Legalities

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

Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.

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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 (110)

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Thank you Kris.
Greg & Jimmy: Why should you get to play God? It's amazing that you could actually see God....shaking his head and our forefathers rolling in their graves at this issue vs. the condition the Bush regime left our country in. Families can't afford groceries nor gas! God! What's more amazing is that you have contempt and hate in your hearts and call yourselves Christian. Are these Christian values? Are you getting heaven points for this? Does that make God more proud of you than tolerant compassionate people? I don't believe Jesus Christ walked around with hate and contempt in his heart. Why do you? I wonder why God hasn't swept all of you divorced, adulteratin, hatin folks into the ocean? Maybe because he's not a hateful, wrathful God after all but an unconditionally-loving, all-forgiving God who granted us the blessing of self will to fully experience life and its consequences. According to your reasoning, "Till death do we part" could be a law in which case, you would be executed when divorced:) It's been heterosexual marriages that have ruined the institution of marriage & families. Not same-sex marriages! They haven't even existed until recently.
AND if you're a minority: don't be a hypocrite! Don't forget it wasn't long ago you didn't have certain unalienable equal rights either! SHAME on YOU!
Honestly Blanche!

Posted by: Ron | May 16, 2008 2:32:50 AM

Most true Christians do have real compassion for those who are gay. We take the Bible at its word though when God said that homosexuality was wrong. If you go back through history, you will see that every society that crumbled, crumbled because of their weak faith in God and their decaying morals. History has been known to repeat itself...and I hope it ddoesn't happen to us. We are a young country. We still think we're invincible...WEll 911 put a kink in that one. We wonder why radical Muslims want to take over America...Well, we have horrible morals and want to kill unborn babies and say that homosexuality is ok....hmmm go figure.

I have friends that are gay, but I am a very conservative Christian. My closest friend of this one couple has admitted to me that she is gay because of horrible abuse that happened to her over and over again when she was little. She chooses this lifestyle because of her past. I was flbbergasted when she was so honest with me and admitted that she is definately gay because of the abuse. I thought all gay people whether men or women would fight to an inch of their lives to say they were born that way. Also, my former sister in law and her own sister are gay. They had a drunken father who abused them and used to beat them up...hmmm....are we getting the picture? I can handle that people want to be gay. But hey...stop saying that you were born like this. It's time...REALLY time for this idea to COME OUT OF THE CLOSET.

Also, I realize that some people are gay and they don't remember anything bad about their childhood. But there is research that very powerful forces in the U.S. won't let this information and research out, that various kinds of abuse or rejection can also cause specially in men to become gay. A father who just ignores his son and a mother who dotes too much on him can cause a man to be gay. But every male is different and one guy who is able to cope with this in childhood is fine. But another one due to personality differences maybe needed more fatherly bonding as a child. A well known statistic about abuse is if you were abused, you have a 50-50 chance of being abusive. Well, I don't think it's as high as 50-50, but I do think that more people are gay due to neglect/rejection or some kind of abuse that's done over and over than someone who was "born" to be that way. Well...woohoo....I know I'm going to get some flak. But hey...I've been a good observer of people for many years and have seen friends and relatives struggle with this issue. Every one of them had abuse or neglect thrown in with a doting-love smothering or hateful, abusive mom.
The whole point of all the gay people wanting these gay rights is that they feel they were born that way so they deserve rights just like any other race and sometimes liken themselves as a race which of course as mentioned makes the minorities very upset. I wish I had a magic bandaid that would make all the hurt go away that any gay person had from childhood. My heart goes out to you. I don't know all the answers. I just know what God said was right.

As Christians, we need to pray for our country, get on our knees and fast and pray every week at least one day corporately together. Ok...let's pick Tuesays....Tuesday it is.

Prayer is powerful. Tuesday is "Pray for Our Country Day". Try to fast for at least one meal. Please pray with me that we would go back to our Judeo-Christian roots and seek the one true God. Believe that His word is true. Just trust Him on this and our country will start to be blessed again.

All I'm saying is ...if you want to be gay, fine. But don't say you were born that way. Gays want to put themselves equal with Hispanics, Asians, African Americans, etc. In many cases, this infuriates minorities.

DO I think some people were truly born that way? Well, maybe there might be some. But it's more a mistake of nature than they were innately born to be that way.

I would love to see more gay people be honest about their homosexuality. But there's an agenda to push. So for most. I realize that there might be some gay people out there who really can't think of anything that happened to them...hmmm like the guy I know who got a sex change. He was treated like a girl by his relatives when they went back to the midwest and was put in girl's clothes when his dad was at work. He was only three. His mom was overbearing and cruel. His dad was an alcoholic and didn't give him positive fatherly love and didn't bond with him.
So don't give me this stuff about you were born this way, ok?

Posted by: Natalia | May 16, 2008 4:59:08 AM

Natalia - why would anyone willfully choose to be a part of a hated and misunderstood minority? I sure didn't, but here I am, gay as ever. Can we please take this discussion beyond the third-grade level?

Posted by: Brandon | May 16, 2008 7:22:04 AM

Hahaha it is interesting to see how much the socialists in Cali actually value democracy. 61% of people in Cali vote against somethine democratically, yet it is ok for 4 judges to overturn it at their whim? What a ridiculous and dangerous precedent to set, but for liberals I guess it is ok to take a dump on democracy whenever it is convenient for their "cause". It just goes to show that totalitarianism is their ultimate goal. I don't have a moral problem with gay people, it is just totally ridiculous to think that we should make special rights for them. Marriage is a ridiculous institution, and anyone who really cares either way should go ahead and remove themselves from the gene pool, people on both sides of the argument are totally ridiculous. At this point christians/conservatives are a bunch of whiney impotent fools just like democrats. Why do all the ############# who think that anyone cares about their religion ?And why do liberals want government intervention every time someone steps on their toes? How about some personal responsibility to go with your smarmy condescending attitude? I guess that's too much to ask. You are all totally worthless , whiney, and useless, and you would never even think about doing except whining and complaining. Republicanism has become inherently entwined with a ridiculous religion, yet liberalism is a ridiculous religion in itself, complete with ridiculous fantastical ideals that will never work and people that foam at the mouth with the ferver of religious zealots.

Posted by: Toxic | May 16, 2008 9:33:54 AM

And I say unto thee, who is it that thumbs their nose at the will of the people. Elected Officials, Judges and other miscreants that beileve they know more than the populice for whom they have been choosen to serve. Therefore the populice should smite these indivisuals from their ranks that they currently hold and forever shame them on their betrayal of the position they were elected too. Of course this is too much to ask of the sheep - they are too busy trying to find gas to put in their car so they can make it to work. Another issue for which elected officials should be held accountable for - and won't be.

Posted by: GOD | May 16, 2008 9:54:45 AM

I am so happy this is finally happening. What someone does with their personal love life is their business. Anyone who let's someone else's love life bother them so much needs to get a life! Everyone in this country should have the same equal rights, including marriage! Otherwise, we are all hypocrites for calling the USA Land of the free, of equal opportunity, etc.! Our society has such a long way to go.

Posted by: Stephanie | May 16, 2008 10:23:43 AM

To say gay marriage harms straight marriage is hysterical, its obviously said by people afraid of something or ignorant about life.

Also, God also said to have SLAVES, but we have obviously overcome that. If your going to preach the bible, preach the whole thing. The whole women hating, daughter raping and slave owning bible, dont pick out what parts you like and ignore the rest!

Posted by: Proud to be from CA | May 16, 2008 10:24:57 AM

Who cares! Like Marriage is a sacred institution now anyway. Ever heard of who wants to marry a millionaire?

Posted by: annoyed | May 16, 2008 11:51:19 AM

This whole issue is very simple:

If you don't like/are against/refuse to believe in/etc in gay marriage, then don't get one...you will not be happy.

As far as what everyone else chooses to do in their personal lives, different strokes for different folks.

Today, the special rights for heterosexuals end.

Posted by: Sean | May 16, 2008 12:09:15 PM

I find it quite insulting when others bring GOD into this subject. I feel that its gods decision to do what he feels, and no other man shall judge another on any one sin they decide. How dare you! Shame on you for inflicting your judgemental thoughts. You shall burn for every hateful judgement that that you have said.

I feel that if a man and a man decide to marry then so be it. It has nothing to do with me or my lifestyle. What they strave for in there household has nothing to do with how my household is brought up.

I find it quite funny when one of you conservatives have a child and he/she becomes gay. They please tell me will you then deprive your child of happiness? and if so what gives you that right?

Posted by: Girade | May 16, 2008 12:36:07 PM

The Founding Fathers can roll around in their graves for eternity for all I care. I'm a woman. The Founding Fathers didn't even view me as a person. They can bite my butt, and so can all the people whining about gay marriage! Go MA! Go CA! About time! :D

Posted by: Mika | May 16, 2008 12:42:18 PM

hEY FOLKS-WAKE UP...THE ISSUE HERE, AND IT'S A BIG DISTURBING ONE, IS THAT THE WILL OF THE PEOPLE WAS IGNORED. fANCY LAWYERING IS WHAT PUSHED THIS THROUGH, NOT BECAUSE MASSES AND MASSES OF CALIFORNIANS WANTED IT. VERY SCARY INDEED. PERSONAL OPINION ASIDE, CALIFORNIA IS A SCARY PLACE TO BE.

Posted by: REXANNE EVANS | May 16, 2008 1:15:48 PM

Truly, I wish these content to go to hell liberals, esp. those in power could be swept into another country, lets say Cuba or whatever. "And the wicked shall be turned into hell & all the nations that forget God.

Posted by: michael | May 16, 2008 1:27:41 PM

The best part about this issue is that people on both sides are equally ridiculous and laughable. Firstly, we have people who want to pretend that they are special because they can get married, and that God cares about them. Then on the other side we have people who think that as long as it makes people happy, everyone should be able to do anything they want, well I personally have no problem with polygamy, but I don't think I'll be spending a lot of effort to get it legalized. Why not let people that like animals get married to a horse or a dog if that's what makes them happy, or let people marry their own children ? Isn't that a cultural thing too? Why would gay people want to get married anyay? So they can play house together? All marriage is is two people pretending that they are special, in the eyes of god no less, because they live together, have sex together, and maybe raise some kids together. Why can't they do all of these things without a little piece of paper that says it's ok? Why cant they just have a ceremony without all the legality and BS? What do they really want? The certificate? The tax break? Or do they just want something to complain about not being able to do? I think that like most people in CA, they just want to whine about something that is totally irrelevent and ridiculous. How many people have died in Iraq while you are arguing about two dudes right to play house together? How much money has been pilfered from tax payers directly to multinational corporations while this debate rages on? Leave it to America to argue about something so asinine while we as a country get collectively screwed. How is this an issue? Ridiculous people on the right want to "preserve the institute of marriage" so that they will have something that makes them feel special and better than all the hethens, while people on the right want to legalize gay marriage just to rebel against the "old ways", like a teenager rebelling against his parents. Both sides are childish and spiteful and are more concerned about "Striking a blow for their cause" than they are about actually standing up for things that matter. I could care less about the "institution of marriage" and the only thing I care about less than that is gay people's right to pretend to be a normal family. My only opinion on the situation comes to the fact that the people who support gay marriage also support censorship,hate crime laws,the welfare state,affirmative action , and gun control, and are thusly in favor of a racist, totalitarian, socialist state in which speaking or thinking the wrong thing can land you in prison, and the only people with guns are insane criminals and power-hungry cops. It's just too bad that the people who are against gay marriage want a theocracy with forced prayer in schools, and are for drug laws that take away our rights and freedom, and want to give tax money to religious groups/private schools,and illegalize abortion, which is one of the only things keeping the population at bay. No thanks, I think I'll stay in favor of freedom to say and do whatever you want as long as it doesn't infringe anyone else's freedom, and a secular government that uses logic and common sense over ridiculous dogma. It is too bad that both sides of any issue are more concerned with insane fantastical ideologies than they are with actual practical solutions to ACTUAL problems( unlike whether or not rod and lance can get a tax break while they pretend to be husband and wife).

Posted by: Toxic | May 16, 2008 1:33:09 PM

Read the decision before railing against it.

The question for the Justices was this: is it legal to call a contractual agreement between person of different sexes one thing and then call another contract, with substantially the same meaning, but between same sex individuals something else. Marriage and Domestic Partnerships, in legal terms are equivalent, so why call them by different names? The only reason, the Justices concluded, was to discriminate against gays, which in their opinion, is contrary to the California Constitution. That’s it.

Proposition 22 changed a California statute not the California Constitution. And the CA Constitution prevails over statute... and not even the “will of the people” can prevail over the CA Constitution.

Now, whether the CA Constitution will be changed, that’s another thing. I am sure it’s in the works. But frankly, why? Those who so rail against gays for destroying marriage should work on their own relationships before castigating others.

And for those who call this anti-marriage... I say on the contrary. This decision upholds the institution of marriage as something worth fighting for.

Posted by: SmartPrimate | May 16, 2008 7:37:53 PM

After 10,000 years of success in marriages throughout the ages, in 2008 we all of a sudden decided to rewrite the definition because we're in a "new age." Isn't that a little presumptuous? It's amazing that when people stand for marriage, they're called "anti gay." It's called pro family. And family values are evaporating all around us. Stand for something, people! What kind of world do you want to raise your children in? Clearly, the large majority of people in CA want to preserve family values, yet it was struck down based on a constituitional loophole. I'm seeing such a lack of backbone. Change it! Other states have done it, so can California. To you gay people; be gay. That's fine with me, but I want marriage right where it is; between a man and a woman.

Posted by: Michael Charlton | May 16, 2008 8:18:50 PM

The unfortunate thing about gay marriage coming by means of the courts rather than the legislature is that when the courts overturn something as unconstitutional, they often have to use a broad brush that permits no compromise. The California Supreme Court has now declared gays to be a protected class, meaning that strict scrutiny applies and full spectrum of the state's anti-discrimination powers must be deployed.

This may mean:
-That religious schools and charitable organizations that have a moral objection to homosexuality will lose their discretion not to hire gays.

-That, as in Massachusetts, the adoption arm of Catholic Charities and other similar organizations will be forced to place children with gay couples or lose their licenses.

-That, should the government of California set up a general program to detect those that have moral objections to homosexuality and fire them, or should the state's colleges institute a similar program with the purpose of denying admission to similar undesirables, such acts would be legitimate under the state constitution.

-Artificial procreative techniques are developing in a line that inevitably ends with designer babies. Suppose California wants to prohibit this sort of thing. The law doing so would have a "disparate impact" because gays cannot conceive naturally. It may well not survive the "strict scrutiny" the court's decision now requires.

The legislature can recognize the reality on the ground and craft compromises that may not pass a purity of principle test but do balance the competing interests of different constituencies. The courts usually have to act on broad principle, which makes such prudential and freedom-maximizing compromises impossible.

Posted by: Nathan Wagner | May 17, 2008 9:55:28 AM

Just because some people ignored the voice of the people... Doesn't mean they have the last word.Marriage is what takes place between one man and one woman. That will prevail for those who are making up the majority of the people. The right to procreate and keep the human family going, does not take place between same sex people. I will leave everything up the the Creator. Just as it was in the "Days of Noah," so it shall be in the last days.

Posted by: Janeyre | May 17, 2008 2:10:24 PM

Where should I start...first of all I am a lesbian with a lesbian girlfriend and I do have two kids. Some of you are right to say that us gay people do not need a piece of paper claiming that we are a union of two people that are in love and want to form a family. And you might also be right to say that it's not right for two men or two women to raise children because of moral values. Now let's focus on the marriages of yesterday and today....men and women being unfaithful to each other within the marriage(and let's not forget it has always happened) the children of these marriages being hurt and scarred because of all their infidelities. Oh and let's not forget about the abused(physically and sexually) children of these marriages and how the cycle continues on into these children's adult lives. So now let me ask again which marriage is right for society.

Maybe us gay people don't need a peice of paper to let the world and the lord know that we are in love with each other but obviously the straight people need one to screw up their children's lives. To have the right to beat on their wives and equally both to cheat on each other.

So many children are caught up in orphanges and homeless and there are so many gay couples seeking to raise kids but of course straight people would rather leave them forgotten in the system then see those children being raised in a loving home with either two fathers or two mothers.....come on people give me a break.

I'm not playing house with my partner.I'm living life with her and my kids. We consider this a family and all it comes with it. Bills, payments, kids, clothes, school, family members, arguements(sometimes about stupid stuff) and love for each other. My son knows how to respect men and women or girls and boys. He knows that he will respect me and my partner. He has ironed clothes every morning when he is getting ready for school. He comes home from school and immediately gets started on his homework. Where is this not sounding like we are serious about our commitment. Since I do go to work and pay bills and make sure that my kids grow up with love and respect for other people. So in which case since straight people can get married legally and their marriages are still screwed up why not let the gay people get married and show you straight people how to actually have a normal life.

Posted by: T. | May 17, 2008 11:54:00 PM

The bible is a book. lets say for a minute god was behind it. Men still had the final desision on editing. And who wrote the law...the constitution...oh yah, men. Man is flawed, always looking for someone to hate as far back as history goes. The system is certainly flawed. im gay and i was never abused...I know people who were abused as strait as an arrow. and it means nothing to me that the majority of people would have voted against gay marrige...Not to long ago the majority of people would have voted against intagration, and before that womans rights. when are people gonna stop repeating the mistakes of the past. We all have our own experiences and reasons for beliving what we do... i understand that. And it's no ones falt. but im an american and i deserve my rights.

Posted by: jyl | May 18, 2008 12:18:57 PM

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