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View Diary: BREAKING? NY-Marriage Equality - 32nd Vote Rumored to Be Secured! (update about vote - 7:40pm) (139 comments)

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  •  You describe the likely endgame (1+ / 0-)
    Recommended by:
    Cassandra Waites
    I think you will see it when the gay equivalent of Loving vs. Virginia comes along - perhaps in another 9-10 years - and all states are REQUIRED to permit same-sex marriage whether a majority of their citizens like it or not.

    Mostly, it's a matter of getting the right case to the USSC.  Schwarzenegger v. Perry is a definite possibility.  And I see the five votes more likely than not being there now, with perhaps a sixth.

    •  Short of a "Loving v. VA" decision (2+ / 0-)
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      ivorybill, Tennessee Dave

      There is another even likelier SCOTUS path to marriage equality (of sorts) - and it could come with the Supreme Court overturning DOMA (depending on what challenge gets there first).

      The issue of Full Faith and Credit is pretty central to DOMA - since DOMA specifically says states don't have to recognize legal marriages from other states. If SCOTUS finds in favour of upholding the Full Faith and Credit clause in terms of states recognizing each others' marriages, then Tennessee must recognize same sex marriages performed elsewhere as being the same under state law as any other marriage.

      So while a Tennessee couple would have to go somewhere else to get married (with all the attendant hassle and extra expense that would entail), the state would be required to legally honour their union and extend all the rights given to married couples to them.

      I think with the current SCOTUS membership this is likelier to happen and produce de facto marriage equality across the country than a more sweeping "Loving" type ruling.

      Once social change begins,it cannot be reversed. You cannot uneducate the person who has learned to read...You cannot oppress people who are not afraid anymore.

      by terjeanderson on Wed Jun 22, 2011 at 04:11:06 PM PDT

      [ Parent ]

      •  Not really de facto, though (2+ / 0-)
        Recommended by:
        terjeanderson, Cassandra Waites

        Say the USSC rules as you describe.  Say a few years down the road, marriage equality has been enacted in 20 states.  Where's the nearest state to, say, Mississippi where this is so?  Iowa, perhaps?  The nearest such state to Alaska?  Washington, maybe?

        It's like saying abortion is de facto available to someone in Billings or Helena even if Montana (and every state that borders Montana) outlaws it (hypothesizing if Roe v. Wade was overturned).  And that dog won't hunt.

        Having to travel long-distance to get something makes it de facto unavailable to a lot of the population -- those without the freedom and finances to travel a long distance. For a marriage, for instance.  Or an abortion.

        •  I agree it would be inadequate (1+ / 0-)
          Recommended by:
          Tennessee Dave

          But I think the current SCOTUS membership is more likely to rule this way than issuing a more sweeping "Loving" type ruling - I want to believe that Kennedy would be willing to go that far, but I think there is less than a 50/50 chance he would.

          The reality of that kind of ruling would be that every state would be required to recognize same sex marriages (hence the "de facto") but that it would only practically be available to those with the resources to travel to exercise their right. Once more, poor and working class people would be screwed over by their financial inability to fully exercise rights that should be available to all.

          I'd dearly love to be wrong about that, to have Kennedy and a SCOTUS majority recognize the fundamental human right to marriage in all states under an equal protection argument - sadly, I think this scenario is slightly likelier.

          Once social change begins,it cannot be reversed. You cannot uneducate the person who has learned to read...You cannot oppress people who are not afraid anymore.

          by terjeanderson on Wed Jun 22, 2011 at 04:38:11 PM PDT

          [ Parent ]

          •  There was an interesting article in the Israeli (1+ / 0-)
            Recommended by:
            terjeanderson

            papers yesterday about 190 couples who all got themselves over to Cyprus, from Israel to get married, many of them apparently Russian immigrants, who could not because of  what appears to be religious law get married in Israel.

            As described, it was almost a tour package. And this is not the first such group or the first such marriage, because Israel does recognize marriages entered into in Cyprus. If  the Full Faith and credit obstacle is eliminated in DOMA, one can imagine a group of the soon to be married taking a joint bus trip to the nearest hospitable state, and like minded organizations organizing such trips, no matter what the home state thinks. There will come a point where the economics of the thing will start to work its will, as amenable merchants won't likeseeing all that business drive away, and will do something about it.

            The current problem is that the litigations as I understand them are all attacking par. 3 of DOMA, and the Full Faith and Credit elimination provision is in par. 2.  So somebody has to bring specifically the Full Faith and Credit litigation.

            •  Massachusetts v. HHS (0+ / 0-)

              While the case filed by Mass AG Martha Coakley is specifically challenging Section 3 (because she is suing the federal government and that is the section that focuses on federal recognition), the filings have been based both on an "Equal Protection" argument AND a "Full Faith and Credit" argument.

              It is the likeliest of the current serious court cases to succeed in overturning DOMA on that basis, and could conceivably result in a ruling specifically overturning part 2.

              Once social change begins,it cannot be reversed. You cannot uneducate the person who has learned to read...You cannot oppress people who are not afraid anymore.

              by terjeanderson on Thu Jun 23, 2011 at 04:53:23 AM PDT

              [ Parent ]

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