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May 3, 2015

States Should Recognize Marriages From Other States

Marriage is left to the states under the Constitution and it should stay that way. The fix for the same sex marriage problem is to apply standard doctrine on marriages to same sex marriages. States should have to recognize as valid marriages performed in other states even if those marriages could not be legally performed in their own state. This leaves the definition of marriage to the states, and leaves marriage law to legislatures where it belongs. It allows states who don't want gay marriage to forbid it within their state, but allows gay people to go to another state to get married. Since it is a decision that follows precedent, Conservatives will grumble but not become enraged. Just like in the Defense of Marriage Act case, Conservatives will find losing acceptable because they will lose based on states' rights. Over time everybody will get used to the idea and it will cease to be a big deal.

Ruling that the 14th Amendment requires states to allow same sex marriage is ridiculous. There is no way the 14th Amendment says anything about same sex marriage. At the time it was ratified, homosexual acts were illegal. Ruling in this fashion will create stubborn resentment which will last for years, just like the Roe v Wade ruling did. It will be based on what the justices want the law to be rather than what the law is. And given the availability of a less intrusive solution of requiring the recognition of marriages performed in other states, it's a completely unnecessary abuse of power. Further, it will remove the predictability of what the law is. The Constitution will become something with a meaning that can radically change on any given day in the Supreme Court. It will move us radically closer to the rule of men, not the rule of laws.

The 14th Amendment was passed specifically to prevent segregation and anti-miscegenation laws. Using it for same sex marriage is ridiculous. It does not apply. I realize it's tempting to get everything you want from the Supremes without having to do the hard work of winning state by state. But anything you win in the Supreme Court with no consistent reason, is something you can lose the same way. The whole reason liberals are so nervous every time a new Supreme Court Justice is appointed is because Roe v Wade was based on nothing but what the court at the time wanted the law to be. It could be easily reversed at any time and everyone knows it. Big changes like this should be done legislatively. It takes longer, but it gains wider acceptance and it lasts longer as a result. Gay marriage is winning the argument politically. You don't need a shortcut.


When the 14th Amendment was adopted, homosexual acts were illegal. To interpret the ratification of the 14th Amendment as legalizing gay marriage is ridiculous. It was not the intent of the people who ratified it. Religion has nothing to do with it. (I'm a Congregationalist who goes to church once a year for Easter.) I'm in favor of gay marriage. I am not in favor of the Supreme Court inventing new ways to interpret the Constitution and its amendments that the original ratifiers would find unbelievable. If the Supreme Court can bend the 14th Amendment to that extent, then they can bend the entire Constitution in whatever direction they want with no checks or balances. Since gay marriage is winning anyway, why do we need to use the 14th Amendment in outlandish fashion when there are easier ways to get there which will leave the Constitution with some meaning? Big changes like this are what legislature are designed for.

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