The question of Same-Sex marriage.

One of the more interesting topics in the law has to do with Same Sex Marriage. Why can a State make it legal, but why don’t the other States have to honor it.  It’s a tricky question to answer, and one that politically is sensitive to people. Let me just deal with the legal aspects of it for now, and hopefully answer some questions people have given me about this subject.

Question 1.) Why don’t all states have to recognize same sex-marriage?

Not to patronize anyone, but the question is kind of simplistic, the answer is a lot more complex. First thing, you have to realize that in the United States, government operates at many levels. The ones you know best are Federal, State and Local. The Federal Government, by way of the Supremacy Clause in the US Constitution, is the supreme law of the land. Any law the Federal Government makes, if it is constitutional and not strictly prohibited from doing so, will invalidate a State law. That’s a simplistic way of phrasing it. There are nuances which make that problematic, but for this discussion it works. So Federal government, then state government, then local. That’s the order you need to know.

Until the Defense of Marriage Act (DOMA), the Federal Government had no official position on the Same-Sex Marriage question. It neither made it legal or illegal. After this, the Federal Government merely said that all marriages the Federal Government would recognize, must be between a man and a woman. DOMA prevents a same-sex couple from recieving spousal benefits like Social Security survivors benefits, and joint tax filing. It also prevents some Federal Legal concepts like Marital privilige in courts.

DOMA also has a clause that affects the “Full Faith & Credit” clause of the US Constitution whereby States shall not be forced to recognize any marriage of a same-sex couple from another State. This seems to be in conflict with the basic premise of the Full Faith & Credit clause where all States must respect the “public acts, records, and judicial proceedings of every other state.” And as such is being challenged in courts at this time, but has yet to reach the Supreme Court. Until this section is determined to be unconstitutional, it remains in effect.

In short, until that section of DOMA is struck down, States do not have to honor another State’s marriage of Same-Sex couples.

Question 2.) Why can States make Same-Sex marriage legal, if the Federal Laws prevent it?

Again, simple question, difficult to answer. If you go back to Supremacy, the Federal Government can only act in certain areas. For example, only the Federal Government can issue a passport to travel outside the national borders, but the Federal Government cannot  make a law with respect to drivers licenses, unless they desire exclusivity to that area of regulation. Nuclear regulation is one area where they have chosen to do so. But due to the complexity of State laws, and the variety of the State laws regarding drivers licenses, they have not. And rightly so.

The Federal Government through the 5th Amendment, and the States by way of the 13th and 14th Amendments, are forbidden from infringing on a person’s Liberty Rights. Liberty Rights are essentially those deemed to have been granted to all humanity regardless of government. Parential Rights, Contraception, Family Rights, and Marriage are the biggest of these rights. So, the Federal Government, and the States, cannot forbid you from getting married. It’s why you can get married when you’re serving time on Death Row. BUT, and this is important, they can regulate marriage. And believe me they do.

Think about what you need to have a legal marriage. Your State may vary, but a random sample of States say you need a license, you need to be over the minimum age, you cannot be within so many relations of a family member, in some places a blood test is still required, you cannot marry while still married, you must have a legal ceremony, there must be an official who can preside, both parties must have the mental, and legal capacity to enter into marriage, etc. etc. etc. None of these prevent you from the basic right you have been given by God or Nature to get married, it just limits who, when and how you can marry. One of the ways States limit marriage is by gender. They are fully within their rights to do so. Whether it is a moral or civil rights issue is really up to the citizens of each state to determine. And in States like Mass., Iowa, CT., NH., VT., and NY. they have passed laws that allow same-sex marriage because their constituents want it. In some places, like Washington D.C., which is technically governed by Congress, and in Native American tribes in Oregon, and Washington, where government is by tribal government, it is legal as well. Even in limited circumstances in California it can still be considered legal and recognized. And in Maryland, where you cannot marry as a Same-Sex couple, marriages from other states like those listed above, are legally recognized.

(Editor’s Note – Since this writing, the court of Appeals has determined that California’s Proposition 8 is unconcstitutional, and it is no longer in effect.)

Question 3.) Why can’t I just go to Vermont and get married, then go back home to Maryland, and have it recognized.

Well, you can do that, provided you meet the Vermont requirements for marriage. While I’m not familiar with all of the laws, except for certain places in the USA, like Las Vegas, many States require residency for a period of time, and often other requirements for marriage. So, if you meet all the legal reuirements, go for it.

Question 4.) If Same-Sex marriage is recognized eventually across the nation, why can’t my concealled carry permit be recognized also?

Without calling you stupid, this is kind of a stupid question. Liberty Rights are not the same as legal rights. Despite what Fox News and the NRA will tell you, God doesn’t give you the right to have a gun. It is for lack of a better word, a permission granted to you under the Constitution, a legal right specifically enumerated in the Constitution. Can’t take that right away? Well, not currently, but if there were a proposed Amendment to Repeal the 2nd Amendment, and it passed, it’s as good as gone. That won’t happen in the USA, but it can technically happen within the framework of the law. Marriage rights? Never going to happen. Even if you propose 1000 Amendments, and repeal the 5th and 13th and 14th Amendments, this guaranteed Liberty right will remain.

Like marriage, the Federal & State governments can limit and restrict legal use and ownership of guns. Think they can’t prevent you from owning one? Commit a fellony, you lose your ownership rights. Want to by a sawed off shotgun in some states? Nope, it’s against the law. The basic freedom of use and ownership that is “guaranteed” under the 2nd Amendment is already restricted both at the Federal and State levels. A Concealled Carry permit is like a driver’s license. No two communities will ever agree on the same restrictions and limits. Concealled Carry may make a lot of sense in some places, might be more trouble than it’s worth in others. Some may allow you to carry in a bar, some may not. It’s exactly like State driver’s licenses in this respect. Concealled Carry permits, like Same-Sex marriage, will only be approved by the constituents of the states. Can it be Federal, yes, but it won’t. Where same-sex marriage involves a civil right in what may someday be determined to be a protected class of individuals, and thus deserving of Federal protection, the same cannot be true for concealled carry permits, there is no possible civil right involved, and no protected class of individuals who would be affected. Comparison of gun laws and marriage laws works only to a small point before the comparison falls apart.


I hope this answers the questions many people have asked me about Same-Sex marriage, I’m always happy to answer more.


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