Re: [UUPoly-L] Poly reality

["Catherine Deville" <catdeville@cox.net>]

Dave said:
<<In regards to marriage, federal "equal protection of the laws" may not
apply because "marriage" regulations have always been a state responsiblity
to define and control.
A recent Supreme Court decision, I believe affirmed this, in regards to the
new Massachusett's laws.>>

I didn't say that equal protection of the laws applies - that's the 14th
Amendment argument, I said that there were arguments concerning the conduct
of interstate commerce.  I apologize for not being clearer in my wording (I
was in a rush this morning and couldn't remember the specific article and
didn't have time to look it up.  But to clarify I refer specifically to the
"Full Faith and Credit Clause" (Article IV, Section 1) of the Constitution
("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."), which applies
whenever something like marriage laws are significantly different from state
to state, as states traditionally honor the marriages licenses of other
states as a matter of interstate commerce when people move from one state to
another.  This is why it's not uncommon for individuals to go from one state
to another to obtain a license when the state in which they reside presents
some barrier to marriage, such as age of consent, blood test requirements or
residency requirements.

So, yes, up until the passage of DOMA, at least, it was a state
responsibility to define marriage and to regulate who could be married
within that state, but under the Full Faith and Credit Clause, marriages
which occur within one state are recognized in another (if this were not
true, anyone who moved from one state to another would have to remarry under
the new state's laws to retain their legal status.) 

And while an argument attempting to apply the 14th amendment of
anti-miscegenation laws was denied in 1972 in Baker v. Nelson, in Lawrence
v. Texas (2003), the Supreme Court held that the right to private consensual
sexual conduct was protected under the Fourteenth Amendment, which leaves
the argument open again. In addition, the 1996 DOMA opened doors where both
the 14th amendment and interstate commerce are concerned by federalizing the
definition of marriage (DOMA *specifically* makes reference to the Full
Faith and Credit Clause.)  A recent case was allowed to sue in court on the
basis of DOMA, but the case failed because they could not demonstrate
injury.  Because of the wording of the decision, the door was left open,
however, to individuals who *can* demonstrate injury.  DOMA itself leaves
open a lot of doors, which the Republican Congress has been trying to keep
shut annually with a "court-stripping" provision, but a) that provision has
its own constitutional problems and b) that Congress has changed recently,
so their next attempt at such a provision may easily fail.

<<This is why many states are trying to pass laws that define legal marriage
as being between one man and one woman.  So, if gays or lesbians can marry,
or get a "civil union" in one state, it will not apply in their state. >>

Yes, but when they do, they open the door to appeals based on the Full Faith
and Credit Clause, because marriage has *traditionally* been honored from
state to state under this clause.  This is precisely why Loving vs.
Virginia, the case which repealed anti-miscegenation laws nationwide even
became an issue - because the Lovings moved to a different state to marry,
*then* came home to Virginia, where their being married was illegal.  Had VA
not recognized the marriages of other states, their marriage would have
simply been null and void.  Rather, because their marriage would have been
recognized, they were thereby married "illegally" and went to jail. 



<<Because states are not required under our Constitution to accept things
done legally in one state, in their state, IF that practice has been
established as illegal there.>>

Well... *sometimes* this is true... and *sometimes* it's not so clear.

<<For example, it IS legal to gamble, and practice prostitution in the state
of Nevada.  But,  let's say, if I were  a Nevada resident (I'm not), and
move to Missouri, I can't legally gamble in most places, and cannot practice
prostitution in Missouri, even if I carry a license to do so in Nevada.>>

Not the same thing - you're talking about "doing" something illegal in one
state rather than "being" something illegal in one state. And that's a good
choice of states, since many people go to Nevada to get married and divorced
because the state residency laws for such things are much more lax than
other states, so one can get married in Nevada where they would not be able
to get married in Missouri, then go home to Missouri and still be married.
This fact opens the doors to challenges specifically on the status of Full
Faith and Credit Clause of the Constitution. 

At any rate, I'm sure neither of us is lawyers, and we'll just have to see
how such battles are played out in the future - especially if they should
come before the current Supreme Court, as that court has a political bent
such that you may be right (regardless of whether the legal arguments are
sound or not) in thinking that such arguments will not be entertained, but I
simply wanted to clarify that you misread what I was saying - that I was
referring to a different argument (although I wouldn't give up on the 14th
Amendment argument either, yet.) 

NT,
Cat