In the heady times following the Massuchusettes ruling allowing same-sex marriage, same-sex marriage activists thought the corner had been turned for their cause. They were very much mistaken though. The latest blow to their cause came this week when the New York courts ruled that there is not a fundamental right to same-sex marriage. This is especially troubling for same-sex marriage advocates, because New York is a deep-blue state and the courts there are seen as “progressive.”
The New York case results from suit brought by 44 couples denied marriage licenses in various municipalities in New York. The plaintiffs brought suit claiming that the failure to issue a marriage license to them to marry another of the same gender violated the due process clause and equal protection clause of the New York Constitution. The clauses have been given more expansive readings than similar provisions in the U.S. Consitution, which is part of the reason suit was brought. The New York High Court, joining Arizona, New Jersey and Indiana, rejected the claim.
At the time of this writing, twenty states have constitutional amendments explicitly barring the recognition of same-sex marriage, confining civil marriage to a legal union between a man and a woman. Forty-three states have statutes defining marriage to two persons of the opposite-sex. Most of the constitutional amendments have been in reaction to the Massachusettes decision. This comports with public opinion polls reflecting roughly 60-40 against recognition of same-sex marriages.
It appears that the courts will let this play out in the state legislatures from coast to coast. I agree with the courts. If one looks at traditional due process rights, the right to marry is fundamental. The right to same-sex marriage is not, as even those legal scholars in favor of gay marriage will admit . If the activists want to obtain same-sex marriage rights for same-sex couples then they must win over the public, rather than try to force feed them.
There is only one other state in the country that might allow same-sex marriage. The battle in the courts is largely over. The activists jumped the gun. As a result of running to the courts instead of winning over the public, same-sex advocates face nearly insurmountable hurdles to achieve their desired goals. This result is a direct outccome of a belief that it is an “us against them fight” mentality. So much for we will break the door down tactics.
Consi:
Then, in those state laws where the qualifications are NOT clear-cut restricted to only men and women, would not the courts be called upon to clarify the status required?
On a slightly diffrent note, has anyohne head of the imminent legalization of gay marriage/civil unions in New Jersey?
From the almighty wiki:
Persnally I hope the Legislators go all the way and leagalize full g.m., not “civil unions.”
leguru:
The question presumes that marriage doesn’t have a clear meaning and needs interpretation. The term has never been ambiguous. How the same-sex marriage advocates are framing the issue is usually a claim that it either it violates the equal protection clause. The challenges that are mounted usually challenge that the failure to allow same-sex marriage is gender discrimination. See the full discussion above.
Max:
I did mention that. I also venutred an opinion that it would result in unions, which is what is currently being proposed.
As a further update, Milt Romney, governonr of Mass. is going before the Supreme Court in an attempt to get the legislature to vote on a constitutional amendment banning same-sex marriage there. It seems the legislature won’t vote on the issue because same-sex marriage advocates are afraid of the issue going to the peopl.
Does that seem wrong to anybody else here besides me?
As I said before, gay-marriage advocates ought to be working harder to get the peopl on their side, yes. But as has been raised counteless times in this forum, majority rule has supported many evils in the past. The people fought tooth and nail many freedoms we now accept as obvious. While this does not mean every new proposed freedom is good, it does mean that popular disapproval is not a valid argument for restricting that freedom.
There is a VERY good reason for this. The US is full of bigots, evidence of this is the number of states that have passed homophobic state constitutions. The US government has made an exception to the full faith and credit clause in the constitution specifically to make it null and void for married gay couples.
idm:
If you are referring to DOMA as an exception to the full faith and credit clause (ignoring how that relates in any meaninful way to the process of amending the Mass. constitution) you are mistaken.
Why are you mistaken?
Well, let’s walk throught the steps and the analysis. Say State A, by judicial fiat or by a vote of the people, creates same-sex marriage rights. Couple YY gets married in State A. Couple YY then moves to State B. State B does not recognize same-sex marriage. Couple YY wants State B to recognize the marriage for some purpose, possibly divorce because one of the Ys ended up in a heterosexual affair, but that is not important. What is important is that the couple ends up in court seeking recognition by State B of the marriage that took place in State A.
State B does not have to recognize the marriage of Couple YY, even without DOMA
As a basic matter, the laws of most states are not identical. They differ significantly in many respects on many different issues. For example, if a car accident between a person from State A, happens with a person from State B, on the interstate in state C, there are questions that arise about where the lawsuit may be brought, and which state’s substantive law will govern liability and damages.
The area of the law that govens which state’s substantive law will apply is called conflict of laws. (It is a given that the procedural law of the forum state will govern procedure.) Although each state has its own test to determine which substantiv law applies, with marriage the typical rule is that the place of celebration determines validity. Restatement (Second) Conflict of Laws, Section 283. So, normally, the law where the marriage took place would govern whether the marriage is valid or not.
However, there are two exceptions to this rule. The first is that a court will not recognize a marriage performed in another state if a statute of the forum state clearly expresses that the general rule of validation should not be applied to such marriages. Id. The second, a court will refuse to recognize a valid marriage of another state if the recognition of that marriage would violate a strongly held public policy of the forum state. Id.
The issue has been clearly resolved in nearly all the states that have passed constitutional amenendments defining marriage as between a man and a woman or have statutory language defining marriage. There is no question if State B was one of these states, that recognition of the marriage between YY would violate State B’s public policy. Accordingly, whether DOMA was enacted or not, there would be no marriage recognition.
The only states that don’t have some language in place are:
Connecticut
Massachusetts
New Jersey
New Mexico
New York
Rhode Island
DOMA does not preclude them from recognizing same-sex marriages, nor does it force them to recognize same-sex marriages. Of the states listed, obviously Mass would recognize same-sex marriage conducted in another state. I believe NY has for purposes of who may sue under a wrongful death statute involving medical malpractice.
In any event, states refusing to recognize out of state marriages is nothing new. States have refused to recognize: common law marriages (See Metropolitan Life Ins. Co. v. Chase, 294 F.2d 500 (3rd Cir. 1961)); incestous marriages (See Catalano v. Catalano, 170 A.2d 726 (Conn. 1961)); bigamous marriages (See Brinson v. Brinso, 96 So.2d 653 (LA 1957)); and marriages following sex changes In the Matter of the Estate of Gardiner, 273 Kan. 191, 42 P.3d 120 (2002).
So, it is plain that DOMA did not make an exception to the full faith and credit clause. The states were on sound footing before DOMA to refuse to recognize same-sex marriage.
As usual idm, as regards the issue of same-sex marriage, you are blinded to anything but advocacy and are chock full of misinformation.
… by the right.
IDM’s knowledge of constitutional law may not be as expansive as yours. At the same time, as a gay man, he presumably has a vested interest in equality and the right to same-sex marriage. I’d hardly call that being “blinded to anything but advocacy” or “chock-full of misinformation.” Maybe you should stop while you’re ahead, Consi. I’m still not calling you a homophobe, but you’ve more than made your point and you’re beginning to come off as obsessed.
Is that infected, or affected, by some sort of fervour?
Sadie:
When a post contains misinformation and/or misstatements of fact, such as idm’s post, that demands a response. I’m the only one to give that response. Lest you, my dear Sadie, would like to join me in making sure that the spread of misinformation and misstatement of facts by advocates of same-sex marriage is addressed?
I don’t consider my position to be wrong. I consider the laws to be wrong. The laws are pandering to the religious right.
I don’t consider your positionto be wrong either. I may disagree emphatically with your conclusions, but I believe that reasonable people may fairly come different conclusions that can be reasonably discussed on this issue. What induces mind-numblingly boring posts from me is the need to correct misstatements. I believe it is irresponsible to post up misstatements. That is what drew my ire about your post, not the position you take.
Another Fundy Hypocryte Outted in Colorado
This is funny as shit! The senior pastor of another Colorado megachurch has resigned because he is queer. The cock sucker provided a video tape to his congregation telling them that he knew that he has been gay since he was 5 years old. This is one trend that I want to see continued!
Not to be a buzz-kill, IDM, but I just read the article and it didn’t seem that funny to me. Just, kind of sad. He is a victim of his religion.
I find this to be rather odd. How the fuck does he state he has been homosexual since age 5? But at the same time believe there was some childhood experience that made him homosexual and he wasn’t born that way.
WTF rev, what was that experience? Was it when you asked another homosexual male to pound you in the ass? Cause that usually means to me that you are gay.
I can’t remember thinking when I was younger if I wanted to have sex with a male or female. For whatever reason I just wanted have sex with females. And oddly enough it didn’t take sex with a female to figure that one out.
Exactly – he has been bent over, but mostly by fundamentalism. That man will never know a moment’s peace in this life, because of a religion that has evolved into a nearly unkillable spiritual parasite to him.
Unless you want to consider all fundy christians to be victims, I wouldn’t call somebody who founded and was the head of a megachurch a victim. The guy wasn’t denying to himself that he is gay, he said that he has known it since he was 5 years old. If he had not been such a rabid homophobe I would feel sorry for him.
If it is true, the best part of the article mentioned that somebody had threatened to out him, and leaders of other churches. There may be more …
I do, in the same way that victims of abuse often become abusers. They have internalized an abusive meme and one of its functions is to compel them to do the same to others.
Yes it is possible to break out of that cycle and I hope he does.
I also hope that he does, according to the article he claims that he doesn’t want to; that is the sad part.
I can’t figure out why he is contradicting himself, although for a gay fundy, what is the actual truth? I suspect that I was displaying homosexual tendencies when I was in kindergarten (about 5 yrs old); I preferred to play in the play kitchen with the girls instead of doing the boy play things (I don’t remember what that was). He may be talking about something like this. I didn’t have an attraction to men until I was about 12.
The poor bastard has been programmed to believe that truth and only that truth about the cause of his, and anyone else’s, homosexuality.
If he questioned that Nurture was the cause, as opposed to Nature being the cause, he’d have to question other truths and although these truths are killing him the …
… still has him firmly in its grips.
It sounds like he’s not a bright bastard either.
Yes, DoF he does sound rather sad but I have no empathy for religious fools especially when they follow their silly religions of choice, by faith alone.
I found this one when I was looking for god with the Krishnas in the 80s.
I don’t agree with the first part but, to my mind, xianity falls nicely into the second category.
BUT, I’ll bet the lying hypocritical bastard still preached that all prayers were answered.
A wiser man may have realised it was all about pie in the sky.
He gets points for the fact he wasn’t a really really evil fuckwit.
He is both a spiritual parasite and a victim of the spiritual parasite – you’re right – the abused becomes the abuser.
Well, I’m off to Tasmania for 3.4 weeks so I won’t visiting as much.
Hope y’all have a merry xmas (I’m not into PC) and a happy new year.
Have fun in Tassie, as I hear it’s called. As one who gladly celebrates Christmas (or at least a secularized version thereof): Happy Holidays, everyone!
Merry Christmas LJ and have fun in Tasmania.
Thanks Sexy Sadie, and Merry Christmas to you too.
No hairy arsed Aussie for 4 weeks- awww, who am I going to hang out with in the SEB Bar and snigger at the Septics with. (LJ would know)(or at least guess)
Well I don’t have a hairy arse, but I live in Oz and I’m not going anywhere…
eh up- I’ve pulled. I really hope Tish is female, or at least sensitive in bed…