Any legal point to NC banning gay marriage?

[TriPolar]

Maybe I'll get some factual answers before this ends up in another forum.

If same sex marriage is not currently legal in North Carolina, what purpose does an amendment to the state constitution serve? The constiution could be amended again to allow it, and a change to the U.S. Constitution would make it invalid anyway.

I assumed that the move was regular old local politics, and undoing a state amendment would be more difficult than just passing a state law to legalize same sex marriage. But is there some other significant aspect to this?

[iamthewalrus(:3=]

It potentially keeps a state court from finding that SSM is required by the existing state constitution. An "equal protection" clause of some sort. Since this has happened in several states, it's not a totally empty gesture.

Of course, making such a change doesn't guarantee that SSM will remain illegal, even in the absence of a US Constitution change. California made a state constitutional amendment to that respect, but it's still an ongoing court battle and could realistically go either way at this point.

[KneadToKnow]

My understanding is as iamthewalrus(:3= has it. The idea is to prevent "this restriction is unconstitutional" arguments by making it constitutional.

[Skammer]

It also makes it more difficult for a future state legislature to simply pass a law to legalize SSM; they'd have to go through the (presumably more difficult) process of re-amending the constitution first.

[John Mace]

It also goes further than the current law, as it outlaws any "civil union" type arrangment, not just marriage.

"Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts."

[Jake]

Is it a tax issue? SSM couples will get the benefits of opposite marriage couples, but does it make that much difference in Govt. income?

[Whack-a-Mole]

Originally Posted by KneadToKnow

My understanding is as iamthewalrus(:3= has it. The idea is to prevent "this restriction is unconstitutional" arguments by making it constitutional.

It goes further than that I think.

I believe part of the point of such amendments to state constitutions is to ward off the use of the Full Faith and Credit clause of the US constitution from being used against them.

For instance, because of Full Faith & Credit if I get legally married (hetero marriage) in one state I am legally married in all other 49 states. No need for me to do anything extra...just happens and they all have to honor that marriage as legal in their state.

So what happens if one state allows SSM marriage and that couple moves to another state? Full Faith & Credit suggests the other state has to honor that. Such state constitution amendments are an attempt to thwart that.

Sooner or later the Supreme Court of the US will have to deal with all this. I am sure they are not eager to.

[John Mace]

Originally Posted by Jake

Is it a tax issue? SSM couples will get the benefits of opposite marriage couples, but does it make that much difference in Govt. income?

It can be framed that way by someone people, but it's mostly about people thinking homosexuality is immoral and not wanting the state to sanction it and certianly not to grant same sex couples the same status as heterosexual couples.

[grude]

Originally Posted by Whack-a-Mole

It goes further than that I think.

I believe part of the point of such amendments to state constitutions is to ward off the use of the Full Faith and Credit clause of the US constitution from being used against them.

For instance, because of Full Faith & Credit if I get legally married (hetero marriage) in one state I am legally married in all other 49 states. No need for me to do anything extra...just happens and they all have to honor that marriage as legal in their state.

So what happens if one state allows SSM marriage and that couple moves to another state? Full Faith & Credit suggests the other state has to honor that. Such state constitution amendments are an attempt to thwart that.

Sooner or later the Supreme Court of the US will have to deal with all this. I am sure they are not eager to.

Actually full faith and credit applies worldwide, if not legally than at least by an informal agreement. We went through this crap before in the USA, I can remember a court case involving a married couple from Britain immigrating to the US and being targeted by anti-miscegenation laws because the husband was mixed race.

God here we go again!

[jayjay]

Originally Posted by grude

Actually full faith and credit applies worldwide, if not legally than at least by an informal agreement. We went through this crap before in the USA, I can remember a court case involving a married couple from Britain immigrating to the US and being targeted by anti-miscegenation laws because the husband was mixed race.

God here we go again!

Again? There are still people out there who absolutely SEETHE when they see a mixed-race couple. And it's not like things were ever really different for LGBTs. We're still, despite the current things like this amendment and DOMA still being the law, at the very tippy-top of the curve for LGB rights and acceptance over time(T, unfortunately, is trailing well behind). We have NEVER been LESS despised than we are now. Even with the legislative and legal and public relations challenges we're facing right now, we are currently at the apex thus far of how our fellow Americans view us.

That's kind of sobering, because we still have a VERY long hill to climb.

[John Mace]

Originally Posted by grude

Actually full faith and credit applies worldwide, if not legally than at least by an informal agreement.

No, it doesn't. Besides, FFaC is a specific legal term. It makes no sense to use it in an informal sense.

[grude]

Originally Posted by John Mace

No, it doesn't. Besides, FFaC is a specific legal term. It makes no sense to use it in an informal sense.

What is the term then for the general recognition of legal marriages worldwide? Obviously a married couple doesn't have to get remarried in every state/country but I don't know the term.

[John Mace]

Originally Posted by grude

What is the term then for the general recognition of legal marriages worldwide? Obviously a married couple doesn't have to get remarried in every state/country but I don't know the term.

There isn't a term, because it doesn't exist. Look, there are lots of places that recognize polygamy, but you don't get to immigrate to the US and become a citizen with your 6 wives. Same with SSM. You can get married to your gay lover in Canada, but you're not married if you move to the US unless you move to state that recognizes SSM. An Afghani warlord doesn't get to become a US citizen with his 10 year old bride, either.

There are certian "reciprical agreements" that countries might have, but marriage isn't one of them in the US if your marriage is non-conforming to US standards.

[suranyi]

Originally Posted by grude

What is the term then for the general recognition of legal marriages worldwide? Obviously a married couple doesn't have to get remarried in every state/country but I don't know the term.

Right, I mean, my parents were married in Austria and their marriage is recognized in all states. It's not quite FFaC but it's something similar.

[Polycarp]

Originally Posted by grude

What is the term then for the general recognition of legal marriages worldwide? Obviously a married couple doesn't have to get remarried in every state/country but I don't know the term.

The proper term for "I'll recognize your ___ if you recognize mine" as between two governments (NOT limited to marriage; creating corporations, adoptions, and extradition are examples of the breadth of the concept) is comity.


W/R/T the OP, Skammer nailed the logic. What one General Assembly (state legislature) does, the next one may reverse. The state constitution is a bit harder to amend.

[Captain Amazing]

Originally Posted by Whack-a-Mole

I believe part of the point of such amendments to state constitutions is to ward off the use of the Full Faith and Credit clause of the US constitution from being used against them.

For instance, because of Full Faith & Credit if I get legally married (hetero marriage) in one state I am legally married in all other 49 states. No need for me to do anything extra...just happens and they all have to honor that marriage as legal in their state.

So what happens if one state allows SSM marriage and that couple moves to another state? Full Faith & Credit suggests the other state has to honor that. Such state constitution amendments are an attempt to thwart that.

DOMA explicitly says that a state doesn't have to recognize a gay marriage entered into in another state. Full Faith and Credit doesn't apply here.

[Whack-a-Mole]

Originally Posted by Captain Amazing

DOMA explicitly says that a state doesn't have to recognize a gay marriage entered into in another state. Full Faith and Credit doesn't apply here.

All well and fine but doesn't the Supreme Court need to say that?

Or put another way, since when can congress pass a law that says you can ignore a part of the constitution?

[Whack-a-Mole]

Originally Posted by Whack-a-Mole

Or put another way, since when can congress pass a law that says you can ignore a part of the constitution?

Missed edit window:

I suppose congress can pass anything it wants. My point is this is ultimately a question for the Supreme Court.

[TriPolar]

Ok, thanks guys. Sounds like it is what it sounded like. DOMA being untested in the Supreme Court is interesting.

[WisdomofLife]

I think it would be considered unconstitutional. The U.S. Supreme Court legalizes individuals to have a homosexual relationship and not be prosecuted for it.

Example: Lawrence Vs. Texas
http://en.wikipedia.org/wiki/Lawrence_v._Texas

However, federal government does not legalize the right of homosexuls to marry through. This is what anti-gay politicians realize and are using this to pass or try to pass anti-gay laws.

The Supreme Court is already decided on this issue with Proposition 8 of California. Prop. 8 was voted as legal by state voters to ban gay marriage. However, it has been contested

http://www.msnbc.msn.com/id/46294255...onstitutional/

I heard that Supreme Court is suppose to post their ruling about it sometime in June. I think that it would be one of the most significent rulings on the gay marriage issue than NC right now

[Whack-a-Mole]

Originally Posted by WisdomofLife

I think it would be considered unconstitutional. The U.S. Supreme Court legalizes individuals to have a homosexual relationship and not be prosecuted for it.

You'd think. It would be by any rational reading of the constitution.

However this conservative court has shown it can rationalize bad decisions that suits their personal inclinations more than the law. Kelo and Citizens United leap to mind as egregious ones that even Tea Baggers and OWS can agree on (which is saying something).

[jtgain]

Originally Posted by Whack-a-Mole

All well and fine but doesn't the Supreme Court need to say that?

Or put another way, since when can congress pass a law that says you can ignore a part of the constitution?

Here's the clause

Originally Posted by FF&C

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Bolding mine. The argument is that Congress is not ignoring the Constitution, by prescribing by general law (DOMA) the manner in which these acts, records, and proceedings (gay marriages) shall be proved (they cannot be enforced against a state which doesn't allow it) and the effect thereof (nothing).

[Whack-a-Mole]

Originally Posted by jtgain

Here's the clause



Bolding mine. The argument is that Congress is not ignoring the Constitution, by prescribing by general law (DOMA) the manner in which these acts, records, and proceedings (gay marriages) shall be proved (they cannot be enforced against a state which doesn't allow it) and the effect thereof (nothing).

IANAL but seems to me that says how a given judicial proceeding may be proved and the effect. NOT that they can tell states to not give full faith and credit at all.

Considering hetero marriages and how they are adjudged are well established I do not see how they can wave a wand and tell states they can ignore the exact same thing for same-sex couples.

[lawbuff]

Originally Posted by Whack-a-Mole

So what happens if one state allows SSM marriage and that couple moves to another state? Full Faith & Credit suggests the other state has to honor that. Such state constitution amendments are an attempt to thwart that.

FFC case law suggests, per the SC, that a state is not bound to honor the acts of another state IF it violates thier own Public Policy.

Sooner or later the Supreme Court of the US will have to deal with all this. I am sure they are not eager to.

They already have, in 1971. A State banning same sex marriages does not violate the federal constitution.

[jtgain]

Originally Posted by Whack-a-Mole

IANAL but seems to me that says how a given judicial proceeding may be proved and the effect. NOT that they can tell states to not give full faith and credit at all.

Considering hetero marriages and how they are adjudged are well established I do not see how they can wave a wand and tell states they can ignore the exact same thing for same-sex couples.

Isn't it within the bounds of the plain meaning to say that they can set a standard of proof to be that a certain document is not proof of anything? And that the effect of that proof is nothing?

A parallel is the interstate commerce clause. Congress is allowed to "regulate" interstate commerce. Over a hundred years ago, Congress made it against the law to transport lottery tickets in interstate commerce. It went to the SC on the argument that "regulate" did not mean to ban entirely. The Court agreed with Congress.

What if I own a license to operate a brothel in Nevada? Should a Mississippi city have to honor that license and let me put a whorehouse on Main St.?

[jtgain]

Originally Posted by iamthewalrus(:3=

It potentially keeps a state court from finding that SSM is required by the existing state constitution. An "equal protection" clause of some sort. Since this has happened in several states, it's not a totally empty gesture.

Of course, making such a change doesn't guarantee that SSM will remain illegal, even in the absence of a US Constitution change. California made a state constitutional amendment to that respect, but it's still an ongoing court battle and could realistically go either way at this point.

Agreed. The point of the amendment is to clip the wings of the NC Supreme Court should it decide that SSM is protected under the North Carolina constitution.

California, however, was a bit different because the Court there had already ruled SSM a right and the amendment reversed that right. The opinions of the District Court and the 9th Circuit made much of taking away a right that was already there. It would be different in NC if same-sex couples never had the right to begin with (maybe).

[Whack-a-Mole]

Originally Posted by lawbuff

FFC case law suggests, per the SC, that a state is not bound to honor the acts of another state IF it violates thier own Public Policy.

Originally Posted by jtgain

Isn't it within the bounds of the plain meaning to say that they can set a standard of proof to be that a certain document is not proof of anything? And that the effect of that proof is nothing?

If that is how the SC has held things then that is how it is.

Just seems to me to make a mockery of the FF&C clause. In essence, from what I gather you are saying, a state can indeed ignore the legal proceedings of other states if they want to. There really is no impediment to it.

[jtgain]

Originally Posted by Whack-a-Mole

Just seems to me to make a mockery of the FF&C clause. In essence, from what I gather you are saying, a state can indeed ignore the legal proceedings of other states if they want to. There really is no impediment to it.

No. Congress decides how states must recognize legal proceedings from other states. If Congress says that concealed weapon permits must be recognized nationwide, then they must. As of now, they are not.

But where would you draw the line? Must MS recognize my Nevada brothel license?

[Gorsnak]

Originally Posted by lawbuff

They already have, in 1971. A State banning same sex marriages does not violate the federal constitution.

And in 1986 they ruled that laws making sodomy illegal were perfectly fine.

[Terr]

Originally Posted by grude

What is the term then for the general recognition of legal marriages worldwide? Obviously a married couple doesn't have to get remarried in every state/country but I don't know the term.

Even with FFC, some marriages (between cousins, for example) performed in some states are not recognized in others.

[jtgain]

Originally Posted by Terr

Even with FFC, some marriages (between cousins, for example) performed in some states are not recognized in others.

Right. FF&C is for the ease of transacting business or living life in different areas where public policy doesn't fundamentally differ. It's not a method for forcing a policy on a place that doesn't adopt it.

It would be silly for an adult, non-related heterosexual couple to have to get a new marriage license in every state in which they live. Every state recognizes this kind of union, it's not controversial, and there is absolutely no reason to devote state-by-state resources to harass people into getting remarried every time they move.

Now, this being GQ, it goes without saying that SSM is one of the most controversial topics of the day. As such, it should be debated in the legislatures and ruled on by the courts. It shouldn't be imposed on all 50 states simply because one state instituted it. That would be a terrible precedent to set for all laws, leaving SSM aside.

If we did that, forget about any state-by-state regulation of anything. One state could have a judicial proceeding that granted a person a permit to masturbate in public schools at lunch time, and by this expanded definition of FF&C, every state in the country would have to honor it. The Supreme Court has held that this is not correct.

[Whack-a-Mole]

Originally Posted by jtgain

Now, this being GQ, it goes without saying that SSM is one of the most controversial topics of the day. As such, it should be debated in the legislatures and ruled on by the courts. It shouldn't be imposed on all 50 states simply because one state instituted it. That would be a terrible precedent to set for all laws, leaving SSM aside.

If we did that, forget about any state-by-state regulation of anything. One state could have a judicial proceeding that granted a person a permit to masturbate in public schools at lunch time, and by this expanded definition of FF&C, every state in the country would have to honor it. The Supreme Court has held that this is not correct.

You made a great case for bringing back anti-miscegenation laws in states that want them. Only thing stopping them is the Supreme Court said that is not allowed...hmm.

[jtgain]

Originally Posted by Whack-a-Mole

You made a great case for bringing back anti-miscegenation laws in states that want them. Only thing stopping them is the Supreme Court said that is not allowed...hmm.

Right...the Supreme Court said that isn't allowed. If it decides that laws against SSM aren't allowed, then we will have the same thing without the FF&C clause.

But, until we get to a constitutional aspect of a right being regulated, there would be no state law that could survive such a broad application of the FF&C clause unless all 50 states agreed to that law.

Pick a law, and one state could grant a permit to break that law which would then have to be honored by all 50 states. It would destroy federalism.

[iamthewalrus(:3=]

Originally Posted by jtgain

California, however, was a bit different because the Court there had already ruled SSM a right and the amendment reversed that right. The opinions of the District Court and the 9th Circuit made much of taking away a right that was already there. It would be different in NC if same-sex couples never had the right to begin with (maybe).

Yeah, I know that's the argument made in the 9th Circuit decision. I'm of the opinion that the decision was made that way for realpolitik reasons: ie, so that the US Supreme Court (especially Kennedy) would have a harder time overturning it, and so that they'd have an easier time sustaining it without worrying about the decision applying to all the states. It's written that way for tactical reasons. I believe (but of course we'll never know) that they'd still have overturned prop 8 with a more general argument if they'd hadn't had a nice narrow one to make.

And, of course, the way things played out with prop 8 in CA make the strategy that the backers of the NC amendment are taking quite valid. Since we've seen a (relatively) high court decide that removing the right to SSM after it's been granted is unconstitutional, it's all the more important to put as many obstacles to legalization in place before it becomes legal, because it may be a legal decision that you can't undo.