[quote]Journeyman wrote:
DrSkeptix wrote:
CappedAndPlanIt wrote:
Lorisco wrote:
The real issue is not whether gays should marry, or be allowed to marry. The issue is that the State should have no say in it all. Marriage has been a religious institution for thousands of years and it should stay that way.
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Is this why a wedding ceremony holds no legal standing, or that two people can get married without any religious service or churches consent whatsoever?
Legal marriage has nothing to do with any religion…
A question follows, then.
Lets presume the fact that in 900 years of common law, there is absolutely no understanding of something called “same sex marriage.”
Lets also understand that I am completely disinterested in who “marries” whom and why anyone would do something so extrovert and foolish.
The question:
In California, Adam marries Steve in a same-sex marriage. It is a beautiful ceremony.
But one becomes disabled, and they move to Nevada, a low-tax state.
- Is Nevada obliged to recognize the union for legal purposes and benefits, inheritance, etc? Does California have a say in any of this?
- Must private companies legally recognize benefits–insurance, trusts, family leave?
- Is the Federal Government obliged to provide benefits–Social Security benefits, for example, paid for by current workers–to the surviving spouse if one dies? Why?
- Would not a legal contract–a legal union–be a better choice?
Even in an ideal society free of bias, why would something so important have been so poorly thought-out?
This has been thought out over centuries of common law. If a couple is recognized in one state as being legally married, they are legally married if they move. This has been tested in courts as it related to anti-miscegenation (prohibitions against mixed race marriages) laws and marriages to minors. In the famous Loving vs. Virginia, Virginia did not state the the Loving marriage was invalid, they simply said that the Lovings could not live in Virginia. This was unanimously rejected by the Supreme Court when it struck down the Virginia law as unconstitutional.
I’m sure that we are going to see the Supreme Court rule on these issues as they related to Gay Marriage. I’m sure that the Loving vs. Virginia will be referenced. There are obvious differences, but this is often regarded as a useful precedent.
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This is patently untrue under the law. First of all, the DOMA explicitly allows the Feds to not recognize gay marriage and extends the right to the states. Nor does this violate the full faith and credit clause. For anything but a court judgment, there is a public policy exception to FF&C. States don’t have to recognize the actions of other states that are void against public policy of the states.
And the Supreme Court has already spoken on the issue or otherwise declined to. In Lawrence v. Texas, it struck down criminal sodomy laws as unconstitutional, although carefully staying clear of making any pronouncements about same sex marriage. Therefore, states cannot criminalize private consensual sexual acts, but neither federal law nor the constitution yet requires them to be sanctioned. Many states have challenged the constitutionality of the DOMA, and the Supreme Court has refused to hear every one. It doesn’t wnat to be the one to decide such a polarizing issue. That may change, but that’s where it is now.
Here’s what an appelate court had to say about the distinctions between the current issue and Loving:
“T]he historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries ? at first by a few people, and later by many more ? as a revolting moral evil. This country fought a civil war to eliminate racism’s worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950s and 1960s, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.”
There are grounds SCOTUS could say bans on gay marriage are unconstituional or that failure to recognize gay unions valid in other states is. But it would require several things.
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To actually say that bans themselves violate equal protection, the Supreme Court must make the definitive pronouncement that marriage is NOT definitionally between a man and a women.
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Instead, to say other states MUST recognize a gay union that is valid elsewhere, it must overhaul centuries of FF&C jurisprudence recongnizing no exceptions for judgments of other states but RECOGNIZING exceptions for Public Acts of other states.
I can see #1 happening some day. Not today.