States grapple with gay rights and definition of the family | csmonitor.com: Two court cases this week have the potential to push America toward a broadening definition of family that is increasingly inclusive of homosexuals. In Boston, the state's top court is considering the legality of same-sex marriage. If the justices side with the plaintiffs - seven gay and lesbian couples - Massachusetts could become the first state in the country to sanction gay marriage. In Miami, a federal appeals court heard from four men who have been barred from adopting the children they take care of because of Florida's categorical ban on adoption by gay individuals. Though Florida is currently the only state with such a law, a ruling could have implications on adoption practices around the country.
You know, it makes perfectly good sense that Massachusetts' case could have national implications. At the moment, most states have some sort of Defense of Marriage act, defining marriage as being between one man and one woman. Since no state currently has legal nonmonogamous nonheterosexual marriage, the fact that these laws are in blatant defiance of the Constitution's Full Faith and Credit section -- all states have to honor certain contracts made in other states, such as marriage -- can be ignored. If Massachusetts actually legalizes such marriages, however, then that will spark battles throughout the country.
Should the plaintiffs win in Massachusetts, this case is also quite likely to produce a constitutional amendment specifically defining marriage (The Federal Marriage Amendment has already been proposed, in fact, although this particular bill ought to be a dead letter, since it was proposed in the previous session of Congress), since even the federal DOMA is unconstitutional once there is a significant change in one of the other states. Somehow I don't believe that's quite the response that the people bringing this case will want, but it's almost certainly the response they'll get. And the Supreme Court, as a constitutional court, is not legally competent to rule that a constitutional amendment is unconstitutional -- and isn't terribly likely to make that ruling about this type of thing in any case. (It is noteworthy that in its current form, the Federal Marriage Amendment makes no sense whatsoever. The second sentence says, "...neither this Constitution or the constitution of any State, nor State or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." Now, you know, it's not actually possible to confer marital status on married people. They already have it. It is, in fact, only possible to confer marital status on currently unmarried people. I realize that this is an attempt to get rid of all those domestic partner registries -- most of which don't even attempt to confer marital status -- and Vermont's civil union, but really, people drafting constitutional amendments ought to try using a little precision in their language.)
I must admit to being puzzled as to why a federal court would have accepted the Florida adoption case. Normally, district courts try to stay out of things involving the state constitution; a state's supreme court normaly is considered the final arbiter of a state constitution, absent some constitutional issue. The ACLU is arguing that it denies equal protection, but that would seem a somewhat tenuous argument. Still, it will be interesting to see what happens with it. Many of the people who passed it seem to now oppose the law, according to the ACLU, and Florida's head of the Department of Family and Children considers it counterproductive, but I don't know if any of that is relevant for a federal court.
Posted by iain at March 06, 2003 06:27 PMComments
