Since the Supreme Court struck down gay marriage bans some conservatives have been talking as if the Apocalypse had come. They're crying about judicial activism and states rights. But from a Constitutional and practical standpoint, it's impossible for the states to have different marriage laws.
States rights sounds like a good idea. Texas can have a speed limit of 90 mph, and New York can limit it to 70 mph. They have different environments and requirements: Texas is a big, empty, flat, arid wasteland with cities hundreds of miles apart. New York is crowded, hilly, and covered with trees that limit sight lines
But when you're in a state you must abide by that state's laws. Texans can't drive 90 mph when they're in New York, right?
So why should a gay couple from New York moving to Texas expect to stay married? Why can't Texas split them up and take away their kids if Texans can't stand the idea of two men or two women being married?
Because the Constitution says so. The Full Faith and Credit Clause (Article IV, Section 1) requires that each state recognize the public acts, records, and judicial proceedings of every other state. Texas must recognize companies incorporated in New York, as well as New York marriages, divorces, adoptions, etc.
Furthermore, the Fourteenth Amendment guarantees equal protection under the law. That means that in states where gay marriage is legal, gay couples must be granted the same rights and privileges as heterosexual couples. That means every couple must have all the same rights of inheritance, tax laws, child custody, and so on.
These two clauses come into play because Americans move all the time. Every year about 12% of Americans move. About 2% of Americans move between states. In 2013 that was 7 million people.
And that's where the idea of states having different definitions of marriage falls apart. If a gay couple moves to Texas they have to be treated the same as a heterosexual couple who made the same move. Texas must treat both couples equally -- they can't take away the gay couple's children or deny gay spouses inheritance or hospital visitation rights. It must be this way, because people move so frequently it would total chaos if states had veto power over other states' marriages and court decisions.
For example, the marriage age with either parental and/or court consent for girls in Georgia, Hawaii, Missouri, Mississippi is 15. In New York, Pennsylvania and Texas it's 14, in New Hampshire it's 13, in Massachusetts it's 12, and in California there's no minimum (eww!). If states didn't have to recognize the marriage laws of other states, an 18-year-old Texas man could be arrested for statutory rape if he had sex with his 14-year-old wife in most other states in the Union.
Furthermore, if states had total autonomy over marriage law, Louisiana could outlaw divorce, then charge divorcees from other states with bigamy if they remarried in Louisiana.
If conservatives want their marriages and divorces to be recognized in other states (and conservatives get divorced a lot), then gay marriages have to be recognized in all other states.
And if gay marriage is legal in any state, then it has to be recognized in all states. And since it was already here to stay in most states, it must be legal in all states.
Conservatives are all for states rights, except when they're against them: at the same time conservative states were refusing to recognize gay marriages from other states, their members of Congress were trying to pass a law that would force states to recognize concealed-carry gun permits from other states.
In fact, some conservatives are already citing last week's gay marriage ruling to claim that they have a Constitutional right to carry a gun in public. It's a bogus argument.
But it's creepy that some gun nuts are so wedded to their guns that they actually think they're wedded to their guns.
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