Have Gay Marriage Bans Backfired?

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With Maine joining the ranks of states that allow gay marriage, it has left me to wonder if gay marriage bans have actually (albeit in an indirect manner) helped the promotion of gay marriage. I know this sounds strange, but hear me out on this (and if our legal friends here would like to share their input on this, I welcome it, as I am no legal expert).

I live in Maryland, and there have been no legal challenges to gay marriage here, simply because there is no law on the books banning gay marriage to challenge. (Although there is talk about legalizing gay marriage in Maryland - but it has not happened at this time.) However, even though it is not specifically set forth in the legal code, Maryland does not recognize gay marriages. It seems that simply not acknoledging (but not banning by law) gay marriage means that if you want to marry someone of the same sex you are out of luck.

The same does not appear to be the case once you codify the ban into law. It seems that proponents of legalizing gay marriage have struck upon a winning formula. They are challenging the ban's Constitutionality on the basis of the equal protection clause of the Constitution (state constitutions lay out many of the same rights as the federal Constitution). Basically the equal protection clause states that in the case of all legal matters (both criminal and civil) the law must apply equally to everyone.

That was a winning arguement for gay marriage in both Iowa and Maine. Now that a legal precedent has been set, I fully expect that challenge to be brought forth to more state courts, and that we shall see more and more states legalizing gay marriage. This leads me to question if you can bring a legal challenge to a state like Maryland, which does not outright ban gay marriage.

Also, while most people believe that marriage laws should be dealt with on a state level, the federal government has already stuck its nose into this when it passed the Defense of Marriage Act (DOMA) during the Clinton administration. Since the equal protection clause applies to both state and federal law, it stands to reason that the Constitutionality of DOMA can be challenged as well. If DOMA was struck from the books, it would not force states to allow gay marriage, but it would stop states from refusing to acknowledge gay marriages performed in another state. This would be another example of the law backfiring. If DOMA is repealed, any gay couple living in a state that bans gay marriage could go to any of the states that currently allow gay marriage, get married, and have their marriage legally acknowledged by their home state. So while it wouldn't force states to perform gay marriage, it would render the ban moot (at least to anyone who can afford to travel).

 

So, at the moment, how does Maryland handle marriages performed in other states? If a gay Maryland goes to California and gets married, can they get the benefits of marriage in Maryland? Could they get those benefits in states that ban gay marriage?

 

Maryland does not recognize gay marriage, so no, they don't get the benefits. And because DOMA does not require marriages in one state to be acknowledged by another state, it's legal for Maryland to do so. If DOMA is struck down, then effectively anyone could travel to a state willing to perform gay marriage and be considered legally married in their home state.

 

Which works until they decide to change the state constitution. Oops.

 

I hate to break it to you, but even if all 49 states drop the ban along with the Federal DOMA law...Utah will *not* drop it. You should have seen how many "Yes on Prop 8" signs there were here in UT...and the citizens of UT couldn't even vote for it!!!

While I don't like the idea of two guys getting married...I fully support two women getting married. Having to watch two guys kiss makes me cringe, while the *exact* opposite is true for two women. Yes, I know it's a double standard, and my views are twisted...big deal...at least I know it and fully admit it. Anyway, I also feel that they (gays or lesbians) should be able to do whatever the hell they want. In fact...I think they should *have* to get married. That would make Divorce Court a lot more entertaining...

 

Oh goody. I was wondering when someone was going to toss a big bucket of Gnarff chum in the water.

 

Holy crap - can you imagine what would happen if a state said that the equal protection clause didn't appy anymore? Could they even do that if the equal protection clause wasn't removed from the federal constitution? It would allow you to prevent gay marriage proponents from challenging the ban on that basis, but talk about unintended consequences! It would open up the flood gates for all types of shenanigans. Basically, you could make any law that applied only to a specific group of people. And I think just about any law maker would realize that. I just don't see that as a realistic possibility, AMaster.

No worries about breaking it to me - I'm not gay, so my interest in this issue is from a legal perspective and not a personal one. I seriously doubt that you'll see the federal government passing a law that says all states have to perform gay marriages any time soon. What I could see as possible is a federal law that says all states must acknowledge legal marriages that take place in other states - that would just be the reversal of DOMA. As it is now, a gay couple that is legally married in Maine would not be considered legally married in most other states if they were to move. And if that federal law were to pass, like it or not, Utah would have to acknowledge the marriage of people who moved there from another state.

 

I'm pretty sure no one's asking to watch gay porn, in fact you can watch any porn you want for all we care Seriously, if you feel that gays should be able to do what they want, why are you against the idea of them getting married?

 

Kit didn't say he was against it, just that he didn't like the idea of it. That's two different things

 

Yeah. Kinda like the difference between believing something doesn't exist, vs. not believing that something exists.

 

This will go the same way as Mixed Race marriages -- as time goes on more and more states will be forced to remove any traditional definitions of marriage from the law books, and it will be accepted in all states. I don't see this taking more than about 10 years from now.

Whether I like that or not is a different matter, but the precedent has been set, and as long as the Constitution is being interpreted in this manner (as an issue of equal rights) it'll become a non issue soon.

This will not mean that any religious group wil be forced to perform gay marriages. It is my understanding that a religious minister can, even today, refuse to perform a marriage ceremony between 2 heteros if he does not agree with their lifestyle or beliefs. No precedent in that sense has been set, and it's not going to be set, either, so that's a non issue.

The fact that homosexuality is being touted as an acceptable lifestyle in the schools is something that makes religious folks cringe, but in all honesty, a lot of the stuff being touted as acceptable runs contrary to the religious views of some citizens. As long as they are able to continue to teach their children at home and in churches the tenets of their faith, they should be able to counteract societal forces they disagree with. No precedent exists that forces churches to cease preaching their tenets.

 

You're going to have a very hard time finding people who don't think that something out there runs contrary to their religious beliefs, and even people with no religious belief will still stay that it runs against their ideals or views of how things should be or whatever. That's the whole point of parenting - society's not going to do everything for you. You have to take responsibility, ultimately, for your children (and you have to expect that when they grow up they'll disagree with some of your beliefs, but that's for another topic). I don't think churches should be forced to perform a certain marriage - if say a gay man is part of a religious group who think that homosoexuality is Evil then he needs to reconsider either his religious belonging or his lifestyle. However what ministers decide to do or not do in the context of a religious marriage should have no effect on people's ability to get their marriage registered with the state if that type of marriage is legal in that state (from what I know of US laws this is not an issue anyway)

 

This is true. There have been a few cases that have made the news where a gay couple has gone to a courthouse for a marriage, and the JoP refused to perform the ceremony because he said his religion forbade gay marriage. I think the guy ended up keeping his job, but he was basically told that in a civil ceremony, his religious beliefs are irrelevant.

 

We hashed that out in another thread about 8 months ago or so, Aldeth.

I am opposed to gay marriage, and do not see it as an "equal rights" issue. However, I am also opposed to BS arguments, and the argument that pastors could be forced to marry gays in their church is a BS argument.

As is the school one -- I believe that religious people should be allowed to campaign for their positions, but the idea that if something they find morally repugnant is taught in their schools that will undermine their rights as parents is BS -- they have a right to change it through the democratic process if they desire, but it's not a rights issue either.

I'm less sure about pullout options. If I know that my kid's teacher is going to have a unit on "sexuality" and I am not comfortable with the content of that unit, I think that I should have the right to pull my kid from that class. The consequences be on my head. The idea that the consequences of that pullout are damaging to society is bunk, IMHO. But if that pullout is deemed to be unacceptable, then as a parent I still have the right, which has not been challenged anywhere to my knowledge, to contradict the teachings of the school at home.

 

Which they have done in 35+ states. These states, including california(prop 8), have all passed Constitutional amendments limiting marriage to 1 man & 1 woman.
Now lets see how the courts vote on that, AFAIK the states that have approved of it or had their laws struck down on it did not have Constitutional Amendments about the subject.

 

Digression: The Judge of the Peace

Not knowing what you meant with the JoP I looked up the Justice of the Peace in Wiki, and I found this:

The case sounds like, indeed, the person in question did not have legal training. More specific on America:

The case easily illustrates the point the American Bar Association makes about the perils of non lawyers administering the law. This particular Justice of the Peace for instance was apparently unfamiliar with the concept of separation of church and state and where his individual rights of religious freedom end. A judge should know all that.

 

martaug, that's the entire point of my opening post. States that have amendments to their state Constitution banning gay marriage or defining marriage as between a man and a woman (like Iowa did) are being challenged in court on the basis that the prohibition of gay marriage amendment is in conflict with the equal protection clause present in the state (and in the federal) Constitution. So a state constitutional amendment does not solve this problem. The arguement is that the gay marriage amendment should never have been included in the Constitution in the first place, because it is in fact unconstitutional. (And adding it to the state constitution doesn't suddenly make it constitutional if there was a pre-existing clause in the constitution - which there was - that made it unconstitutional. It would kind of be like ex post facto working in reverse.)

 

But Aldeth when it is in the constitution, isn't it per definition constitutional?

PS: This post is tongue-in-cheek. Only because a provision is written into the constitution that *** D O E S *** N O T *** automatically make it constitutional.

 

Rags, you should really put disclaimers on your posts - there are some here who may actually take that as a serious reply.