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Legal Background on Gay Marriage

Posted by Bob on November 29th, 2004 under Law and Order

The Massachusetts Supreme Court decided that the MASSACHUSETTS STATE Constitution requires gay marriage.

The legal rule is that the Federal courts do not interpret STATE constitutions. So, from the point of view of Federal courts, the state constitution of Massachusetts requires gay marriage.

In 1968, twenty states had anti-miscegenation clauses in their constitutions. But the Supreme Court said that, regardless of the fact that all the states that ratified the Constitution and almost all the states that ratified the fourteenth amendment and had enforced anti-miscegenation laws, the United States Constitution did not allow anti-miscegenation laws.

There was NO question of constitutional intent in that 1968 decision. The Supreme Court made no pretense that they were interpreting original intent. They were making law, and they said so.

On the day that decision was issued, it was Federal law that constitutional intent means absolutely nothing. Unless you object to that decision, constitutional intent means nothing.

And no one dares to question it.

But in that case, the Supreme Court was interpreting the FEDERAL constitution. They agreed with state courts as the final word on the fact that state law banned interracial marriage, but they said the Federal Constitution overruled the state constitutions.

So the Massachusetts law stands.

The next question is whether a gay marriage performed in Massachusetts is valid in other states. The Federal Constitution requires every state to give “full faith and credit” to the acts of other states. But there is no enforcement clause in the “full faith and credit” statement. The Federal courts have consistently refused to enforce it.

The most important case relating to one state recognizing a marriage in another state was when North Carolina refused to recognize the easy Nevada divorce law. A person who was divorced in Nevada found that, according to the North Carolina Supreme Court, he was still married when he came back to North Carolina.

The Federal Supreme Court decided that the North Carolina decision was right, and that North Carolina had no obligation to recognize a Nevada divorce. So even today you can be legally married to two different people in two different states.

When a state refuses to extradite someone convicted in another state, that is a violation of “full faith and credit,” but they have done it hundreds of times.

So a gay couple is legally married as long as it stays inside the state of Massachusetts, and nothing less than a constitutional amendment is likely to change that.

My own opinion is that if you don’t want the courts to own the institution of marriage, you will have to condemn the 1968 decision first. And NOBODY has the guts to do that.

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  1. #1 by Bedford on 11/29/2004 - 9:59 pm

    I hope the effort to amend the Mass. Constitution is successful and it is outlawed. Of course, H. Millard is urging whitey into a reproduction contest with the other races – a race that may be life or death for the white race. He says what’s wrong with the Mormon way – if a man wants multiple wives, why should the government get involved? says H. Millard.

  2. #2 by Bob Whitaker on 11/29/2004 - 10:29 pm


    I don’t. I hope those who approved of the 1968 anti-miscegenation decision have to choke on their own bile.

    I spent DECADES trying to tell them that once you decide that you have to feel good about a blond girl and a black guy slobbering over each other to be OK to be moral are sickos.

    That’s as sick as two guys kissing in public. But according to those trying to change the Massachusetts constitution, the blond-black slobbering is OK, two guys marrying is bad.

    I spent DECADES trying to point out that once you start on that path you will have to pay for it.

    So I don’t want them to have cheap way out of it.

  3. #3 by JC on 11/29/2004 - 10:30 pm

    Why, indeed! This is one issue that I’ve never really understood why the rulers of this country care about. This is one issue the “experts” and talking heads on the one-eyed god are, without exception, opposed. They don’t even allow a token pro-polygamy proponent. The only thing I’ve been able to conclude is that it must be an effective reproductive strategy and the jews can never allow discussion about something that makes the White race more numerous. Personally, if any man is insane enough to want to be married to more than one woman, I say “GET HELP, YOU IDIOT!” But, if all parties are consenting, why should anyone care?

  4. #4 by Richard L. Hardison on 11/30/2004 - 2:02 am

    Actually, insanity would be a much better term for the problem. Wackos never seem to be able to see the future, so they can’t connect the dots. In some cases the problem is simply arrested development. There is probably plenty of both on the Mass Supreme Court. In some ways I like Bob’s position here. That the ruling came in Taxachussets is nice. Those idiots, and anyone voting for Kennedy and Kerry are, indeed, verifiable idiots, deserve whatever they get. My concern is the sewage will spill out into the rest of the country no matter what we want or need.

    Given the legal climate, there is nothing wrong with polygamy. If you bugger your boyfriend, why should you be able to have group sex with with your harem.

    The Lawrence decision has opened these floodgates and we are going to see some real “legal” insanity in the near future. Some less than intelligent people like to say “you can’t legelate morality.” Bilge! The left does it all the time. Someone’s morality is always getting converted into law, you can’t escape it.

  5. #5 by Don on 11/30/2004 - 11:52 am

    I like Bob’s position here a whole lot. I hope the Christians who bought off on miscegenation but who find homosexuality objectionable get the gay lifestyle pushed right into their faces with avengeance.

    My question to relatives in exactly that position is – “Are you happy now? Don’t you just love where the country is going? Can’t you afford a brain transplant?”

  6. #6 by Don on 11/30/2004 - 1:53 pm

    As far as multiple wives go, the problem here is with the religious/legal hangups over “marriage.” Forget the marriage, multiple women will do just fine. Do you think if you are producing beautiful little white children I give a hoot about your “marriage” status. Come on. Till death do us part? Know any other jokes? I am interested in how you behave, not in meaningless ceremonies or pieces of paper destined to be torn up.

  7. #7 by Don on 11/30/2004 - 4:48 pm

    RE: That’s as sick as two guys kissing in public.

    I hate to play one-upmanship with Bob on these kinds of things, but the situation he was comparing this to is orders of magnitude more disgusting to me. For me, Race trumps everything, and there ain’t nothing else close.

  8. #8 by Scrivener on 03/05/2010 - 7:14 pm

    If they started requiring marriage licenses to automatically be honored by another state, they’d put themselves in danger of being required to honor other types of licenses.

    Conceal/carry permits come to mind.

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