liz_marcs (liz_marcs) wrote,

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Intresting NYT article on same sex marriage

For the record, I believe that the Massachusetts State Supreme Court was 100% right about green lighting same sex marriages.

Since I'm posting from work, I can't get into my *very* long rant in support of same sex marriages. But, for your edification and enjoyment, the NYT wrote an article looking at how different states might handle same sex couples married in Massachusetts using interracial marriages pre-1967 as a template.


Can you say patchwork laws and legal decisions boys and girls? The fight's gonna be long and hard.

Is it me? Or does it truly bug that we couldn't get the Equal Rights Amendment passed for women, but Monkey Boy in the White House wants to fast track an oppressive Constitutional amendment essentially taking rights away from a certain group of people.

Monkey Boy must've been asleep in history AND civic class because:

1) You never amend any constitution to restrict rights from people; it's always used to limit the powers of the government

2) When you try, to amend a constitution to restrict people's rights, it always goes very, very wrong (see: Prohibition)

News Analysis: Bans on Interracial Unions Offer Perspective on Gay Ones

March 17, 2004

Without a constitutional amendment banning gay marriages,
President Bush warned on Feb. 24, there is a grave risk
that "every state would be forced to recognize any
relationship that judges in Boston or officials in San
Francisco choose to call a marriage."

The president invoked the Constitution's "full faith and
credit" clause, which requires states to honor court
judgments from other states, as the basis for his alarm.

But legal scholars say that an examination of the last
wrenching national debate over the definition of marriage -
when, only 50 years ago, a majority of states banned
interracial marriages - demonstrates that the president
misunderstood the legal terrain.

"No state has ever been required by the full faith and
credit clause to recognize any marriage they didn't want
to," said Andrew Koppelman, a law professor at Northwestern
University and the author of "The Gay Rights Question in
Contemporary American Law."

Indeed, until the Supreme Court struck down all laws
banning interracial marriage in 1967, the nation lived with
a patchwork of laws on the question. Those states that
found interracial marriages offensive to their public
policies were not required to recognize such marriages
performed elsewhere, though sometimes they did, but as a
matter of choice rather than constitutional compulsion.
That experience is instructive, legal scholars say, about
what is likely to happen when Massachusetts starts
performing gay marriages in May.

Attorney General Eliot L. Spitzer of New York has provided
an example of what the analogous patchwork in the gay
marriage context might look like. Mr. Spitzer, in an
informal advisory opinion issued on March 3, said he
expected New York to recognize gay marriages from other
states because they are not "abhorrent to New York's public
policy." Thirty-eight other states, on the other hand, in
enacting Defense of Marriage Acts, have expressed the view
that such marriages do offend their public policies.

Mr. Spitzer based his assessment on state law and not the
federal Constitution, and he based his description of New
York's public policy on a single decision of a Manhattan
trial court last year that is still under appeal.

There is a second reason same-sex marriages in
Massachusetts are likely to have a more limited effect than
the president suggested. An obscure 1913 law in that state
makes void all marriages performed there where the couple
is not eligible to be married in their home state. That
law, too, was born in part from an effort to prohibit
interracial marriages.

Last week, the California Supreme Court stopped the gay
marriages being performed in the second place cited by the
president. The court will hear arguments on the question
later this year.

In 1967, when the United States Supreme Court struck down
all bans on interracial marriage, it acted on the most
fundamental constitutional grounds, saying that the laws
violated both due process and equal protection.

No one believes that the court is likely to say anything
like that about gay unions anytime soon.

What is notable about the 1967 decision for the gay
marriage debate, then, is that it did not mention the full
faith and credit clause. Although the case involved a
Virginia couple prosecuted for violating that state's ban
on interracial marriage by visiting the District of
Columbia, which allowed such marriages, the Supreme Court
did not suggest that Virginia was obligated to recognize
the marriage.

To the contrary, the decision affirmed that marriages are
generally a matter to be left to the individual states.
That is consistent with hundreds of decisions over
centuries, based on state rather than federal law, that
allowed states to decline to recognize marriages that
violated their own strong public policies.

Indeed, in the context of interracial marriages, courts in
states that banned such unions routinely declined to
recognize those performed in states where they were legal.

But the decisions were not uniform. Indeed, the way courts
treated interracial marriages illuminates how gay marriages
are likely to be treated.

The decisions fall into broad categories, generally turning
on whether the couple in question intended to evade their
home state's laws. That principle, legal experts say, is
likely to govern many disputes about gay marriages
performed in Massachusetts.

"The Jim Crow judges were horrifyingly wrong about many
things," Professor Koppelman wrote in the Texas Law Review
in 1998, "but they did understand the problem of moral
pluralism in a federal system, and we can learn something
important from the solutions they devised."

Opposition to interracial marriage in the last century was
in many ways more vehement than opposition to gay marriage
today. It was, for instance, a criminal offense in many
states. None of the 38 states that expressly forbid gay
marriage by statute today go that far.

Yet in cases where evasion was not at issue, courts were
often surprisingly receptive to the recognition of
interracial marriages.

In some cases, an interracial couple who were legally
married in their home state moved, after years of living
together, to a state where such marriages were banned.
Court decisions about whether to recognize such marriages
were about evenly divided.

In other cases, such a couple never left the state where
they were legally married but sought to use the courts in a
state where their marriage was theoretically invalid in an
injury, property or inheritance case where something turned
on their marital status. In such cases, the courts very
often recognized the marriage.

William Rubenstein, a law professor at the University of
California, Los Angeles, said a theme ran through the

"The less you look like you're playing games," Professor
Rubenstein said, "the more likely a court is to recognize
the relationship."

The entire discussion may be academic in the case of
Massachusetts, given its 1913 law.

Linda Hutchenrider, president of the Massachusetts Town
Clerks Association, said her group was awaiting legal
guidance on the meaning of the law and how to enforce it.

"We're not the marriage police," Ms. Hutchenrider said.

But the law would seem, she continued, to void marriages of
out-of state gay couples. "It really seems to fit," she

She added that Mr. Spitzer seemed to have overlooked the
Massachusetts law, which appears not to allow New York
couples to be married there in the first place.

"It becomes a chicken and the egg thing," Ms. Hutchenrider

Matt Coles, director of the American Civil Liberty Union's
Lesbian, Gay Rights and AIDS Project, said he was reluctant
to compare the gay rights movement to the civil rights

"One struggle has never been like another, in overriding
ways," Mr. Coles said. "That said, interracial marriage
draws a more powerful analogy than any other."

Go. Read. Scary and interesting.

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