
To maximize the impact of their statement, the couple
posted a video of the wedding on YouTube, urging repeal of the federal
Defense of Marriage Act. They exchanged vows “while their boots were
planted on Texas soil,” announced the video. It closes with a quote from
gay rights activist Cleve Jones: “If you believe you are equal, then
act like you are.”
“People asked us if it would feel like a real wedding,” Walkup said. “This is a video world now. We’re married.”
However, soon after the marriage, D.C. canceled the
marriage certificate, asserting that the couple needed to be physically
present in the district to be married. At Kuykendall’s suggestion, the
couple flew to D.C. in December for a perfunctory re-do.
The Reed-Walkup marriage led directly to a gay rights
milestone in the heart of Texas. After the couple’s official December
marriage, The Dallas Morning News refused to print their marriage
announcement in the paid “Weddings” section, even though the marriage
was valid in D.C. When the couple filed a discrimination lawsuit backed
by a pressure campaign from Change.org, the paper announced last month
it would begin to print same-sex wedding announcements in the “Weddings”
Publicity and sympathy from the couple’s e-marriage helped
muster support for their fight against The Dallas Morning News. “They
decided not to fight them and to go ahead and be cheerful about it,”
“That supports my argument that the visibility e-marriages
would bring to marriages would relax the opposition, bring a little
more cultural acceptance.”
The next step, Kuykendall said, might be for state
legislatures to recognize out-of-state same-sex marriages, including
e-marriages performed under another state’s laws, “slicing and dicing”
their recognition however they please. She wryly suggested they could
begin with providing divorce adjudication for couples married in states
that have same-sex marriage.