From: tom@flood.com (Tom Chatt)
Subject: Re: State laws regarding same-sex marriage (was: Maybe a dumb question...)
Keywords: marriage legal gay
Organization: The Flood Group, Inc.  Torrance, Ca.
Distribution: usa
Date: Fri, 18 Dec 92 11:56:03 GMT

rdonahue@spdcc.com (Bob Donahue) writes:
| coren@speed.osf.org (Robert Coren) writes:
| >I'm pretty certain, however, that *other* states have nothing to say
| >about it, if there's no such provision in the originating state's law.
| >In other words, if Hawaii passes a law that extends marriage to
| >persons of the same sex (or, as is at issue now, Hawaii's existing
| >marriage law is determined to apply to same-sex marriages), the "full
| >faith and credit" clause of the 10th(?) Amendment requires all other
| >states to recognize all Hawaii marriages as legitimate.
| 
| 	Yes, yes, yes...  I fully realize that the potential for this
| exists on the books, but paranoically speaking, since when has the
| Constitution ever been read in a way that greatned us equality?
| I mean ignoring Bowers v. Hardwick which is an obvious example,
| we have the 14th that should already include us, but yet discrimination
| is legal in 44 states (43 for job discrimination) and semi-mandatory in
| 1 (With the potential of 10-20 in the next 2 years).  What makes you
| believe that if we get lucky in Hawaii or any other state that 
| this problem will magically clear itself up?
| 
| 	I have a feeling that the non-inclusion of homosexuals in
| the 14th (implicitly) overrides the 10th.  Or at least it could
| easily come down that way.  Rememberm we're talking marriage here;
| there's a lot less support/tolerance for that than for simple equal
| opportunity (of which there still isn't enough support).

Yes, but also remember that we are talking constitutional law here.
Ironically, though the general populace is much less accepting of
gay marriage than of simple equal opportunity, the marriage claim
being discussed here has a *much* *stronger* constitutional basis
than equal opportunity.

When a state passes a law that discriminates against some group,
it is not unequivocally struck down by the 14th Amendment. There
is a great deal of judicial interpretation that goes on, balancing
state interests against individual liberties. It is not by any
means cut and dry. In fact, it's rather fuzzy.

However, were Hawaii to validate gay marriages, the constitutional
bases for binding that on all 50 states are significant. There
is "full faith and credit" (as Evelyn pointed out, it's in Article
IV, not in the Amendments at all). If Virginia, e.g., refused to
recognize Hawaii's marriages, it squarely flouts FF&C. Moreover,
notice that not only has Virginia injured would-be gay spouses,
but it has in effect injured the state of Hawaii. The court is
not in the position of adjudicating whether Hawaii's marriage
law is valid (the court has *no* basis whatsoever for striking
it down, even if it were adjudicating that matter); it is
adjudicating whether one state can disregard another state's
marriages. In support, we have FF&C, we have clear precedent
(Lovejoy), and we even have some compelling additional arguments
such as the right to freely move from state to state (which has
been held as fundamental and vigorously defended by the court).

So, strange as it may seem, this marriage issue is much more
of a safe bet in the Supreme Court, than, say the possibility of
overturning Measure 2. Despite the relative popular acceptance
of simple equal opportunity, it has significantly weaker legal
claims than the extension of marriage once we get one state.

-- 
Tom Chatt                        \   Don't take offense, take action.
Internet: tom@flood.com           \    Speak up. When we remain silent,
UUCP: ...!uunet!flood!tom        / \     we oppress ourselves.
Newsgroups: soc.motss