You’d think. It would be by any rational reading of the constitution.
However this conservative court has shown it can rationalize bad decisions that suits their personal inclinations more than the law. Kelo and Citizens United leap to mind as egregious ones that even Tea Baggers and OWS can agree on (which is saying something).
Here’s the clause
[QUOTE=FF&C]
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.
[/QUOTE]
Bolding mine. The argument is that Congress is not ignoring the Constitution, by prescribing by general law (DOMA) the manner in which these acts, records, and proceedings (gay marriages) shall be proved (they cannot be enforced against a state which doesn’t allow it) and the effect thereof (nothing).
IANAL but seems to me that says how a given judicial proceeding may be proved and the effect. NOT that they can tell states to not give full faith and credit at all.
Considering hetero marriages and how they are adjudged are well established I do not see how they can wave a wand and tell states they can ignore the exact same thing for same-sex couples.
FFC case law suggests, per the SC, that a state is not bound to honor the acts of another state IF it violates thier own Public Policy.
They already have, in 1971. A State banning same sex marriages does not violate the federal constitution.
Isn’t it within the bounds of the plain meaning to say that they can set a standard of proof to be that a certain document is not proof of anything? And that the effect of that proof is nothing?
A parallel is the interstate commerce clause. Congress is allowed to “regulate” interstate commerce. Over a hundred years ago, Congress made it against the law to transport lottery tickets in interstate commerce. It went to the SC on the argument that “regulate” did not mean to ban entirely. The Court agreed with Congress.
What if I own a license to operate a brothel in Nevada? Should a Mississippi city have to honor that license and let me put a whorehouse on Main St.?
Agreed. The point of the amendment is to clip the wings of the NC Supreme Court should it decide that SSM is protected under the North Carolina constitution.
California, however, was a bit different because the Court there had already ruled SSM a right and the amendment reversed that right. The opinions of the District Court and the 9th Circuit made much of taking away a right that was already there. It would be different in NC if same-sex couples never had the right to begin with (maybe).
If that is how the SC has held things then that is how it is.
Just seems to me to make a mockery of the FF&C clause. In essence, from what I gather you are saying, a state can indeed ignore the legal proceedings of other states if they want to. There really is no impediment to it.
No. Congress decides how states must recognize legal proceedings from other states. If Congress says that concealed weapon permits must be recognized nationwide, then they must. As of now, they are not.
But where would you draw the line? Must MS recognize my Nevada brothel license?
And in 1986 they ruled that laws making sodomy illegal were perfectly fine.
Even with FFC, some marriages (between cousins, for example) performed in some states are not recognized in others.
Right. FF&C is for the ease of transacting business or living life in different areas where public policy doesn’t fundamentally differ. It’s not a method for forcing a policy on a place that doesn’t adopt it.
It would be silly for an adult, non-related heterosexual couple to have to get a new marriage license in every state in which they live. Every state recognizes this kind of union, it’s not controversial, and there is absolutely no reason to devote state-by-state resources to harass people into getting remarried every time they move.
Now, this being GQ, it goes without saying that SSM is one of the most controversial topics of the day. As such, it should be debated in the legislatures and ruled on by the courts. It shouldn’t be imposed on all 50 states simply because one state instituted it. That would be a terrible precedent to set for all laws, leaving SSM aside.
If we did that, forget about any state-by-state regulation of anything. One state could have a judicial proceeding that granted a person a permit to masturbate in public schools at lunch time, and by this expanded definition of FF&C, every state in the country would have to honor it. The Supreme Court has held that this is not correct.
You made a great case for bringing back anti-miscegenation laws in states that want them. Only thing stopping them is the Supreme Court said that is not allowed…hmm.
Right…the Supreme Court said that isn’t allowed. If it decides that laws against SSM aren’t allowed, then we will have the same thing without the FF&C clause.
But, until we get to a constitutional aspect of a right being regulated, there would be no state law that could survive such a broad application of the FF&C clause unless all 50 states agreed to that law.
Pick a law, and one state could grant a permit to break that law which would then have to be honored by all 50 states. It would destroy federalism.
Yeah, I know that’s the argument made in the 9th Circuit decision. I’m of the opinion that the decision was made that way for realpolitik reasons: ie, so that the US Supreme Court (especially Kennedy) would have a harder time overturning it, and so that they’d have an easier time sustaining it without worrying about the decision applying to all the states. It’s written that way for tactical reasons. I believe (but of course we’ll never know) that they’d still have overturned prop 8 with a more general argument if they’d hadn’t had a nice narrow one to make.
And, of course, the way things played out with prop 8 in CA make the strategy that the backers of the NC amendment are taking quite valid. Since we’ve seen a (relatively) high court decide that removing the right to SSM after it’s been granted is unconstitutional, it’s all the more important to put as many obstacles to legalization in place before it becomes legal, because it may be a legal decision that you can’t undo.