YES!!!

[gridlore]

Massachusetts Supreme Court rules: Ban on gay Marriage unconstitutional!

The legislature has 180 days to implement a plan to extend full civil marriage benefits to gay couples in the state. There is hostility to the measure, but unless the GOP can shove a constitutional amendment through in 180 days or less, gay marriage will be the law.

And know what that means? Under Article. IV. Section. 1. of the US Constitution:

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.

This has been held up in many court cases to apply explicitly to marriage. So, get married in Mass., and you are married in every state of the Union!

Comments

[rfmcdpei.livejournal.com]

Exceptionally cool. Congratulations!

(Of course, this makes the argument of the Religious Right for a Federal Marriage Amendment all the more compelling from their viewpoint. However, even conservatives (http://www.nationalreview.com/thecorner/03_11_16_corner-archive.asp#019840) are skeptical whether this could work.)

[cleverthylacine]

I'm really thrilled! Yay. I would have danced when I heard the news on KFOG this morning if I had not been lying in bed hoping that I wouldn't need to run to the loo and throw up.

In other news, I want to steal your icon.

[gridlore.livejournal.com]

Feel free!

Hope you feel better.

[twfarlan.livejournal.com]

Only one problem with that. At the moment, the Full Faith and Credit clause is under attack by the Federal DoMA, namely in that it allows states to ignore unions from other states that are deemed "unlawful" in the objecting state. Remember that from back when Hawaii was going towards gay marriage? Now, it's a Federal law in theoretical opposition to a clause of the Constitution; technically, it should fail when challenged in Federal court. Unfortunately, the challenge has not been made in the courts nor has the SCOTUS heard such a case yet which, naturally, would be the deciding factor. One could argue that the Faith and Credit clause has been held not to apply before in cases where a state legalized something that surrounding states did not, allowing surrounding states to for instance seize contraband which was bought legally in the state next door. (I'm thinking specifically of Prohibition-era laws just prior to the Prohibition Amendment, actually.)

[kengr]

Not so minor detail.

A few years back Congress passed the Defense of Marriage Act. (DOMA). It *specificly* states that gay marriages need not be recognized by other states.

So the matter will go almost immediately to the Supreme Court. Who will either rule DOMA unconstitutional, or affirm it. If they affirm it, then we'll have to fight the battle state by state.

If they rule against DOMA, then the states will have to recognize the marriages. But expect it to take years.

[kengr]

On the gripping hand, marriages count as "contracts", for a lot of legal stuff. And that won't allow the "illegal in other states" argument to fly.

Also, the state not allowing gay marriages to be *formed* isn't the same as gay marriages being illegal.

Consider that there used to be states that didn't allow divorces. But if you went to (say) Nevada, and got a divorce there, it was still valid when you returned.

[gridlore.livejournal.com]

Loving v. Virgina.

It specifically stated that the full faith and credit clause requires that marriages in one state be recognized by other states. In addition, there are a raft of cases that say that any marriage legal in one state, are legal in them all. (Oddly, many of these marriages seem to have their root in Las Vegas..)

[twfarlan.livejournal.com]

Actually, yes it would still apply. A contract that involves things that are themselves illegal is automatically invalidated. That's standard contract law in every state of the Union. A contract that set up an illegal partnership would not have to be held valid in a state where that partnership itself would be illegal or invalid, even if the partnership was legal and valid in another state.

No, letting gay marriages be formed isn't quite the same, but the argument that the laws apply only to one and not the other has not been attempted and would be quibbling on a level that most judges would find contemptible even in this day and age of the limitless loopholes in tort law.

Yes, there were states that themselves did not allow divorce but still recognized a divorce from another state. That is an example of what you described in the second paragraph, changing the status of an arrangement being illegal but the arrangement itself NOT being illegal. In this case, many states have already adopted mini-DoMAs that explicitly make the male/male and female/female combinations illegal and invalid, so they would not have to recognize the arrangement from another state.

[aurictech.livejournal.com]

One question I haven't heard addressed anywhere:

What happens if the Massachussets legislature fails to pass something that satisfies the court within the 180 day time limit?

[kengr]

Yeah, but if Loving predates DOMA, they'll sargue that it overrides it. At least until the Supreme Court rules otherwise.

[emiofbrie.livejournal.com]

Then they will have committed contempt of court....

Yes, but this is Massachusetts

[murbin.livejournal.com]

Speaker of the House for Life Thomas "Baby Doc" FINNERAN has been known been known to ignore laws he doesn't like.

He does this by either funding programs that were supposed to have ended or withholding funding from programs he doesn't like. Both houses of the state Legislature is veto proof (with overrides locked in), so he can push through just about anything he wants.

He has been a long time opponent of this type of law, has however said that he will "allow the state House to vote on it."

It will be interesting to see how it plays out, since the gay community is very well organized in the Commonwealth and even the governor (a Mormon) is for civil unions that give full legal rights.

It's happened before...

[murbin.livejournal.com]

A State judge had Thomas Finneran's (Speaker of the House) office furniture seized and sold at auction to pay for a state project that Finneran refused to fund.