Thursday, May 17, 2007

Gay Marriage Across State Lines

Via Hugh Hewitt, a Massachusetts judge has ruled that the same-sex marriage of two New Yorkers is valid despite New York having a law that says it isn't. Hugh opines:
But clearly those who argued that the federal Defense of Marriage Act would stop the export of same-sex marriage were wrong, and that basis for opposing the Marriage Amendment revealed as threadbare.
I wouldn't go that far yet. As far as I can tell, this is a bad legal ruling. Not bad as in "I disagree" but bad from a point of law. The July 6, 2006 ruling by the New York Court of Appeals did not establish a marriage prohibition in the state of New York. Instead it upheld an existing same-sex marriage prohibition which would indicate all prior same-sex marriages were illegal.

To say that DOMA has proven insufficient is inaccurate since we have yet to see same-sex marriage enter a federal court where DOMA would apply. This may be the case if New York refuses to recognize the Massachusetts decision.

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