In what could be an important challenge to same-sex marriage laws, District Judge Tena Callahan has ruled that two gay men married in Massachusetts may divorce in Texas. In so doing, Judge Callahan ruled the state same-sex marriage law to be unconstitutional.
In ruling that the court “has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction,” the court found that Texas cannot statutorily barred the right for couples to have their marriage recognized (and dissolved) in another state.
Texas Attorney General Greg Abbott has vowed an appeal. In March 2003, a Texas court became the first one outside Vermont to grant the dissolution of a civil union, but the court reversed his decision after Abbott challenged it.
This is the case that we have previously discussed as the greatest concern for same-sex marriage opponents: that other states will be forced to recognized thousands of such marriages under the full faith and credit clause. I do not agree that the full faith and credit clause clearly demands such recognition and it would be a political advantage for gays and lesbians not to push the issue at this time. There has been a long debate over existence and scope of an unexpressed exception under the clause for public policy differences between the states.
Of course, with Republican power on the wane, the religious right may try to rally the forces around a federal constitutional amendment — the ultimate rejection of state rights and federalism values in my view.
Currently, Iowa, Massachusetts, Connecticut, Vermont, and Maine are states that recognize same-sex unions or marriages. Washington, D.C. has also voted to recognize such marriages. California does recognize marriages that occurred before Proposition but no longer allows such marriages to occur.
As I have written before, I believe that the solution to this debate is to be rid of the term “marriage” in public records and to adopt a universal “civil union” standard for all couples.
For the full story, click here.
Good on you Judge Callahan.
The term Marriage should be reserved for married men and women..the gay community has stolen this term, and they have no right to use it…
Here, here, Brenda! Three cheers for Brenda! Long-live the breeders!
Brenda,
Tell you what, you use the term Marriage however you want, and the Government will still be obligated to not discriminate against people based on sexual orientation. Marriage is a legal institution as well as a cultural one.
Gyges, I like you, I really I do. But Brenda and I just don’t see it that way. Maybe you can come our way, eh?
Billy,
O.k. give me your best argument as to why the Government should be allowed to discriminate in this manner. I’ll give you a little warning though, appeals to tradition or religion will get you nowhere.
Dosn’t the government define marriage as a covenant between a man and a woman? I may be wrong, but how does the government define this union?
The term “marriage” should be reserved for two people who were joined together in a church-officiated and recognized union. The state should list all unions as “civil unions” in public records.
There is absolutely no reason to reserve the term “marriage” for heterosexual unions – “marriage” is a church term and should be used for church-sanctioned unions. Let the churches fight over the whether the term can be used for rites officiated by those churches that conduct same-sex unions – the state should stay out of the fray.
OFF TOPIC:
And meanwhile, the march of fascism continues! Corporations now have “privacy rights” according to some “judge”.
http://privacylaw.proskauer.com/2009/09/articles/foia/since-when-does-a-legal-entity-have-privacy-rights/
I’m too angry to make a joke.
Another Off-Topic link (on-topic for the blog):
More police abuse of power — woman calls for help, gets forcibly strip searched by male deputies
http://www.docudharma.com/diary/16359/more-police-abuse-of-power-woman-calls-for-help-gets-forcibly-strip-searched-by-male-deputies
This one reeks…
I agree with Professor Turley, I think that the way out of this mess is to differentiate between the legal union of two people and religion-based institution of marriage. Each church can then decide if it wants to recognize same-sex unions, gay couples can get the legal rights they deserve, the rest of us can forget about the issue as unimportant to our daily lives, and the right-wing fundamentalists can think whatever they want about it as long as I don’t have to listen to it…
Billy and Brenda,
How does it harm you for same-sex couples to enjoy the rights granted to persons engaged in opposite marriage?
Slart and Queen,
Now I agree that whatever we call the contracts, it should be available to all people regardless of sexual orientation. My question is why shouldn’t gay people be able to call it Marriage?
It’s a word loaded with meaning and connotation. As a sign I once saw said (It was held by a woman) “I didn’t ask her to civil union me.” We already let churches decide who they’ll marry, and who’ll they’ll consider married. I wasn’t able to get married in a few churches my wife and I looked at, because I was an atheist. The Catholic church has very specific beliefs on the legitimacy of second marriages. I don’t see why it’s necessary to change the name of the legal contract just because we’re including a group of people previously denied.
Billy,
That’s an appeal to tradition. I’m not talking about what it is, but what it should be. “Well that’s the way it is” is a terrible reason to deny equality.
Gyges, I’m not trying to deny “equality”. I am as tradition bound as the next Catholic. I appeal to “you”, to share with me the governments interpretation of what a “marriage contract” is. I am ignorant myself in this matter. I am not an attorney, that is why I ask you. I am not trying to be contentious.
This just blows me away. How many Mountains and Valley must be crossed before the correct decision is erected? oops made?
Billy,
On the off chance that you’re sincere…
This isn’t a simple issue of “what’s the law?” In some states “man and woman” is explicate, in others it’s assumed, and in others places gays are allowed to get legally married.
The issue is instead, by what rational can any state allow some people to be able to enter in a contract that has many legal implications and privileges, and then deny that right to others based solely on the gender of the parties involved?
Gyges, “the off chance I’m sincere”. I am not trying to be flip. I am legitimately asking the question. Because my value system and yours don’t coincide does not mean I am an antagonist. I am a spirited blogger, having fun and attempting to exercise my dormant intellect..
What states are same sex unions recognized as a valid marriage?
Gyges,
I believe that couples should call the bond between them whatever they want. I just don’t think that the state needs to use a term that is, as you said, loaded with meaning and connotation – most of which, I would argue, is irrelevant to the legal rights currently attached to couplings that we are calling marriage. I have no need to rub it in the noses of gay marriage opponents as long as all couples have the same rights and if a ‘civil union’ is the only bond recognized by law, there’s no ‘separate but equal’ issue. Isn’t changing the name of a legal contract a small price to pay to extend rights to everyone? Doesn’t the mere fact that the word is loaded with meaning and connotation (presumably different meanings and connotations to different people) argue against using it in the law where we would like things to be as clear and unambiguous as possible?
Geeze billy,
I don’t know but I am a little slow on the up take and my reading skills a little sub par but suffice it to say I looked at the binary inputting coding device and came up with this today and of all places out of the article.
“Currently, Iowa, Massachusetts, Connecticut, Vermont, and Maine are states that recognize same-sex unions or marriages. Washington, D.C. has also voted to recognize such marriages. California does recognize marriages that occurred before Proposition but no longer allows such marriages to occur.”
Billy,
IA, MA, CN, VT, ME, and the District of Columbia.
Professor Turley,
I don’t understand why you think the ‘full faith and credit’ clause doesn’t clearly require recognition of same-sex marriages from other states (although I certainly agree that attempting to fight for recognition this way is bad politics).
AY, your “”sarcasm” and “caustic” wit is duly noted. This could be the “impediment” that keeps Mr. Wonderful from appearing at your doorstep..
Slart,
If this was a case of newly involving the state in “marriage”
I’d agree with you with no caveats. However, since marriage is as much a legal term as it as a social one, I just don’t see any reason why we should change it. Did mixed race couples have to compromise when fighting anti-Miscegenation laws?
To be honest I actually would probably even agree with you if you separate it from the gay marriage issue.
Slartibartfast,
Full faith and Credit: Article IV, Section 1 of the United States Constitution, commonly known as the Full Faith and Credit Clause, addresses the duties that states within the United States have to respect the “public acts, records, and judicial proceedings” of other states. According to the Supreme Court, there is a difference between the credit owed to laws (i.e. legislative measures and common law) as compared to the credit owed to judgments.[1] Judgments are generally entitled to greater respect than laws, in other states.[2] At present, it is widely agreed that this Clause of the Constitution has little impact on a court’s choice of law decision,[3] although this Clause of the Constitution was once interpreted differently.[4]
Comity: In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation), particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction. Part of the presumption of comity is that other jurisdictions will reciprocate the courtesy shown to them. Many statutes relating to the enforcement of foreign judgments require that the judgments of a particular jurisdiction will be recognized and enforced by a forum only to the extent that the other jurisdiction would recognize and enforce the judgments rendered by that forum.
************************************88
I may be off base here, but I think comity forces a states to recognize a marriage union even if it is repugnant to the states own laws. This would include such debts a gambling where one state would not honor it under the FF&CC they would be forced to under the comity. Just a shot but hey.
billy 1, October 2, 2009 at 2:33 pm
AY, your “”sarcasm” and “caustic” wit is duly noted. This could be the “impediment” that keeps Mr. Wonderful from appearing at your doorstep..
************************
Hopefully honey, that Mr. Wonderful is not ewe.
Thanks AY, I’m spoken for..
billy,
I am safe them, swoosh, moooing on.
billy,
I am hurt now, I feel as a jolted lover, now you are spurning the object of your affection. You bitch.
Ay, you “faked me out”. I thought you were a chick, my apologies…
billy,
I don’t care how much you beg, I will not be your bitch. So quit trying. Maybe someone would like your advances. I suggest that you go to SFO and try those pick up lines there.
Gyges,
I would still hold the same position were the semantic issue divorced from the gay marriage issue (pun intended), although I wouldn’t think that the issue was important enough to care about. I would also take the same position in you hypothetical about the Miscegenation laws – if calling every partnership a civil union had helped some people to come to terms with extending rights to a previously disenfranchised group, it seems to me to be a harmless concession.
AY,
Thank you for the explanation. I’m starting to see that the interplay of state and federal law here is pretty thorny. Another question: what are the federal implications of a state recognizing same-sex marriage? Can a gay couple in Iowa file a joint tax return? What about a gay couple in, say, Utah who were married in Iowa?
WOW, lots of good argument folks. Thanks. I’m still not sure how someone else’s marraiage (gay, straight, interacial, inter-religious, etc.) has an impact on me. I’m hetero and honestly can’t watch two men kiss (even on the TV News) but as long as I have the right to turn my head I don’t know why two people who are in love cannot be MARRIED. As for CHURCH recognition, I don’t see why that aspect would be important since most churchs think homosexuality is an abomination anyway. In fact I think all legal marriages should be outside the church and in the courthouse. Why should religion be involved anyway in a country that advocates the seperatation of church and state? The arguement can be made that one religion should be valid and not another. Should Buddist marriages be recognized as a Catholic or Protestant or Jewish marriage? As far as comity is concerned I’m not sure we can pick and choose which laws we agree with and which we don’t without making a real mess out things.
Slart,
Words are symbols. Symbols are much more important to some people then others. Think about the value some people place on their physical diplomas. Think about the fury surrounding the issue of flag burning.
No matter how little I care about the symbol of the word marriage, I don’t think that anyone should compromise the symbolic meaning of marriage just to get the legal benefits. Especially if it’s unnecessary, like it is in this case.
I’m glad to see that Prof. Turley came to generally the same conclusion as I did a while ago about the term “marriage” and the government. I actually agree with George W. Bush when he said, “Marriage is sacred.” Exactly – it’s a sacrament. I don’t want the government interfering in who can receive sacraments like first communion, who can become a priest and who can get last rights. Why should the government have a say in who receives the sacrament of marriage in a church?
Tom,
Well said.
Gyges,
I think that Tom is right on point here – and while I agree that symbols are important, I don’t think that what the government says should have any impact on the symbolic meaning of anyone’s marriage. If the government decided that it was going to call diplomas something different, it would not effect how I feel about my Ph.D. (And it has nothing to do with the piece of paper, either). Maybe it’s my training as a mathematician (we’re very precise about the meaning of words), but it seems to me that using such an emotionally and symbolically charged word in what (to me) should be a dispassionate legal matter is counterproductive.
Slart,
We’ll have to agree to disagree on this one.
Gyges,
That’s fine, I can respect your position, I just don’t share it.
Professor Turley, I believe that the title to this post is a bit misleading; “Rules Texas Same-Sex Marriage Unconstitutional” gives the impression that the judge supports the ban [of same sex marriage], when, from my understanding, the ruling struck a blow to the ban itself…I know we all joke about Texas, but I think it’s important to highlight the fact that there are some progressive judges in Texas and that the state is indeed gravitating toward the center in a lot of ways.
I do agree with you in that the word “marriage” needs to be removed from secular unions. Marriage should be left to religion, if the Episcopalians wish to allow same sex marriage and Catholics don’t, it’s their choice…
I have to admit that I have very little patience for anyone who cannot accept two people wanting to be married. The reason we just can’t leave marriages up to the religions to handle is that many religions won’t allow two men or two women marry. The issue is a civil right matter. Two men should have the same rights as a man and a woman do. Calling it a union is denegrating the two people who want to marry. To me, calling marriages civil unions is akin to a “separate but equal” mentality.
The government should have no role in defining or licensing marriage.
rafflaw,
How is it ‘separate but equal’ if we refer to all marriages as civil unions? I agree that if we call same sex marriage something different, that’s not right, but getting the government out of marriage altogether seems fine to me if everyone has the same rights.
Slartibart,
I think we are pretty much in agreement. However, to be truly equal, there is no reason to change the term of marriage. Anyone and everyone who wants to get married should be able to, without any artificial labels. A marriage is a marriage, no matter who is saying the “I do’s”.
I think the government could refer to all marriages as civil unions, so long as the government doesn’t reference marriage at all, in any way. That way, anyone who wants to call their civil union a marriage could do so. Churches that want to perform religious ceremonies for same sex couples could do so if they want.
I’ve been happily married for 23 years to the same woman, but I’d be just as happy if the state called our partnership a civil union. We’d still call it marriage. The problem comes in because marriage provides recognition of many rights that aren’t specifically spelled out in the law. Unless the government were forbidden to reference the term marriage in any context, I foresee problems with JT’s solution no matter how elegant it may seem.