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Full Faith and Credit
by Stephen Erwin
3 December 2003

Many people are claiming that if Massachusetts legitimizes gay marriage it will require all states, businesses, and the federal government to recognize any gay marriage the state sanctioned.

In Goodridge v. Department of Public Health, the Supreme Judicial Court of Massachusetts declared that it was a violation of the state constitution to ban gay marriage. The court has given the Massachusetts legislature 180 days to find a solution to the problem. If that solution is the legalization of gay marriage it could create an incredible mess at the federal and state level nationwide. Already many left-wing activists are claiming that Article IV of the Constitution will require all other states and the federal government to honor gay marriage.

The decision itself is as irrational as the court’s claim of irrationality for a ban on gay marriage. The court begins by observing that the Massachusetts Constitution "affirms the dignity and equality of all individuals," and "forbids the creation of second-class citizens." They cite the statement, "Absolute equality before the law is a fundamental principle of our own Constitution."

Of course the concept of absolute equality under the law is one of the greatest frauds ever perpetuated by the judicial branch of government. In reality only politically correct equality is ever considered. It is virtually impossible to write any law that provides absolute equality for everyone. On this basis the Massachusetts tax code is most certainly unconstitutional unless it is a flat tax with no exemptions for any reason. And without a doubt the decision of this court provides unequal treatment for both pedophiles and bigamists who wish to legally marry, since the court’s arguments would apply equally well to their rights.

Despite citing numerous precedents, of which most were federal, the entire case is decided on whether or not a legislative ban on gay marriage has a “rational basis.” In the end four judges have decided that their moral judgment is superior to that of all the duly elected legislatures in our nation’s two hundred year history. In decrying judgments based on morality they declared the moral superiority of their own judgment. The decision was clearly a political decision that belongs to the legislature.

And the legal theory that a court can arbitrarily decide if a legislative action is “rational,” where common sense, tradition, and morality are not admissible reasons, is an incredibly dangerous concept. The court has declared that the opinions of people with moral values are irrational and irrelevant, even if they are a majority in a legislature. In declaring an interest in equality, the court has unconstitutionally declared all people with religious or moral beliefs to be “second class citizens” whose opinions and votes don’t count in a court of law.

The Massachusetts constitution Article XXX specifically forbids the state judiciary from exercising legislative or executive power, but complying with the state constitution would require a rational Supreme Judicial Court.

If the court could find no other “rational reason” for upholding state law, then the legal disaster that could be created by one state trying to change the definition of marriage should have been sufficient. Article IV, Section 1 of the United Stated Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

Many people are already claiming that if Massachusetts legitimizes gay marriage it will require all states, businesses, and the federal government to recognize any gay marriage the state sanctioned. Inheritance, employee and insurance benefits, debts, social security benefits, welfare, contracts, and more would all be effected nationwide. At least that is the claim. Precedent and actual practice is not at all clear on the matter.

Historically a marriage in one state or nation has always been recognized in all of the states. This was simple because all of the states have had the same definition of marriage. A foreign marriage that didn’t meet this definition, such as polygamy, would not necessarily be recognized. Similarly, when a state changes the definition of a marriage it raises many questions.

In 1887 the Court told us that ‘‘Without doubt the constitutional requirement, Art. IV, § 1, that ‘full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,’ implies that the public acts of every State shall be given the same effect by the courts of another State that they have by law and usage at home.’’ Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887).

Later cases indicated that sovereign states all have equal rights and a state may apply its own laws in appropriate cases where it may attach paramount importance to its own legitimate interests.

In a case involving a citizen of another state, a state may apply its own laws if there are facts “creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.’’ Allstate Insurance Co. v. Hague, 449 U.S. 302, 312–313 (1981)

In other words if any state or the federal government decided not to honor a gay marriage from another state or give that marriage all of the benefits of a traditional marriage it would be up to the US Supreme Court to decide if the action was “unfair.”

There is considerable precedent for other states not to honor a gay marriage. I have a license to carry a firearm in Indiana. It is not honored in any state that does not have its own license to carry. A license to practice medicine or to practice law is not automatically recognized in other states. In these cases it is because the states claim an interest in putting their laws and requirements ahead of the issuing state.

If the state of Massachusetts declared that the color green was red and red was green, a citizen from that state would still be fined for running a red light in Indiana. Applying the term marriage to a relationship that no other state recognizes as a marriage does not necessarily require the entire rest of the world to accept that definition.

It should be quite legal for the states and the federal government to declare that all laws, contracts, and benefits accruing to the word marriage, that were enacted prior to the Massachusetts law, are presumed to refer to the legal union of a man and a woman only. Any other approach would cause the government to require a result different from the intent of the parties involved.

And there is an additional option. Article IV Section 1 also states, “And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved and the Effect thereof.” If Congress can determine the “Effect thereof” then it could pass a simple law stating that a gay marriage in any state did not require that any other state allow that union to have any of the benefits of a traditional marriage except as they are required by the states’ own laws and definitions.

In fact the Defense of Marriage Act of 1996 does just that. Only time will tell if the US Supreme Court thinks that Congress had a rational reason for passing that legislation.

Stephen Erwin is Executive Director of the Judicial Amendment Coalition, a non-profit corporation registered to lobby Congress for the Judicial Accountability Amendment.

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