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Mass. Court Rules Gay Marriage Ban Illegal(18 posts)

Mass. Court Rules Gay Marriage Ban IllegalDougSloan
Nov 18, 2003 7:54 AM
It seems to me that, but for the federal ban, the "Full faith and credit" clause of the US Constitution would require other states to recognize gay marriages performed in Massachusetts. Not sure how the federal ban applies, as there could well be a federalism argument that it is unconstitutional, as well. Should be interesting.

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Mass. Court Rules Gay Marriage Ban Illegal
4 minutes ago Add Top Stories - Reuters to My Yahoo!

BOSTON (Reuters) - The highest court in Massachusetts ruled on Tuesday that the state cannot bar gays and lesbians from marrying, but it stopped short of ordering the state to start issuing marriage licenses to same-sex couples.

In a 4-3 ruling that could make Massachusetts the first state to legalize gay marriage, the Supreme Judicial Court said the state may not deny the rights conferred by civil marriage to two individuals of the same sex who wish to marry.

"We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution," the court said in its ruling.

The court remanded the case back to a state court to conform with its ruling, but said the ruling would be on hold for 180 days to allow the state legislature to take any action it may deem appropriate.

Gay marriages are forbidden in the United States, although one state, Vermont, allows same-sex civil unions -- contracts that essentially provide most of the legal rights and protections of marriage but under a different name.

A civil union is only recognized in the state in which it is granted while a marriage is recognized nationwide, experts said.

Debate over the issue of same-sex unions has intensified since Canada has taken steps to legalize gay marriages and the U.S. Supreme Court (news - web sites) in June struck down state sodomy laws. Conservative critics say the Supreme Court's ruling could open the door to same-sex marriages in the United States.

The 1996 Defense of Marriage Act, signed by former President Bill Clinton (news - web sites), defines marriage for federal purposes as between one woman and one man. Gay marriages are forbidden in the United States.
Uh-Oh, some people's heads are gonna be spinnin'MR_GRUMPY
Nov 18, 2003 8:04 AM
It should be fun to hear people say how terrible this decision is. I can't wait......
think of the children!!!!!!!! ;) (nm)ColnagoFE
Nov 18, 2003 8:17 AM
Doug, being a lawyer...Dwayne Barry
Nov 18, 2003 8:42 AM
what does "marriage" mean legally? And, can gay couples not gain the legal rights in relation to one another (and their children?) that "marriage" entails without being married?

I guess what I'm getting at is the whole legalization of gay marriage, an attempt by gay people to get equal recognition of their committment to one another as non-gays, or is it a "real" legal issue, in that without out, a gay couple can not establish the same legal relationship to one another as a non-gay married couple.
It is very much a legal issuejtolleson
Nov 18, 2003 8:50 AM
While parties can create some limited economic protections through contracts and wills, the overwhelming majority of the rights and responsibilities of marriage are unavailable to unmarried folks.

Some limited examples include ...

-- the right to sue for wrongful death if someone tortiously kills your spouse

-- the ability to adopt your spouse's children

-- the "marital communications privilege" (protecting communications between spouses) and the prohibition on being compelled to testify against one's spouse

-- access to leave under the Family Medical Leave Act

In 1998, Gov. Romer appointed a Commission to study the disparity in rights between married and unmarried couples, and they catalogued just over 1,000 "incidents of marriage" that are unavailable to couples who cannot marry.
common law marriageMJ
Nov 18, 2003 8:56 AM
in the same vein - alot of people make assumptions about spousal rights arising in connection with "common law" marriages - most of this depends on jurisdiction - it's not safe to assume one has any rights arising in connection with a "common law" arrangement whether it be same sex or otherwise - the same problem's may arise

in the UK - common law marriage just doesn't exist and alot of people incorrectly assume differently to their detriment

the arguments for allowing same sex marriage is that it will afford the same legal status to a relationship betwen two consenting same sex adults as a more traditional marriage - the arguments about common law rights issues is different because obviously straight folk an always choose to get marries
also easy inheritance of property (nm)ColnagoFE
Nov 18, 2003 9:03 AM
package of rightsDougSloan
Nov 18, 2003 9:06 AM
I suppose most, if not all, of marital rights could be legislated independently and incrementally. The ones that come to mind are:

1. right to file joint taxes
2. ownership of property rights
3. ability to adopt children
4. visitation rights in hospitals
5. parental rights of non-natural parent
6. inheritance rights
7. insurance and employment issues
8. divorce, property division, and alimony

Separate from that, I imagine there are lots of emotional issues, as well.

Many of the legal rights could be implemented by agreement between the parties or other legal documents. You can leave property to someone in a will. You can agree to jointly own property. You can give a power of attorney for when you are incapacitated, etc. Some, though, you can't, like taxes and adoption.

Doug
I'm not convinced that the full faith and credit clause isjtolleson
Nov 18, 2003 8:54 AM
controlling, and to give you the inside scoop, most GLBT legal activists aren't convinced either.

The legal reciprocity afforded marriages from other jurisdictions has never been driven by the full faith and credit clause. It has been a creature of common law.

The full faith and credit clause applies to judicial decrees and contracts. There's a big debate about whether marriage is any of those. Frankly, the FFC clause has virtually never been litigated (I've spoken on this at CLE's).

However, recognition in one state of marriages that would otherwise be against its own public policy (say, restrictions on age or blood relation) has been virtually universal in this country. Deviating from the common law maxim that "a marriage valid in one state is valid in all" just smacks of a public policy headache for no good reason other than gay panic.

One gal's opinion.
good pointsDougSloan
Nov 18, 2003 9:08 AM
Do you think the federal law (which I'm not familiar with) pre-empts?

Doug
good pointsjtolleson
Nov 18, 2003 9:25 AM
DOMA (the Defense of Marriage Act) is a strange beast. It confirms that for purposes of federal law (say, social security benefits and federal tax filing) that same sex marriages will not be recognized.

But it goes a step further in an ATTEMPT to pre-empt state law which merely says that no state court or legislature is COMPELLED to recognize same-sex marriages entered in other jurisdictions. It is an odd sort of advisory phrase. If it is an attempt to interpret the federal constitution, it is a separation of powers problem.

If it is an attempt to pre-empt, I think it is problematic in that the courts have always held marriage to be a product of state law and not within the purview of the federal government.

I think the ramifications of DOMA are a complete mystery, other than that I wouldn't advise same-sex couples to jointly file federal tax returns any time soon.
need a fundamental rightDougSloan
Nov 18, 2003 9:29 AM
Looks like someone is going to have to find a fundamental right of same sex people to marry. Without that, or a strong federalism argument, seems that Congress can control this.

Doug
need a fundamental rightjtolleson
Nov 18, 2003 9:40 AM
That's a circular definition. The "fundamental right" is the right to marry, period.

The question is whether sexual orientation can give rise to a suspect, or quasi-suspect class, what level of scrutiny is applied, and whether the preservation of marriage in its traditional form is a compelling government interest.
not sure about thatDougSloan
Nov 18, 2003 10:40 AM
Wasn't the Texas anti-abortion law struck down on the fundamental right of privacy? Can't you see using that fundamental right to strick down anti-gay marriage laws?

I agree that defining any right as fundamental is essentially applying a circular definition, but it happens all the time.

Doug
alsoDougSloan
Nov 18, 2003 9:26 AM
Here are the literal words of the Constitution:

Article 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.

Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

---

Seems to me that the FFC clause or even the "privileges and immunities" clause would apply, assuming the literal words of the Constitution have any meaning at all any more. Isn't a marriage certificate a "public record"? Now, that could just mean that another state court must accept it as evidence, I suppose, and be judicially noticed, without reference to the underlying legal right.

Doug
alsojtolleson
Nov 18, 2003 9:42 AM
As you recall from the Slaughterhouse Cases, the "privileges or immunities" clause is pretty powerless, and relates only to federal privileges or immunities, not state.

It is POSSIBLE that a marriage is a "public record" for FFC purposes, but for those states (including Colorado) where common law marriage is recognized, there is no record. Also, merely having a "license" in one state has never been construed as an entitlement to a "license" in another (witness driver's licensing or even attorney licensing).

Believe me, I think that in a federal system, recognizing marriage nationally is sound sense, but I get concerned about whether this particular constitutional provision is the way to get there intellectually.
Question for our legal scholars RE miscegenation lawsDale Brigham
Nov 18, 2003 10:26 AM
Does the (shameful) history of miscegenation laws in the U.S., which I assume were all state laws, and their subsequent revocation, provide any useful parallels relevant to this issue, that being same-sex marriages?

For example, if two persons of differing race married in one state, then moved to a state with said miscegenation statutes, would their marriage have been recognized as valid in that state? Further, was there a constitutional basis for overturning or revoking miscegenation laws (i.e., were they ruled unconstitutional, or were they simply superceded by new statutes enacted by state legislatures allowing inter-racial marriage?

Please excuse my ignorance both of legal history and proper terminology.

Dale
race might be another issueDougSloan
Nov 18, 2003 10:38 AM
There was a clear mandate to prohibit all race related restrictions. I don't think we are there for homosexuality, yet.

Doug