Sunday, September 28, 2014

176.1 - Good News: another small step toward marriage justice

Good News: another small step toward marriage justice

Starting, as I always like to, with some Good News, we have some from a frequent area of good news this year: same-sex marriage.

Recently, a federal judge for the district that includes Louisiana, one Martin Feldman, upheld that state's ban on same-sex marriage in a clumsy ruling that in significant part relied on the notion that, quoting him,  “the regulation of marriage was left up to the states and the democratic process” so, in essence, your Constitutional rights be damned.

It was the first decision in a federal court upholding a ban on same-sex marriage

It's up to the states, he said. Okay, then. On September 22 a Louisiana state judge, 15th Judicial District Court Judge Edward Rubin, ruled that Louisiana's ban on same-sex marriage violates the US Constitution in three ways: It violates the due process clause and the equal protection clause of the 14th amendment and it violates the "full faith and credit" clause of Article IV.

That last point was particularly significant in that it addresses the issue of recognizing marriages performed legally elsewhere. The couple involved, Angie Costanza and Christy Brewer, were married in 2008 in California. Judge Rubin is saying that the full faith and credit clause requires Louisiana to acknowledge that they are married.

This is bit complex than may at first appear. The full faith and credit clause says states must recognize "legislative acts, public records, and judicial decisions" of other states. That's why if you have a California driver's license and drive from California to Louisiana, Louisiana cannot say you are driving without a license: It is required to recognize the license issued by California. But if you take up residence in Louisiana, if you move to Louisiana, at some point Louisiana could require you to get a Louisiana license.

Similarly, it would appear clear that if a same-sex couple married in California were to go to Louisiana as tourists, while they are there Louisiana must accept that they are married. (Note that this does not mean such a couple would not face discrimination and other hassles in areas such as public accommodations but only that it seems clear that as a matter of law they should not.)

But what if you move there? Is there some point at which Louisiana can say that now that couple has to go by Louisiana standards which don't recognize their marriage so suddenly they are no longer married?

The answer to that is relatively simple: Driver's licenses have expiration dates. After a certain point, your California license is no longer valid and Louisiana can say that as a resident of Louisiana you have to meet Louisiana standards. Marriages, on the other hand, do not have expiration dates. There is no point at which your marriage simply runs out. So there should be no point at which a state can say your marriage performed elsewhere has expired and so is no longer valid.

The fact that some states, including Louisiana, have tried to say essentially that, that by moving from one state to another your marriage has somehow expired, is exactly what Judge Rubin was rejecting as violating the full faith and credit clause.

The other interesting point here is that because it is a state court, particularly because federal judge Feldman said it's up to the states, Judge Rubin's decision has precedence. Even though Feldman is in federal court, Rubin's decision is the controlling one unless and until it's overturned.

The state attorney general's office says they are appealing to the Louisiana state Supreme Court and the ruling will likely be stayed pending that appeal, as is common. The couple's attorney says he's confident the Louisiana Supreme Court will agree with Judge Rubin, but then again lawyers always want to come off as confident.

No matter what, it's another small step and that is good news. I say again, as I have often enough before, on this issue justice is coming.

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