Tuesday, May 17, 2011

Ripple Effect

The United States was developed under an interesting, mutli-faceted balancing act. Not only the famous Checks-and-Balance within the three branches of the Federal Government, but balancing individual states sovereignty while maintaining the country’s unity.

One such concern was to have states recognize other state’s judgments and decrees, thus the framers included the Full Faith and Credit Clause within the United States Constitution—each State must give “full faith and credit” to the other States’ public acts, records and Judicial proceedings.

This has been so fully implemented; we hardly think anything of it. We don’t stop at the Ohio border to get a new Driver’s license, registration on our vehicle or insurance. We understand our Michigan License is valid in any of the other 49 States. Even if we may not meet the requirements of the other states to have a Driver’s license!

Part of my work includes “domesticating Judgments”—filing and enforcing judgments from other States against Michigan residents. Whether the rights or benefits under that judgment would be available in Michigan is irrelevant—if the judgment is valid under Oregon Law, we domesticate it here and enforce it just as if Oregon Law was in effect on the Judgment.

So everyone was happy enforcing other State’s decrees (with few hiccups) until…

Same Sex Marriage.

See, we even recognized marriages from other States. Even through Michigan does not have Common Law Marriage—if someone was married in such a fashion elsewhere—we recognized them as married here. If a person did not meet the age requirement here, but did where they were married—they were still just as married.

Anyone who has moved from one state to another knows they did not have to re-perform a marriage ceremony under the new State’s requirements. The new State recognized the old State’s marriage decree.

But this would mean…if two fellows were married in Massachusetts…under the Full, Faith, and Credit Clause…Michigan would have to recognize the marriage! Once one state had same sex marriage—all the states would!

Panicking, U.S. Congress passed the Defense of Marriage Act indicating, in spite of the U.S. Constitution, no state would have to recognize the same sex marriage of another. Thus avoiding the perceived issue.

The U.S. Supreme Court has been too timid to take up the problem whether the Defense of Marriage Act violates the Constitution.
Occasionally problems will go away if ignored. This is not one of them. If your ankle hurts for a few hours after running—you can probably ignore it. After a few weeks—time to get medical attention.

The problem of recognizing same sex marriage will not go away. It will not be ignored.

’The question of how a state defines the institution of marriage must be decided by the people and their representatives, not activist judges,’ said Hiram Sasser, director of litigation for Liberty Institute.
Texas Supreme Court may decide conflicting Same Sex Divorce Cases.

Unfortunately for Mr. Sasser, it is not that simple. States ARE allowed to define (through their people and representatives) the institution of marriage. But States are part of a Union. Which operates under the United States Constitution. Which clearly states, regardless how an individual State defines marriage—it must give full faith and credit to other States’ legally instituted marriage.

Now States such as Texas are wrestling with whether they can divorce such couples—even if they can’t get married in Texas. What about same sex couples who adopt children, move to Texas, and then divorce?

We are infamous for putting our heads in the sand and ignoring issues. Ironically, while ignoring them, lives move on, and people search for solutions in the legal system. When the legal system (that CANNOT ignore the problem) does provide a solution, half the populace (the ones ignoring the problem until that very moment) cry out, “Activist Judges!”

Here, as there are conflicting opinions, we probably could get both halves to make the same battle cry.

It is time this is brought to head. Tell your friends, “I am for/against gay marriage. And here is why.” Tell your congresspeople. Tell it in your votes.

This state of limbo, where the legal system is left to wrestling out solutions will not last.

While I give a nod to President Obama’s no longer utilizing the argument the Defense of Marriage Act is constitutional (while he still enforces its implementation), I want it overturned. Trashed. Either repealed or declared unconstitutional by the Supreme Court (unlikely given the current make-up.)


  1. "It is time this is brought to head. Tell your friends, “I am for/against gay marriage. And here is why.” Tell your congresspeople. Tell it in your votes."

    Question, I've thought about this but haven't investigated, do you know of any resources which provide more detail on taking steps like those? Is there a national organization you know of with resources, or which might point to state organizations? In my state (to my discredit) I don't know what is going on with legislation concerning same-sex marriage.

  2. A Time to Rend

    Here is a small start. I have the e-mails of my Congressional Representatives in my address book. Occasionally, when I hear something interesting to me (I also get the newletters of those who send), I fire off a note.

  3. Thanks for the post. I was uneducated about the Defense of Marriage Act and its blatant disregard for the Full Faith and Credit Clause. Interpreting the constitution is reminiscent of the way the Bible gets interpreted. However we want!

  4. Thank you for this article and for the link you provided to ATTR. It's great to hear the other side of this from someone who actually deals with it. Often all that is portrayed in the media is the "activist judges" rant you spoke of. This is especially true if all you listen to is conservative news shows. It's amazing how much my ideas are changing and how much I'm challenging the messages that are presented through news shows. Though I must admit, I've never been a big fan of some of the more popular conservative news opinion programs. In fact when I see them coming on I change the channel.

  5. Nice article, thanks for the information.