Swirling Around Thoughts

Yesterday, the US Supreme Court heard the case on California’s Proposition 8 (a voter adopted law to restrict same sex marriage).  A lower federal court overturned it, and the State did not challenge that ruling, but the propositions supporters did and their lawyers argued to overturn the district courts ruling.  I thought they did a miserable job of justifying why only a man and a woman can marry, but then the respondents didn’t establish any great argument before the court as to why it was discrimination to set that as a standard.

Today the Court heard a challenge to the 1996 Defense of Marriage Act or (DOMA), a law where the Congress and the President felt they had the right to define what was a legitimate marriage, and it could only be between a man and a woman.

I will undoubtedly upset some in my family, but I think the lower court’s ruling in Prop 8 should be overturned, while at the same time I think the DOMA should be found unconstitutional.  Both choices stem from a belief that the right to define and regulate marriage is a State’s Right and not federal issue. 

In the case of Prop 8 the majority of the state voted in favor of it when the State Supreme court struck down an earlier law.  Opponents then filed for regress in Federal Court, who did by judicial fiat what the opponents could not do at the polls.   If it is true that Prop 8 would not pass today, then it should be put again to the voters to determine what the law of the state should be, and not directed by the courts.  As was noted in the questioning by the judges, at what precise point in time did the prohibition of same-sex marriage become unconstitutional?  I would go one step further and ask when did the approval of who can marry become a federal issue?  Was it 1996 with the passage of the Defense of Marriage Act?

In the case of DOMA, I think the federal government has impinged upon one of the basic rights of the states, and says to them, “if you don’t see it my way I will withhold federal funds,” and to the citizens who have met the requirements for marriage, as defined by the state, “I don’t care, you are not afforded equal protection.” 

I believe each state should have the right to determine, within its constitutional authorities, what the majority of its population believes to be right for that state as long as an individual’s right to self-determination is protected.  I know some will argue that restricting marriage to only heterosexual relations discriminates against homosexuals.  I think this argument is just as weak as the one that says marriage can only be between a man and a woman.  Marriage within a Church may carry moral requirements, and I certainly believe the Church as a right to establish those requirements since membership in the Church is an individual choice, but by the state it is purely a licensing practice that establishes a contract between the parties, who will ultimately gain financial and other security benefits from that contract.

There is one critical federal point I would like to note here.  In our constitution there is specific language to how the states must deal with the laws of other states.

Article 4, Each State to Honor all Others.  

Article. IV.

Section. 1.

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.

Section. 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

While I have my doubts the founding fathers would have considered the implications of same sex marriage, I believe the provisions of this article remains a governing precept, and if a couple are legally married in one state, that marriage must be recognized in all others, and the federal government, even if the others choose not to approve of same sex marriage in their own laws and regulations. 

I believe there is adequate precedent for this, as I can recall that even in my life there was a time when people who sought a quick divorce would establish residency in NV until it was granted, then when they returned to their home states that divorce decree remained valid and in force.

But then I am not a lawyer, just an individual with an opinion.