[UPDATE: I have added the NY news that Gov. Paterson has instructed all state agencies to recognize all out-of-state same sex marriages. It’s below the fold. ]
I’m serious—if this is the best foot the opponents of marriage equality can put forward, they are going nowhere fast. The flailing of this guest on The O’Reilly Factor, as they discuss the ruling in California is incredible. Billo actually rakes this loser over the coals for the poor anti-marriage equality argument presented.
OREILLY: “You’ve got to go beyond religion if you want to win the fight against gay marriage. You’ve got to go into a reason why this is not good for the state of California. Now what would that reason be?”
Family Law Attorney Don Schweitzer seem to get a handle on what eats at him about marriage equality (he even doesn’t bother with articulating the whole penis-in-vagina dealie), but O’Reilly actually pushes at Schweitzer to come up with something that isn’t insane. The dude just can’t come up with anything other than the “definition” of the word is in jeopardy. It’s hilarious.
SCHWEITZER (on why it’s bad): ”It’s like summer and winter...it’s two different things.”
***
NY Gov: agencies must recognize all out-of-state same sex marriages
A giant step forward, courtesy of Empire State Governor David Paterson. He has instruct state agencies to fully recognize legal same sex unions from elsewhere based on the Feb. 1 ruling that New York must recognize same-sex marriages performed in other countries (I blogged that here). More below the fold.
Gov. David A. Paterson has directed all state agencies to begin to revise their policies and regulations to recognize same-sex marriages performed in other jurisdictions, like Massachusetts, California and Canada.
In a directive issued on May 14, the governor’s legal counsel, David Nocenti, instructed the agencies that gay couples married elsewhere “should be afforded the same recognition as any other legally performed union.”
The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses.
...“Very shortly, there will be hundreds and hundreds and hundreds, and probably thousands and thousands and thousands of gay people who have their marriages recognized by the state,” said Assemblyman Daniel O’Donnell, a Democrat who represents the Upper West Side and has pushed for legalization of gay unions.
***
The cascading effect of the California marriage equality ruling
New York doesn’t have a state DOMA, and because of that progress on marriage equality hasn’t been hampered on that front. An important and detailed analysis of the California Supreme Court ruling and its impact elsewhere can be found on the eQualityGiving web site. Professor Tobias Wolff of the University of Pennsylvania Law School. He also covers how the Defense of Marriage Act (at the fed and “mini-DOMAs” at state levels) will come into play for same sex couples choosing to marry in the Golden State, since it does not have the residency requirement that Massachusetts has.
Here’s a snippet relevant to this post:
MARRIAGE ACROSS STATE LINES
With the decisions in California and Massachusetts—and the possibility of similar rulings in Iowa and Connecticut and possible legislative reform in New York, New Jersey and Vermont—there will likely be significant differences in state laws relating to civil marriage around the country for some time to come. Some states will expressly permit same-sex couples to marry (California, Massachusetts, perhaps others), some states will expressly recognize the out-of-state marriages of same-sex couples even if the couples cannot marry locally (New Hampshire, by statute; New York, by court ruling and Attorney General opinion), and many states will continue to have less sympathetic or even hostile policies toward married couples.
Courts in the United States have been dealing with this type of problem for close to two hundred years. Contrary to many public discussions and news reports, the current disagreements over civil marriage for same-sex couples is not the first time that significant differences have arisen between the marriage laws of the various states. Laws relating to interracial marriage (anti-miscegenation laws), marriages between people related by blood (particularly uncles and nieces or first cousins), certain marriages following divorce, and marriages involving teenagers have at times varied enormously in the United States and produced sharp differences of opinion among the states. The basic set of problems that can arise when different states have different policies on civil marriage is an old one, and courts have been working out sensible solutions to those problems for a long time.
The strongest claim a married couple can make to have their marriage “recognized” is when they have a judgment, issued by a court, that entitles them to something—money from an insurance company on a claim, for example, or a particular custodial arrangement with their kids. Under the principle of full faith and credit, states have always operated under a powerful obligation to give effect to court judgments from other states. This is true even when the law that the court applied in deciding a lawsuit is one that other states disagree with. Thus, if a court resolves a dispute involving a marriage between a particular set of parties in one state, and then another state is asked to give effect to the resulting judgment (for example, by ordering an unwilling party to pay up on a damages award), state number two is not allowed to disregard the judgment simply because it disagrees with the marriage laws from state number one. Where judgments issued by courts are concerned, the obligation for every state to respect the judgments of every other state is a mandatory one and applies almost without exception.
When there aren’t any court judgments involved—which is frequently the case—the situation is very different. Often, a couple seeking to have their marriage “recognized” is merely interacting with the legal system in some way and wants to be treated as a married couple. If one spouse passes away, the surviving spouse may want to make claims on the estate based upon the fact that they were married, or he might want to have the marriage recognized for purposes of confirming custody over the children. If a state gives favored treatment to married spouses in its tax laws, or in its health, insurance and retirement benefits for public employees, a couple may want to have their marriage recognized for purposes of participating in those programs. Historically, couples sometimes even had to ask that their marriage be recognized as a defense to a criminal prosecution, where a state was going after one or both of them for illegal fornication. (Following the Supreme Court’s decision in Lawrence v. Texas, such prosecutions are happily a thing of the past, at least in the civilian world.)
When a couple asks a court to recognize their marriage in this type of situation, the analysis has always been very different. A marriage is not the same thing as a court judgment. The mere fact that a couple has been married in one state has never been treated as something that is entitled to the kind of mandatory legal enforcement that judgments receive in our legal system. Rather, courts have always treated the recognition of out-of-state marriages as a matter of public policy, and various factors have influenced the decisions that states have made about recognizing an out-of-state marriage that could not have been entered into locally.
That’s an important distinction and a careful one to consider as couples plan to marry in California. I urge you to read the rest of Professor Wolff’s piece because its clarity on the remaining legal roadblocks we have on marriage make it an incredibly useful document to bookmark.
I’m sure back in the day, he’d be explaining why it was so important that whites be given the rights to “life, liberty, and the pursuit of happiness”, while at the same time denying those things to Black slaves because ”It’s like summer and winter...it’s two different things.”
I guess that’s why the term douchebag was invented…
”It’s like summer and winter...it’s two different things.”
It’s like front door and back door.
It’s like top and bottom.
As offensive as these conservative chatterers are, note the subtle shift in tone to a (slightly, grudgingly) more reasonable attitude as the Bush era ends and the zeitgeist shifts.
As offensive as these conservative chatterers are, note the subtle shift in tone to a (slightly, grudgingly) more reasonable attitude as the Bush era ends and the zeitgeist shifts.
And see, I thought it was just garden variety stupidity…
O’Reilly actually asked a legitimate question instead of simply supporting hate with facts from his ass? Ooh, he must be aware that the Bush Era is ending! Will wonders never cease.
There is NO excuse for banning gay marriage except religion. Religion has absolutely no business being involved in a legal matter. Hence, no matter how many bigots outnumber patriots and vote in hate legislation, it cannot stand.
Well, as long as we still have the Constitution.
Caren, Creator of Animorphic Pancakes on 05/29 at 09:49 AM
I wonder how much grief O’Reilly received on his message board from his rabid homo-hating fans about his grilling of this guest.
What it all boils down to is this: If gays can marry, his heterosexuality is no longer privileged and special.
When marriage is a right, it is no longer a privilege. It doesn’t reduce the benefits to heterosexuals, it simply no longer gives them any advantage over homosexual couples.
Never mind that if you need legal discrimination to make your heterosexual marriage special, you’ve got other problems ...
Oh, and I wonder if one reason that some churches are torqued about all this is that weddings are big business. If gay marriage means that, because some churches object, legal marrying power is taken away from all religious authorities, all couples will have to have a civil marriage to make it legal. There may be a genuine fear that many hetero couples will simply do the legal process and skip the church wedding altogether.
Speaking of big business, maybe Zog and I should get our JP licenses and take out classified ads in the Village Voice? Boston Marriage has a whole new meaning ...
Prof. Wolff’s analysis is certainly correct, but I think he obscures one very important point: “full faith and credit” is not just a “principle”, it appears in Article IV the federal constitution. All states are required to give full faith and credit “to the public Acts, Records, and judicial Proceedings of every other State.”
Thus, at least in theory, if not in practice, each state is required by law to recognize (i.e. give full faith and credit) to marriages performed in other states, even marriages between same-gender couples.
I like it when people make the “it’s two different things” argument, because there really are two different things, namely civil marriage and religious marriage. So “two different things” becomes an argument for same-sex marriage, except in the mouths of people who really want to proclaim their hatefulness by saying that a lifelong partner shouldn’t be allowed in a hospital, should be kicked out of a shared house and so forth.
Thus, at least in theory, if not in practice, each state is required by law to recognize (i.e. give full faith and credit) to marriages performed in other states, even marriages between same-gender couples.
I have never understood how the various DOMA laws that say they will not honor legal marriages from other states would pass even the most cursory Constitutional scrutiny. I’m assuming it’s because no one has tried to challenge them, not that they’ve been upheld by the courts, but I could be wrong.
The $64,000 question is whether a DOMA law would get even the most cursory constitutional scrutiny. I can see a court that came up with crap like Ledbetter coming up with whatever it damn pleases, depending on who brings the case and why.
I’m assuming there hasn’t been a DOMA challenge yet because until pretty recently no states had legal gay marriage and Massachusetts will only marry gay people who are residents of Massachusetts (I think, someone please correct me if I’m wrong). What you need is someone to marry in a state where it is legal and then move to another state, then challenge their standing, and most people married in Massachusetts would rather stay where their rights are recognized because most people would rather just live their lives than get involved in lengthy, uncertain court battles. Even then, that might only get you a challenge to that state’s DOMA law because there is no federal standing for any same-sex unions. And court stuff takes a long, long time. But I would agree that DOMA laws would seem to have serious constitutional issues. And you might be in luck - decisions like Ledbetter were decided the way they were because of really nitpicky letter-of-the-law readings, and the court basically said Congress needs to write the law so it says what they mean it to say. As much as I think Ledbetter was wrongly decided, there was some judicial justification for the ruling and the real travesty is that Congress won’t correct it, the way they have in many other similar cases where the court ruled using the letter but not the spirit of the law. But with DOMA, I think a “letter of the law” reading of the Constitution would work in favor of progressives. Scalia, a few times, has stuck with his judicial principles over his political principles (I think he voted against the feds on medical marijuana. Anyone remember that?). The others are too new. Don’t know. But I think DOMA laws have a better chance of being ruled unconstitutional than many other state laws progessives object to (like abortion restrictions). The constitutional issues are just so much clearer.
What took most of the wind out of the fundies’s sails was the fact that the Earth didn’t open up and swallow anyone when the first couple in Massachusetts got married. Without a religious reason, there is NO reason against gay marriage. Either you give everyone equal treatment, or you give the lie to everything this country still claims to stand for.
What you need is someone to marry in a state where it is legal and then move to another state, then challenge their standing, and most people married in Massachusetts would rather stay where their rights are recognized because most people would rather just live their lives than get involved in lengthy, uncertain court battles.
Very true. The Lovings only brought suit because they were arrested for living together as a married couple and told they had to either move out of state (away from both of their families) or get divorced because Virginia would not recognize their marriage as legal.
You would probably need to find a case with those kinds of stakes to bring a successful suit against one of the DOMA statutes.
“What took most of the wind out of the fundies’s sails was the fact that the Earth didn’t open up and swallow anyone when the first couple in Massachusetts got married.”
And see, I thought it was just garden variety stupidity…
Exactly my point. It used to be extraordinary, denying-the-facts-in-front-of-your-face stupidity. Now it’s just ordinary.
Seriously, there is a subtle shift going on that should be encouraged. More talk of the environment. California’s Supreme Court rules gay marriage legal and McCain doesn’t jump on it as a campaign issue. Another (McClellan’s) Bush bashing book comes out and it provokes little surprise. Instead the press gets a little reflective about their failures during the Bush era.
The pendulum, which has been swinging right since the 1980’s, is finally swinging back the other way.
They got war during their turn in power, now we get national healthcare, gay marriage, and the end of the drug war. And progress resumes.
It will be a hollow victory for homosexuals. It will not force anyone to respect them, and that is the ultimate goal. They will be just as weird and queer as they were before.
Don’t get me wrong, I like lesbians, I just don’t want my sister to marry one.
I’m sure back in the day, he’d be explaining why it was so important that whites be given the rights to “life, liberty, and the pursuit of happiness”, while at the same time denying those things to Black slaves because ”It’s like summer and winter...it’s two different things.”
I guess that’s why the term douchebag was invented…
Le Main Gauche, AKA MikeEss