My 60 year-old father, the man who took me to a Reagan/Bush 84 rally at the ol' Madhouse when I was 5, is a judge. No weepy liberal is he, but he is fond of pointing out that gay marriage is coming and all of the Falwellian hand-wringing in the world isn't going to stop it. This is so not because it is possessed of inherent moral "rightness" or any such nonsense but because the law is firmly on its side. Civil law, that is (religious definitions of marriage being another story altogether). Gay marriage is in fact the most perfect example of how poorly conservatives understand the Constitution. If only they devoted as much time to reading the damn thing as they do to "defending" it.
Most legal arguments over gay marriage, especially at the state level, tend to revolve around equal protection claims – 14th Amendment stuff. However, Article IV, Section 1 of the Constitution (available here, TeaTards) contains something more relevant called the Full Faith and Credit clause. It states:
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 FFC is the reason why it is not necessary to get a new driver's license to drive in a different state. Every state in the union accepts my Georgia-issued license as valid, as valid as if their own state issued it. I am legally married in Marion County, Indiana. I did not have to get re-married to be legally married in Georgia. Georgia is required to respect and give credit to the public "acts and records" of Indiana. Similarly, if I legally adopt a child in Georgia, said human is legally my child in every state in the union. States are not required to give Faith and Credit to laws passed in other states. For example, a gun can be legal in Idaho and illegal to own in California. Buying fireworks in a state in which doing so is legal will not keep you out of trouble if you bring them into a state in which they are illegal. So laws can differ by state but respect for the "acts" and "records" is guaranteed among states. This is quite clear.
The Defense of Marriage Act (DOMA) explicitly contradicts Art. IV, Sec. 1 of the Constitution. Anti-gay marriage groups always pull back on their legal challenges of pro-gay marriage laws because they have no illusions about how the Supreme Court is likely to rule on DOMA. Sure, Clarence Thomas will engage in some mental gymnastics and Activist Judging to justify the law, maybe Alito too. But who else? To argue that the law is constitutional requires one to accept the validity of the FFC clause while allowing Congress the authority to define what is an is not an "act" of state government. But from where does Congress derive this authority? If we read that ol' Teabagger favorite the 10th Amendment – Seriously guys, try reading this thing at some point! All kinds of wild shit in here! – we notice that:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If anyone can find the part of Article I that delegates the power to define what is an is not an Article IV "act", please bring it to our attention. Other than some weak-ass recourse to the Elastic Clause, there is none…which explains the non-Libertarian right's hesitance to appeal DOMA challenges in the Federal courts. They prefer the mob rule approach, seeking to outlaw gay marriage by ballot referendum or by amendments to state constitutions. Legally, a state has every right to declare gay marriage illegal or unconstitutional. What they do not have is the right to ignore or nullify legally constituted acts of another state absent the ridiculous DOMA law that can't hold its own in any court except the court of mid-1990s public opinion.
If a single state is issuing gay marriage licenses, those licenses must be recognized by every state. The Full Faith & Credit clause is clear on that point and wingers are ever so fond of reminding us that they follow the Constitution literally. For the same reason that quickie divorces used to be a major industry in Nevada – those divorces had to be recognized by states with much more complex divorce laws – one state with legal gay marriage is enough. This is what any Federal court deciding a DOMA challenge on the basis of the law and not moral/political hysterics will say, which in turn is exactly why Rev. Dobson and his ilk always stop their legal challenges just short of being told what they can't accept and don't want to hear.
HoosierPoli says:
So when are we going to get a group with standing to sue and get the damn thing struck down? It's been fifteen fucking years, that's a long time for something that's literally unconstitutional to be hanging around, messing with people's lives.
John says:
I highly suspect that the recourse of the religious right (the only people who give a damn if "teh gayz" get married) with respect to this is going to be similar to their current attempts to say that the "Equal Protection" clause doesn't protect people based on sex or sexual orientation.
Though really, the very idea that there are people that are so vehemently dedicated to opposing the idea of homosexuals getting a little slip of paper that says they're married is both mind-boggling and infuriatingly depressing. At this point it's just naked, petty discrimination for its own sake — the courts have already ruled that it's unconstitutional to ban homosexuality via sodomy laws, and there is no basis in any law anywhere to deny people the ability to live together in the same domicile. They cannot in any way shape or form stop people from being gay or engaging in homosexual acts, at this point denying them the right to get married serves no purpose except to spite them and make their lives just that much more difficult.
That alone should be basis enough for throwing out any gay marriage bans. Laws made with clear malicious intent should not even make it to the books.
Radical Scientist says:
I think we might have some trouble with Scalia, too. Didn't he fill a chunk of the minority opinion in Lawrence v. Texas arguing that if we got rid of sodomy laws, it would be a dangerous step toward running out of excuses to keep the gays from getting hitched? I doubt he's gotten much more open to the reverse logic–that really, there aren't any good reasons, so it's time to get with the times and strike down DOMA. I'd bet a pretty large pile of money he'll find some tortured logic to vote to uphold DOMA instead. How many other justices would follow, I don't know.
Danthelawyer says:
You say, "Legally, a state has every right to declare gay marriage illegal or unconstitutional."
Fortunately, that's wrong. As Judge Walker just pointed out in August, a state cannot declare marriage equality illegal because doing so violates the Equal Protection clause of the U.S. Constitution.
Michael says:
As one of the gays, and a Yankee to boot, who now lives and works in Alabama, I'm always surprised how people can completely accept my relationship, treat me and my partner with the same respect that they do my straight, married acquaintances, but if I mention, for example, that without gay marriage I have no legal right to visit my partner in the hospital, they just shrug it off and say, "Well that's your choice." As if I weighed the options: "Sure would hate to be excluded from my spouse's hospital room… but hate that va-jay-jay more. OK, that's settled then!"
And isn't the "damage" that the right-wing says would be caused by legal gay marriage done already? So me and my partner living together, openly gay, owning property, publickly acknowledged, perhaps raising a child = not a problem. Slip of paper from the state and a joint tax return = total collapse of civilization.
But gay marriage is coming. Unless we have a complete economic meltdown and wind up in some "Handmaid's Tale" backlash dystopia….
jazzbumpa says:
Backlash dystopia is the ultimate destination of right-wing populism.
Tea baggers are right wing populists.
We are on the brink. I thought the '08 election was a defeat for right wing idiocy, and we were moving in the right direction. Wow, was that an over-optimistic blunder.
So much depends on this year's elections. We could be falling into fascism.
I'm eskeered.
JzB
Elder Futhark says:
Va-jay-jay. How fucking quaint is that?
I must say old cahp, this essay is not bad. Not bad at all. I believe I will print several copies off, find a 'Bagger, and repeatedly pummel them on the skull until their sexual orientation is completely depolarized. Right above the left parieto-temporal fissure, if I am not mistaken.
…oh, wait, that makes them mistakes spoons for forks. Eh, too late!
Elder Futhark says:
…and here I thought va-jay-jay was a charming Southern term for the quivering quimby, only to find out I do not watch nearly enough TV. Then again, just as well. Repeated reference to Oprah's va-jay-jay would depolarize anyone, that's for sure.
wagon says:
Ed,
On an unrelated note, did you see yesterday was FJM day at deadspin dot com? I enjoy your site and know you're a fan of the FJM guys. Check it out if you haven't yet.
Ed says:
Dan, the equal protection claims of lower Federal court judges are hardly rock-solid. The reason I think the EP argument is not a winner, as I tried to explain, is that it has an element of subjectivity in it. People are going to continue to have varying opinions on whether legally defining marriage denies anyone equal protection.
What isn't possible to disagree about is that states have to respect FFC and Congress has no explicit right to define what Article IV means. Like Marshall's desegregation strategy in the 1940s. the key here is to avoid any legal argument that invokes fairness or morality and stick to the parts of the law that define who has the power to do what.
You may be right, but I just don't think it's the smartest strategy. Not a lawyer, though.
displaced Capitalist says:
Something I noticed back when I used to take divorce cases was the number of people who had no idea what the courts job was. They had this romantic idea that it was the judge's responsibility to help people sort out their "feelings" for each other and help patch up emotional wounds. So often people were astonished (and even somewhat offended) when all the judge was concerned about was their marital assets (money!) and what they proposed to do with it all. No matter how much I told them that all they had to do was figure out how much of their joint property was 50% (or their definition of 50%) they always boiled down to "She does this all the time and it drives me nuts" or "he made me cry" wah wah wah, I don't care!
Civil Marriage is such a joke I think gays and straights would be better off it it just gets eliminated all together and replaced with what it REALLY is: a contract between to rational partners to conduct certain businesses together for the rest of their natural lives. If people saw it that way, maybe, just MAYBE they'd realize how much time they're wasting when they start whining about their stupid mental issues in court.
Andy Brown says:
DOMA is a sobering reminder that the constitution is only as effective as our ability to enforce it. (Lots of tyrannies have wonderful, enlightened constitutions, which promise all sorts of rights and justices.) It doesn't have a magical power to render us a lawful, much less a just, society. And it's not an accident that these people don't read the actual constitution.
beergoggles says:
Just a few nits:
– FFC doesn't override public policy exceptions to marriage that each state may have. This is why we have cases like the State of New York which will not issue marriage certificates to same gender couples, but will recognize their marriages from other states but other states with public policy exceptions will do neither.
– Thomas, Alito and Scalia are completely lost causes. We had Scalia argue a few days ago that 14A doesn't protect against sex or orientation discrimination according to his 'originalist' interpretation. Kennedy and Roberts are the swing votes on this one since neither is as doctrinaire as the other 3 conservatives on the court.
– States don't necessarily have the legal right to outlaw gays from marrying as the most recent challenge to Prop 8 indicated. The incorporation doctrine of the same due process clause in 14A that prevents the federal govt from treating same gender couples differently also applies to states treating them differently for the purposes of marriage.
Sadly, there are too many right wingers stacking the court system that any plain language constitutional understanding will be overruled by some crap like 'originalist' intent.
Elle says:
Which is what happened with mixed race marriages, yes? FFC didn't seem to motivate any state which outlawed mixed race marriage from recognising the mixed race marriages conducted in other states.
(This is possibly a stupid foreigner question, but if DOMA is repealed/struck down/disposed of in some way, what is to prevent states asserting a public policy exception to FFC in relation to same-sex marriages? Or is that what all the mini-DOMAs effectively do? And does 'public policy' as contained within the exceptions only originate in the form of a statute, constitution (as amended) or judgment, or is it broader than that?)
beergoggles says:
@Elle: FFC was pretty much ignored in Loving as SCOTUS applied 14A to it. The reason being Virginia arrested the couple for marring out of state; an act that was prohibited by law in Virginia at the time.
DOMA has 2 parts. Section 2 basically tries to sidestep FFC. Section 3 tries to defines what marriage is for the purposes of the federal governent. So depending on which part is found unconstitutional, the results for states will differ. If Section 2 is found unconstitutional, it still allows states to make public policy exceptions, and we'll have to go to court to fight those public policy exceptions on 14A grounds. And yes, states are allowed to make public policy exceptions but in statute or amendment only (provided it stands upto judicial scrutiny – rational basis with teeth seems to be the level of scrutiny afforded laws against gays right now). If Section 3 is found unconstitutional, it means the federal government will recognize marriages performed in states where same gender marriages are legal and will have no real effect on states that refuse to recognize same gender marriages.
Elle says:
@BeerGoggles: Thank you so much. Much obliged.
This is something which slightly blows my mind: the hierarchy of suspect-ness of classes, and the (to me) lack of transparency in how a class might become more or less suspect.
fuzzbuzz215 says:
So, Ed, the Tea Party and Republicans are going to sweep up a lot of victories this November. What happens next? Where does the country go from there?
Tosh says:
Did FFC have a basis in Dred Scott?
Non counsel. Thanks
Ed says:
Believe it or not, according to the letter of the law at the time, Dred Scott was decided correctly. Remember that the 13th/14th Amendments did not exist. As the "owner" had legal title to the "property" under the laws of one state, other states were obligated to respect it.
The extra editorializing on Taney's part about how blacks have no rights worth respecting was unnecessary and baseless, but to interpret FFC literally would mean that the case was decided correctly – technically speaking.
nanute says:
I'll qualify right up front: I'm not the sharpest tack in the box. Is it safe to assume that before the 14th Amendment and equal protection was established that no citizen had any expectation of equal treatment under the law? Forget the black "citizens" the court clearly excluded them. I'm looking for something in the Constitution prior to the 14th regarding the rest of the citizens of the Union.
bb in GA says:
ED@ "The FFC is the reason why it is not necessary to get a new driver's license to drive in a different state. Every state in the union accepts my Georgia-issued license as valid, as valid as if their own state issued it."
I think you're correct about the principle, but your choice here has a historical problem. Go back about 50 years and you will find that New York, for example, did not recognize driver's licenses of other states where said licensed driver was younger than NY's issuing age.
Back then, Southern States (in particular) often had issuing ages of 14,15 or 16. I don't remember the NY number, but it was higher (17 or 18)
The problem here is what? Driving is generally recognized as a licensed privilige of the State, not a right. The people involved in these uh-ohs were minors – a complicating factor?
//bb
nanute says:
@bb in GA: You're right. The premise still holds though. If one meets the requirements of age for license, the state will issue one. Once a person decides to reside in another state, he must comply with that states requirements. My question would be: If a 16 year old Georgia resident could legally drive in a state with a higher age requirement?
bb in GA says:
nanute:
I did a poor job of communicating. The answer 50 years ago was no for NY. Your GA pass was NDG. If busted, you would be ticketed and parked w/ no recourse to drive on. A potential logistical nightmare.
Today, I don't know of any State that refuses to honor another State's non-commercial driver's license no matter what their internal requirements for licensure. That is certainly more in line w/ the FFC principle.
But one State's "shootin' cracker" (as my Daddy used to call them) is another State's explosive device.
//bb
nanute says:
bb in GA:
I went back and read your original comment again. You communicated effectively. It's my comprehension that's the problem.
I think Mississippi allowed one to drive at 14. (Or was that the age of Jerry Lee Lewis' cousin bride?) Me thinks, both. Thanks for the response.
Tosh says:
Thanks Ed
I meant did Dread have a basis in FCC
We understand Dread was correct at the time
The principle was in question. I taught Black American Studies as a Grad student and The most difficult part was to have the student understand the issues was the Law and not any internalized, personal feelings.
Tosh says:
OK forgot how to spell…