Thursday, November 15, 2012

DOMA is doomed

The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. - Loving v. Virginia, 388 US 1 (1967).
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. - US Constitution, Art. IV, Sec. 1
Last Tuesday, Maine and Maryland became the first states to approve same-sex marriage. The results ended a string of defeats at the polls over the years.

The passages of those two measures will mean the effective end of the Defense of Marriage Act. As I have written before, once one state recognizes same-sex marriage, every other state will be forced to do the same - whether they like it or not.

Back in the 1950's, the state of Virginia made it a crime for an interracial couple to marry. To add insult to injury, the laws of that time not only voided such marriages, but the parties involved could be sentenced to up to five years in prison.

In 1958, Mildred Jeter, a black woman, and Richard Loving, a white man, living in Virginia went to Washington, D.C. and got married. They then went back to Virginia and settled down. Less than a year later they were indicted, convicted and sentenced to one year each in prison. The court suspended the sentences for 25 years provided the Lovings left Virginia and never returned.

In 1967 the case, Loving v. Virginia, made it to the Supreme Court. The Lovings argued that the Virginia laws violated their rights to due process and equal protection. The state countered that the laws did not violate the Equal Protection Clause because both the white partner and the black partner were subject to the same sentence.

The Warren Court begged to differ. Said the Court:
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
The Court reversed the convictions and declared the Virginia statutes unconstitutional.

Opponents of same-sex marriage will argue that marriage laws were left up to the states at the founding of the republic. That is true - which is why conservative support of the Defense of Marriage Act is so tastefully ironic. Here we have yet another example of how the right wants selectively limited government.

The fact that marriage is left to the states to regulate is why DOMA is now doomed. Let's think about it for a bit. The Full Faith and Credit Clause says that a state must recognize the legal proceedings and records of any other state. And that's what happens now. If you get married in California and then move to Texas you are just as married in the Lone Star State as you were on the Left Coast. You are entitled to the same rights and privileges as a couple that was married in Texas.

The Equal Protection Clause says you have to treat people equally. You can't treat one person one way because he or she is white or heterosexual and then treat another person differently because that person is black or homosexual. That notion applies to married couples as well.

It will take time but sooner, rather than later, every state in the Union will be required to recognize same-sex marriage - even they have to be dragged kicking and screaming. All it's going to take is one couple to file one suit challenging a law banning same-sex marriage for the chain reaction to occur. It would be much easier if governors and state legislatures would just recognize that the issue is now moot and pass laws conferring the same status for same-sex couples as heterosexual couples.

That, though, would require character and leadership.

No comments: