Constitutionality of State marriage laws

[pgrmdave]

In another thread, I found out that some states do not recognize other states' marriages (or could potentially not).

 

This is part of Virginia law:

Any marriage entered into by persons of the same sex in

another state or jurisdiction shall be void in all respects in

Virginia and any contractual rights created by such

marriage shall be void and unenforceable.

 

however, this is the United States Constitution (Article IV Section I):

 

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.

 

Now, wouldn't the Virginia law simply be over-ridden by the Constitution? What do people think of these types of laws, which restrict what other states' documents can have effect in their states?

[cwes99_03]

Hmmm, I think this goes back to James Madison doesn't it?

Federal vs. states rights.

 

I know that the federal constitution recognizes the states sovereignty over certain aspects of life in that state.

 

Can you quote your source (not that I don't believe you, I'd just like to check into the Virginia constitution)?

[pgrmdave]

It's not in the Virginia Constitution, it's Virginia's law. I got it from here:

http://www.sbe.state.va.us/cms/documents/2006_Constitutional_Amendments/2006ques_marriage_APPROVED.pdf

 

On the top of the second page.

[cwes99_03]

Turns out I misread that like a couple of times.

 

I guess we'll find out if it gets passed into law tomorrow.

 

BTW that is a referrendum for constitutional ammendment.

[TheBigDog]

Turns out I misread that like a couple of times.

 

I guess we'll find out if it gets passed into law tomorrow.

 

BTW that is a referrendum for constitutional ammendment.

No, page 2 mentions current laws on the books...

 

In 1975, the General Assembly enacted a statute (present Code of Virginia § 20-

45.2) that states

A marriage between persons of the same sex is prohibited.

In 1997, the General Assembly added a sentence to § 20-45.2 that states that:

Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable.

In 2004, the General Assembly passed a law to prohibit certain civil unions or

other arrangements between persons of the same sex. That law (Code of Virginia § 20-

45.3) states that:

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or

jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

Thus, civil unions or other arrangements which purport “to bestow the privileges or obligations of marriage” are prohibited by statute.

 

Bill

[Freddy]

In MA only MA residents of the same sex can be married under the laws of MA. Couples from states like VA that outlaw or fail to recognize same sex marriage are barred from being married in MA. Some out of state couples did manage to get married early on but a court order has ended this. Residents of MA must live where same sex marriage is recognized to receive any marriage benefits. It looks like VT and RI are the only places at this time. Out of state couples must live in MA and become residents of MA before they can be married.

[TheBigDog]

In MA only MA residents of the same sex can be married under the laws of MA. Couples from states like VA that outlaw or fail to recognize same sex marriage are barred from being married in MA. Some out of state couples did manage to get married early on but a court order has ended this. Residents of MA must live where same sex marriage is recognized to receive any marriage benefits. It looks like VT and RI are the only places at this time. Out of state couples must live in MA and become residents of MA before they can be married.

Same Sex Marriages: Yes, as of May 17, 2004. However, with legal challenges to the Massachusetts state law, some local jurisdictions may have residency requirements and/or not issue marriage licenses to gay couples. Check with your local authorities to see how they are handling this issue.

It appears that MA has the residency issue as a reaction to the legal issues their law has raised. It is not just a matter of marriage, but of other legal issues with marriage, such as divorce and child custody. If a same sex couple moves to a state that doesn't recognize their marriage they cannot legally get divorced in that state. It is a very complex issue while there is no legal final judgement. I hope that this gets to the Supreme Court sooner than later as it will settle the issue on way or the other.

 

Bill

[cwes99_03]

Bill, did you mean that it wasn't a proposed ammendment to the constitution of the state? The very first line on the website provided says it is a proposed ammendment. The ammendment is proposing that the state not have to recognize other states' marriage of same sex partners. Really this is just a fine tuning of the law that is already on the books, but it is a proposed ammendment all the same.

 

http://www.sbe.state.va.us/cms/documents/2006_Constitutional_Amendments/2006ques_marriage_APPROVED.pdf

 

FINAL COPY

Proposed Constitutional Amendment

To Be Voted on at the November 7, 2006, Election

PROPOSED CONSTITUTIONAL AMENDMENT

Article I. Bill of Rights.

Section 15-A. Marriage.

[TheBigDog]

Bill, did you mean that it wasn't a proposed ammendment to the constitution of the state? The very first line on the website provided says it is a proposed ammendment. The ammendment is proposing that the state not have to recognize other states' marriage of same sex partners. Really this is just a fine tuning of the law that is already on the books, but it is a proposed ammendment all the same.

 

http://www.sbe.state.va.us/cms/documents/2006_Constitutional_Amendments/2006ques_marriage_APPROVED.pdf

The linked document had both the proposed amendment, and excerps from existing Virginia law. It appears to have passed.

 

Bill

[CraigD]

It’s important to note that 2006 Virginia ballot question #1 is a referendum, as are nearly all such questions in nearly all US states.

 

Any question can be placed on a ballot, provided it satisfy the state’s referendum requirements, the most significant of which are typically that the proposal is legal (eg: “Anyone can legally kill anyone on July 3 of each year” can’t be a ballot question), and that a certain number of signatures be collected and verified.

 

If the question receives more than 50% of the vote, the proposed legislation must be enacted within a certain amount of time by the state legislature. There is no requirement that the legislature pass and the governor approve the legislation, only that the legislature draft and vote on it.

 

So Virginia’s 2006 ballot question 1 – which won the vote 57 to 43% - is still a long way from becoming Virginia law. Historically, many voter referendum don’t make it into law. Given the US constitutional issues with a state law explicitly refusing to recognize the marriages of other states that pgrmdave pointed out in post #1, I doubt that this referendum will.

 

My (somewhat cynical) take on this is that referenda serves primarily to improve the election chances of candidates who identify with them. Many voters don’t understand that voter approval of a referendum question does not immediately make it law, or assure that it will ever become law, so feel that they have achieved a legislative victory (or suffered a defeat), when they have not. This changes the political strength of various politicians and parties, without necessarily changing state law.

[cwes99_03]

Isn't the process possibly different in each state?

 

Also, if it were a constitutional ammendment on the ballot, would not that ammendment then be passed directly into law? I guess I was always under the impression that that was the case.

This is what I believed to be the process.

 

An ammendment can be adopted either by 1) the congress passing by some large margin (2/3 or 3/4 or something like that) an ammendment to the constitution (either state or federal) or 2) a direct vote by registered voters on a ballot of likewise large margin on an ammendment to the constitution.

 

Basically what I am saying is that a referrendum for a law and a referrendum for an ammendment to the constitution are two different things and they work under different rules.

 

Did that make sense?