Wednesday, November 30, 2022

Cautious Optimism on Gay Marriage

I am cautiously optimistic. The government, both Senate and the House as well as the President, have endorsed a bill to legalize Gay and Interracial marriage. You may think, since both of these are already in place, we needn't do that. You would be wrong.

Like Abortion, marriage rights were defined by the Supreme Court. And the court is traditional bound by precedent. But in the Dobbs decision (overturning abortion rights) the country discovered the new Supreme Court judges are not restrained by precedent, but only the laws that were in place at the acceptance of the Constitution in the 1780s. And neither gay nor interracial marriage were permitted then.

So a bi-partisan group defined a method to codify these rights that is both ingenious and will hold up to scrutiny. 

The new law overturns the "Defense of Marriage" laws which outlawed gay marriage, but were made obsolete by later court decisions. So, step 1, don't outlaw gay marriage. 

Step 2 was to require any state to recognize the marriage from any other state. So, Kentucky may outlaw gay marriage in their state. But a quick trip over the border and marriage in Illinois means that they are also married in Kentucky for all purposes. And there are over 300 laws which define rights due only to married couples.

The assumptions are that these marriages will always be legal in some states and then the country must recognize them. What the Supremes did with abortion is NOT to require it, but to turn the power back to the states. If they do that with gay or interracial marriage, it will hopefully stay legal.

So I am happy-ish. I will be thrilled if the bill finishes up getting passed, signed into law and upheld by the courts. It is pretty far along the way with both the Senate and House approving versions of the law.

1 comment:

  1. It's good to hear about something so critical being addressed by out legislative and executive branches. Hopefully the current judicial branch will have nothing to say about it.


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