Tim’s post on Eric Holder reminded me of something I’ve been meaning to ask y’all.
Over the past two weeks I have heard a new talking point repeated on all the talk radio stations, and I’ve been trying to puzzle out whether it is a valid but obscure legal point or just making s**t up. Bear in mind that my question has less to do with whether or not SSM should be legal, and more to do with the precise way in which the law works.
The talking point has to do with what people (myself included) refer to as “Same Sex Marriage Bans.” The point being made lately is that the GOP does not support these bans, and furthermore that these “bans” are mythical and do not exist, either as law or policy proposals.
As a way to illustrate their talking point, the law in my own state (that I think of as a ban) is the following amendment to our state constitution which was implemented in 2004:
“It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”
The argument I am hearing conservatives make says, correctly, that there is nothing in that amendment’s wording that mentions same-sex marriages, and that nothing is explicitly banned. Therefore, they continue, there is no ban on SSM in Oregon; further, the GOP has never supported such a ban.
Now, I have little doubt that practically speaking this argument is an attempt for conservatives to have their cake and eat it too — a kind of precarious set-up where they can provide each of their warring sides with bumper-sticker signs of solidarity.
But I am hearing it so often these past few weeks that I’m actually starting to wonder — does such a law not legally ban same-sex marriage in a strict legal sense? Is there some way that the state of Oregon can tell a previously legally married couple that they are no longer legally married, and no longer have access to the rights and privileges associated with married couples — and still not ban SSM? Or is it all just cynical BS?
Lawyers and policy wonks, educate me…