Tuesday, April 20, 2010

The Back End of Gay Marriage, So to Speak

The Texas Attorney General is appealing two trial court’s grant of a divorce to a gay couple. (Did I get my singulars, plurals and possessives right there?) His position is that Texas doesn’t have to grant divorces to gay people because “a union granted in a state where same-sex marriage is legal can't be dissolved with a divorce in a state where it's not.” (AP)

The two couples were married in Massachusetts where same sex marriage is legal. Texas has a constitutional amendment barring such marriages.

Having not researched the issue, I think the Texas AG has forgotten to read the U.S. Constitution’s Full Faith and Credit clause. "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." I think that means that Texas, like it or not, has to recognize the validity of the Massachusetts marriages and apply its divorce laws to the valid marriages just as it would apply them to any other valid marriage.

Be that as it may, I find the news more interesting in the larger context.

Seven jurisdictions now allow same sex marriage. People don’t settle down the street or across town from their parents these days. People, straight and gay, move, and move again. They take with them all the problems people have.

There is a natural progression in law in the U.S. towards uniformity. Most states deal with contractual obligations almost identically, same with traffic laws and so on. But, most day-in-day-out legal matters aren’t controversial. It would be interesting to track how “social” laws evolved with respect to black people from the end of the Civil War until now and overlay it on gay issues. From what I know about that evolution, the historical record doesn’t bode well for gay people. The Texas cases are just an early skirmish.


The Curmudgeon said...

I know I'm going to shock you again, but I suspect you are right about Texas having to dissolve a validly contracted marriage in another state despite laws (or even a constitutional amendment) making such a marriage invalid in Texas.

The precedent is in laws regarding the marriage of first cousins. Some states define that as incest. Others, like Illinois, allow such marriages only after the partners are past child-bearing age. But still other states, and many countries around the world, allow such marriages. And if I recall correctly -- I'm not looking it up this morning, thank you -- under the Full Faith and Credit Clause, these marriages, if valid where celebrated, have been upheld as valid in jurisdictions where they would not otherwise be legal.

But don't worry, I haven't suddenly gone soft: I'm not particularly happy about my conclusion. I just think it's what the law requires IF the definition of marriage can be changed to accommodate a union between two persons of the same gender. In Massachusetts and a few other places, that definition has been changed. That's just too Orwellian for me. I can accept that the meaning of words will change over time, but I cannot abide the imposition of new definitions of words for some perceived political advantage or in pursuit of some social agenda.

I repeat my suggestion that states get out of the marriage business altogether -- leave the definition to people and to their churches -- and start registering domestic partnerships for all couples, gay or straight. The state has an interest in regulating families because it has an interest (and may be stuck with the responsibility for) the offspring that are produced by (or as a result of) domestic partnerships -- but it doesn't really have an interest in how, or whether, the partners in such an arrangement satisfy their sexual needs.

Dave said...

Twice in a week, wow. Though we disagree on the issue of changing the definition of "marriage," we do agree on the idea of government getting out of the marriage business.