Gay Marriages and a Constitutional Question

Factual Questions
21

Whew! What a load of non-informed bushwah!! Yikes!

Suggestion: Learn something about a topic before spouting on it. :wink:

Addressing the original post only:

This does NOT mean that each state is required by the constitution to accept every legal determination made by any other state, nor give effect to the laws of every other state. The most famous case involving this issue is Scott v. Sandford, 19 How. (60 U.S.) 393 (1857), the so-called “Dred Scott” case. To review the facts briefly, the slave, Dred Scott, had resided for some short period of time in Illinois, which had a law annuling enslavement. He then returned to Missouri, which was a ‘slave’ state under the Compromise of 1820. His master died, whereupon he sued to have himself declared free, based upon the law of Illinois (and of the Territory of Wisconsin, but that is irrelevant here). The Supremes said nope, not the case. Justice Nelson wrote, “No State . . . can enact laws to operate beyond its own dominions . . . Nations, from convenience and comity . . . recognizes [sic] and administer the laws of other countries. But, of the nature, extent, and utility, of them, respecting property, or the state and condition of persons within her territories, each nation judges for itself.” (ibid. at 460) A similar result occurred in Bonaparte v. Tax Court, 104 U.S. 592 (1882), where the law of one state exempting from tax certain bonds didn’t make those bonds tax-free in another state.

The Supremes being what they are, however, this general rule isn’t always applied. Recent cases have tended to require the forum state (where the issue is litigated) to give due respect to the law of the foreign state, but allows the forum state to apply its own law where it has a significant enough interest in the subject matter area. This, of course, tends to leave the issue ultimately up to the Supremes. (see, e.g.: Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985) (quoting Allstate ;
Nevada v. Hall, 440 U.S. 410 (1979)).

As to the issue of marriage, I found no relevant cases. The issue of divorce, of course, was hotly contested from 1900 to 1950, as a result of the ‘quickie’ available in Nevada. The upshot of the Nevada divorce cases was that 1) Nevada was allowed to legally divorce a couple based on its own residency/domicile laws; 2) The divorce had to be given full faith and credit in other states, unless a party to the marriage was not legally ‘present’ before the Nevada court and could show that the person who obtained the divorce in Nevada didn’t really have domicile there, and 3) Regardless of the status of the couple, Nevada’s law on divorce didn’t affect the law of other states on issues such as support obligations, etc.

Applying this to the gay marriage issue, my best guess would be that: initially, at least, they will be treated similarly to the tax-exempt bonds, that is, valid between the parties only in the state that allows them; eventually, as the nation becomes less worried about the issue of some single state setting the law on the subject, the marriage will be considered legal, but the effect of such a marriage won’t necessarily be the same as that between hetero-sexual couples, simply shifting the battleground.

Anyone with relevant case law is invited to post same. :slight_smile:

22

DS is my hero.

-andros-

23

“Here’s a thought: What on earth gives the federal government power to regulate marriage
laws?”

Except within “the exclusive jurisdiction of the United States” (District of Columbia, military, etc.), the feds can’t directly regulate marriage, and IIRC they don’t claim to be able to. The law Congress passed defining marriage as involving a man and a woman was intended to interpret the “full faith and credit” clause of the U.S. Constitution. The usual rule is that legal processes in one state have to be recognized as valid in the other states. Generally speaking, a driver’s license, incorporation, marriage, divorce, etc. in one state must be accepted in the other 49 states.

Therefore, Congress (and Prez Clinton, who signed the bill into law) did NOT say that states can’t grant or recognize same-sex marriages if they choose to. What they said was that if one or more states decide to grant same-sex marriage licenses, the other states are not duty-bound by the federal Constitution to recognize such marriages as valid.

Mind you, some people argue that the law is invalid because it’s the role of the courts, not Congress and the President, to interpret the language of the Constitution. But if the law is invalid, it’s NOT because the feds passed a law governing marriages, because they didn’t, not really.

24

[[The difference in treatment under the law, to be constitutionally legal, must be proven to be necessary.]] Monty
Actually, inless the classificatiopn drawn by the law infringes on a “fundamental right” or embraces a “suspect category” (of which race/color is the most significant of the few that exist), the difference need only be “rationa;” under current (and fairly longstanding) jurisprudence. That’s a good thing, too – all laws involve treating some people differently than other people, and “necessary” seems like an awfully high standard, which would not only often frustrate the popular will but also result in tons of litigation.

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.]]
Actually, that’s a good example in another way, since the officer’s powers of observation are in fact not “useless,” there being many other observations besides accurate descriptions of color. Said powers of observation are, of course, limited, and so the law is justifiable in general – but it is not so clear that the classification here would be deemed “necessary.”
[[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.]]
While I don’t have particulary strong feelings on the specific topic, I’m not so gung-ho for gay marriage, preferring to see the inequities of the situation resolved one by one. That would also have the practical benefit of making such changes more palatable for the homo-squeamish (if not homophobic) members of society.

As for justification, well, heterosexual marriage better advances society’s interest in propagating and caring for children. No, we don’t inquire into whether heterosexual couple can or intend to procreate, but that is because the inquiry itself would be invasive of privacy (as well as a serious administrative burden).

25

Big Iron: so what you’re saying is that the slaves should have sued one by one for their freedom?

I don’t think that’s the way it works when a group is being unfairly treated under the law.

26

I don’t think the Supremes will get a chance to talk about it, at least with the current litigation.

As I understand it, the plaintiffs are challenging Hawaii’s marriage law as a breach of the non-discrimination clause of the Hawaiian state constitution, in the state courts. Since it involves (at this stage, at least) a question of purely state law, the USSC doesn’t have jurisdiction, does it?

Of course, if and when Hawaii allows same-sex marriages and you get someone invoking the full faith and credit clause, it becomes a matter of federal constitutional law, which could work its way up to the USSC.

27

[[Big Iron: so what you’re saying is that the slaves should have sued one by one for their freedom?]] Monty

No, Chip, what I meant by addressing the inequities “one by one” was by issue" and not person by person. Many of these problems could readily be avoided under current law with a little foresight (e.g., a will), and perhaps, given how emotional people get over the concept of marriage, it might be a reasonable compromise to enact some “domestic partnership” status that would not legally be called marriage, and which retained some differences, even though it would be popularly referred to and in most respects like marriage.

I certainly have no desire to consign homosexuals to any sort of second-class citizen status, so I am prepared to be convinced that such a compromise is inadequate. Personally, I have no problem with homosexual marriage, and would vote for such a concept were I a legislator.

28

Big Iron:

I agree with you wholeheartedly. Having a will is great for those things which may be willed; however, there are still certain benefits which are consigned by the employer or employer’s insurer to only those who are married or related by marriage (such as step-children) to the dearly departed employee.

Another issue is that of government benefits also dependent on marriage and not on “domestic partnership.”

Lest I forget: there’s also the big issue about gay couples adopting but apparently it’s okay for single folks who don’t have any partners to adopt!

Perhaps I just want to see all the injustice come to a screeching halt. It would be nice, though, wouldn’t it, if that were to happen?

29

And I forgot to post this bit in the morning:

South Africa is having a heck of a time now with a court case, so far successful, pursued by (I believe) a muslim woman demanding benefits based on her marriage (she’s now a widow).

As it turns out, apparently, South Africa has a list of religions whose marriages are not considered marriages by the government. Islam being one of those religions due to the “potential for polygamy.”

Yet Christianity isn’t outlawed although the Old Testament (believed by Christians) doesn’t condemn the practice at all and the New Testament (also believed by Christians) merely advises against the practice for bishops.

For all of y’all who wonder why I’m posting that here: maybe the little snippet which ended “then they came for me and nobody was there to hear” might give a hint.

30

Another typo/omission. “Christianity isn’t outlawed” should read “Christian marriage isn’t outlawed.”

31

So? I am not aware of any Xtian body that allows polygamy. (And, for that matter, neither did Judaism or Roman secular society at the time of the NT; the NT rule evidently refers to divorce, or, perhaps, remarriage after widowhood, which the early Church had some doubts about.)

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