May 30, 2008

Does NY governor know the Constitution?

The new governor of New York, David Paterson, has unilaterally declared that gays can have their "marriages" recognized by his state if performed in another state (meaning, in this case, California). His reasoning:

"We have a time-held and time-tested tradition honoring those marital rights," Paterson said. "I am taking the same approach that this state always has with respect to out-of-state or marriages conducted in foreign governments being recognized here in the state of New York. I am following the law as it has always existed."

But is he? It appears Paterson is referring to the "Full Faith and Credit Clause" of the Constitution, which is Article IV, Section 1:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

My emphasis. What that means is that the US Congress can limit or define just what acts and proceedings shall be given said full faith and credit. And didn't Congress do just that in 1996 -- with the Defense of Marriage Act? Section 1 of the Act says

No state (or other political subdivision within the United States) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.

It would seem within Gov. Paterson's purview to order state agencies to so recognize gay "marriages" performed elsewhere. This pretty much, to me at least, means any public entity in the state for all intents and purposes. However, it would be incumbent upon the state legislature to enact a law whereby the state could refuse to recognize same-sex "marriages":

... appellate judges determined that there is no legal impediment in New York to the recognition of a same-sex marriage. The state Legislature "may decide to prohibit the recognition of same-sex marriages solemnized abroad," the ruling said. "Until it does so, however, such marriages are entitled to recognition in New York."

New York failed to pass its own gay "marriage" law in the past. It remains to be seen if they will act against Gov. Paterson's wishes. Volokh doesn't think they will. But if they do, this would be an entirely constitutional action -- at least on full faith and credit terms. As long as gay couples are granted equal protection under the state's laws (the 14th Amendment concern, such as healthcare bennies for partners), the legal question should be settled.

Steve Newton at DE Libertarian has more thoughts.

Posted by Hube at May 30, 2008 04:30 PM | TrackBack

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