Part 2 of 3: Everybody Panic And Or Celebrate Over Nothing
On Friday California’s Supreme Court, in a 4-3 ruling, decided to actually call gay marriage, marriage instead of some other term that means exactly the same thing. Hilarity ensued.
This is part two of three of a series on gay marriage. In this part I try and fail to figure out why the California decision is such a ground breaking step for same sex couples.
- Part One: Why States Can Decide Who Gets Married
- Part Two: Everybody Panic And/Or Celebrate Over Nothing
- Part Three: In Defense of Gay Marriage
In recognition of the fact that marriage has had a traditional and moral role in society, most states have banned gay marriage in an attempt to preserve those same traditional morals and values.
In recognition of the fact that marriage now has serious financial and legal implications, legislators in four states have given same sex couples equal rights under the law. Massachusetts openly allows same-sex marriage (but only to residents) and California, New Jersey and Vermont have created a separate but equal marital status called civil unions.
The California ruling Friday declared that the state law which defines marriage as being between a man and a woman was unconstitutional because it conflicts with the state constitution’s guarantee of equal rights.
Upon hearing the news, I at first thought, “hooray! Equal protection under the law!” But after looking a little closer, I found that gays already had equal protection under the law through civil unions. The court decision did not change the fact that they could get married, it simply stated that that they could call it marriage.
I decided that if the ruling did not really change anything, I at least wanted to know what had gotten people so fired up about the ruling. Then I heard a viscous rumor that the court ruling ordered that anyone who could issue marriage certificates had to issue them to same sex couples. Did the judge just say churches had to marry gays? Red flag! First amendment! Danger, Will Robinson, danger!
Oh, wait. Never mind. He said the county clerks are ordered to do the paperwork – you know, do their jobs.
So what does the ruling change? As it turns out, nothing.
Gay couples in California, up until this point, had the same rights as straight couples – they were just called something else. Now, by court order, the institution’s name has officially been changed and the bottom line remains the same.
Full Faith and Credit
What the decision does do, however, is give lawyers another bite at the apple in front of the United States Supreme Court. While this ruling cannot be appealed to the Supreme Court directly, unlike the Massachusetts law, it does allow people from other states to travel to California, get married, and return to their home states as a couple. This will definitely lead to lawsuits in other states as people attempt to have their California marriages recognized by their native states.
The legal argument for such cases rests on the full faith and credit clause of the constitution. In it, states are required to honor the legal, administrative, and legislative decisions made by other states. It’s the reason why your New York drivers license is valid in New Jersey, or a man living in Florida can have his wages garnished for child support payments due in Iowa. States are required to accept the laws and judgments of other states, and this is the clause in the constitution that makes it happen.
Unfortunately, the full faith and credit clause has been severely eroded by repeated U.S. Supreme Court rulings. For the last 200 years or so, courts have consistently and repeatedly created a public policy exception stating that it would be unreasonable to expect that, in a situation where there are conflicting state laws, one state could meddle in the affairs of another. This interpreted exemption has been applied to interracial and polygamist marriage in the past, and there are no real reasons why one should expect a reversal of this interpretation in the future.
The sad truth is that, realistically, gay marriage is not a national issue. The Supreme Court has ruled over and over again that gay marriage is a states rights issue and has refused to strike down similar laws in the past.
The political will to create a defense of marriage amendment in the constitution has failed to materialize – and at this point in the progression of the debate, it probably never will. Even the most hard core of conservative pundits back away from such ideas. I strongly suspect that the majority of legislators have read the tea leaves and decided that same sex marriage is on the horizon, and in twenty years anyone supporting such an amendment will have a serious problem.
On the other hand, with current voter sentiment the way it is (roughly 70% of Americans are against same sex marriage), those laws won’t be struck down any time soon.
Meanwhile, in California, defense of marriage groups are already planning on holding a referendum to add an amendment to the state constitution which would effectively reverse the court’s decision. I expect such a referendum will pass, but it will not stop the controversy. Even if the court agrees to suspend its judgment until after the vote like the lawyers are pushing for, and even if the referendum passes, same sex couples will still allowed to get married in California – they just won’t be able to call it marriage.
Stay tuned. In part three of the series I will lay out exactly why I think same sex marriage should be legal.
Your argument concerning full faith and credit concerning states’ rights is flawed. If states’ rights trumped equal protection under the U.S. Constitution, there would still be racial segregation in the south. To guarantee everyone equal rights, the Civil Rights Act had to be written and passed in 1964 because states were not going to do the right thing without it.
Several states had sodomy laws until Lawrence v Texas in 2003. The U.S. Supreme Court had to overturn sodomy laws. In 1967, 16 states had laws that prohibited interracial couples from legally marrying. The U.S. Supreme Court had to strike down those laws in Loving v Virginia.
Many states have either anti-gay marriage laws or have passed anti-gay marriage amendments to their constitutions. If states grant full faith and credit for other states’ marriage licenses to opposite sex couples, they are clearly violating the U.S. Constitution’s guarantee of equal protection under the law to gay married couples. No state has the right to deny a minority group equal protection. Therefore, either gay civil marriage must become legal in all 50 states, or civil marriage must be denied to everyone. If any couple, gay or straight wishes to marry, they would have to do it in church. The secular institution could be changed so all couples wishing a legal union must get a civil union license.
Your argument of “separate but equal” is extremely flawed and that you may actually believe what you wrote is unconscionable. As we in the south learned a long time ago, separate is never equal. That’s why there was a Civil Rights Act in 1964. Segregation itself is designed to deny equal rights to anyone segregated from the whole. If an institution is equal, why does it have to be separate? It is separate because it is not equal.
If gay marriages were truly equal to hetero marriages, gay and lesbian married couples would have the same rights to all state and federal protections of legal marriage, such as filing joint federal tax returns as one huge example. There are hundreds of other rights enjoyed by straight couples that are denied to gay married couples because there is no federal equal protection of their right to marry.
My suggestion is to either guarantee civil marriage to all couples gay or straight, or do away with the institution of civil marriage and replace the institution in the form of civil unions for everyone. Take “civil marriage” out of the secular language and law, and replace it with “civil union”. Require all couples with a civil marriage license, straight or gay, to turn in those licenses and get a civil union license to replace it. Then grant all couples with civil union licenses all the rights civilly married couples now enjoy.
Sherri