Glen Greenwald, who was on C-SPAN (rebroadcast) today promoting his book, has a column on the hypocrisy of conservatives respecting the Iowa ruling on same sex marriage. [Earlier, he referenced a good background piece on how advocacy groups were screwed on the FISA amendments.] You know, "traditional marriage" is okay, unless we are talking second or third marriages, or marrying people about the age of your daughter. BTW, how outrageous is it that Sen. Craig is deemed "unforgivable" to the degree the people's choice to elect him should be overridden -- out on the rails so to speak -- for a disorderly conduct charge?
The Iowa ruling is important, sure, and reminds of how it was on the forefront in the post-Civil War Era on racial matters as well (e.g., bans of segregation on public accommodations). Still, the ruling can very well be overruled. It is less likely a ruling from the beginning of last month from the 10th Circuit (arising in Oklahoma) will be ... it would require an en banc ruling or acceptance by the part-timers on the Supreme Court.
First, credit where credit is due. I was looking into the Full Faith and Credit Clause (is the provision respecting "general laws" a means to stop DOMA?*), and a Wikipedia article on the subject popped up. And, this ruling was cited in an update. From the ruling itself, which was unanimous:
Lucy Doel and Jennifer Doel live with their adopted child E in Oklahoma. E was born in Oklahoma. Lucy Doel adopted E in California in January 2002. Jennifer Doel adopted E in California six months later in a second parent adoption, a process used by step-parents to adopt the biological child of a spouse without terminating the parental rights of that spouse. OSDH issued E a supplemental birth certificate naming only Lucy Doel as her mother. The Doels have requested a revised birth certificate from OSDH that would acknowledge Jennifer Doel as E's parent, but OSDH denied the request.
This arose from a state rule, added after the attorney general held the alternative was illegal under current law, that supplied birth certificates in such adoption cases, except when same sex couples are involved. No go. Yes, there is a "public policy" exception that pops up when dealing with marriages, but this arose from an adoption judgment. And, the rule for them tends to be stricter. It cited a Supreme Court rule on point: "no roving 'public policy exception' to the full faith and credit due judgments." Furthermore:
If Oklahoma had no statute providing for the issuance of supplementary birth certificates for adopted children, the Doels could not invoke the Full Faith and Credit Clause in asking Oklahoma for a new birth certificate. ... The Doels merely ask Oklahoma to apply its own law to “enforce” their adoption order in an “even-handed” manner.
This ruling underlines that equality involves any number of provisions in a myriad of situations. Protection of the familial rights of same sex couples highlights the point. This is not just about marriage, but the many incidents thereof. Thus, "they were told by both an ambulance crew and emergency room personnel that only 'the mother' could accompany E and thus initially faced a barrier to being with their child in a medical emergency." BTW, this general area warrants a closing thought from a Kentucky ruling striking down an anti-sodomy law, hearkening back to pro-privacy rulings of the 19th Century in the process:
The Commonwealth, on the other hand, presented no witnesses and offers no scientific evidence or social science data. Succinctly stated, its position is that the majority, speaking through the General Assembly, has the right to criminalize sexual activity it deems immoral, without regard to whether the activity is conducted in private between consenting adults and is not, in and of itself, harmful to the participants or to others; that, if not in all instances, at least where there is a Biblical and historical tradition supporting it, there are no limitations in the Kentucky Constitution on the power of the General Assembly to criminalize sexual activity these elected representatives deem immoral.
-- Commonwealth v. Wasson
The case referenced the security given to private ownership and use of alcohol in particular. More evidence that, yes Virginia, Griswold v. Connecticut was not somehow a creation akin to Athena popping out of the head of Zeus.
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* Probably. Julie L.B. Johnson, "Comment, The Meaning of 'General Laws': The Extent of Congress's Power Under the Full Faith and Credit Clause and the Constitutionality of the Defense of Marriage Act," 145 U. PA. L. REV. 1611 (1997) (questioning both DOMA's constitutionality and the power of Congress to limit the application of full faith and credit generally).