Marriage equality in Rhode Island and Delaware

[stpauler]

@ctnguy

On another note, looking at his table of state-by-state support: what’s up with Hawaii? It has the fourth highest public support for marriage equality of any state, and yet there seems to have been no move towards legalizing it. (Although Hawaii does have a constitutional amendment, it doesn’t directly ban SSM but allows the legislature to do so; so it could be reversed by ordinary legislative action.) Is it something to do with the state being so solidly Democratic that marriage equality can’t be used as a wedge issue to increase Dem support?

Hawaii had it caught up in procedural issues for marriage (although they do have civil unions):

TAKE ACTION: On January 24, 2013, legislators in Hawaii introduced identical bills in the House and Senate that would extend the freedom to marry to same-sex couples.

In February 2013, the freedom to marry was faced with a procedural hurdle when the HI legislature reached the deadline for scheduling hearings for bills without scheduling the marriage bill. The most likely outcome now is that the marriage bill will be placed on hold for the remainder of 2013, but as the bills remain “alive” through 2014, state advocates, including Hawaii United for Marriage, are now working to encourage supportive legislators to take affirmative steps to move marriage forward.

That said, I had no idea that Wisconsin was so weirdly progressive/backwards:

Domestic partnerships that afford limited rights to same-sex couples have been recognized in Wisconsin since August 3, 2009. Same-sex marriage and “a legal status identical or substantially similar to that of marriage for unmarried individuals” is banned by a constitutional amendment adopted by popular vote in 2006. A statute that antedated that constitutional amendment provides that residents who contract a marriage in another jurisdiction that would be prohibited within Wisconsin can be fined up to $10,000 and/or imprisoned for up to 9 months.

[Ludovic]

I did forget about the Supremes - I could easily see them striking down DOMA, but the anti-SSM laws in other states, I’m not so sanguine about. But now that it has been mentioned I do think it is more possible for marriage equality to happen by the end of the decade than I did before.

[DMark]

I might be wrong, but I don’t think the Supreme Court is even considering anything as widespread as making same sex marriage legal in all states. I thought the best that could come of it would be allowing any same sex couple,* married in a state where same sex marriages are legal*, would then have all federal legal rights.

In other words - if all goes well, a same sex couple in Alabama would have to go to one of the states where same-sex marriage is legal, get married there, and then they could return to Alabama and fill out federal tax forms and have all the legal rights - but still not have legally gotten married in Alabama.

[ElvisL1ves]

Full faith and credit is going to be hard to get around, though. So is incorporation - the 14th Amendment applies to the states, too, and if the Supremes rule it’s violated by denying SSM’s equal protection, then the states aren’t still going to be able to do it.

[redtail23]

States have always been allowed to ignore marriages made elsewhere in contradiction to their own laws. FF&C is not going to automatically make states recognize gay marriages from other states.

AIUI, the USSC isn’t even looking at Section 2 of DOMA, which is the one that says that states don’t have to recognize other states’ marriages.

They’re looking at Section 3. If they strike that down, then couples legally married will be able to take advantage of all of the Federal benefits of marriage.

I think the hope for forcing things by FF&C is to get enough states to legalize that you start seeing a lot of contradictions in practice. Gay couples not allowed next-of-kin rights when on vacation, that sort of thing.

I’d love (for legal purposes only) to see multiple marriages that are legal due to differing jurisdictional laws. You know, two men married in one state that recognizes gay marriage, then one moves to a different state that does not. Now he can marry a woman, since his first marriage doesn’t count. Hijinks ensue. (Yeah, probably folks aren’t willing to go that far just to prove a point, but it would be fun to watch the heads asplode.)

[Steve_MB]

@redtail23

I’d love (for legal purposes only) to see multiple marriages that are legal due to differing jurisdictional laws. You know, two men married in one state that recognizes gay marriage, then one moves to a different state that does not. Now he can marry a woman, since his first marriage doesn’t count. Hijinks ensue. (Yeah, probably folks aren’t willing to go that far just to prove a point, but it would be fun to watch the heads asplode.)

Most people aren’t willing to go that far, but you’d only need to find three who are…

[Dewey_Finn]

@redtail23

States have always been allowed to ignore marriages made elsewhere in contradiction to their own laws.

Can you provide any examples? The only thing I can think of is that states may not recognize the multiple wives of an Arab sheik.

[ElvisL1ves]

@redtail23

States have always been allowed to ignore marriages made elsewhere in contradiction to their own laws.

Um, yeah, what?

They’re looking at Section 3. If they strike that down, then couples legally married will be able to take advantage of all of the Federal benefits of marriage.

The basis for striking it down would in all probability be equal protection, though. Why would you think that doesn’t cover the states? FFC is only a backup argument.

[lawbuff]

@redtail23

States have always been allowed to ignore marriages made elsewhere in contradiction to their own laws.

@Dewey_Finn

Can you provide any examples?

Loughran v. Loughran, 292 U.S. 216 (1934)

CERTIORARI TO THE COURT OF APPEALS

OF THE DISTRICT OF COLUMBIA
Syllabus

1. Marriages not polygamous or incestuous, or otherwise declared void by statute, will, if valid by the law of the State where entered into, be recognized as valid in every other jurisdiction. P. 292 U. S. 223.

[Bartman]

Good for Rhode Island and Delaware. Here’s hoping Minnesota can also get it done this year.

Going forward might be difficult though. I see only 9 more states where SSM polls over 50%. Four of them do not have it banned by constitution. I expect Hawaii will get it done in 2014. Maybe Illinois and Pennsylvania can get it done. But New Jersey is out until Chris Christie goes away or they get a veto proof majority in the legislature.

Of the others California might be back depending on the Supremes. Wisconsin, Oregon, Nevada and Colorado would require an amendment to allow SSM. And that can take years. In Nevada even if the current proposal gets passed, it won’t go to the voters until 2016 at the earliest. Likewise I don’t see Colorado passing an amendment this year. Maybe we can get it done in 2014.

After that it gets really slim. New Mexico maybe can get it done in a few years. Everywhere else there are either significant legal barriers or not enough support. Barring a sweeping Supreme Court ruling or a national amendment, I unfortunately would have to bet against a majority of states allowing same sex marriage by 2020. :mad:

[Hari_Seldon]

@TriPolar

It doesn’t really matter that much if a couple of states are holdouts as long as marriages are recognized between states. It’s actually advantageous in some ways, life won’t be the same if we don’t get to laugh at Alabama.

Don’t take this post too seriously, I don’t know what the hell states have the right to regulate marriage for in the first place.

This is right on. If a state doesn’t allow, but the court rules that the FF&C clause forces them to recognize marriages from other states, it will not matter too much. But it would take a supreme court decision by an ultraconservative court and I don’t see that happening any time soon. I have predicted, and I repeat it, that they will uphold CA Proposition 8 and strike down DOMA, both on essentially states’ rights grounds. DOMA is especially vile and congress won’t repeal it any time in the foreseeable future.

[Inner_Stickler]

@Bartman

Good for Rhode Island and Delaware. Here’s hoping Minnesota can also get it done this year.

The House was the rocky bit. The Senate is expected to pass it without issues and Dayton seems very clear that he’ll sign it should it come to his desk. The vote is on Monday, which I am told bespeaks a strong expectation it will pass.

[redtail23]

Oh fer fuck’s sake, people, this isn’t even arguable. I mean, you can find arguments that the Supremes should interpret FFC to require cross-state marriage recognition, but no one who knows anything about the subject tries to claim that they have in the past or that they are required to do so now.

Yale Law News

@Lea Brilmayer

The fly in the ointment was that nobody bothered to check whether the Full Faith and Credit Clause had actually ever been read to require one state to recognize another state’s marriages. It hasn’t. Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The “public policy doctrine,” almost as old as this country’s legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses.

NYT

@Adam Liptak

“No state has ever been required by the full faith and credit clause to recognize any marriage they didn’t want to,” said Andrew Koppelman, a law professor at Northwestern University and the author of “The Gay Rights Question in Contemporary American Law.”

Those states that found interracial marriages offensive to their public policies were not required to recognize such marriages performed elsewhere, though sometimes they did, but as a matter of choice rather than constitutional compulsion.

SAME SEX MARRIAGE: AN ACT OF LAW

@Some Lawyer Dude

One of these areas of state sovereignty has traditionally been marriage. Thus the laws of one state regulating marriage are, on the face of things, entitled to the full faith and credit in all other states. However, in interpreting the full faith and credit clause, the courts have said that states are not required to automatically accept another state’s laws if to do so runs afoul of the second state’s own laws. In other words, the clause only requires that the second state enforce the first state’s laws only to the same extent as the second state enforces its own laws in the same matter.

Thus, assuming the first state allows for same sex marriage, the enforceability of the first state’s laws in the second state depends on the laws of the second state dealing with marriage and the second state’s own “public policy” in regard to the same. Public policy often refers to some form of collective state morality or ethic, sometimes embodied in actual laws, sometimes not. Thus, the public policy and laws of the second state have to be at least co-equal or nearly so with the public policy and laws of the first state if the second state is to be required to enforce the same sex marriage that took effect in the first state.

Pacific Employers Ins. Co. v. Industrial Accident Comm’n - 306 U.S. 493 (1939)

@United States Supreme Court

A State is not bound, apart from the compulsion of the full faith and credit clause, to enforce the laws of another State, nor, by its own statute, may it determine the choice of law to be applied in the other.

To the extent that California is required to give full faith and credit to the conflicting Massachusetts statute it must be denied the right to apply in its own courts its own statute, constitutionally enacted in pursuance of its policy to provide compensation for employees injured in their employment within the state. It must withhold the remedy given by its own statute to its residents by way of compensation for medical, hospital and nursing services rendered to the injured employee, and it must remit him to Massachusetts to secure the administrative remedy which that state has provided. We cannot say that the full faith and credit clause goes so far.

While the purpose of that provision was to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states, the very nature of the federal union of states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.