August 04, 2004

Missouri passes Hate Amendment

Not the Federal version, just an amendment to their state constitution. Here are some election returns, and the St. Louis Post-Dispatch story.
With 72% of precincts, reporting, the Hate Amendment is enjoying about 834,000 votes,
while just under 330,000 voted against it. Yes, this issue was decided by one million people, in a state of five million.

Any law students care to explain what's liable to happen when a gay couple married in Boston moves to St. Louis, or the Federal gov't (Congress or the Supremes, take your pick) legalize gay marriage?

1 comment:

MosBen said...

Anything can happen. The single biggest lesson I've taken from law school thus far is that courts can reason their way into any decision then want to. We'd like to think that in the long run it all works out, but it's really more a hope than anything else.

There are several different ways for this to play out. If the federal government legalizes gay marriage, then by virtue of being federal law, it trumps state law and gay marriage wins. If the Supremes declare it unconstitutional, choosing from several possible constitutional interpretations, for the states to ban gay marriage, then gay marriage wins. If people are married in Boston and move to a state where gay marriage is illegal, under current intrepretations of the law states would be forced to recognize the marriage and gay marriage wins.

At the same time, courts could merely decide that marriage isn't included in the Full Faith & Credit Clause or find some other way around it. The Supremes could drop an opinion saying that gays don't qualify as a discrete group for purposes of discrimination, therefore it's ok to ban gay marriage. And Congress was, at least at some point, working on a law which would specifically exempt marriages from the FF&C clause. Of course, none of this would make any sense to me, but it's happened before. Jim Crow was held up by a LOT of federal laws and Supreme Court cases before things changed.