[UUPoly-L] commerce clause and interracial marriage

[licorice gumdrop <licorice.gumdrop@gmail.com>]

> On May 19, 2007, at 2:14 PM, Catherine Deville wrote:

> The problem with that, and the federal legislators know it, is that  
> allowing same sex marriage in one state opens up Interstate  
> Commerce constitutional arguments which compel other states to  
> acknowledge that marriage.  That precedent was established in the  
> 60s when that constitutional provision was used to strike down the  
> laws prohibiting "colored persons" and "white persons" from marrying.

as one of my law professors was fond of saying, "well, that's  
right...  unless it's completely wrong."

cat, it may be a punctuation issue, but i think you're conflating  
three distinct areas of constitutional law: the commerce clause  
(article I, section 8 of the u.s. constitution), the full faith &  
credit clause (article IV, section 1), and the 14th amendment.

the landmark case on interracial marriages was loving v. va (1967)  
(findlaw has the SCOTUS decision here: http://caselaw.lp.findlaw.com/ 
scripts/getcase.pl?court=US&vol=388&invol=1 ; if you don't want to  
read the actual case, wikipedia does a nice job of summarizing it  
here: http://en.wikipedia.org/wiki/Loving_v._Virginia ).

in loving, the virginia law was found to violate the equal protection  
and due process clause of the 14th amendment.  the decision didn't  
even come close to brushing on commerce clause implications...   
because there weren't any.  however, as to future applications of the  
decision, the wikipedia entry notes,

"Some believe that the Loving ruling will eventually aid the marriage  
equality movement for same-sex partnerships, if they allow the Equal  
Protection Clause to be used. F.C. Decoste states, "If the only  
arguments against same sex marriage are sectarian, then opposing the  
legalization of same sex marriage is invidious in a fashion no  
different from supporting anti miscegenation laws". Miscegenation  
laws are to interracial marriage, as sodomy laws are to homosexual  
rights. Sodomy laws have been placed upon society to maintain  
traditional sex roles that have become part of American society."

one could apply the same logic to multi-partnering.

it was racial discrimination in accommodations which ran afoul of  
title II of the civil rights act of 1964, via the commerce clause.   
you'll want to look at heart of atlanta motel, inc. v. united states  
(1964) and the companion case katzenbach v. mcclung (1964).  justice  
clark, delivering the opinion of the court in heart of atlanta, wrote:

" ... the power of Congress to promote interstate commerce also  
includes the power to regulate the local incidents thereof, including  
local activities in both the States of origin and destination, which  
might have a substantial and harmful effect upon that commerce.  One  
need only examine the evidence which we have discussed above to see  
that Congress may - as it has - prohibit racial discrimination by  
motels serving travelers, however "local" their operations may appear."

OTOH, you may (and again, your post isn't clear, so forgive me if i'm  
wrong) be mistaking the commerce clause for the full faith and credit  
clause (article IV, section 1 of the u.s. constitution), which  
requires states to recognize the laws and court decisions of other  
states.  this is what got some states in a tizzy when the  
massachusetts supreme court decided goodridge v. department of public  
health in 2003.  there, SCOMA found that "Massachusetts may not "deny  
the protections, benefits and obligations conferred by civil marriage  
to two individuals of the same sex who wish to marry."" (summary on  
wikipedia at http://en.wikipedia.org/wiki/ 
Goodridge_v._Department_of_Public_Health )  opponents of same-sex  
marriage fear that the full faith & credit clause would require  
states to recognize same-sex marriages ratified in other states.

regards,

      jenny