Does the 14th Amendment require states to grant same-sex marriages?

[Feanorcurufinwe]

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html

They way I read this, all Americans enjoy equal protection of the law. Any state or federal statute that denies equal protection of the law such as DOMA - is unconstitutional, and the practice of not issuing marriage licenses to same-sex couples is unconstitutional.

What do you think?
Does the 14th Amendment require states to grant same-sex marriages?

[Gman]

1. Equal protection of the laws

sounds pretty clear to me.

If equal protection was good enough for Bush v. Gore, it's good enough for gay marriage.

[Calico4000]

3. SCOTUS

Has already ruled at least twice equal protection can be disregarded.

[Feanorcurufinwe]

4. Well obviously

it is within the power of SCOTUS to rule incorrectly. That's why it is so important to have a Democrat making the appointments.

So which are the two rulings you are speaking of?

[Calico4000]

8. Of course

they can rule incorrectly, but the fact of the matter is until they reverse themselves there is not a whole lot you can do.

The two cases are Rostker V Goldberg (1981) Johnson V Santa Clara TA (1987).

Let's also not forget (although reversed) Plessy V Ferguson (1896).

One thing we can learn from these cases is this - equal protection under the law is not absolute, and, if something is not socially popular (read: same sex marriage today) it will be settled unjustly. Though you can suspect, as attitudes change, it will be reversed in the future.

I believe that when same sex marriage hits to higher courts (possibly the SCOTUS) in the next fear years there is a high chance it will be prohibited. Though I believe that 10-30 years later it will be made legal, possibly by the SCOTUS in all 50 states. (assuming the right wing is not able to take over the courts) Or by state/national legislation.

[Feanorcurufinwe]

25. Gee

FindLaw has changed the way it displays its search results and I can't locate those rulings... do you have links for them? thanks

[Gman]

32. And Bush v Gore

[Calico4000]

2. Depends

but you can be DAMN sure full faith and credit does. If a same sex couple gets married in mass, then moves to Florida, Florida MUST recognize the marriage license of Mass. (Of course, only if they follow constitutional law)

[YNGW]

5. Uhhh.....

I don't believe that legal documents necessarily cross state lines unless the states have agreed to recognize the particular law of that other state.

If states are required to recognize all the others state's laws, then there is no reason to have states.

[Feanorcurufinwe]

6. Article. IV

Article. IV.
Section. 1.

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.
Section. 2.

Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Clause 2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Clause 3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. (This Clause has been affected by amendment XIII.)
Section. 3.

Clause 1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Clause 2: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
http://www.house.gov/Constitution/Constitution.html

[YNGW]

7. An Example

License's to carry concealed weapons do not cross state lines.

[Calico4000]

12. No

But has it been challenged in the courts? There also may be valid legal reason for this.

The fact is it is established precedent that marriage licenses ARE included in full faith in credit. As are drivers licenses, contracts, birth/death certificates, etc. This makes your point about concealed weapons mute. Marriage licenses ARE to be recognized among the 50 states under full faith and credit.

[YNGW]

14. Logical Fallacy

>This makes your point about concealed weapons mute.

Unsubstantiated Allegation

For more about logic, see:

http://www.csun.edu/~dgw61315/fallacies.html

[Name removed]

18. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Feanorcurufinwe]

22. You are wrong.

Simply ignoring the facts of the matter and claiming that your debate opponent is arguing 'illogically' without demonstrating how, is not persuasive.

You are simply wrong about the Faith and Credit clause and how it has been applied in th past 200+ years.

[Peregrine]

26. Grammar police

point about concealed weapons mute

The term is "moot" not mute.

[Calico4000]

30. Yes I'm aware

I had to stop my self from writing "nowhere" multiple times today. Writing quickly and thinking quickly don't go well together.

[starroute]

17. There's a difference between licenses and legal status

A license just says that you're authorized to do something -- drive, keep a dog, sell liquor, whatever. Some of these, like driver's licenses, pretty obviously have to apply across state lines, but others don't. For example, when I got married at my parents' home in New York, I needed a New York marriage license, even though I was living in Massachusetts at the time.

However, being married is a legal status. It doesn't expire if you don't renew the license. And if you get married in one state, every other state has to grant you all the privileges they grant their own married couples. A state might not be willing to issue licenses for gay marriages, but it still has to honor gay marriages performed elsewhere. That's the real issue.

[atre]

34. False Analogy

Concealed carry licenses do not purport to apply beyond state borders. If they did, they would intrude upon interstate comity and would arguably violate what's known as the "dormant commerce clause."

[Calico4000]

10. Please read the constitution

It takes under an hour, and it's really good to know. I see a poster has posted the relavent section below for you.

[YNGW]

11. Then answer post #7

State licenses don't necessarily cross state lines.

You need to read before you ask others to do so. Got it??

[Calico4000]

13. Fine

Go ahead and ignore established legal precedent. The fact of the matter is full faith and credit DEMANDS and REQUIRES states to recognize marriage licenses among the 50 states. This is the fact of the matter. If you read the constitution (and took anything equal to high school government class) you would know this. If you want to argue this point in imaginary world, go ahead. My self and the vast majority of DU recognize that under law marriage licenses fall under full faith and credit. If you were/are not aware of that particular section of the constitution and refuse to learn that is not my problem.

[YNGW]

16. Watch The Courts.

You're getting ready to get a lesson in law.

[Calico4000]

19. Haha

This from a person who just now read the full faith and credit section of the constitution.

[Name removed]

20. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Calico4000]

21. Wow such ego

From a person who thinks his OPINION overrules the constitution that is not surprising.

Tell me what YOU think full faith and credit means. What does the constitution say in this matter. Tell me YNGW.

[YNGW]

24. Reply

>From a person who thinks his OPINION overrules the constitution that is not surprising.

I never said that. I know the law. That others here, including you, don't is not suprising nor uncommon. I perfer for you and others to go on believing whatever you want. Besides, one present a day is all you really need to handle.

[ieoeja]

23. DOMA

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.


The above sentence in Article IV, Section 1 of the Constitution gives Congress authority to set limits on full faith and credit between the states.



From Wikipedia, the free encyclopedia.

The Defense of Marriage Act (DOMA) is a U.S. federal law defining marriage as only a heterosexual union of a man and a woman. The law is intended to curtail the legalization of same-sex marriage under the Full Faith and Credit clause of the United States Constitution by allowing a state to determine for itself whether it must recognize such a union recognized by other states or jurisdictions.

http://en.wikipedia.org/wiki/Defense_of_Marriage_Act

[Feanorcurufinwe]

27. DOMA

is a constitutionally valid application of the Faith and Credit clause, but is unconstitutional under the 14th Amendment, IMHO.

[Calico4000]

29. I agree it may be as well

But I don't think the courts would overturn it anytime soon...

[Calico4000]

28. Good point

Forgot all about DOMA...

[damnraddem]

9. I doubt it.

The only judicial ruling in favor of same-sex has been on the MA Constitution, which John Adams was able to make a bit more liberty-loving than than the U.S. Constitution, even as amended much later by #14.

That the states should grant the same rights doesn't mean that the 14th Amendment will be ruled to do this. But then, many didn't expect SCOTUS to rule as they did in Roe v. Wade, so a future SCOTUS (likely not the current one) could surprise us.

[Calico4000]

15. Agreed

The courts (including the SCOTUS) will likely prohibit it as much as they possibly can regardless of what law may be. Though a future court (the SCOTUS) will likely legalize it.

[lcooksey]

31. Great discussion and article on this in Wash Post

The online discussion was at
http://www.washingtonpost.com/wp-dyn/articles/A37363-2004Feb12.html
and the article is at
http://www.washingtonpost.com/wp-dyn/articles/A39525-2004Feb13.html

The article, and discussion guest, was Lea Brilmayer, a Yale University Professor of International Law and expert on "conflict of law issues." She says that there have been cases where a heterosexual marriage valid in one state has been held invalid in another state.

One example she gives is where state A requires partners to be 18, but state B allows people to get married at 16. If you live in state A and are 16 and you travel to state B to get married, then return to state A, state A can rule you just went to state B to evade their laws and can refuse to recognize your marriage. Such decisions have been upheld as being in line with the 14th amendment.

On the other hand, if you lived in state B and got married when you were 16, then moved to state A when you were 17, state A would probably have to recognize your marriage, because you hadn't done anything sneaky. You were in compliance with the laws of your state of residence at the time of your marriage.

I had initially thought DOMA must be unconstitutional, but existing case law on marriages seems to be very flexible, and probably contradictory. So it's not a sure thing that a same-sex marriage in one state would have to be recognized by another state.

But there are two parts to DOMA. The question of whether the federal government can decide to not recognize marriages which are legal in one or more states is more likely to be held unconstitutional. The federal government, until DOMA, left the definition of marriage up to the states. Hmm, that makes me wonder about military marriages. If you are in the Army and get married in Iraq, what laws apply? Iraqi? Uniform Code of Military Justice? The laws of your home state? I'll have to do some research on that one.

BTW, Mass law explicitly says that if you are from out of state, and your marriage in Mass would not be valid in your home state, then it is not valid in Mass either. So there can't be an influx of out of state people getting married there then returning home to fight.
http://www.state.ma.us/legis/laws/mgl/207-11.htm

[Feanorcurufinwe]

33. Could someone who voted "No" please explain your reasoning?

Thanks.

[arewethereyet]

35. on my read (like I matter but you asked)

its referring to indiviual rights which is not the same as marital (non-individual) rights.

[Hippo_Tron]

36. Haven't you heard? The constitution means nothing to Republicans...

So good luck basing your arguments on the supreme law of the land.

[Feanorcurufinwe]

39. I'm not asking Republicans (I hope).

I'm asking DUers.

[QC]

37. Unfortunately, no.

Sexual minorities are not, under current law, protected classes.

I wish it were otherwise, but right now thats the law.

[Feanorcurufinwe]

38. What? protected classes? what are you talking about?

Did you read the amendment? In what way is your comment about 'protected classes' related to the 14th amendment?

[QC]

40. Yes, I have read the 14th Amendment before.

The concept of protected classes is a very basic part of civil rights law. It refers to characteristics that are protected by law, like race, sex, religion, etc. Those who have those characteristics (and everybody has some of them) are said to be part of a "protected class." Some state and local laws do recognize sexual orientation as such a characteristic, but federal law currently does not.