Maybe Things Should Have Been Left Alone in the First Place?

Douglas NeJaime, an associate professor of law at Loyola Law School, has a commentary in today's Los Angeles Times about the complications between federal and state law when it comes to marriage licenses, domestic partnerships, etc.

He notes that New York, this weekend, will start handing out what used to be marriage licenses to brideless and groomless couples.

Why does this complicate things? Consider what happens when legally married couples from New York move to, say, California. They'll see their marriages evaporate, based only on their sexual orientation.

So much for letting the states decide. You know, I can get various licenses in one place that aren't honored in other places. Oh, and the confusing tax differences from state to state! How can I be taxed ten cents per dollar spent on a purchase in one state, but nothing in another?

Take the case of a same-sex couple that moves to California after getting married in New York. Here, the marriage will not be fully recognized, pursuant to Proposition 8, which in November 2008 amended the California Constitution to define marriage as only between a man and a woman. On the other hand, a same-sex couple that married in Massachusetts before November 2008 will be recognized as legally married under California law.

Yes, the California Supreme Court did screw things up, didn't they? They should have never tried to neuter state marriage licensing in the first place.

And here's another complication. Even if a same-sex couple is considered legally married under state law, the marriage won't be recognized under federal law. Thanks to the Defense of Marriage Act, same-sex couples get none of the federal benefits of marriage, such as spousal Social Security benefits after a death or the ability to bring a noncitizen spouse into the country.

This could be changed by replacing DOMA with something that recognized domestic partnerships.

Things are even worse in some states. Imagine a married couple that moves to a state without even a domestic partnership law: The couple suddenly goes from being legally married to being legal strangers.

Gosh, if only people weren't forced at gunpoint to move from one state to another, and if they could just choose from 49 other states (plus territories). If only...

Imagine the confusion when a man with several wives moves to the USA! Something should be done about that.

If this all seems absurdly confusing, it is.

We could have avoided all of this confusion by not neutering marriage licenses anywhere and not having civil unions or domestic partnerships at all. Say, who was it that was insisting on the necessity of civil unions and domestic partnerships all these years, anyway?

In the modern age, it's not reasonable to expect that couples will stay in the states in which they marry.

Okay then, can we please save everyone a lot of money then and simply abolish the state governments, since pretending we're a union of fifty states, you know, like the Constitution describes, is making life so difficult for that gigantic percentage of the population that wants to call their brideless or groomless relationships a marriage and force everyone else to call it marriage, too?

Though marriage has always been regulated by individual states and is likely to remain a matter of state law, the Supreme Court has consistently recognized a federal constitutional right to marry.

Yes, there's a right to vote, too. But if you call something that is not voting "voting", it doesn't mean the federal government has to consider that other thing a right. If one state abandons the core meaning of voting, should all of the other states and the federal government be force to follow?

"GregMaragos" at 7:22 PM July 21, 2011:

NeJaime should focus some of [his] angst at the Democratic Party and the California Supreme Court, both of whom have made a real hash of things.

The official Democratic Party position on gay marriage is, "Leave the federal government out of it. Let the states decide how to define a marriage."

The current bouillabaisse of laws and restrictions is a natural outgrowth of using the courts to make law, rather than the ballot box.

"KennyS562" at 8:41 AM July 22, 2011:

Is that how you feel about desegregaton as well? That was a court action.

Funny that should be brought up. The bride+groom requirement is very much about integration. Neutering marriage supports segregation.

"Brianb2970" at 9:01 AM July 22, 2011:

Yes, but "marriage" was never envisioned as being between two people of the same sex, so that statement is pretty much irrelevant. What we're taling about here is a complete redefinition of the institution.

That being said, there's no real consistency on marriage legalities anyway. The "age of consent" to enter into marriage varies from state to state. So do laws that restrict based on familial relationship.

Funny how the commentary didn't mention that many states allow first cousins to marry, but other states don't. Incrementalism is a clever tactic, isn't it?