Thursday, January 20, 2005

States Rights and Rites

The first PING! of interstate same-sex-marriage court sniping was heard yesterday. In Tampa, Florida, U.S. District Judge James Moody refused to force Florida to acknowledge the Massachusetts marriage of a lesbian couple. Lawyers and observers on all sides expect this fight to go to the U.S. Supreme Court and for same-sex couples to lose such decisions in lower courts on the way. (The case is Wilson v. Ake. )

Moody's decision includes:
In short, plaintiffs' argument is that, given their recent "civil rights revolution," the United States Supreme Court is likely to declare that same-sex marriage is a fundamental right that is protected by the Constitution.

Plaintiffs are asking this court to create such a fundamental right immediately, before the Supreme Court revisits the issue of same-sex marriage. But that is not this court's role. This Court is bound to follow the precedent established by the Eleventh Circuit Court of Appeals and the United States Supreme Court.

None of their precedents acknowledge or establish a constitutional right to enter into a same-sex marriage.

The couple is a minister, Rev. Nancy Wilson, and a photographer, Paula Schoenwether. After 27 years together, the Bradenton, Florida, couple wed on July 2, 2004, in Provincetown, Massachusetts. Upon returning home, they sued for recognition of their status. Florida has a one man/one woman marriage law.

The Boston Globe cited Northwestern University law professor Andrew Koppelman, law professor at Northwestern University as saying, "The tougher challenges will come from same-sex residents of Massachusetts who wed and then move out of state or are traveling in other states and seek recognition of their marriages."

Moody's decision reads in part:
Adopting plaintiffs' rigid and literal interpretation of the full faith and credit [clause] would create a license for a single state to create national policy....Florida is not required to recognize or apply Massachusetts' same- sex marriage law because it clearly conflicts with Florida's legitimate public policy of opposing same-sex marriage.

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