The Day After – Gay Marriage

Well, it’s the day after the first full day that gay marriage was legal in California, and gosh darn it, the sun came up, birds still sang, children were born, people died, there were even some heterosexual marriages, and I still had to go to work. In other words, if God is mad about it, he sure missed that wrath thing by taking it out on the mid-west. 

We’ve seen the pictures of the two lesbians in San Francisco being one of the first couples married after being a couple for over 50 years. We’ve also seen the completely idiotic protestors. Always with the god made Adam and Eve, not Adam and Steve. Please, hire a gay man and get a little creative.

So what’s next for California? It is possible this could all be short lived as there is a ballot measure to be voted on in November that could write discrimination into their state constitution. No one is sure exactly what that would mean for the marriages already performed, as this was obviously not anticipated by the proponents of the amendment since no language was included that would officially address the current situation. For my part, I don’t see how the state could undo something that was fully legal at the time it was done. Let’s say murder was not illegal (insert O.J. joke here), so I killed someone. Then next year they make it illegal. I don’t think it would be legal or right to then charge me for a crime.

As for the amendment itself, I see two possibilities. The marriages will have been going on for nearly six months. So long as there is no major earthquake in California between now and November (for Pat Robertson to use as evidence of God’s displeasure), I think the dust will have settled, and a lot of people will see that it just really hasn’t made any difference. I mean, come on, this argument that somehow straight people will suddenly decide they’re not getting married because Adam and Steve are is just utter bullshit. That’s the best case. The concern is that straight people who are in favor of equal rights, and even gay people will relax a little too much in the afterglow, and let their guard down. Unfortunately, in California only a simple majority is required to pass a constitutional amendment…a foolish thing if you ask me.

Does it make a difference here in Florida? There are two things to think about. The most obvious is what impact it might have on our anti-gay marriage amendment. I’ve written briefly about this before. The concern I have is that this does play into the primary argument that marriage opponents always stress…that “activist judges” will overturn the existing state laws against gay marriage, so it has to be put into the Constitution. There are a lot of places in Florida where that argument sells, and it could spark a few people to show up who might not otherwise vote. 

Florida’s amendment process requires a 60% + 1 vote to pass. (This was, thank heavens, the result of a voter initiative a couple of years ago.) A recent Quinnipiac Poll shows that Amendment 2 currently has only 58% support. The poll was taken after the California Supreme Court ruling, but before marriages actually started. I’d love to see a more current poll.

The other difference has to do with how Florida law will treat the California marriages. The law here says that Florida won’t recognize such marriages. The problem is that old pesky Full Faith and Credit Clause of the U.S. Constitution (Article IV Section 1). This section addresses the duties that states within the United States have to respect the “public acts, records, and judicial rulings” of other states.

In his dissenting opinion in Lawrence v. Texas, Antonin Scalia felt application of the Full Faith and Credit Clause to the majority’s decision in that case might destroy “the structure… that has permitted a distinction to be made between heterosexual and homosexual unions.” If Scalia’s dissenting opinion held true, the majority ruling could potentially negate the DOMA and create a legal situation in which all states might eventually be obliged to recognize same-sex marriages performed in Massachusetts or California.

What does the California ruling for me? I caused a tight pucker in our HR Manager at work when I told him Lay and I were going to California to get married, and asked how he planned to handle that. I’ve discussed with him the unfairness of our current benefits package since it lacks coverage for domestic partners. (I’ve even taken it to the owner of the company, and was told it was a financial thing. That was the worst thing he could have said, as it reinforces my position that it means they value married employees more, but that’s a post for another day.)

While, as already noted, Florida law, which our HR guy believes applies, prohibits recognition of marriages performed in California, I would suggest that the Full Faith and Credit Clause will eventually result in Florida having to recognize those marriages. As I pointed out to him, the current situation creates an inequity under law, which the Constitution is supposed to abhor (but that depends on the personal beliefs of the Supreme Court Justices). Heterosexual marriages performed in other states are monitored. The only way I can see avoiding a favorable ruling (besides the tired old men that make up the court not caring about the Constitution) would be to require straight people to remarry each time they move to a new state.

I guess the summary of all this is that there remain a lot of unanswered questions, and more years of court battles…and a maybe winnable battle here in Florida.