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Washington State recognizes same-sex marriages the right way

Yesterday, the Washington State House passed a bill to recognize same-sex marriages, following the action last week of the state Senate.  Governor Christine Gregoire “is expected to sign the measure into law next week.

This is exactly how states should go about recognizing same-sex relationships, with elected legislators deciding the matter.

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18 Comments

  1. [...] Washington State recognizes same-sex marriages the right way [...]

    Pingback by GayPatriot » No, you don’t need state sanction to get married — February 9, 2012 @ 3:24 am - February 9, 2012

  2. I’ve already expressed my feelings on this, but I’ve a question, Dan.

    States that have defense of marriage ammendments, do you accept the results because of the means, even if you disagree with those results?

    Comment by The Livewire — February 9, 2012 @ 8:43 am - February 9, 2012

  3. The Livewire, I voted against Prop 22 in 2000 and Prop 8 in 2008. And regret that they are valid.

    As long as they don’t prevent the couples from living together, they pass constitutional muster.

    Comment by B. Daniel Blatt — February 9, 2012 @ 12:23 pm - February 9, 2012

  4. That’s all I wanted to know. Thanks :-)

    Comment by The Livewire — February 9, 2012 @ 12:45 pm - February 9, 2012

  5. This same-sex marriage debate is turning into the abortion debate. States do have rights and some people seem to forget that. Even if the Supreme Court ruled that same-sex couples have right to marriage licenses or Congress passed a bill expanding the (legal) definition of marriage, marriage can still be regulated on a state level. As the do now. Now, I believe that the government needs to get out of the marriage business all together, but a state by state approach is the second best option.

    Here are two article that I read today that is addressing something similar to what I am saying:

    http://abcnews.go.com/blogs/politics/2012/02/gay-marriage-advocates-hope-for-sweeping-supreme-court-ruling-right-wrong/

    http://www.businessweek.com/news/2012-02-09/state-by-state-laws-on-gay-marriage-produce-patchwork-quilt.html

    Comment by MV — February 9, 2012 @ 7:41 pm - February 9, 2012

  6. @The Livewire: Is Loving v. Virginia an incorrectly decided Supreme Court case? Certainly the people of Virginia, through their representatives, had enacted a law banning inter-racial marriage in their own state. So Loving is an over-reach, correct?

    Comment by Mike — February 9, 2012 @ 10:20 pm - February 9, 2012

  7. Regarding Loving v. Virginia, what exactly does race have to do with marriage? Wasn’t Loving v. Virginia about removing racial inequality, and not “marriage inequality”?

    Note: gays have “marriage equality” already in places without gay marriage, as they can marry anyone of the opposite sex that can legally be married. Prior to Loving v. Virginia, that was not the case for black men.

    Comment by Rattlesnake — February 10, 2012 @ 1:31 am - February 10, 2012

  8. Rattlesnake, exactly. Loving wasn’t a radical change to the definition of marriage, but a correction to a racial injustice.

    Comment by V the K — February 10, 2012 @ 6:10 am - February 10, 2012

  9. Rattlesnake, the same type of argument could be made that there was no racial inequality before Loving. Every person was able to marry a person of the opposite sex and of the same race.

    Comment by Pat — February 10, 2012 @ 6:33 am - February 10, 2012

  10. Mike @ Pat,

    Loving runs into the 14th amendment’s plain and clear language. It was depriving a married couple their privilege. In this case it was voiding an already binding contract. Prop 8 did no such thing. (and as I’ve said elsewhere, the 9th circus opened up an amusing can of worms I’d love to see someone inflict on CA).

    Loving doesn’t conflict with the (more recent) Baker V Nelson. (aside, I’d be interested to se the appeals court logic in Benson v. Alverson). If it did, then Baker would have reversed Loving, it didn’t.
    (second aside, interesting that the cases that go against Baker v Nelson try to sidestep it entirely, again, the 9th circus does the same song and dance)

    Now Washington and CT do provide an interesting legal conrundum. Ohio’s DOMA states “Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.” So it is a Loving style case if someone SSMarried in WA moves to Ohio. I don’t know the legal precident on state law vs state constitution (in Loving it was a state law, not their constitution) vs FFC. I lean towards State Law, but I can see the FFC argument.

    Honestly? I think a state can amend their constitution to have an anti-miscegenation statute. I don’t agree with it, like the anti-sodomy laws Lawrence (incorrectly) voided, it would be a stupid law, but it is a power reserved to the states.

    Comment by The Livewire — February 10, 2012 @ 8:11 am - February 10, 2012

  11. So it is a Loving style case if someone SSMarried in WA moves to Ohio.

    No, it isn’t, because the Ohio law does not contain any provisions that persons who were SSM’d in another state shall be placed under arrest if they set foot in Ohio, and offered the choice of divorcing or being expelled from Ohio territory.

    The Virginia statute struck down in Loving did not merely decline to recognize interracial marriages; it criminalized such marriages. And it was historically entangled with other laws that had criminalized interracial fornication and “co-habitation”.

    I think a state can amend their constitution to have an anti-miscegenation statute.

    Very doubtful, since we have two unanimous SCOTUS decisions striking down such statutes (Loving v. Virginia in 1967 and McLaughlin v. Florida and 1964). As Justice Potter “I know pr0n when I see it” Stewart emphasized in both of these cases: “We deal here with a criminal law which imposes criminal punishment. And I think 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. Discrimination of that kind is invidious per se.”

    I suppose there’s an infinitesimally small theoretical possibility that a state anti-miscegenation law could be upheld as Constitutional if it equally prohibited any and all permutations of “race mixing” — white and black, black and Asian, white and Amerindian, etc. However, a statute that only forbade relationships between “whites and non-whites”, while permitting an African-American to marry a Chinese-American, would be struck down instantly on Equal Protection grounds.

    Comment by Throbert McGee — February 10, 2012 @ 12:49 pm - February 10, 2012

  12. @Thorbert,

    Both those scenarios assume that the Supreme court is the, ahem, supreme arbitrator of those kind of details. I could see the argument under Baker that since the state can define marriage it can define race as a content. I find it repugnant, but I could see someone wanting to make that a hill to die on. All it would take would be for 5 judges to extend the power of Baker. As history shows, courts can, and often do, reverse themselves over years.

    The comparison between a hypothetical WA v OH and Loving as I see it, is that Mr. and Mrs. Loving were legally married in DC, then prosecuted for that in VA. If Bill and Ted got married in WA, then came to Ohio and demanded their marriage be recognized by the state, that’s when the Loving comparison comes in.

    I’d assume filing for divorce in Ohio would trigger the same argument, since Ohio would have to recognize they were married to get a divorce.

    Now keep in mind, IANAL, so this is my speculation.

    Life would be eaiser for everyone if I really was Emperor. ;-)

    Comment by The Livewire — February 10, 2012 @ 1:53 pm - February 10, 2012

  13. Oh one other ‘Loving’ kind of moment in crossing state lines comes to mind.

    If a SSM-WA couple files “Married and filing jointly” on their Ohio return.

    Comment by The Livewire — February 10, 2012 @ 2:25 pm - February 10, 2012

  14. Loving doesn’t conflict with the (more recent) Baker V Nelson.

    Comment by The Livewire — February 10, 2012 @ 8:11 am – February 10, 2012

    Which is not a surprise, given that the same justices reviewed both claims.

    That’s also why I think Baker is never brought up; it opens the question of the validity of applying Loving to gay-sex marriage when the justices who decided both declined to do so.

    Comment by North Dallas Thirty — February 10, 2012 @ 5:04 pm - February 10, 2012

  15. Livewire, just to be clear I was not trying to justify SSM because of Loving. In fact, I am nowhere near an expert on the 14th Amendment.

    Comment by Pat — February 11, 2012 @ 12:20 pm - February 11, 2012

  16. Oh I understand. and I’m definitely not a lawyer. I’m just trying to see ways it might come up to the courts.

    Comment by The_Livewire — February 11, 2012 @ 3:22 pm - February 11, 2012

  17. 7: So with the logic of “gay people can marry, just as long as its someone of the opposite sex”, then it gives credence to the idea that conservatives want to tell people who they can marry and who they can’t? Interesting for a group that continually screams about getting government out of their lives.

    Comment by Kevin — February 14, 2012 @ 11:39 pm - February 14, 2012

  18. Of course, the legislature isn’t the right way, as far as Cristi in NJ is concerned. He’s giving the whole “this is so important, it should be taken directly to the people” BS. Naturally, it makes him a hero to conservatives when he runs for VP or President.

    Comment by Kevin — February 14, 2012 @ 11:42 pm - February 14, 2012

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