Sometimes you miss the obvious

[Steve]

A while back, in a "gay marriage" thread, I noted that the equal protection clause of the Constitution would require all other states to recognize the validity and legality of a gay marriage performed in one state. It was then pointed out that the federal Defense of Marriage Act specifically allows states to ignore such marriages. I let the subject drop, not having been aware of the Act.

Recently, I was reading a column on the subject where the author correctly pointed out that the Constitution trumps federal law, every time. Now it's possible, when (not if) the matter comes before the Supreme Court, that the Court may rule that the equal protection clause does not apply in the specific case of gay marriage. I don't see that happening, but I concede it's possible.

However, it is certain that the equal protection clause does, in fact, override the Defense of Marriage Act.

The only certainty in this situation is the the Supreme Court will eventually end up making a ruling. Very similar to what happened with Roe v. Wade, it would seem.

[RRedline]

I think the Defense of Marriage Act will probably be declared unconstitutional. If a state can refuse to recognize a same-sex marriage, then why can't they refuse to recognize any marriage they choose, such as an interracial one? People often ask the question, "What if a state doesn't want to recognize a same-sex marriage that was legally performed in another state?" I ask, "What if that same state doesn't want to recognize a heterosexual marriage that was performed in another state?"

Another interesting thing about this debate is that if the states want to define marriage as the union of one man and one woman, then shouldn't they also have to define gender? It's rather easy to identity the gender for most people, but what about transgendered or transsexual people? How will the states (or the feds) define the terms <i>man</i> and <i>woman</i>? If they don't define them, will people find loopholes?

[joseftu]

I think the Defense of Marriage Act will probably be declared unconstitutional. I think so, too. As well it should be.

It is the enduring shame (well, not the <b>only</b> shame! ;)) of the Clinton presidency that he supported this thing.

[Techie2000]

I think so, too. As well it should be.

It is the enduring shame (well, not the <b>only</b> shame! ;)) of the Clinton presidency that he supported this thing.I always thought the enduring shame of the Clinton presidency was the DMCA...

[ravital]

I think the Defense of Marriage Act will probably be declared unconstitutional.
Let's hope so.


How will the states (or the feds) define the terms man and woman? If they don't define them, will people find loopholes?
And that's the quickest way to hell. A law for every little minute detail of life? Might as well turn the planet over to robots and computers at that point.

[ravital]

I always thought the enduring shame of the Clinton presidency was the DMCA...
Good one!

http://www.globalaffairs.org/forum/images/smilies/appl.gif

[Mentat]

The equal protection clause is a Constitutional concept or umbrella part of the fourteenth amendment as opposed to a Constitutional specific or defined statute. Therefore it is applied on a situational or case-by-case basis as decided by the SC.

The practical result is that in the case of same-sex marriage the court must rule that the states’ denial of recognizing same-sex marriage specifically violates the equal protection clause.

It is debatable that the current court would do that especially if the states are granting same-sex civil unions. This is the same court that under the fourteenth amendment’s right to privacy concept per previous case law voted 5-4 to effectively affirm Roe v Wade which is legally similar to the issues that the same-sex-marriage is likely to be legally challenged. Keep in mind that precedent carries great weight when courts make legal rulings. Roe v Wade just barely survived with the precedent in place. With the same-sex marriage there is no such precedent.

If the court were to rule that the states refusing to recognize or define marriage to include same-sex marriage was not a violation of the equal protection clause than gay couples would be worse off than they are now.

Depending on who wins the election the Supreme Court make up could change dramatically in the next four to eight years. There could be a significant swing to either the right or left.

It is better to not to go the SC than it is to go and lose. If you win than no problem! But if you lose, you are screwed. Best to stick with a state-by-state basis and go for civil unions for now or get same-sex “marriage” if you can.

[Stiofán]

Legal scholars have generally held the DMA as unconstitutional. But it is the law of the land until it gets challenged. And prior to Massachusetts allowing gay marriage, there has never been a substancial case to test it. But as Mentat mentions, the equal protection clause argument may not be so cut and dry.

The recent federal push for a constitutional amendment was an effort to cut short any challenge to the DMA. It's not popular to mess with it now, but we may see it return if the DMA is overturned. I don't see it passing the state's muster and making it into the constitution though. Having a state's population pass a law against gay marriage is one thing. Having enough state legislatures pass a constitutional amendment is another.

[joseftu]

I always thought the enduring shame of the Clinton presidency was the DMCA...Yes, that was a real winner, too! :)