The Dillard Doctrine

Urban Conservative Commentary on Politics & Life

Rethinking Gay Marriage

Usually, I stay out of social conservatism-it’s not the highest on my radar, and I’ve never felt the need to legislate my morality on everyone else.

So with that-I don’t support gay marriage personally (my conservative friends can breathe now). The other side of that, though, is that I’ve never seen the need for a constitutional amendment to define marriage. I’ve always held that whether or not to allow these types of marriages isn’t a federal issue. If the voters of a certain state decide-either by referendum or through the electoral process-that it’s what they want in their state, who am I to challenge it or say “you can’t have that?” As much as we on the right jump up and down about the 10th Amendment, the last thing I think we’d want is the federal government stepping in and doing what the individual states have done-and done well-for years.

But after this, I’m not so sure:

A lawyer for a Dallas man trying to divorce the man he married in Massachusetts told a Texas appeals court Wednesday that his client is entitled to a divorce because he had a valid marriage.But the Texas Attorney General’s Office argued before the three-judge 5th Texas Court of Appeals panel that the marriage isn’t recognized by Texas, so they cannot get a divorce. Jimmy Blacklock, an assistant Texas solicitor general, said the men’s union can only be voided.

“The parties lack standing to file a divorce case because they’re not married,” he said.

The Dallas men wed in 2006 in Massachusetts, where gay marriage is legal, and separated two years later.

As a strict legal argument, the AG’s office is right; the state can’t grant a divorce to something they don’t recognize as valid (in fact, granting the divorce may have the implied result of validating the marriage. And I’m sure Texas isn’t having that). That, though, isn’t the biggest problem.

Eight states and Washington DC either grant or recognize same-sex marriages. At the federal level, the Defense of Marriage Act (DOMA) only does two things: delegate the responsibility of accepting or rejecting same-sex marriages to the states, and, for the federal government ONLY, defines marraige as an act between an man and a woman.

It doesn’t, though, address what to do in the situation above. Clearly, we can’t-nor should we want to-stick all married homosexuals in a single state or spread them out between the ones where their marriages are recognized as legitimate (that would be illegal, just in case you were thinking “great idea!). Conversely, we can’t reasonably expect that a married gay couple to stay in the state where they were first married (though some quick research on the issue shows that to be more often true than not). We’re a mobile society.

So what to do? I still don’t think a constitutional definition of “marriage” is the answer, because, just as a matter of precedent, the Constitution doesn’t define much. It tells what the federal government can and can’t do, but if you read it, it’s short on definitions (case in point-the “birther” foolishness wouldn’t be what it is if “natural born citizen” was defined, a point that I argued with someone a couple days ago). And I think that’s a good thing. But as the Texas situation shows, there might be a need for a consensus on what can’t be done, even if there isn’t one on what can be. That’s probably the point where the federal government should step in.

So, how about changing-or expanding-the law we already have to specifically say that a state that chooses not to recognize a same-sex marriage as legitimate cannot annull, void, or grant a divorce to the same? Seems to be the easiest, least painful way to go about things.

I still don’t support gay marriage (which is why just legalizing them everywhere isn’t an option here)…but I do think some of the ambiguity they bring should be cleared up.

What do you think?

HB2DF, Coby

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Written by Coby Dillard

April 23, 2010 at 10:49 am

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