03 June 2009
Gay Marriage and Almost Marriage
Same sex marriage is now the law in six U.S. states (the New Hampshire bill is effective January 1):
New York State recognizes non-New York same sex marriages but does not have same sex marriage under its own laws (the link also has a handy map summarizing the current situation).
Broad domestic partnership laws that give partners all the state law legal rights of a married couple, but not the symbolic designation "married" are also flourishing, most recently in Nevada despite a veto by the Governor:
California, of course, also has 18,000 couples whose same sex marriages remain legal and in force from the brief period last year after the California Supreme Court established a right to same sex marriage under the state constitution, and before the state constitution was amended by Proposition 8 which passed in 2008.
Broad domestic partnership law protections (the term "civil union" is used in some places) are also available in New Jersey and the District of Columbia. Limited domestic partnership law protections are available at the state level in Colorado, Hawaii and Maryland.
Many states have passed some sort of constitutional amendment or statute prohibiting same sex marriage, some of which also prohibit legal arrangements "similar" to marriage.
New Mexico is the only U.S. state which lacks anti-gay marriage statutes or constitutional provisions, and yet also lacks gay marriage or a domestic partnership law or court requirement.
Countries where same sex marriages can be entered into and recognized legally include: Belgium, Canada, Netherlands, Norway, South Africa, Spain and Sweden. Many countries have domestic partnerships or civil unions in some form, which varies considerably from country to country.
Gay marriage is now legal in Vermont, Maine, New Hampshire, Connecticut, and Massachusetts -- all of the New England states, except for Rhode Island. Gay marriage is also legal in Iowa.
New York State recognizes non-New York same sex marriages but does not have same sex marriage under its own laws (the link also has a handy map summarizing the current situation).
Broad domestic partnership laws that give partners all the state law legal rights of a married couple, but not the symbolic designation "married" are also flourishing, most recently in Nevada despite a veto by the Governor:
Nevada was one of nine states that amended its constitution to ban only same-sex "marriage" and not also "similar" unions. Three of those nine states (California, Oregon, and Nevada) now have broad domestic partnership laws.
California, of course, also has 18,000 couples whose same sex marriages remain legal and in force from the brief period last year after the California Supreme Court established a right to same sex marriage under the state constitution, and before the state constitution was amended by Proposition 8 which passed in 2008.
Broad domestic partnership law protections (the term "civil union" is used in some places) are also available in New Jersey and the District of Columbia. Limited domestic partnership law protections are available at the state level in Colorado, Hawaii and Maryland.
Many states have passed some sort of constitutional amendment or statute prohibiting same sex marriage, some of which also prohibit legal arrangements "similar" to marriage.
New Mexico is the only U.S. state which lacks anti-gay marriage statutes or constitutional provisions, and yet also lacks gay marriage or a domestic partnership law or court requirement.
Countries where same sex marriages can be entered into and recognized legally include: Belgium, Canada, Netherlands, Norway, South Africa, Spain and Sweden. Many countries have domestic partnerships or civil unions in some form, which varies considerably from country to country.
7th Circuit: 2nd Amendment Applies Only To Feds
The United States Court of Appeals For The Seventh Circuit held yesterday in the case National Rifle Association v. Chicago, in an opinion joined by two of its biggest stars, Judges Easterbrook and Posner, that the Second Amendment applies only to the federal government, not to the states. In other words, it is not a part of the Bill of Rights that is "incorporated" through the 14th Amendment due process clause against the states. A number of federal bill of rights provisions (e.g., the 7th Amendment protection of the right to a civil jury) have the same status. The United States Court of Appeals for the Second Circuit had previously reached essentially the same conclusion in another post-Heller case (Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009)).
I've argued more than once, here and elsewhere, that this is the correct rule of law. Three old U.S. Supreme Court precedents, the most recent in 1894, say that this is the case. A recent 9th Circuit ruling reaching the opposite conclusion was dicta, in addition to overruling prior 9th Circuit precedent from the 1990s, so it doesn't necessarily create a circuit split And, there is ample evidence that an individual right to bear arms for self-defense, which is a right protected by the Second Amendment, as the U.S. Supreme Court clarified in Heller is not necessary to ordered liberty, which is essentially the test to determine if a provision of the Bill of Rights should apply to the states.
Gun control opponents still have state constitutions in most states that they can turn to in order to protect their rights. And, the Second Amendment limits the extent to which gun control may be imposed despite state policy, by federal law. It also limits the extent to which gun control may be imposed in federal enclaves like the District of Columbia where the Heller case arose.
The end result, if the 7th Circuit ruling holds, is that the Second Amendment, while not the dead letter it was prior to Heller will be minimally important, and mostly discourage new federal gun control legislation. The U.S. Supreme Court in Heller dicta has upheld in dicta almost every federal gun control law of national appliicability as a reasonable regulation of the right to bear arms for self-defense, as has every post-Heller challenge to federal gun control laws in the lower federal courts (see, e.g., here).
Of course, the U.S. Supreme Court may choose to overrule the 7th Circuit in this case. But, that doesn't mean that either the U.S. District Court judge or the 7th Circuit panel that rendered the opinion yesterday were wrong in concluding that currently binding U.S. Supreme Court precedents hold that the 2nd Amendment does not apply to the states. I would urge the U.S. Supreme Court not to incorporate the Second Amendment and to let the issue play out in the state legislative and state constitutional process. SCOTUS blog coverage of potential U.S. Supreme Court involvement in one or more of these cases can be found here.
I've argued more than once, here and elsewhere, that this is the correct rule of law. Three old U.S. Supreme Court precedents, the most recent in 1894, say that this is the case. A recent 9th Circuit ruling reaching the opposite conclusion was dicta, in addition to overruling prior 9th Circuit precedent from the 1990s, so it doesn't necessarily create a circuit split And, there is ample evidence that an individual right to bear arms for self-defense, which is a right protected by the Second Amendment, as the U.S. Supreme Court clarified in Heller is not necessary to ordered liberty, which is essentially the test to determine if a provision of the Bill of Rights should apply to the states.
Gun control opponents still have state constitutions in most states that they can turn to in order to protect their rights. And, the Second Amendment limits the extent to which gun control may be imposed despite state policy, by federal law. It also limits the extent to which gun control may be imposed in federal enclaves like the District of Columbia where the Heller case arose.
The end result, if the 7th Circuit ruling holds, is that the Second Amendment, while not the dead letter it was prior to Heller will be minimally important, and mostly discourage new federal gun control legislation. The U.S. Supreme Court in Heller dicta has upheld in dicta almost every federal gun control law of national appliicability as a reasonable regulation of the right to bear arms for self-defense, as has every post-Heller challenge to federal gun control laws in the lower federal courts (see, e.g., here).
Of course, the U.S. Supreme Court may choose to overrule the 7th Circuit in this case. But, that doesn't mean that either the U.S. District Court judge or the 7th Circuit panel that rendered the opinion yesterday were wrong in concluding that currently binding U.S. Supreme Court precedents hold that the 2nd Amendment does not apply to the states. I would urge the U.S. Supreme Court not to incorporate the Second Amendment and to let the issue play out in the state legislative and state constitutional process. SCOTUS blog coverage of potential U.S. Supreme Court involvement in one or more of these cases can be found here.
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