[UPDATE: I have added the NY news that Gov. Paterson has instructed all state agencies to recognize all out-of-state same sex marriages. It’s below the fold. ]
I’m serious — if this is the best foot the opponents of marriage equality can put forward, they are going nowhere fast. The flailing of this guest on The O’Reilly Factor, as they discuss the ruling in California is incredible. Billo actually rakes this loser over the coals for the poor anti-marriage equality argument presented.
Via the BradBlog:
OREILLY: “You’ve got to go beyond religion if you want to win the fight against gay marriage. You’ve got to go into a reason why this is not good for the state of California. Now what would that reason be?”
Family Law Attorney Don Schweitzer seem to get a handle on what eats at him about marriage equality (he even doesn’t bother with articulating the whole penis-in-vagina dealie), but O’Reilly actually pushes at Schweitzer to come up with something that isn’t insane. The dude just can’t come up with anything other than the “definition” of the word is in jeopardy. It’s hilarious.
SCHWEITZER (on why it’s bad): “It’s like summer and winter…it’s two different things.”
NY Gov: agencies must recognize all out-of-state same sex marriages
A giant step forward, courtesy of Empire State Governor David Paterson. He has instruct state agencies to fully recognize legal same sex unions from elsewhere based on the Feb. 1 ruling that New York must recognize same-sex marriages performed in other countries (I blogged that here). More below the fold.
Gov. David A. Paterson has directed all state agencies to begin to revise their policies and regulations to recognize same-sex marriages performed in other jurisdictions, like Massachusetts, California and Canada.
In a directive issued on May 14, the governor’s legal counsel, David Nocenti, instructed the agencies that gay couples married elsewhere “should be afforded the same recognition as any other legally performed union.”
The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses.
…“Very shortly, there will be hundreds and hundreds and hundreds, and probably thousands and thousands and thousands of gay people who have their marriages recognized by the state,” said Assemblyman Daniel O’Donnell, a Democrat who represents the Upper West Side and has pushed for legalization of gay unions.
The cascading effect of the California marriage equality ruling
New York doesn’t have a state DOMA, and because of that progress on marriage equality hasn’t been hampered on that front. An important and detailed analysis of the California Supreme Court ruling and its impact elsewhere can be found on the eQualityGiving web site. Professor Tobias Wolff of the University of Pennsylvania Law School. He also covers how the Defense of Marriage Act (at the fed and “mini-DOMAs” at state levels) will come into play for same sex couples choosing to marry in the Golden State, since it does not have the residency requirement that Massachusetts has.
Here’s a snippet relevant to this post:
MARRIAGE ACROSS STATE LINES
With the decisions in California and Massachusetts — and the possibility of similar rulings in Iowa and Connecticut and possible legislative reform in New York, New Jersey and Vermont — there will likely be significant differences in state laws relating to civil marriage around the country for some time to come. Some states will expressly permit same-sex couples to marry (California, Massachusetts, perhaps others), some states will expressly recognize the out-of-state marriages of same-sex couples even if the couples cannot marry locally (New Hampshire, by statute; New York, by court ruling and Attorney General opinion), and many states will continue to have less sympathetic or even hostile policies toward married couples.
Courts in the United States have been dealing with this type of problem for close to two hundred years. Contrary to many public discussions and news reports, the current disagreements over civil marriage for same-sex couples is not the first time that significant differences have arisen between the marriage laws of the various states. Laws relating to interracial marriage (anti-miscegenation laws), marriages between people related by blood (particularly uncles and nieces or first cousins), certain marriages following divorce, and marriages involving teenagers have at times varied enormously in the United States and produced sharp differences of opinion among the states. The basic set of problems that can arise when different states have different policies on civil marriage is an old one, and courts have been working out sensible solutions to those problems for a long time.
The strongest claim a married couple can make to have their marriage “recognized” is when they have a judgment, issued by a court, that entitles them to something — money from an insurance company on a claim, for example, or a particular custodial arrangement with their kids. Under the principle of full faith and credit, states have always operated under a powerful obligation to give effect to court judgments from other states. This is true even when the law that the court applied in deciding a lawsuit is one that other states disagree with. Thus, if a court resolves a dispute involving a marriage between a particular set of parties in one state, and then another state is asked to give effect to the resulting judgment (for example, by ordering an unwilling party to pay up on a damages award), state number two is not allowed to disregard the judgment simply because it disagrees with the marriage laws from state number one. Where judgments issued by courts are concerned, the obligation for every state to respect the judgments of every other state is a mandatory one and applies almost without exception.
When there aren’t any court judgments involved — which is frequently the case — the situation is very different. Often, a couple seeking to have their marriage “recognized” is merely interacting with the legal system in some way and wants to be treated as a married couple. If one spouse passes away, the surviving spouse may want to make claims on the estate based upon the fact that they were married, or he might want to have the marriage recognized for purposes of confirming custody over the children. If a state gives favored treatment to married spouses in its tax laws, or in its health, insurance and retirement benefits for public employees, a couple may want to have their marriage recognized for purposes of participating in those programs. Historically, couples sometimes even had to ask that their marriage be recognized as a defense to a criminal prosecution, where a state was going after one or both of them for illegal fornication. (Following the Supreme Court’s decision in Lawrence v. Texas, such prosecutions are happily a thing of the past, at least in the civilian world.)
When a couple asks a court to recognize their marriage in this type of situation, the analysis has always been very different. A marriage is not the same thing as a court judgment. The mere fact that a couple has been married in one state has never been treated as something that is entitled to the kind of mandatory legal enforcement that judgments receive in our legal system. Rather, courts have always treated the recognition of out-of-state marriages as a matter of public policy, and various factors have influenced the decisions that states have made about recognizing an out-of-state marriage that could not have been entered into locally.
That’s an important distinction and a careful one to consider as couples plan to marry in California. I urge you to read the rest of Professor Wolff’s piece because its clarity on the remaining legal roadblocks we have on marriage make it an incredibly useful document to bookmark.