Banning out of state divorce: Constitutional?

[TechBear_Seattle]

I was with some friends last night, discussing possible reaction to the state Supreme Court's ruling regarding equal marriage (see this thread.)

One idea we talked about was an initiative that would 1) ban all divorce in Washington where there are children and 2) prohibit state or local governments from recognizing as valid any out-of-state divorce or annulment of a Washington marriage. (Please, I know this would be a bad idea. The point is to force the neo-cons to admit, on the record, that their own marriage rhetoric is hypocritical and dangerous. At the least, it makes for an amusing thought experiment.)

Now, divorces have always been recognized on the grounds of the Full Faith and Credit Clause. The United States Constitution, Article IV, Section 1, says in part: Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. The assertion was made, however, that an out of state divorce violates the Full Faith and Credit of the state that issued the marriage. There is a test case that assumes such a "defense of marriage" initiative were to get on the ballot and pass.

A man and a woman get married in Washington. A few years latter, after having three kids, they separate and want to get a divorce. They have children, so they can not get that divorce in Washington; they head to Oregon, are divorced there, and return to Washington to lead separate lives.

Q1: Can Washington assert that the Oregon divorce violates the Full Faith and Credit Clause, on the grounds that it declares the "public acts, records and judicial proceedings" of Washington to be invalidated?

Q2: Can Washington refuse to grant a marriage license to either of the divorced couple, on the grounds that a previous marriage exists under Washington law?

Q3: If one of the couple entered a second marriage in Idaho and returned to Washington, would that person be subject to arrest for bigamy, on the grounds that a previous marriage exists under Washington law?

Your thoughtful opinions are appreciated :hi:

[The Deacon]

1. Nope

Back when most states had very restrictive divorce laws Nevada made a nice little business out of the "Reno Divorce." Other states tried to challenge it - SCOTUS ruled they had to honor such divorces under Full Faith & Credit. Just as Georgia has to honor my Kansas marriage. And my wife's Kansas divorce (otherwise we'd be bigamists.) And my Wisconsin adoption of my stepson (okay, we move around a lot.) States cannot cherry-pick Full Faith & Credit - they either accept it or we send in Federal troops (see "Whiskey Rebellion"; "War Between the States"; and "Delaware Chancery Court")

[sgxnk]

2. oft repeated canard

here we go with this oft repeated canard

i quote

"neo-cons to admit, on the record, that their own marriage rhetoric is hypocritical "

a majority of us citizens oppose gay marriage

howard dean opposed gay marriage when he was governor

so, why is it "neo-con" rhetoric that opposes gay marriage?

answer: it isn't (exclusively)

blaming neo-cons for anti-gay marriage beliefs/sentiment is like blaming neo-cons for pro-death penalty beliefs. while they are inline with that belief, the ideology is not theirs alone, nor are they even a majority of those who hold that belief

as polls show, opposition to gay marriage crosses party lines, and certainly extends FAR beyond the neocons

i find your post, thus kind of disingenuous or misinformed

[Hugin]

3. "a majority of us citizens oppose gay marriage"

Link please.

[sgxnk]

4. sure - here;'s a link with several relevant polls.

here you go

scroll down

several polls

http://www.pollingreport.com/civil.htm

(*this is a great metapolling site)

in summary, ABC poll

58% think gay marriage should be illegal
36% think it should be legal

gallup poll

58% to 39% against

fox poll

55% to 33% against

pew research poll

10/29/23/28/10
strongly favor/favor/oppose/strongly oppose/unsure

etc. the facts are CLEAR

note that a much higher %age (roughly about even) support civil unions and stuff like that 45% to 48% for example in one poll

but a significant majority oppose gay marriage

that's facts

that is why i oppose the "it's the neocons" rhetoric

because unless one is

[xchrom]

6. people shouldn't support marriage equality because

of what a majority of people think.

the majority are often wrong and it's a piss poor way to build a society.

you sometimes have to lead the majority into doing the right thing.

[Hugin]

11. I'm thinking it's the same thing as recognizing a country...

If they were to recognize it... It would mean it does in fact exist.

[xchrom]

17. indeed -- not very different.

[sgxnk]

12. i didn't say they should or shouldn'

i said that the claim that it is a "neocon" problem is demonstrably false

as i showed with polling evidence

if 55%+ of citizens support policy X, claiming it is the NEOCONS doing it is absurd

it is the MAJORITY of citizens. the neocons are a minority

hth

[xchrom]

16. that's very true -- you didn't.

and making policy that is leading the population is often the difficult responsibility of those in charge.

[sgxnk]

21. very true

and very often when a pres or leader does something or supports a policy that the majority oppose, one side will say he's "opposing the will of the people", whereas those that support it say he's doing the right thing despite majority opposition

it's interesting the way that works

clearly, sometimes the majority are wrong

obviously

and of course there is a big difference between saying

1) i support a policy
2) i think a policy is constitutionally mandated
3) i think laws against a policy are unconstitutional

realizing of course that state constitutions differ so markedly that what is constitutionally mandated in one state may not be mandated in another

[Misunderestimator]

20. Neocons are the ones using it to rally support. Therefore it's a neocon..

position. It's a problem for all of us, especially those of us who are hurt by the neocons who push the DOMA or any individual states amendments to define marriage as between a man and a woman. The MAJORITY of Americans would not have tried to put that on the ballot, because they didn't see it as an issue until the NEOCONS used their own bigoted fear to guide their support.

It's always the powerful few with the agenda that are able to sway others. It's not absurd to blame neocons for this at all.

[sgxnk]

22. that's a reasonable point

but i still disagree

as the polling data i presented shows, a strong majority of americans oppose gay marriage

the party in power, which happens to be repubs (and nowhere near all repubs are neocons) is pushing the issue, to an extent, but so are many citizens who see it foisted upon them by courts and/or a mayor (Newsom)

i see this as misplaced blame.

i think the majority started to see it as an ISSUE when state courts started saying it was constitutionally mandated

i think history supports that POV

certainly, that was the case in Hawaii - Hawaii is a VERY blue state (they do have a repub governor last i checked, but she is pro-choice and Hawaii votes overwhelmingly democratic, has democratic reps, etc. hawaii's dem cred is not in question) . AFTER the hawaii courts ruled gay marriage a constitutional right, an initiative was quickly passed in hawaii to define the oneman/onewoman law

clearly, hawaii is a state VERY minorally inhabited by neocons

so, i stand by my claim that this issue is not the fault of the neocons

[Odin2005]

29. Tyranny by Majority...

I see too many DUers acting as if Populism was a good thing, it isn't. Populism is Tyranny by Majority, The people arn't always right. I lost any faith in the American people to do the right thing in 2004. Of course if you said this truth the stupid knucle-draggers will start calling you an "evil, Murrika-hating Elitist." The Pukes often use populist rhetoric in thier agenda of hate.

[TechBear_Seattle]

7. I don't see relatively progressive opponents to equal marriage...

... claiming that the sole purpose of marriage is having and raising children. Such arguments seem to come only from neo-conservatives, and only when they are not screeching about marriage's "sacred Christian purpose as described in the Bible."

[sgxnk]

13. again, that is wrong

55%+ of people in the US oppose gay marriage

HOWARD DEAN opposed gay marriage

is he a "neocon"

you are claiming that a majority position is a NEOCON position

that is false.

evidence shows it to be so

it is as absurd as saying being pro-choice is a LIBERAL position

over 50% of the population supports choice. it is far more than LIBERALs who support it

similar issue

blaming a minority for a position that is held by a significant majority of people is false, and goes contrary to evidence

[TechBear_Seattle]

28. I don't see Dean claiming that marriage must be "protected"

Please: show me when Howard Dean has ever asserted that gay people should be prohibited from marriage because that would somehow destroy the institution of marriage. I would be only to delighted to provide quotes from over a dozen members of Congress -- neo-cons all -- who have made that or very similar statements.

[sgxnk]

30. dean

dean was asked in the debates if he supported gay marriage. he did not say he did. he said he supported civil unions

you can 't have yer cake and eat it too

dean played a bit of the middle of the road, but he did NOT come out in support of gay marriage. iirc, of the major players, only sharpton and kucinich came out FOR gay marriage

my point is, and it is supported by statistics, a majority of americans do not support gay marriage, and howard dean was among them, failing to advocate for it, or express his support

them's the facts

[Fierce]

10. Yeah,

...and in 1958 96 percent of white Americans didn't think that a mixed-race marriage was OK. Just because it's the majority view doesn't make it right.

[sgxnk]

14. nice strawman

i didn'
i said it was majority position, NOT a neocon position

hth

[HiFructosePronSyrup]

18. I find your post disingenous and misinformed.

A majority of Americans may be against gay marriage, but it's very much a conservative, and bigoted, position. Those dems who support it are conservative dems, or selling out other dems in order to gain the favor of conservative voters.

Even Howard Dean.

[sgxnk]

23. that's kind of tangential

the point wasn't that it was or wasn't a "conservative or bigoted position"

the point was that it was a MAJORITY position, and thus clearly NOT a "neocon problem"

that logic is the exact same BOGUS logic that claims that support for abortion is because of "liberals"

sorry, most people are pro-choice.

it aint just da liberals

similarly, more people are against gay marriage, and pinning the issues on neocons is similarly a stance that ignores evidence for the appeal of rhetoric

[Bridget Burke]

19. Most Americans wouldn't even think about Gay Marriage....

But it's one of the Republicans' big issues--distractions from how they've screwed up the country. And several other countries.

[sgxnk]

24. false

most americans didn't think about gay marriage until state courts ruled it a constitutional right

THAT was the political tipping point

having read the advocate etc. for many years, i know that many gays did not even see gay marriage as a beneficial cause for some time, and some STILL don't

hawaii is a VERY blue state

and hawaii quickly voted to ban gay marriage AFTER the courts viewed it as a const. right

so, i think history and statistics support my conclusion

[xchrom]

5. sigh -- one of these days liberals and progressives will figure

out that banning divorce is not something that conservatives will oppose.

[TechBear_Seattle]

8. Despite the fact that nearly every "family values" member of Congress

... has either been through multiple divorces or been involved in at least one sex scandal.

[xchrom]

9. yes -- despite the fact.

techbear -- you are one of the warmest most wonderful people here -- without a doubt.

but conservative christians and socially conservative republicans won't have a problem with heavy restrictions or banning divorce all together.

that's EXACTLY the kind of behavior they would like to control -- even if they get a lot of divorces.

remember their leadership will always have ways around the rules -- and they know that.

the peoples suffering or what is good for society isn't one of their concerns.

[lukasahero]

25. And that it will mostly hurt women

While the fat rich white men they are trying to sway would like nothing more than to ban divorce. That way they can have their lovely little wife at home keeping up appearances while they cavort with their mistress on the side and there's nothing powerless little wifey can do about it.

[Johnyawl]

15. Wrong tactic TechBear...

...while it's satisfying to attack someone else's hypocrisy, it doesn't move us forward on this issue.


First, we need to understand that we're unlikely to get satisfaction from our legislature on the issue of marriage equality. Even though it's controlled by Dems, they're looking at the polls, and they're not that brave, believe me, so what we need is...

A citizens initiative to guarantee Marriage Equality. We need to take our case directly to the people, and make our case for equality. Let the RW fundies screech their hate and preach their intolerance. We'll run a campaign showcasing some of the long lasting relationships within the gay community; gays that have been in committed relationships for 10-20-30 years (I personally know some of them), we'll showcase families that have been raised by committed gay and lesbian couples. And we'll lose. This year. And we need to come back next year with a citizens initiative to guarantee Marriage Equality, and run the same campaign. Eventually, in 2-5 years, we'll win. The polls show that even in a 'blue' state like Washington, the (slight) majority are still opposed to gay marriage. But that's changing. What were the percentages 10 years ago? 5 years ago? The fundies are still winning the battles right now, but they know that they are losing this war. Public opinion is trending against them. That's the reason they so desperately want a constitutional amendment. Because they know first Connecticut, then Massachusetts, and then eventually Washington, California, New York, and that will force the government to extend federal benefits to gay marriage.

The fundies are desperate for a federal amendment now to stop this at the state level, because they know they are losing the battle for public opinion.

[TechBear_Seattle]

26. The reason an initiative for equal marriage has not been put forth...

Is, quite simply, that failure at the polls is the very worst possible outcome.

After the Legislature overrode Governor Locke's veto of the state's DOMA in 1998 (with the collusion of Speaker Frank Chopp, Democrat), there was talk of a referendum. Equal marriage advocates advised strongly against that, and against latter talk of an initiative to eliminate DOMA. The reason they gave was a simple one: if the people confirmed the decision of the Legislature and failed to enact equal marriage, it would be next to impossible for the Legislature or the courts to latter toss DOMA. The people have spoken, so the matter is closed for who knows how many years.

I hate to say it, but I think that thinking is correct. Worse, I believe that an initiative to create equal marriage in Washington would fail. Now is not a very good time to push such a measure. Thus, my investigating ways to take a stab at the bigoted "logic" behind the DOMA.

[Johnyawl]

27. I think that's faulty reasoning...

Failure at the polls is not some ultimate doom, from which there is no recovery. Richard Nixon lost the Presidential race in 1960; in 1962 he was defeated in a bid to become Governor of California, and swore he was done with politics. In 1968 he was elected President.

The LGBT community, and it's leaders chose to wait, and put their hopes in the court system. I can understand that decision, but it didn't work out.

If you wait for the legislature to take this up, you're going to be waiting a very long time. Besides, court decisions can be overturned, and the legislature can reverse itself.

Now we have to do something else.

The first time it's put on the ballot it's gonna fail. Maybe even the 2nd and 3rd time. But what does that prove, if every time the margin gets smaller? We will make converts with every campaign, if we campaign this as an issue of equality - marriage equality. The opposition has nothing to sell but bigotry and discrimination. The more that's exposed, the more converts we'll win. You're not going to convince anybody by taking "...a stab at the bigoted "logic" behind the DOMA." You're only going to make yourself, and people like us feel better.


We have to convince a majority of the people that it's the fair thing to do. I think we can do that. I further think that the best way to do that is to have an initiative, raise money and design a campaign around the productive, functional, gay and lesbian families in this state. There's a lot of people out there who are against gay marriage who are not religious zealots. They're against gay marriage, cause it's something new, it's different, and they don't have any personal experience with the LGBT community, i.e., they don't know any LGBTs that are in long term relationships, or are raising families. The more that middle ground is exposed to such families - and the hardships DOMA places on them - the more they will come to accept the idea of marriage equality.

This year, Seattle's gay Pride Parade was moved out of our "gay ghetto", and into downtown. It was covered beginning to end by a MSM TV station, broadcast live. There were 200,000 spectators, and no protesters. (except the same four religious loonies that show up every year at Gay Pride, and the Solstice Parade.) Times are changing, and the LGBT community is becoming mainstream.

We can win this, and win it in a way that will be irreversible. The day that over 50% of Washingtonians vote for extending basic human rights to the LGBT community, will be a point that there is no turning back from. The bigots will have lost.

We need to be bold, we need to have ultimate faith in democracy, and we need to be prepared for the long haul.