Legalities

Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg

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Gay Marriage in Texas?

May 15, 2008 3:46 PM

A key question after today's sweeping California Supreme Court decision striking down the state's gay marriage ban is what it means for the 48 other states that don't recognize gay marriage. If, for example, a gay married couple in California moved to Texas, would Texas have to recognize their marriage?

The short answer is no.

States generally are not required to recognize a marriage performed in another state if it would violate their own public policy. Of course, the U.S. Constitution provides that states must give "full faith and credit" to other state laws and judgments---which suggests that other states must recognize gay marriages performed in California and Massachusetts (the other state to legalize gay marriage).

But there is a long-standing "public policy" exception applied to marriage. States historically have not recognized laws--and marriages--that would violate their own policies. As Yale Law School professor Lea Brilmayer explains in this WSJ op-ed from a few years ago, states can refuse to recognize gay marriage, as they have refused to recognize marriages between first cousins, people under the age of consent, people who had been divorced too recently or people who were of a different race.

More than 40 states have laws defining marriage as between a man and woman, which supports the argument that same-sex marriages would violate the public policy of those states. Moreover, the federal Defense of Marriage act says "no state shall be required to give effect to a law of any other state with respect to a same-sex marriage.'"

Many legal observers believe this issue--other states' refusal to recognize legal gay marriages--is how the U.S. Supreme Court ultimately will get involved. A gay couple would challenge another state's refusal to recognize their marriage by arguing the state is violating the federal Constitution's "full faith and credit" clause. But so far, that issue hasn't gotten up to the Supreme Court.

Keep in mind that today's decision---and other rulings on gay marriage in other states--is under the state constitution. The court today ruled that a 2000 California law defining marriage as between a man and woman violated California's constitution, which is a profound and historic victory for gay and lesbian couples in that state.

But the ruling has no binding legal significance for other states, and there is nothing in it for the U.S. Supreme Court to review. The California Supreme Court did not address claims under the federal Constitution, so there's no issue for the U.S. Supreme Court to take up at this point.

May 15, 2008 | Permalink | User Comments (108)

User Comments

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We are just angering our Lord....this is so stupid! I guess we have given up on this country....

Posted by: Gregg | May 15, 2008 3:56:08 PM

There is no Lord. There are however people who love one another and want to commit to lasting relationships with the rights and benefits afforded other couples by the state and society.

Posted by: Rick | May 15, 2008 4:04:14 PM


What do we care what goes on in other people's bedroom .

If they want to join the club and be miserable like straigh people so be it.

Posted by: lawrence | May 15, 2008 4:17:10 PM

What I really don't understand is why people think that allowing gay men and lesbians to marry harms marriage. If Tom and Rick are allowed to marry, how does that harm my marriage to my husband? Or your marriage to your spouse (if you are married)? This is the most ridiculous argument. Allowing all citizens to have equal rights is what we do in this country and we're working toward that goal. We'll get there and in my lifetime.

Posted by: J | May 15, 2008 4:53:00 PM

I really don't have anything against gays or others alike. It's whatever float your boat, but to legalize same sex marriages is ridiculous.


Texas

Posted by: vivacious | May 15, 2008 7:12:00 PM

Our forefathers are turning in their graves, and God in heaven is shaking his head in disbelief that his children could be so evil. Let's hope that what happens in California stays in California until God takes his mighty hand and sweeps that state into the ocean.

Posted by: Jimmy J | May 15, 2008 7:35:59 PM

Lets them get married, who cares. We are about to elect the first African American President, a person with no experience, wicked judgement, phony friends, etc. So gays getting married in California is nothing. Don't we have gays already in Congress, including the "Happy Feet" Senator? Don't we already have hypocrisy in our own bedrooms, so called str8 people cheating with men and women?

Other countries have legalized gay married including Canada, Spain, Holland, France, Mexico, etc. and the world didn't end. So let's move, whatever they do in the private household is none of my business.

Posted by: Mary_DC | May 15, 2008 8:03:51 PM

Wow, California swept into the ocean? I belive in God and live in California. I'm going too? I think it's time for all people to be treated equal. I know this means homosexuals will receive the same rights as other married people but It also means some are going to have to experience the beauty of divorce as well!! Make sure to sign a pre-nup

Posted by: Joshua | May 15, 2008 8:08:31 PM

Till every American is valued and is treated equal under the law we risk the danger of becoming a society ruled by big brother. How do you legislate love and commitment? I am a christian and it always amazes me how my fellow chirtians feel they should have a monopoly on commitment and love. Shame on us.

Posted by: Dr Evans | May 15, 2008 8:36:55 PM

Why are those who constantly preach that religion/God brings love into all peoples hearts are the same ones who hate and judge the most. My wife and I are very happy this finally accured. I have a strong feeling God loves everyone and wants all people to be happy

Posted by: Robert | May 15, 2008 8:43:26 PM

As it was in the days of Sodom and Gororrah; so will it be in the last days. Bring it on.

Posted by: Linda | May 15, 2008 9:12:06 PM

A great day for the country - the court stood for the constitution, for eqaul protection under the law, and against discrimination. Congratulations to California and the court justices who struck a blow against bigotry and hatred.

Posted by: Tom | May 15, 2008 9:31:14 PM

There was a time oh about 45 years ago or so when a white person who would marry a black person would and had gone though all kinds of awful things... Now they made it, so why not the gays? If you look in the bible it was not to be for the racial interaction. But hey we're still here!
So now give us a break, if we go to hell thats on us no one else..

Posted by: Jo | May 15, 2008 10:26:59 PM

I guess this new right to redeine marriage means polygamy will now be legal also.

Posted by: Kelly | May 15, 2008 10:50:36 PM

Most of you prove that LIBERALISM IS A MENTAL DISORDER.
What the hell gives 4 liberal judges the right to thwart the will of the people.
This is liberal judicial activism at it's worst. Why the hell are liberals so afraid to let the people vote on this and decide it for themselves? Because they know they would lose. Most Americans are against gay marriage and the radical left knows it.
And don't give me this garbage about civil rights. There is no right to gay marriage in the state or U.S. Constitution. I'd like one liberal to show all of us so-called homophobes where in the Constitution is the right to gay marriage

Posted by: Liberal hater | May 15, 2008 11:00:07 PM

Kelly that is a stupid statement, marriage is between two people. Gay marriage is between 2 people as well.

Posted by: queerunity | May 15, 2008 11:04:13 PM

Let's see - our country was founded on freedoms including Freedom of Religion. It was this same persecution of the Church and its zealots that our founders came here and established a new country from - to not be persecuted bu someone else's beliefs. So I seriously doubt that the true founders of our country are rolling in their graves. It has been shown that homosexuality is more than 'a choice' as many would try to convince us. It's even been found in the animal and insect kingdoms. If it is such a sin why would God create these animals and insects to be homosexual as well or were these smaller beings somehow 'recruited'? So get real. There is no LOGICAL or SCIENTIFIC reason for gays and lesbians to be denied marriage. There are far more hetereosexual sinners than homosexual. So until you are perfect and can walk on water and heal the sick, stop judging. That's something only the Lord can do - and that's from your own Bible.

Posted by: JC | May 15, 2008 11:05:16 PM

It isn't about letting people do what they want or about equal this or that. The problem with what was done in California is two-fold.
First, as someone posted earlier, when 4 judges can decide by a 4-3 decision to thwart the democratic will of 35 million people. It shows that our democracy is on thin ice. You people have got to get with it and see the damage that activist judges can cause. The citizens of Cali made a decision and the Gay capital of the world, San Francisco decided to sue. Now here is what is going to happen. Some gay couple will go to another state after getting married in Cali, and try to force that state to recognize their marriage. When that state doesn't, they will sue in Federal Court claiming diversity jurisdiction for that court (that their dispute involves the laws of 2 different states) and the case will get removed to the 9th circuit, the most liberal Federal circuit, also the most overturned, and try to make this Federal Law.

The worst thing about it is the disingenuousness of liberals as they try to foist this practice on society. Someone posted earlier, that there are "gay animals." I say this: lets take one of your supposed male pairs of gay animals, lets put them in an enclosed place and introduce a female in estress of their species into the equation and see what happens. If one of the males mates with the female, then doesn't that make these "gay animals" at worst bi-sexual? What if, as happens in the wild, the two males fight to determine which of them will be the alpha male? What will that mean then?

Posted by: TheN01skinsfan | May 15, 2008 11:45:47 PM

Hell is only filled by those with hatred in thier souls. To love is not a sin. The Bible says "to hate the sin, not the sinner" and for us "to love thy neighbor". I take to heart many of the Bible's lessons for they are profound. With that said, there are many out there who wish me ill because I am different. I hope that they see what these lessons of the Bible and Christ are really about before it's too late. For them, I shall pray and keep them in my heart. Because for us to be forgiven our trespasses, we must forgive those who have trespassed aginst us.

And for those in California who are celebrating their victory: YOU GO, GIRL!

Posted by: JC | May 15, 2008 11:51:57 PM

Here's the thing: even though gay marriage is only legal in two states now, the precedence that California has set will likely mean that more states will follow. California is a large state, and it's pretty awesome to be witnessing history.

Posted by: Vivienne Chen | May 16, 2008 12:09:21 AM

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