The law and same sex marriage-- Part Two

One of the most common misunderstandings about the law involves a common phrase -- "It is against the law to...." (fill in the blank). Usually, when people use that phrase they are talking about some issue that could be enforced. Enforcement is a big deal. Let's look at the example of traffic laws. How many of my readers know that the police will not give you a ticket if you aren't speeding more than ___ miles per hour over the speed limit? This is an enforcement issue. The law is clear, exceeding the speed limit by even 1 mph constitutes a violation of the law. But we all know that the enforcement agencies (usually police, sheriffs or highway patrol) will only stop you if you exceed the limit by some arbitrary amount. Does the fact that the enforcement agency fails to enforce the law change the law? Not in the least.

The point here is that the "law" and what is enforced are sometimes vastly different.

Now, what do we mean when we say some activity is against the law? In my experience, most people only have a sort of vague understanding between civil and criminal law. From a legal standpoint the difference rather simple. Criminal laws are only enforced by governments. The plaintiff or complaining party in all criminal cases is the "state" or "municipality" or other governmental jurisdiction. Also, criminal laws routinely provide for incarceration as a consequence of a violation. In the United States there are very few civil violations that can result in going to jail. Civil laws, on the other hand may be enforced by a government entity or by a private citizen, but the remedy is monetary damages not a jail sentence. Because most people do not know the distinction, they use the phrase, "against the law" in both a civil and criminal context.

Now, is same sex marriage "against the law?" The simple answer is it depends on the jurisdiction. If a same-sex couple got married in Massachusetts and traveled to Arizona, would they get arrested? No. In that sense, same-sex marriage is not "against the law in Arizona." However, because of the Defense of Marriage Act (See my last post) Arizona does not have to treat the union as a "marriage." In this sense, a same-sex marriage is not against the law in Arizona or any other state where that form of marriage is not recognized, it is just not recognized as a marriage. Would Arizona's government authorities arrest someone because Arizona has a Marriage Amendment? Of course not, there is a vast difference between a failure to recognize a type of marriage and some sort of enforcement.

This is essentially the same issue that used to exist with divorces. Historically, many states had very restrictive divorce laws. On the other hand, some states, such as Nevada, had very liberal laws. People would travel to Nevada to get a divorce. However, the divorce may not be recognized in the person's state of residence. There are still substantial differences between the state's various divorce laws, just as there are differences between the state's marriage laws. That is not to say that a jurisdiction that did not recognize a Nevada divorce, could not pass laws making it difficult for a person with such a divorce.

Why is this distinction important? Because the rhetoric surrounding same-sex marriage is so lacking in contact with reality that in many cases it is impossible to carry on a rational conversation about the issue. One of the immediate and insistent claims made by those supporting same-sex marriage is that the citizens of Arizona (or whatever state) are depriving them of their "civil rights."

For example, Arizona is a community property state. If you make an estate plan in Ohio and then move to Arizona, you may find out that your plans do not work well or at all in Arizona. The laws are different. However, in both the estate planning situation and with divorces we don't have people claiming that their civil rights are violated merely because some states view the law differently and enforce their laws differently. It is sign of the political and social engineering aspect of the same-sex marriage issues that turn the differences into claims of violations of "civil rights" where no such rights exist or have ever existed.

More later.