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Goodman: Marriage Equality Should Be Law In Every State

I think “Marriage Equality” will be law throughout the U.S. later this year.          

   The U.S. Supreme Court has been heading that way since 2003, when it prohibited  a Texas law against consensual gay sex in Lawrence v. Texas.  (Justice Antonin Scalia wrote in dissent that after Lawrence, there was no basis for denying same-sex couples the right to marry.)  In 2013 it tossed out federal law defining marriage as between a man and a woman.  In each opinion Justice Anthony Kennedy, writing for the Court, wrote of gay people's dignity and equality. 

   Then why hasn't the Court already decided the marriage issue?

   Time has allowed arguments for both sides to develop in dozens of lower-court cases, and the years have seen a big change in public opinion.

   The arguments for an important state interest in prohibiting same-sex marriage have proven weak.  Some are fatuous (Lawyer: “Judge, marriage is only for procreation!” Judge: “Nonsense!  I marry septuagenarians all the time, and I'm pretty sure producing babies isn't part of their plan.”).  Other arguments are faith-based, and not legal arguments.  The “oh, this is so wrong!” sentiment reduces finally to religious preference or “tradition.”

   In more than 40 cases around the country, federal and state judges, of varying political views, have almost unanimously held against same-sex marriage bans. 

   In 2003, no state permitted same-sex marriage.  In March 2013, when the Court decided Defense of Marriage, nine states permitted it, and the Court (states-rights oriented, except in Bush v. Gore) was reluctant to tell the other states what to do.  (New Mexico was the 17th, in 2013.)  Now, marriage equality is law in 36 states; and public opinion has swung to a strong majority favoring marriage equality.

   Further, the recent Sixth Circuit decision favoring letting states decide created a split in the circuits, thus providing a specific reason for the Court to opine and clarify matters. 

   The Court will hear arguments in April on two issues: does the Constitutional mandate of equal protection, applied to states through the 14th Amendment, prohibit states from enacting laws discriminating between man-woman couples and other couples in granting marriage licenses?  And does a state that doesn't allow two men or two women to marry nevertheless have a duty to honor marriages granted in other states?

   Considering the second question first provides a possible roadmap.

   The Constitution specifically says states must give “full faith and credit” to the laws of other states.  That's clear and unambiguous. 

   If New Mexico law has made Tom and Harry a married couple, Texas should recognize them as such.

   Arguably, the individual right to travel from state to state is also at issue.  Suppose Tom and Harry are happily married under their state's law.  They visit a state that doesn't recognize their marriage.  If Harry has a serious illness or accident, the hospital could keep Tom from visiting Harry in the ICU, since he wouldn't be family under its law.  That's a serious restriction on right to travel.  It's extremely unfair, too.

   I think the Court will hold that states must recognize marriages performed in sister states. 

   If states must give full faith and credit to other states' marriages, that negates a popular (but weak) argument against legalizing such marriages.  Opponents argue that gay couples somehow undermine family values, or that seeing same-sex married couples will give children the idea that maybe gay families are all right.   But if same-sex couples are moving in from other states, a state can't prevent the “problem” by refusing to authorize marriages. 

   Fact is, as people see gay families around, behaving quite like other families, they'll eventually get used to it – and why not?

Peter Goodman is a local writer, photographer, and sometime lawyer.   He initially moved to Las Cruces in 1969, holds two degrees from NMSU, and moved back here in 2011 with his wonderful wife.  This is his most recent Sunday column in the Las Cruces Sun-News.  His blog Views from Soledad Canyon contains further information on this subject, as well as other comments and photographs, and past newspaper columns.