I see a major wrinkle though. If Arkansas, for example, makes same sex marriages illegal, the result could be this: couples moving to Arkansas already married have full marital rights while couples not yet married do not and cannot. That means Arkansas is treating exactly similarly situated citizens within its borders entirely differently. As a legal matter, isn’t that a flagrant equal protection problem of its own? As a practical matter, how are all those entities in a position to extend or deny benefits or accommodations supposed to readily tell the difference? What a nightmare.
Thank you Barbara; good questions. MD's & JD' are able to fight. "Nothin' worth havin' comes without a fight ... you gotta kick at the darkness 'til it bleeds sunlight". Bruce Cockburn, poet & singer: 'Lovers in a Dangerous Time".
First: There are many contracts (basically a state “right”) which are and must be recognized across state lines. The new act guarantees recognition of marriages specifically that were legally entered in another state but leaves out a guarantee that all states must permit those marriages. This is the basis for my comment, as it absolutely does raise equal protection issues.
Second: AK is Alaska not Arkansas.
Third: I don’t know whether you’ve never been married, never been denied recognition of your relationship, or are just completely lacking in both imagination and compassion, but the situations in which married couples are treated specifically as married couples with rights and privileges with regard to one another are considerably broader than “employers and insurers”. Those two right there, though, are significant.
Fourth: Being gay does not make one a pedophile. By far most “grooming” is done by heterosexual males abusing young girls and women. Being heterosexual does not make you a decent parent. Your level of hatefulness is truly sad. Maybe you need to get out more, make the effort to get to know a few real people and families.
Hat tip for a remarkably complete historical analysis! My question, however -- on the presumption that RFMA passes both chambers and is signed into law -- is couldn't a hell-bent, GOP-stacked SCOTUS simply overturn RFMA, based on some religiosity-informed POV that it is not constitutional? This is my problem with all these "codification" work-arounds. Based on the interpretation of the Constitution -- especially an "originalist" one (make that, "originalist-when-convenient" one) -- don't minority groups face ongoing jeopardy based on whether a statute ultimately passes constitutional muster with an out-of-step SCOTUS?
All that said, 'something' that's pretty good is much better than nothing.
I’m sure someone will try to challenge it legally, but overturning DOMA isn’t a codification of Obergefell. If anything it returns us to a period of time pre-DOMA, and the Court can’t really tell the federal government what marriages it can and can’t recognize.
I wasn't going to respond to your insipid comments any further, because your words are dangerous, and you deserve no further attention. Reflect. Do better.
But I will comment on you making the assumption that I know nothing about "religious people." I'm the son of a preacher x 2 and was a religious studies major summa cum laude. I understand that a core tenant of all religions is love over hate -- you do not, and no further trolling can undo that impression, bc your words have made that clear. Sit down. Reflect. Do better.
Thank you, Jay, for your usual clear and concise explanation. I agree that it's an important yet incomplete step, and likely the best we can hope for right now. Can you elaborate on the religious carve-outs? I've seen something about religious organizations being allowed to be their often bigoted selfs, I but I'm not really understanding the granular detail of that.
This is all a stall tactic to make it look like the Supreme court is doing something instead of working on real issues. We need people with more of a legal mind not minds mired in religion pushing their views on others. Marriage is a legal contract, a chuch wedding is a spiritual commitment. This is why some people do both. A Justice of the Peace legally binds two people and that's all you need. Same sex couples are legally committing to love and protect each other through life. This should be a Federal law which all states have to follow. Instead, some states are trying to pick and chose which laws they want to follow. That's not democracy, that's chaos.
I don't know why you're so scared of gay people. Holier-than-thou people hate anything but rigid religious beliefs. You obviously have no gay people in your family or you would be more compassionate. I suppose you support the mama's boy who threatened his mother with a bomb last year, then went to a gay bar and killed innocent people in Colorado.. There have been gay people since the dawn of time and you ignoring that fact shows how ignorant you are. There is no such thing as 'Queer Theory.' it's made up by people like you who need a pat solution to an intricate fact they can't comprehend. A theory is not a religion. If it is, religion is it's own theory, a straight theory? Don't give me the right wing rhetoric. Jesus never said anything about gay people. the only reason churches are against Gays is, they can't bear children and make the church bigger with their offspring. Religion is about power and control. Eveer since Christianity started, it was a way to wipe out cultures who didn't have the same beliefs, or to control trade with other tribes and cultures. Do you relize you're making this comment on a gay man's page? If you're so paranoid, why are you following him? Why don't you make the comment directly to him?
Great to see a fellow Berkeleylaw grad writing such great stuff, Jay. Thank you. I love this analysis. It takes complex legal developments and summarizes them in a way that is readily understandable to those who don’t have a law degree. While this is a great service, I think a few additional points are critical. First, the original Hawaii decision finding that the Hawaii constitution recognizes and protects same-sex couples’ right to marry didn’t just happen by chance. It was part of a carefully developed strategy by LGBT civil rights organizations such as Lambda Legal and led, most notably, by Evan Wolfson who later founded Freedom to Marry. https://en.wikipedia.org/wiki/Evan_Wolfson
Second, the conservatives’ worry that developments in Hawaii might force other states to recognize same sex marriages was not a paranoid reaction. That was the explicit strategy of Lambda and Wolfson. The U.S. Constitution generally requires states and the federal government to give “full faith and credit” to marriages performed in other states. That’s why a couple doesn’t have to get re-married every time they move. Imagine the chaos if the rule were different. A couple would be recognized as married in their home state but not when they take a vacation in another. Imagine couples with children. In short, Lambda and Wolfson ingeniously recognized that a legal rule meant to protect straight families could have enormous consequences for same sex couples if they could just establish a right to marry in one state. Hawaii was that state, and a whole travel industry quickly developed where LGBT couples married in Hawaii and returned to their home states to invoke the Full Faith and Credit Clause for full recognition of their married status.
Third, that is the backdrop against which DOMA was signed into law by Bill Clinton. Clinton was, at best, an equivocal ally of LGBT Americans. But that was very common back then, for Republicans and Democrats alike. Marriage equality was not politically popular. Barack Obama, an astute politician, was not a supporter at the start of his presidency. Joe Biden forced his hand by coming out publicly in support of marriage equality as VP. And it took the courage of moderate conservatives on the Supreme Court, most notably Anthony Kennedy, to strike down DOMA as unconstitutional based on the rights established in Roe and its precedents, especially Loving v. Virginia, which recognized the right of couples to marry without regard to their race.
Fourth, people like to slam Justice Thomas and Senator McConnell for opposing protections for marriage that they enjoy as men married to spouses of a different race. Don’t get me wrong, I have no sympathy for either Thomas or McConnell. I disagree with them on virtually everything. But Loving v. Virginia rests on a constitutional framework that differs significantly from Roe v. Wade. The Civil War Amendments explicitly and textually protect us from most government classifications based on race. While similar protections against classifications based on sex and sexual orientation have been read into those Amendments by many courts, they do not enjoy the same textual support that the protections against race-based classifications enjoy and they are subject to a lesser degree of scrutiny. In short, Conservatives on the Supreme Court are now all textualists. Gone are the days when moderate conservatives like Blackmun (author of Roe) or Kennedy, O’Connor and Souter (Casey) could find a right to privacy in the “penumbra” of various clauses of the Constitution. They are all Scalias now (except perhaps Chief Justice Roberts…. But I wouldn’t count on it….). That is why Thomas can call for the overruling of Obergefell after Dobbs but rest secure that Loving and his own marriage will remain secure.
Fifth, the Respect for Marriage Act is a really, really big deal. The fact that we now have all Democrats in the senate on our side and even a handful of moderate conservatives is a giant stride from the days of DOMA. To accomplish this in the era of Trump and De Santis is even more remarkable. We owe this unbelievable progress to decades of hard work by our LGBT organizations and leaders but also to reasonable and moderate conservatives who will discuss difficult issues and reach across the aisle when it is the right thing to do.
Sixth and finally, with the passage of RFMA we will again be able to marry in Hawaii or Massachusetts or any state that recognizes a right to same sex marriage and return home knowing our marital status will be recognized wherever we live. Obviously, that doesn’t mean states have to authorize same sex marriages under their own laws, but it is a lot easier to plan a marriage in another state than it is to need an abortion in hostile territory and get one in a friendly state. The urgency is just completely different. Dobbs is a disaster and must be rectified. And California needs to repeal Proposition 8.
Like the rest of your arrogant, ignorant ilk, you pass judgment on things that you lack knowledge of. I would pity you were it not for the danger your brand of ignorance poses to others.
I have reported your comments. You have nothing of value to add to this conversation.
I see a major wrinkle though. If Arkansas, for example, makes same sex marriages illegal, the result could be this: couples moving to Arkansas already married have full marital rights while couples not yet married do not and cannot. That means Arkansas is treating exactly similarly situated citizens within its borders entirely differently. As a legal matter, isn’t that a flagrant equal protection problem of its own? As a practical matter, how are all those entities in a position to extend or deny benefits or accommodations supposed to readily tell the difference? What a nightmare.
Thank you Barbara; good questions. MD's & JD' are able to fight. "Nothin' worth havin' comes without a fight ... you gotta kick at the darkness 'til it bleeds sunlight". Bruce Cockburn, poet & singer: 'Lovers in a Dangerous Time".
Wow. This comment is ignorant on SO many levels.
First: There are many contracts (basically a state “right”) which are and must be recognized across state lines. The new act guarantees recognition of marriages specifically that were legally entered in another state but leaves out a guarantee that all states must permit those marriages. This is the basis for my comment, as it absolutely does raise equal protection issues.
Second: AK is Alaska not Arkansas.
Third: I don’t know whether you’ve never been married, never been denied recognition of your relationship, or are just completely lacking in both imagination and compassion, but the situations in which married couples are treated specifically as married couples with rights and privileges with regard to one another are considerably broader than “employers and insurers”. Those two right there, though, are significant.
Fourth: Being gay does not make one a pedophile. By far most “grooming” is done by heterosexual males abusing young girls and women. Being heterosexual does not make you a decent parent. Your level of hatefulness is truly sad. Maybe you need to get out more, make the effort to get to know a few real people and families.
Hat tip for a remarkably complete historical analysis! My question, however -- on the presumption that RFMA passes both chambers and is signed into law -- is couldn't a hell-bent, GOP-stacked SCOTUS simply overturn RFMA, based on some religiosity-informed POV that it is not constitutional? This is my problem with all these "codification" work-arounds. Based on the interpretation of the Constitution -- especially an "originalist" one (make that, "originalist-when-convenient" one) -- don't minority groups face ongoing jeopardy based on whether a statute ultimately passes constitutional muster with an out-of-step SCOTUS?
All that said, 'something' that's pretty good is much better than nothing.
I’m sure someone will try to challenge it legally, but overturning DOMA isn’t a codification of Obergefell. If anything it returns us to a period of time pre-DOMA, and the Court can’t really tell the federal government what marriages it can and can’t recognize.
No, troll. And garbage like this ACTUALLY gets people killed.
See prior.
I wasn't going to respond to your insipid comments any further, because your words are dangerous, and you deserve no further attention. Reflect. Do better.
But I will comment on you making the assumption that I know nothing about "religious people." I'm the son of a preacher x 2 and was a religious studies major summa cum laude. I understand that a core tenant of all religions is love over hate -- you do not, and no further trolling can undo that impression, bc your words have made that clear. Sit down. Reflect. Do better.
Thank you, Jay, for your usual clear and concise explanation. I agree that it's an important yet incomplete step, and likely the best we can hope for right now. Can you elaborate on the religious carve-outs? I've seen something about religious organizations being allowed to be their often bigoted selfs, I but I'm not really understanding the granular detail of that.
In California., we have long had an express Right of Privacy in our state Constitution, Artiicle 1, Sect. 7.
This is all a stall tactic to make it look like the Supreme court is doing something instead of working on real issues. We need people with more of a legal mind not minds mired in religion pushing their views on others. Marriage is a legal contract, a chuch wedding is a spiritual commitment. This is why some people do both. A Justice of the Peace legally binds two people and that's all you need. Same sex couples are legally committing to love and protect each other through life. This should be a Federal law which all states have to follow. Instead, some states are trying to pick and chose which laws they want to follow. That's not democracy, that's chaos.
I don't know why you're so scared of gay people. Holier-than-thou people hate anything but rigid religious beliefs. You obviously have no gay people in your family or you would be more compassionate. I suppose you support the mama's boy who threatened his mother with a bomb last year, then went to a gay bar and killed innocent people in Colorado.. There have been gay people since the dawn of time and you ignoring that fact shows how ignorant you are. There is no such thing as 'Queer Theory.' it's made up by people like you who need a pat solution to an intricate fact they can't comprehend. A theory is not a religion. If it is, religion is it's own theory, a straight theory? Don't give me the right wing rhetoric. Jesus never said anything about gay people. the only reason churches are against Gays is, they can't bear children and make the church bigger with their offspring. Religion is about power and control. Eveer since Christianity started, it was a way to wipe out cultures who didn't have the same beliefs, or to control trade with other tribes and cultures. Do you relize you're making this comment on a gay man's page? If you're so paranoid, why are you following him? Why don't you make the comment directly to him?
Great to see a fellow Berkeleylaw grad writing such great stuff, Jay. Thank you. I love this analysis. It takes complex legal developments and summarizes them in a way that is readily understandable to those who don’t have a law degree. While this is a great service, I think a few additional points are critical. First, the original Hawaii decision finding that the Hawaii constitution recognizes and protects same-sex couples’ right to marry didn’t just happen by chance. It was part of a carefully developed strategy by LGBT civil rights organizations such as Lambda Legal and led, most notably, by Evan Wolfson who later founded Freedom to Marry. https://en.wikipedia.org/wiki/Evan_Wolfson
Second, the conservatives’ worry that developments in Hawaii might force other states to recognize same sex marriages was not a paranoid reaction. That was the explicit strategy of Lambda and Wolfson. The U.S. Constitution generally requires states and the federal government to give “full faith and credit” to marriages performed in other states. That’s why a couple doesn’t have to get re-married every time they move. Imagine the chaos if the rule were different. A couple would be recognized as married in their home state but not when they take a vacation in another. Imagine couples with children. In short, Lambda and Wolfson ingeniously recognized that a legal rule meant to protect straight families could have enormous consequences for same sex couples if they could just establish a right to marry in one state. Hawaii was that state, and a whole travel industry quickly developed where LGBT couples married in Hawaii and returned to their home states to invoke the Full Faith and Credit Clause for full recognition of their married status.
Third, that is the backdrop against which DOMA was signed into law by Bill Clinton. Clinton was, at best, an equivocal ally of LGBT Americans. But that was very common back then, for Republicans and Democrats alike. Marriage equality was not politically popular. Barack Obama, an astute politician, was not a supporter at the start of his presidency. Joe Biden forced his hand by coming out publicly in support of marriage equality as VP. And it took the courage of moderate conservatives on the Supreme Court, most notably Anthony Kennedy, to strike down DOMA as unconstitutional based on the rights established in Roe and its precedents, especially Loving v. Virginia, which recognized the right of couples to marry without regard to their race.
https://en.wikipedia.org/wiki/Defense_of_Marriage_Act
Fourth, people like to slam Justice Thomas and Senator McConnell for opposing protections for marriage that they enjoy as men married to spouses of a different race. Don’t get me wrong, I have no sympathy for either Thomas or McConnell. I disagree with them on virtually everything. But Loving v. Virginia rests on a constitutional framework that differs significantly from Roe v. Wade. The Civil War Amendments explicitly and textually protect us from most government classifications based on race. While similar protections against classifications based on sex and sexual orientation have been read into those Amendments by many courts, they do not enjoy the same textual support that the protections against race-based classifications enjoy and they are subject to a lesser degree of scrutiny. In short, Conservatives on the Supreme Court are now all textualists. Gone are the days when moderate conservatives like Blackmun (author of Roe) or Kennedy, O’Connor and Souter (Casey) could find a right to privacy in the “penumbra” of various clauses of the Constitution. They are all Scalias now (except perhaps Chief Justice Roberts…. But I wouldn’t count on it….). That is why Thomas can call for the overruling of Obergefell after Dobbs but rest secure that Loving and his own marriage will remain secure.
Fifth, the Respect for Marriage Act is a really, really big deal. The fact that we now have all Democrats in the senate on our side and even a handful of moderate conservatives is a giant stride from the days of DOMA. To accomplish this in the era of Trump and De Santis is even more remarkable. We owe this unbelievable progress to decades of hard work by our LGBT organizations and leaders but also to reasonable and moderate conservatives who will discuss difficult issues and reach across the aisle when it is the right thing to do.
Sixth and finally, with the passage of RFMA we will again be able to marry in Hawaii or Massachusetts or any state that recognizes a right to same sex marriage and return home knowing our marital status will be recognized wherever we live. Obviously, that doesn’t mean states have to authorize same sex marriages under their own laws, but it is a lot easier to plan a marriage in another state than it is to need an abortion in hostile territory and get one in a friendly state. The urgency is just completely different. Dobbs is a disaster and must be rectified. And California needs to repeal Proposition 8.
This is a superb look at the history of this issue. I learned from it. Thank you!
Marek, do you know that you’re ignorant? My kid was clearly gay as early as preschool.
Like the rest of your arrogant, ignorant ilk, you pass judgment on things that you lack knowledge of. I would pity you were it not for the danger your brand of ignorance poses to others.
I have reported your comments. You have nothing of value to add to this conversation.