This is going to get tricky over the next decade. DOMA has seemed unconstitutional to me and so I'm glad step one in removing it has happened. But now we have to wait and see what the Circuit Court and possibly the Supreme Court have to say.
Where it gets more murky is that the same basic reasoning that struck DOMA down can be used to uphold a states own ban on gay marriage in the face of a federal constitutional challenge. If constitution firmly places the definition of marriage in state hands, then it won't be the province of the constitution to say that gay marriage is a matter of federal right. Which will leave an equal protection challenge as the likeliest avenue in federal court and that will have a harder time succeeding than past equal protection challenges that were based on race since race based discrimination is harder to get away with, legally speaking, than other forms of discrimination and so non-race based discrimination is harder to use as the foundation to strike down a law such as a state's ban on gay marriage.
It might help, depending on what basis and jurisdiction those precedents come from, but I doubt very much anything will ever be held to the same 14th amendment scrutiny as race based discrimination.
If, whenever such a case makes it to the Supreme Court, they can actually convince them it's an issue of sex discrimination, as opposed to sexual orientation, then the chances of a federal constitutional ruling that requires gay marriage be legal becomes massively more likely. If not, then sexual orientation has to be argued to be, essentially, something more worthy of protection than almost every other kind of classification. Under 14th amendment law at least. And, assuming an intellectually honest court, that would be a really hard argument to win.
It's good news for MA because the judge ruled that the fed was encroaching on the rights of Massachusetts citizens and the Commonwealth.
It's not good news overall though.
This is one of the areas where I feel a Federal law is necessary to ensure that a marriage recognized in one state is also recognized in another.
Hypothetical:You get married in MA. Then your company transfers you to West Virginia where you find out that they don't recognize your marriage and they can criminally charge you with illegal cohabitation, sodomy, and running a house of ill repute. So you refuse the transfer and are fired. A good lawyer could very successfully argue that you were fired for being gay
( ... )
"This is one of the areas where I feel a Federal law is necessary to ensure that a marriage recognized in one state is also recognized in another."
US Constitution, Part IV, Section 1: 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.
The law requiring each of the several states to recognize marriages performed in other states already exists. Just needs to be enforced.
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Where it gets more murky is that the same basic reasoning that struck DOMA down can be used to uphold a states own ban on gay marriage in the face of a federal constitutional challenge. If constitution firmly places the definition of marriage in state hands, then it won't be the province of the constitution to say that gay marriage is a matter of federal right. Which will leave an equal protection challenge as the likeliest avenue in federal court and that will have a harder time succeeding than past equal protection challenges that were based on race since race based discrimination is harder to get away with, legally speaking, than other forms of discrimination and so non-race based discrimination is harder to use as the foundation to strike down a law such as a state's ban on gay marriage.
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If, whenever such a case makes it to the Supreme Court, they can actually convince them it's an issue of sex discrimination, as opposed to sexual orientation, then the chances of a federal constitutional ruling that requires gay marriage be legal becomes massively more likely. If not, then sexual orientation has to be argued to be, essentially, something more worthy of protection than almost every other kind of classification. Under 14th amendment law at least. And, assuming an intellectually honest court, that would be a really hard argument to win.
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It's not good news overall though.
This is one of the areas where I feel a Federal law is necessary to ensure that a marriage recognized in one state is also recognized in another.
Hypothetical:You get married in MA. Then your company transfers you to West Virginia where you find out that they don't recognize your marriage and they can criminally charge you with illegal cohabitation, sodomy, and running a house of ill repute. So you refuse the transfer and are fired.
A good lawyer could very successfully argue that you were fired for being gay ( ... )
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US Constitution, Part IV, Section 1:
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.
The law requiring each of the several states to recognize marriages performed in other states already exists. Just needs to be enforced.
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Thanks for that info.
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