Gay Marriages and a Constitutional Question

I have a different sort of question. Maybe a lawyer or someone who deals with Constitutional issues can help shed light on.

Suppose for argument sake, Hawaii did legalize gay marriages.

Doesn’t the Constitution (in particular Section 1 of Article IV Full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other state) require other state to recognize the marriage as being valid. Or am I interpeting this wrong.

It seems to me if other states could pass laws saying it isn’t legal, this would mean you would (according to the case scenerio above) be married only in Hawaii.

Then could other state pass similar laws, like saying you have to be 21 to be married in our state not 18. Since you are only 18 you are married in Hawaii but not Illinois and so on…

I don’t want to debate about gay marriages, I just used that as an example to best expess the question.

That is correct as I understand it. If Hawaii considered gay marriages to be legal, other states would need to recognize gays married in Hawaii as being married.

IIRC in '95 or '96 Congress was quite worried about this, and passed legislation that definied marriage as a union between a man and a woman, thus cutting the Hawaii issue down.

I’ve an even better constitutional question regarding marriages.

How in the heck have all the state and federal governments been getting away with treating folks differently based on their marital status?

That strikes me as unconstitutional on either of two grounds:

  1. The government is obviously applying the laws of the land to different people differently. Everyone has a right to equal protection under the law.

  2. Marriage is a religion-based concept.

I’m not getting into Monty’s argument – we’ve been around this block before and I just don’t want to do it.

Regarding the OP, you raise some interesting questions that have not been fully resolved yet, I don’t think. While it’s true that the Full Faith and Credit clause requires states to honor VALID judgments, etc., from other states, it’s also true that there have always been ways around this. For example, California public policy prohibits the enforcement of gambling debts. If a casino in Nevada gets a Nevada judgment against a California resident on unpaid gaming debts, and comes to California to try to enforce it, California courts will not honor it.

Similarly, in the days when divorce was permitted in Nevada, but not in other states, people who went to Nevada for a “quickie divorce” often went home to their own states to discover that they were still considered married to their first spouse, and were considered bigamous if they had married again. I’m not entirely sure what the rationale was – fraud, maybe – and I’ve never had the occasion to research it closesly, I just know that this is what happened. If we don’t have a better answer by next week when I’m back in the office, I’ll do a little research and see what the justification was.


Well, Undead Dude is right…the 95-96 Congress was so worried about this, that they passed (and the president signed) the Defense of Marriage act, that basically said 1. Marriage is between a man and a woman, and 2. We don’t care what those Hawaian weirdos do…we’re not going to obey the full faith and credit clause here. As for the idea behind marriage, and treating people differently…the idea is that marriage is, in the US, a civil contract (which is why, in the US, to be officially married, you don’t have to be married in front of a priest, minister, rabbi, or what have you, but you do need to fill out forms and file them with the government. As for the idea that “everyone has equal protection before the law”, that’s true with marriage…because any man and woman who meet age requirements can get married (yes, I know…there are incest laws, and in some cases laws against communicable diseases, but still, the government doesn’t deny to any class of people the right to marry, and that’s what the equal protection clause means…it doesn’t meanthat everyone has the same privilages…just that they have an equal ability to get them)

If marriage is a religion-based concept, why am I married?

“I love God! He’s so deliciously evil!” - Stewie Griffin, Family Guy

PLD: because you’re a realist and a practical person. Why deny yourself certain benefits? Especially when I never implied nor inferred that love is a religion-based concept.

Melin: You’ve been around that block and as I stated in that discussion, your “answers” were not really answers.

Also, I did explain just above that another reason for it’s being unconstitutional could be the denial of equal treatment under the law.

Not a word about religion in that point.

A) Marriage is not religion-based; it’s a fact of life. (Did you know that, in Roman Catholicism, the priest does not marry the couple? They marry each other; the priest is just there to give a blessing. In fact, the RC Church didn’t even require a priest to be present until the 16th century, and only started requiring it then as a check against fraud.)

B) I’m not sure the “full faith and credence” clause applies to definitions of words. Indeed, I don’t see how it can. Gay rights crusaders would be far better off trying to get de-jure recognition of a non-marriage “partnership” state (which is already achieving slow de-facto recognition in employment contracts, etc.).

C) Never assume that the Constitution is like Euclid’s postulates or an IBM Principles of Operation manual. It was not intended to be interpreted that way, and never has been, because Common Law (in the broader sense of the term) has never worked that way. The Constitution is a definition of how existing English law was to be revised for the United States.

John W. Kennedy
“Compact is becoming contract; man only earns and pays.”
– Charles Williams

I agree with JWK that marriage is not specifically a religious institution. It is a cultural institution, and of course it is common to intermingle your religious world with your cultural world if you are religious.

On point 1, Monty, I can’t buy a photocopier and deduct it as a business expense, because I don’t have a business. Does this mean that
I am treated unfairly? I could always start a business, and likewise any individual of appropriate age can get married.

I just can’t see this as different treatment.

But it applies to records, right? States have records that say that a given couple is married. I think that is the point there.

Of couse what Melin says makes a great deal of sense-- that other states shouldn’t need to recognize improper proceedings by other states. I think that is why Congress did what it did-- to make it clear that this was an improper proceeding. Of course I believe the whole Hawaiian thing started in the courts, so it could be pushed up to the Supreme Court (where I think it would fail at this time).

Whatsamatta with you Monty? Did I attack you in my post, did I say that your arguments were invalid, that you were an idiot, or anything like that? All I said was that we had had this discussion before and I didn’t care to get in to it, but that I would address the OP. I acknowledged your post because I thought it would be discourteous to simply ignore it. Obviously discourtesy was not a concern of yours when you made your follow up post.

And just because you don’t choose to accept the answers that are given doesn’t mean they aren’t legitimate answers. A lot of people think the golden plates story is a bunch of hooey too, y’know?


Here’s a thought: What on earth gives the federal government power to regulate marriage laws? Shouldn’t the 10th amendment reserve that right to the states? I’m not a big states-righter, but it seems to me a valid point in this case. I swear to God, one of these days someone’s gonna remember the 10th and all hell is really going to break loose…

Melin: nothing’s the matter with me. I also thought it would be discourteous to let your obvious implication slide by without labelling it the obvious bullshit it is.

JK may have a point; however, I disagree with it. I spent the last hour checking some encyclopedia articles on marriage. Guess what: they declare the concept to have started with the religions of oldest civilizations! Not only that, they also point out that this particular contractual regulation is treated completely differently than all other contractual regulations.

(Getting back to the OP but also with a tie-in to my last posting.)

The difference in treatment under the law, to be constitutionally legal, must be proven to be necessary. An example is the prohibition on a colour-blind individual being a police officer. The reason is that observation is a necessary skill for that job and colour-blindness renders the powers of observation for the individual in question useless for police-work.

There is no valid reason requiring a partnership of any kind between two people to require that one person be male and the other female.

That is, unless you’re into the religion thing.

Not as the USSC interprets the Constitution. Unless I slept through an important post-VMI ruling, the current standard for sex classification is “exceedingly persuasive justification” - states can discriminate on the basis of sex only if they have an exceedingly persuasive justification for doing so. Necessity is an EPJ but not the only EPJ. I would bet money on the courts ruling that thousands of years of tradition qualified.

I wouldn’t agree with that ruling, personally. But I don’t make the decisions.

Ruadh: Thousands of years of tradition didn’t save slavery, you might recall.

And yes, I do realize that the US didn’t have slavery for thousands of years, but Europe and Africa sure as hell did.

No, but it saved Georgia’s anti-sodomy statute. Bowers v. Hardwick.

Monty, honestly, can you really see this Supreme Court striking down the laws that prohibit gay marriage? I can’t. I’d be surprised if they even agreed to hear a challenge, frankly.

To put a bit of a spin on this, let me ask this…

If Hawaii passes same sex marriage and the other states do not recognize it. The courts allow this, what “OTHER” laws might be passed. In other words, especially related to marriage, might slip in. If one state doesn’t have to recognize a marriage what problems might arise from this.

Chip, I agree with you completely as far as:

You and I are 100% in agreement there. What I don’t necessarily agree with is the idea that marriage and religion arising around the same time proves anything.

I think maybe the word “marriage” was placed around an already-practiced concept of the female agreeing to allow the male sexual access and other privileges in exchange for protection, help with child-rearing, and food gathering. That arrangement probably predates language, let alone religion, and can be seen in nonhuman primates and other animals, too.

“I love God! He’s so deliciously evil!” - Stewie Griffin, Family Guy

Re Georgia: um, they actually DID eventually drop the sodomy law, some time last year I think.