Thoughts on Gay Marriage

Everyone seems to have their opinion on the matter of Gay marriage. Many Republicans are either pushing for a Federal Marriage Amendment (FMA) or arguing that it is a state issue. Why can’t it just be left alone? Because they know that it’s legal under our current laws.

A lot of pro-gay rights activists start off by quoting Thomas Jefferson in the Declaration of Independence “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.” then go on to list the 14^th Amendment which states “no state shall deny to any person within its jurisdiction the equal protection of the laws.” This should solve it right there… Since it is pretty clear in stating there can be no discrimination in public law. But alas, that’s not good enough for a lot of folks.

The people who attacked basic civil rights for blacks, used the clause to overturn civil rights previous civil rights legislation preventing discrimination between private parties, since those ‘transactions’ did not involve the government. Eventually America found a way around these narrow minded obstructionist with the brilliantly crafted Civil Rights Act of 1964, which basically outlawed discrimination between private parties via the Constitution’s commerce clause. This scope of the commerce clause has been narrowed significantly in recent years, especially by the Rehnquist court, and really is not the best avenue to discuss the legality of gay marriage.

The law that is the most pertinent to the current gay marriage debate is the Full Faith & Credit clause of Article IV.

            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.

Basically any contract, legal arrangement, judgment, etc, in one state is to be recognized by all other states. Whether it’s in regards to ownership, adoption, marriage, etc. A car title purchased in Mississippi is just as good in Ohio as it is where you purchased it. An adoption by a family in California is still recognized as legal in Nevada, Rhode Island or wherever the family moves. If you live in Oregon but go back to your hometown in Minnesota to get married, you’re still married when you get back to Oregon. Now, the car tax, child tax credit, and spousal benefits might vary depending on state, but they’re non-prejudicial across the board, as guaranteed by the 14^th Amendment.

If a couple is recognized as married by the state of Massachusetts then Section I of Article IV guarantees that the marriage must be recognized by all other states. The interpretation can be adjusted by Congress through legislation, but not in violation of the 14^th amendment. The Supreme Court has been pretty consistent about limiting attempts by Congress to add on to Article IV while circumventing the 14^th.    As recently as 2000, the Supremes ruled that the Violence Against Women act violated the equal protection clause. Though offered as a privilege under state law, marriage – it’s transference and enforcement – are protected under federal law. While I don’t see AG Mukasey going out and arguing in favor of Article IV when a gay couple married in Massachusetts moves to Texas, it is his duty to.