I think it's going to come down to recognizing marriages performed in other states.

[yardwork]

Last edited Wed Mar 5, 2014, 12:40 PM - Edit history (1)

I see a likely way for the Supreme Court to rule that will recognize the constitutional requirements for Full Faith and Credit while still respecting "states' rights."

The Court could rule that all states must recognize marriages performed in other states. They could stop short of requiring all states to perform same-sex marriages.

I don't believe that this would be the right decision. I think that gay folks have an equal constitutional right to marry. But I see this as a workable solution that would likely garner at least 5 votes from the current justices.

I'm not a legal expert. I'm curious to hear what legal experts think of this scenario. Please weigh in.

Edited to correct info. Please see post #5 below and many thanks to Swede Atlanta!

[RKP5637]

1. It would be a start, but it's still inequality. Also, all of this adds such a level of

complexity to day-to-day business operations, for example, insurance policies and the like. Here's what I see on all of this, get religion out of marriage. Treat marriage as a business contract for legal purposes. Then, if some want the church to bless that marriage, fine. ... but to me, marriage should be marriage with nothing to do with religion. To me, religion, yet again, is the core problem.

[Saphire]

2. this ^^

[yardwork]

9. Religion already has no legal role in U.S. marriage.

In the U.S., marriage is a legal term. People are welcome to have a religious ceremony but that plays no role in the legality of said marriage. This is already a non-issue.

No church can be forced to perform wedding ceremonies.

[RKP5637]

10. Excellent point, thanks! n/t

[Freddie]

3. I think you're right

And after that happens, those states that won't "perform" same-sex weddings will be under a lot of pressure from business interests (like tourism) that are losing a lot of $$ from neighboring states. So eventually all states (expert maybe Utah) will fall in line.
My brother is a disc jockey who makes much of his living from weddings. He's really hoping PA gets on the right side of this issue soon, he needs the business.

[MineralMan]

4. I think you're absolutely right.

That's the next step, and it's going to be very difficult, even for the current SCOTUS, to ignore the arguments for this.

It doesn't go far enough, though, of course. But, recent federal court decisions that some state's anti-equality marriage laws and amendments are unconstitutional may well push the court to toss all such laws out. The district court's decisions are very carefully written and make an excellent case.

The inevitability of marriage equality is not going to fade away.

[Swede Atlanta]

5. Two observations......

The basis for your conclusion is Full Faith and Credit and not Equal Protection

The FF&C clause of the U.S. Constitution requires each state to recognize, hold as valid and, where necessary, enforce legal acts from other states.

QUOTE
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.
ENDQUOTE

The FF&C clause has always been recognized as applicable to matters that are normally a function of state law such as family law - e.g. marriage, divorce, child custody, adoption, etc. So in fact in my view once DOMA was overturned this should be a no brainer. If state A marries a couple under their state law and their relationship is legally recognized in state A then state B must recognize the marriage.

Fundamentally whether one state recognizes same-gender marriages or not is no different than one state that allows a minor to marry at 16 and another requiring the person be 18. If state A marries a 16 year old under their state law and the couple moves to state B where you have to be 18, that marriage must be recognized as valid in state B even though the marriage would not have been allowed in state B until the age of 18.

But that is not equal protection. Equal protection is the idea that if a state allows an opposite gender couple to marry, absent some compelling state interest, they may not deny a same gender couple to marry. The argument from conservatives is that marriage has been historically recognized as between one man and one woman and that a same gender relationship is fundamentally different than an opposite gender relationship because the opposite gender relationship is intended for pro-creation and the raising of families.

All those arguments fall apart when the question is raised as to whether opposite gender couples should be fertility tested or have to take an oath to pro-create before being allowed to marry. What about where the man and/or woman is older and pro creation is unlikely or impossible?

I personally believe the Court will ultimately decide this on equal protection grounds. Many states went kicking and screaming when the Court held proscriptions on inter-racial marriages unconstitutional in Loving v. Virginia. Inter-racial or same gender, the issue is the same - they are marriages where some people don't like who is marrying who.

[yardwork]

8. Thank you for that info! Very helpful.

[RKP5637]

11. Very informative!!! Thanks for posting this!!! n/t

[OKNancy]

6. I agree

Seems to me that FF&C clause and/or equal protection would be an easy out for the Supremes. As you wrote, it's not the right decision, but it's a step.

[Zorra]

7. That's a reasonable option, but let's hope, and fervently wish for,

one or more of the fascist SCOTUS poseurs to vacate their seat on the bench sometime later today, or at least sometime within the next week.

Visualize Scalia's retirement.