West Virginia gay marriage ban voted down in House.
My thoughts are as follows, not just with West Virginia, but with all states in similar situations...
-Gay marriage is currently illegal in West Virginia. Why make a law banning something that's already illegal and already strictly regulated by the government?
-There are two ways that gay marriage could become legal in states like West Virginia-
1) they pass a law/have a state supreme court decision allowing same sex couples to marry
2) there is some sort of federal action legalizing gay marriage, such as:
A) an amendment is passed legalizing gay marriage
B) a supreme court case finds that denying marriage status to same sex couples is unconstitutional
C) an amendment is passed repealing DOMA
Admittedly, the likelihood of any of these happening in the near future is, at best, highly questionable.
Only the third option has any possibility of meriting the need for a state amendment banning gay marriage, but even repealing DOMA doesn't lead to the logic "pro-gay marriage unless proven otherwise by constitutional amendment."
I'm trying to come up with a good simile for this, but I can't think of one that fits exactly.
I'm also fairly certain there's a gaping hole in my logic, but I clearly can't discern what that is right now either. I look forward to your thoughts.
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I think what they're talking about is a constitutional amendment as opposed to a law. State law is most often based on precedent and individual cases, and is easily changed through the legislative process. The constitution is more permanent and final: it is the "last word" on state law. So you can appeal a legal case to the state Supreme Court on the condition that the finding doesn't coincide with the constitution; or appeal a law questioning its constitutionality.
ReplyDeleteThe same thing is happening federally, which is why the Prop 8 trial is important. DOMA is a law (not, as you say, an amendment). But there was also a proposed constitutional amendment: much harder to change. DOMA says that same sex marriages are not acknowledged as "American;" and that one state does not have to acknowledge a marriage between gay people that happened in another state. But that "Act" can be changed legislatively. A constitutional amendment proposed in the legislature has to pass with 2/3 vote and then be ratified by 3/4 of the states.
The proposed U.S. constitutional amendment, which I don't think ever made it out of committee in the leg, would have made it unconstitutional for states to legalize gay marriage.
In California, Prop 8 is not just a law on the books; it was an amendment to the state constitution. It is in federal court rather than state court, because people are suing the state on the grounds that Prop. 8 violates the U.S. Constitution.
If the findings go into appeals from CA, the case goes all the way to the U.S. Supreme Court, whose decision is considered final. Judicially, then, the Supremes can make marriage a fundamental civil right that includes gay people. Laws in any state prohibiting gay marriage would then be unconstitutional on a federal level.
If the Supreme Court decides in favor of Prop. 8, the decision stays with states, who can amend their constitutions however they see fit regarding gay marriage.
Of course, even if something is legal doesn't guarantee personal or local acceptance, which is where the real battles will lie. With Loving vs. Virginia, miscegenation laws became illegal. But that doesn't mean mixed-race marriages were easily accepted by all people in local communities. As I see it, legal acknowledgment is a crucial step. But it's only the tip of the iceberg.
Does this help or make any sense?
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ReplyDeleteAlso, I just spent way too much time looking up
ReplyDelete"due process" in the states, to figure out how this would work. I still don't quite understand. But I think there are rules and procedures in place that govern criminal and civil trials based on statutory law, and those rules are there so individuals always have recourse and are protected from the potential "tyranny" of the state. Statutory law is more flexible, I think, and can be questioned using precedent or judicial findings. But if something violates constitutional law in Virginia, it seems to me the only real recourse for individuals is to sue the state in federal court.