Sunday, May 13, 2012

Opposition to same-sex marriage may very well be moot

North Carolina just became the 12th state to outlaw same-sex marriage. At the same time the referendum last Tuesday night provided President Obama the impetus to come out of the closet in support of same-sex marriage.

With Mitt Romney having wrapped up the Republican nomination you could expect President Obama to move toward the center so as not to alienate the fence-sitters in November. But he didn't. He took a chance to set some distance between he and his competitor for the White House.

The only thing is that marriage is a matter for the states to handle. You know, that whole federalism thing. Besides, whether a presidential candidate is for it or against it, or whether a state spends a lot of money to hold a referendum to ban same-sex marriage, doesn't really matter in the end.

There are currently six states that recognize same-sex marriage. Connecticut, Iowa, Massachusetts, New Hampshire and Vermont all permit same-sex couples to get married.Why is that important, you might ask? Because of the Full Faith and Credit Clause and the Equal Protection Clause of the Fourteenth Amendment.

My wife and I were married here in the Lone Star State. We can move to any other state in the United States and we're still married because each state is obligated to recognize a marriage from another state. If you stop and think about it, it makes sense.

And for that very reason, whether North Carolina, or any other state, wants to ban same-sex marriage, may not matter one little whit. If North Carolina is obligated to recognize the marriage of a heterosexual couple from, say, Texas, to deny recognition of a same-sex marriage from Vermont would seem to be a violation of the Equal Protection Clause.

Of course the impetus behind same-sex marriage isn't to have a fancy wedding and wear wedding bands. The real reasons behind the push for same-sex marriage are inheritance rights and access to health benefits. As to inheritance rights, the goal can be accomplished just as easily by holding property as joint owners with survivorship provisions and by making out a will leaving one's share of commonly held property to one's partner.

Now, while the idea of same-sex marriage has great appeal to some - just remember, where there's marriage, there's divorce.


Anonymous said...

How does DOMA play in to this?

Paul B. Kennedy said...

The problem is that states determine the rules of marriage, not the federal government. Once a same-sex couple goes out of state to get married and comes home and their state won't recognize the marriage the federal courts will get involved and the government will be arguing against both the 10th Amendment and the Equal Protection Clause of the 14th Amendment.

I think once a Constitutional challenge is made to DOMA the law will be struck down.