Due Process

Dear Reader:

Apparently, back in 2005, a Texas constitutional amendment was passed. It was called proposition 2, and it was sponsored by Rep. Warren Chisum. This amendment did two things:

• Prop 2 amended the state’s constitution to ban same-sex marriage by stating that: marriage in this state consists only of the union of one man and one woman.
• Prop 2 amended the state’s constitution to prohibit: creating or recognizing any legal status identical or similar to marriage.

So, Texas will not recognize a same-sex marriage performed outside of the State. The following is from the Texas constitution:

Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the
union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize
any legal status identical or similar to marriage. (Added Nov. 8, 2005.)

Traditional marriages, as we are all aware, are recognized (traditionally) across state lines. Usually, a marriage performed in one state is recognized in another. Obviously, same-sex marriages performed in other states will not be recognized in Texas.

In Other News:

Loving vs. Virginia was a landmark U.S. Supreme Court case decided in 1967. (One year after my birth.)

In Loving vs. Virginia, decided June 12, 1967, it was decided that a law preventing inter-racial marriage was unconstitutional. ‘This does not seem relevant’, you say to yourself. But, how was this conclusion reached? Was it because all racial matters must be applied equally? Is this from the Bill of Rights at the Federal level?

What do the Equal Protection and Due Process Clause of the Fourteenth Amendment mean? Perhaps answering this question is an ongoing process.

“Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications held to violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.”

In Fundamentals of American Law, by Alan B. Morrison, the Equal Protection Clause is explained to have “evolved into a broad charter of equal treatment that reaches beyond race to protect women, aliens, illegitimates and other ‘discrete or insular minorities’ who have historically been short-changed in the political process.”

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. “ - MR. CHIEF JUSTICE WARREN in the delivery of his opinion in Loving vs. Virginia.

In my opinion, and I am not a lawyer (as you can surmise by my writing), the statute in the Texas constitution (passed by the voters) seeks to deny a certain group a given essential right without due process. The state of Virginia sought to prevent inter-racial marriages and it was found to violate the Equal Protection and Due Process Clause. These clauses would seem to apply even if race is not a factor.

In June 1958, an inter-racial marriage was performed in the District of Columbia "pursuant to its laws." The Lovings returned to Virginia "and established their marital abode in Caroline County.” I read this in the summary of Loving vs. Virginia. I am paraphrasing. This is now history and we now take for granted the legality of inter-racial marriage. We take for granted that states cannot regulate the inter-racial marriages away...without...Due Process?

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." -trial judge quoted in the summary of Loving vs. Virginia. Read the decision. It fills one with hope.

Onwards...

“Other central provisions in the Virginia statutory scheme are 20-57, which automatically voids all marriages between "a white person and a colored person" without any judicial proceeding, 3 and 20-54 and 1-14 which, [388 U.S. 1, 5] respectively, define "white persons" and "colored persons and Indians" for purposes of the statutory prohibitions.” -again, from the summary of Loving vs. Virginia.

This would seem to be in essence how the Texas constitution voids marriages performed outside the state that would not be recognized within the state...without due process; automatically. Texas negates marriages with the stroke of a pen.

Is the absence of due process only a problem when it applies to different races? Are we all entitled to due process?

Due Process: The In Thing this Season.

Does the Fourteenth Amendment apply when states deprive any person of life, liberty, or property without due process? It would seem that the states cannot deny any person fundamental rights without due process. The original Bill of Rights (Federal) is made binding on State and Local governments.

Beginning with Gitlow v. New York, states were not only constrained by their own Bill of Rights, but the Bill of Rights through the conduit of the 14th Amendment.

...And that’s my legal opinion for today.

By,

James Legare