The appearance earlier this month of six Democratic hopefuls for their party's presidential ("POTUS") nomination on a the HRC/Logo forum got me to thinking about how much candidates really DON'T say when they address the subject of gay marriage versus civil unions. Mike Gravel and Dennis Kucinich said they support gay marriage. Hillary Clinton, Barak Obama, Jon Edwards and Bill Richardson say they don't, but bubble over about being all for civil unions. What do I mean by what they DON'T say? Simply that talking about the marriage rights question in terms of a "Press 1 for Marriage, 2 for Civil Unions" approach is really pretty superficial. There's a need to "Press 3 to Speak to An Operator" to get a better connection, assuming they have a live operator standing by...and I doubt it.
This has prompted me to try to set down, in as reasonably concise manner as possible (that can be quite a challenge for me) some basics concerning the broad topic of marriage vs. civil unions. I'll be doing it in several installments, beginning today with a discussion of marriage.
First, what do Mike Gravel and Dennis Kucinich really mean when they say they are totally for same-sex marriage? Clearly they're for full participation of gay and lesbian couples in all the rights, benefits, and obligations marriage confers and which opposite sex couples take for granted, and they favor that being done within the existing institution we call "marriage". But how do they think this is going to happen? The devil is in the details. You can press "3" now to continue after the jump.
Thanks for holding. And the operator is alive and well, thank you.
This isn't a matter of a presidential aspirant saying simply, "If elected, I'll push for a sign a law or executive order permitting gays and lesbians to marry". In the United States there's no such thing as a federal marriage license. A couple gets married in a state under state law. Once that happens, a number of federal laws and regulations recognize their status as the basis for bestowing rights and benefits and imposing obligations, but marriage and marital status remain essentially a state, not a federal matter.
As I'll address in a later post, a presidential aspirant might espouse same sex marriage in the federal sphere by advocating the repeal certain federal measures such as the Defense of Marriage Act (DOMA) or opposing passage of the proposed Federal Marriage Protection Amendment (FMA). (In the latter the president has no actual role in the amendment process itself, but he/she would have to sign off on a DOMA repeal). A President also nominates federal district court, appeal, and Supreme Court judges as vacancies occur, and at least some of them might deal with the constitutionality of federal laws and state laws/constitutions concerning equal marriage rights issues.
But beyond that, the role of the President of the United States in the marriage area would largely be from the "bully pulpit" connected with that office, and not any other significant legal or constitutional function.
A few more points about marriage: As I said above, in the United States marital status is conferred under state law. Strictly speaking, each state can place restrictions on who can get married as to age, degree of kinship, and the like. But they can't pose restrictions that violate the U.S. constitution. The prime example has to do with restrictions of interracial marriage that the U.S. Supreme Court struck down in Loving vs. Virginia in 1967. Likewise, a restriction found in a state constitution that violates the U.S. Constitution would also be invalid by federal court decision.
In general there is little variation among the states as to the requirements of getting married. And as a practical matter, that variation as to the VALIDTY of a marriage isn't generally a problem. Most states have marriage laws that say, with certain exceptions, including the BIG one barring same sex couples, that a marriage validly contracted in another state is valid in that state even though it wouldn't be under that state's law. For example, Indiana no longer recognizes common law marriage, but if a couple from a state that does (there are still quite a few) moves to Indiana, their marriage is fully recognized. Sometimes the state law may not say that explicitly, but what lawyers call "principles of comity" produce the same result. (There is also an issue of the "Full Faith and Credit" Clause of the U.S. Constitution involved here, but more on that later.)
The only exception to the general rule that states recognize each other's marriages is a principle that says a state doesn't have to if the situation violates its own "strong public policy", or in some cases, simply its "public policy". Sometimes this policy appears in a statute, or constitution, a long standing decision, and the like. Often it is rather nebulous and considered on a case-by-case basis.
So in sum for today, marriage itself is almost entirely a state matter, and a presidential candidate saying he/she favors same-sex marriage is largely talking about something that, if elected, he or she would have only a limited or indirect role in influencing as a matter of law.
Next time: Where the Defense of Marriage Act (DOMA) fits into all of this.
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