The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections

By Mark Strasser | Go to book overview

marriage, too. Currently, the laws of several states imply that those states will recognize a same-sex marriage if validly celebrated in another state.

When some states recognized interracial marriages, they were not accused of subverting the United States or of infringing upon the rights of those states wishing to invidiously discriminate. Such accusations are similarly inappropriate in the same-sex marriage context.

States that refused to recognize interracial marriages were not claiming a right to violate constitutional guarantees; instead, they were merely claiming to uphold morality. However, just as the refusal to recognize interracial marriages involved invidious discrimination, claims of upholding morality notwithstanding, the refusal to recognize same-sex marriages involves invidious discrimination, claims of upholding morality notwithstanding.

Same-sex marriages should be recognized in every state because of the Fourteenth Amendment to the United States Constitution, not the Full Faith and Credit Clause. The latter merely imposes minimal requirements on the states with respect to choice of law, and more stringent requirements with respect to giving full faith and credit to sister state judgments. Nonetheless, even these minimal requirements are not met by DOMA and by those states claiming the right not to recognize a marriage valid in the states of celebration and domicile at the time of the marriage. To say that the Constitution can be suspended when the rights of same-sex couples are at issue so that fundamental interests can be ignored if these couples dare to move to or, perhaps, even visit another state is to destroy the pillars of liberty, equality, and respect upon which this country is based. Not even a conservative, "moral" Congress could claim to want that.


NOTES
1.
Pub. L. No. 104-199, 110 Stat. 2419 ( 1996).
2.
For additional arguments suggesting that Congress exceeded its powers under the Full Faith and Credit Clause, see Mark Strasser, Legally Wed: Same-Sex Marriage and the Constitution, Chap. 6 ( Ithaca, N.Y.: Cornell University Press, 1997).
3.
Vandever v. Industrial Commission of Arizona, 714 P.2d 866 869 ( Ariz. App. 1985).
4.
See Thomas Keane, Note, "Aloha, Marriage? Constitutional and Choice of Law Arguments for Recognition of Same-Sex Marriages", 47 Stan L. Rev. 499, 516 ( 1995) ("Clarity of marital status gives the married couple security in their relationship and also benefits third parties, notably children and creditors"). See also Joseph W. Hovermill , "A Conflict of Laws and Morals: The Choice of Law Implications of Hawaii's Recognition of Same-Sex Marriages", 53 Md. L. Rev. 450, 455 ( 1994) ("A choice of law rule that validates out-of-state marriages provides stability and predictability in questions of marriage, ensures the legitimization of children, protects party expectations, and promotes interstate comity").
5.
See In re Marriage of Kinkead, 57 N.W.2d 628, 632 ( Minn. 1953).
6.
See, for example, American Law Institute, Restatement (Second) of the Conflict of Laws, § 283 ( St. Paul, Minn.: American Law Institute Publishers, 1971).

-213-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited page

Bookmark this page
The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Acknowledgments ix
  • Introduction xi
  • 1 - Marriage Rights 1
  • Notes 19
  • 2 - Equal Protection 31
  • Notes 47
  • 3 - The Referenda 53
  • Notes 66
  • 4 - Retroactive Legislation 71
  • Notes 87
  • 5 - Full Faith and Credit 101
  • Notes 117
  • 6 - Subsequent Domiciles and Full Faith and Credit 125
  • Notes 143
  • 7 - Natural Law and Same-Sex Marriage 159
  • Notes 180
  • 8 - The Defense of Marriage Act 187
  • Notes 213
  • Selected Bibliography 225
  • Index 245
  • About the Author *
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this book
  • Bookmarks
  • Highlights & Notes
  • Citations
/ 248

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.