Tag Archives: Justice Warren

Our constitution, July 2012: Judicial review of constitutionality of laws

“Judicial review of constitutionality of laws”

I am not a lawyer, and not an American, but there are a couple of areas of US law that I have looked at with queer intensity over many years: and in particular, two areas of the US Constitution and the actions of its judicial regulator the Supreme Court.

Article Four, Section One of the US Constitution says

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Marriage and divorce have always been defined as included among the “public Acts, Records, and judicial Proceedings”: if you are married in the state of New York, so the original Drafters considered, you should not be able to move to Virginia and thereby make yourself unmarried.

After the US Civil War, many states passed legislation banning marriages which they considered to be unethical and unsuitable: cousin marriage. Even today, 30 US States have laws that make it illegal to marry your first cousin, or allow it only with specific exceptions (if one or both of you is sterile). Predictably enough, people who grow up in states where cousin marriage is banned, tend to think of it as some kind of weird icky relationship, bad for the children. (Where have I heard that before?)

First cousins marrying is culturally approved in some countries, culturally disapproved in others: first cousins can’t get married according to Catholic canon law (which is based on Roman law). But the US is the only country which, in the 19th century, up and passed laws against first cousins marrying – which are still in force in 30 states.

So what happens if you are first cousins who marry in a state where that’s legal and move to a state where it’s not? Continue reading

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