Tuesday, August 19, 2014

The gay marriage case that should matter

A gay man,  married in Massachusetts and living in Alabama, (see
Gay Widower Shares Heartbreaking Story Of Why He's Suing Alabama) to have the state of Alabama recognize his marriage.  This is the case I think should attract the most attention and support from Gay Marriage advocates.

Most of the other  court cases about gay marriage bans in various states are working through the federal judiciary  require an extension of logic of Loving v. Virginia (the ruling that invalidated anti-miscegenation statutes) -- that:
Marriage is one of the basic civil rights of man," fundamental to our very existence and survival -- Earl Warren
I have always been uncomfortable with that logic, preferring Potter Stewart concurring opinion (repeating an argument in another case McLaughlin v. Florida) that
it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.
I don't see marriage as a 'right.'  As I said before,  I see marriage anthropologically: that it is a useful contract by which the state manages various property, inheritance and other economic issues, (see Two cheers for gay marriage).

That is why I am not wild about the current court cases -- I think they are high risk, and that the court may well decide that the decision would involve it in a "political thicket", and use that as an excuse to rule the issue non-justiciable.  Given this court, they could well write a decision would have an extensive effects (I wouldn't put it past this court to use it as an excuse to over turn Baker v. Carr).

The case in Alabama has more power, and I think simpler Constitutional basis -- relying solely on the text:

From the Constitution  of the United States
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.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
There used to be something called a "Reno divorce", where people married in states with restrictive divorce laws went to Nevada and got divorced.  The Supreme Court eventually rule -- so long as no obvious fraud was involved -- that states had to respect these divorces.

Though cumbersome, applying this would effectively gut the anti-gay marriage laws  -- a state would not be required to provide the service, but would be required to recognize it. 

This is not as 'nice' as having every state required to provide gay marriage as an option -- but it would protect gay marriage once it had been performed.

I like this, because no new rights would be required to be read into the Constitution, it has precedent, and a pleasant in your face quality.  And I have hope that it could get through this court.