Tuesday, December 06, 2005

No, you won't have to marry your goat if gay people can marry in Massachusetts.

Some talking points, in case you find yourself in the middle of a gay-marriage discussion...

Will the Full Faith and Credit Clause really require states to recognize same-sex marriages from other states?

No. The Supreme Court has repeatedly stated that the Full Faith and Credit Clause does not apply to matters about which the home state is competent to legislate, particularly where such legislation would violate the home state?s public policies. States have applied this precedent to issues pertaining to same-sex and transgendered marriage.

But what about Loving v. Virginia, which prohibited laws against interracial marriages?

Loving v. Virginia did not address the Full Faith and Credit Clause at all. The issue in that case was whether prohibiting interracial marriages violated the Equal Protection Clause of the U.S. Constitution. It is the Equal Protection Clause, not a particular state?s marriage law, that the Court found was binding on all the states.

Here are a few cases, in case you're feeling adventurous enough to do some research:

Franchise Tax Bd. of California v. Hyatt, 123 S. Ct. 1683 (2003).

The Full Faith and Credit Clause does not compel " 'a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.' " Sun Oil Co. v. Wortman, 486 U.S. 717, 722, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988) (quoting Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493, 501, 59 S.Ct. 629, 83 L.Ed. 940 (1939)).

. . . .

The Court has already ruled that the Full Faith and Credit Clause does not require a forum State to apply a sister State's sovereign immunity statutes where such application would violate the forum State's own legitimate public policy. Nevada v. Hall, 440 U.S. 410, 424, 99 S. Ct. 1182.

In re Marriage License for Nash

Ohio 2003 WL 23097095. (Sorry for the WL citation - Can't get into Westlaw and I'm too lazy to go look up the cite by hand)

The full faith and credit clause is not violated when granting full faith and credit to another state's records would violate the public policy of the state applying the other state's records. See Nevada v. Hall (1979), 440 U.S. 410, 422, 99 S.Ct. 1182, 59 L.Ed.2d 416; Pink v. A.A.A. Highway Express, Inc. (1941), 314 U.S. 201, 210, 62 S.Ct. 241, 86 L.Ed. 152; Atlantic Fin. Co. v. Fisher (1962), 173 Ohio St. 387, 389, 183 N.E.2d 135; Gibson v. Bolner (1956), 165 Ohio St. 357, 361, 135 N.E.2d 353 (refusal to recognize out-of-state birth certificate showing sex change of transgendered applicant for marriage license).

Rosengarten v. Downes, 802 A.2d 170 (Conn.App. 2002).

The plaintiff contends, "Connecticut public policy clearly favors the conclusion that the Superior Court has subject matter jurisdiction to dissolve the civil union entered into in Vermont." He claims that principles of full faith and credit demand that Connecticut recognize Vermont's civil union statutes unless recognition would violate some strong public policy of Connecticut. He further claims that Connecticut does not have a strong public policy against recognition of civil unions but, instead, that Connecticut public policy favors the recognition of civil unions and the right to dissolve them. We disagree. We conclude that Connecticut public policy does not support that conclusion (refusal to recognize civil union as a marriage so they can get a divorce; refusal based on public policy exception to FFC).

Loving v. Virginia, 87 S.Ct. 1817 (1967)

We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

4 comments:

  1. do these decisions come with their own personal interpreter? Just kidding. But sometimes judicial statements are circularly misleading or ambiguous. By the way, did you notice that South Africa has become the 5th nation in the world to legalize same-sex marriages?

    ReplyDelete
  2. I did see that. Never thought I'd see the day when South Africa was more progressive than the US.

    ReplyDelete
  3. Anonymous10:41 AM

    As a South African, I can assure you that only the constitution is progresssive, not the people or atleast the majority.

    ReplyDelete