Kentucky ban on gay marriages from other states struck down by federal judge

[True Federalist (진정한 연방 주의자)]

Good news!  Now, if only we can strike down the ban on gay marriage in-state too.

Indeed, they should have been both struck down simultaneously, and there is no justification for doing this half measure. This is a terrible decision that ignores all precedent concerning the full faith and credit clause.  The judge should either have struck the ban down all the way and required Kentucky to recognize SSM performed in Kentucky as well as elsewhere, or the judge should have left it alone if he couldn't bring himself to do that.

This moderate heroish decision that means that Kentucky doesn't have to recognize SSM done within the state, but does have to recognize those performed in other states is a terrible misapplication of the full faith and credit clause.  The clause does not allow other states to force their laws on other states, but only requires that if two states do essentially the same thing, then once it is done in one state it is recognized in other states without having to be redone or relitigated despite any minor differences in procedure that might exist.  Hence there is no constitutional requirement that a state recognize SSMs done in other states unless it recognizes them done within its own boundaries.

[True Federalist (진정한 연방 주의자)]

That implies that a same-sex marriage is something different from a marriage.

Didn't the judge effectively imply that by his ruling since his limited scope meant that as far as in-state marriage is concerned, same-sex marriage is not the same as opposite-sex marriage.

Good news!  Now, if only we can strike down the ban on gay marriage in-state too.

Indeed, they should have been both struck down simultaneously, and there is no justification for doing this half measure. This is a terrible decision that ignores all precedent concerning the full faith and credit clause.  The judge should either have struck the ban down all the way and required Kentucky to recognize SSM performed in Kentucky as well as elsewhere, or the judge should have left it alone if he couldn't bring himself to do that.

This moderate heroish decision that means that Kentucky doesn't have to recognize SSM done within the state, but does have to recognize those performed in other states is a terrible misapplication of the full faith and credit clause.  The clause does not allow other states to force their laws on other states, but only requires that if two states do essentially the same thing, then once it is done in one state it is recognized in other states without having to be redone or relitigated despite any minor differences in procedure that might exist.  Hence there is no constitutional requirement that a state recognize SSMs done in other states unless it recognizes them done within its own boundaries.

Um, except that the decision appears to have turned on the equal protection clause and didn't involve the full faith and credit clause at all. The judge held that recognizing some out of state marriages but not others was an equal protection violation. It's just a narrow decision. The judge didn't strike down the larger marriage ban because that wasn't the specific question before the court (similar to the Ohio decision that only invalidated the state's gay marriage ban as it applies to death certificates). Of course if the next case in the same court involves a couple seeking to get married in Kentucky, the precedent would suggest that the state's ban must be overturned entirely. 

If that was indeed his reasoning, he goofed.  Equal protection does not apply to the recognition of out-of-state contracts, including marriage.  Full faith and credit does.  If he wanted to use equal protection to require full recognition of out-of-state SSMs, he needed to strike down the ban entirely.  As I understand it, the death certificate case in Ohio also impacted some out of state property issues, in which case Ohio's refusal to apply its death certificate procedures to a SSM led to some full faith and credit problems.

[True Federalist (진정한 연방 주의자)]

That implies that a same-sex marriage is something different from a marriage.

Didn't the judge effectively imply that by his ruling since his limited scope meant that as far as in-state marriage is concerned, same-sex marriage is not the same as opposite-sex marriage.

Good news!  Now, if only we can strike down the ban on gay marriage in-state too.

Indeed, they should have been both struck down simultaneously, and there is no justification for doing this half measure. This is a terrible decision that ignores all precedent concerning the full faith and credit clause.  The judge should either have struck the ban down all the way and required Kentucky to recognize SSM performed in Kentucky as well as elsewhere, or the judge should have left it alone if he couldn't bring himself to do that.

This moderate heroish decision that means that Kentucky doesn't have to recognize SSM done within the state, but does have to recognize those performed in other states is a terrible misapplication of the full faith and credit clause.  The clause does not allow other states to force their laws on other states, but only requires that if two states do essentially the same thing, then once it is done in one state it is recognized in other states without having to be redone or relitigated despite any minor differences in procedure that might exist.  Hence there is no constitutional requirement that a state recognize SSMs done in other states unless it recognizes them done within its own boundaries.

Um, except that the decision appears to have turned on the equal protection clause and didn't involve the full faith and credit clause at all. The judge held that recognizing some out of state marriages but not others was an equal protection violation. It's just a narrow decision. The judge didn't strike down the larger marriage ban because that wasn't the specific question before the court (similar to the Ohio decision that only invalidated the state's gay marriage ban as it applies to death certificates). Of course if the next case in the same court involves a couple seeking to get married in Kentucky, the precedent would suggest that the state's ban must be overturned entirely.  

If that was indeed his reasoning, he goofed.  Equal protection does not apply to the recognition of out-of-state contracts, including marriage.  Full faith and credit does.  If he wanted to use equal protection to require full recognition of out-of-state SSMs, he needed to strike down the ban entirely.  As I understand it, the death certificate case in Ohio also impacted some out of state property issues, in which case Ohio's refusal to apply its death certificate procedures to a SSM led to some full faith and credit problems.

Who ever said equal protection doesn't apply to recognition for out of state contracts?

Look at it this way: The out of state contracts will be identical for a straight couple and a gay couple. Let's say you have two couples from Connecticut. Couple A is straight, couple B is gay, but their CT marriage licenses are both equally valid and will not differ in any way. The physical documents themselves will be identical and will contain exactly the same terms and language except for the names of the parties. If Kentucky chooses to recognize and enforce couple A's out-of-state contract but chooses not to do the same for couple B's identical contract, and Kentucky has no legitimate non-discriminatory reason for doing so, then Kentucky's disparate treatment of the people involved  (the people, not just the contracts) violates the 14th amendment's equal protection clause.

But under Kentucky law, a marriage contract can only be entered into in certain circumstances and only conveys particular defined benefits.  Applying equal protection in this way allows one state to make laws for other states and that is most definitely not the intention of either the equal protection or the full faith and credit provision.  This is a bad decision because it means other states can make laws that must be applied in Kentucky even if Kentucky has explicitly chosen to not have such a law.  If one were to apply this logic, pre-13th Amendment, then no State could have banned slavery without all of them having banned it, since an employment contract that was the equivalent of slavery could certainly have been entered into in South Carolina for example, and then the "employee" could accompany his "employer" to Massachusetts and remain bound to that term of service. (To be fair, some alarmists felt that the Taney court was ready to do such a thing in a future slavery case after Dred Scott.)

The effect of the decision is admirable, but it is bad law that is contrary to the Federal nature of our union.

[True Federalist (진정한 연방 주의자)]

McConnell is being attacked by his primary challenger over this
http://talkingpointsmemo.com/livewire/bevin-links-judge-to-mcconnell-same-sex-marriage

Isn't Bevin supposed to be the "limited government" guy?

Isn't recognizing fewer marriages one way of limiting government?