To all those who yelled at me in the combox, sent me chastising tweets, and condescending emails about how the recent Supreme Court decisions were really a boon to States rights, I have one thing to say.
Federal judge orders Ohio to recognize gay marriage performed in Maryland
A federal judge in Ohio ordered state officials Monday to recognize the marriage of two men that was performed in Maryland
Needless to say, if other courts follow this lead, we’ll have coast-to-coast legal gay marriage as a matter of Full Faith and Credit with the only limitation on gay couples their ability to travel to a pro-SSM state temporarily to get hitched. The Windsor decision that the court cites here in support of its ruling held that section 3 of DOMA, which bars the federal government from recognizing gay marriages performed in pro-SSM states, is unconstitutional. The point of the Ohio ruling is that section 2 of DOMA, which allows states to refuse to recognize gay marriages performed in other jurisdictions, should also be deemed unconstitutional under the logic of Windsor. Is that true, though? Read pages 18-21 of Kennedy’s majority opinion. He’s making two arguments, really. One is that, as the Ohio judge notes, the legislature can’t impose special restrictions on gays consistent with the Equal Protection Clause. The other, though, is that Congress overreached with DOMA by intruding on the states’ sovereign prerogative to regulate marriage as they see fit. It’s not just an equal protection ruling, it’s a federalism ruling too. And unlike Section 3, Section 2 of DOMA attempts to preserve state sovereignty by allowing each state to decide for itself whether gay marriages from other jurisdictions will be recognized there, which might be a complicating factor for Kennedy if this case works its way up to SCOTUS. It shouldn’t be, says the Ohio judge — equal protection under the Fourteenth Amendment trumps states’ rights, especially when you have a history of full faith and credit for out-of-state marriages as precedent
I will accept your apologies in the combox or by certified mail.