(Federal) income taxes normally have a statute of limitations, so to speak. 3 years to claim a refund. This isn’t exactly the same thing, although I will guess that “retroactiveness” is very limited. I have no idea what the dollar amount would be if they did that (and of course, like rebates, many wouldn’t bother filing an amended return). Technically, the IRS might also have 3 years to claim extra money from “marriage penalty” couples.
Each state would of course have their own rules and interpretations.
Estate tax would be refunded to her for that one year normally.
Can you explain in what sense SCOTUS can rule on whether the legislation is good or bad"? I seem to recall a lawyer around these parts (perhaps Bricker?) on more than one occasion stating that it was the job of SCOTUS to rule on the constitutionality of a law and not on whether or not it was a good or effective law.
It seems to me that if the court said that it is ok to use a formula to determine which states have to run the federal gauntlet to change their voting procedures but that the one being used was not a good one then they have done what that lawyer has said that they should not do.
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SCOTUS has determined that the Fourteenth Amendment allows Congress to infringe on state sovereignty to fix existing problems, but not to legislate to correct hypothetical ones. The latter form is called “prophylactic”. That means Congress has to have evidence before it when it legislates in this area.
For example, Congress could pass the Fair Housing Act because discrimination against minorities in sale and rental of homes was a known problem. Congress had huge volumes of testimony and documentation establishing that black people couldn’t buy or rent in numerous areas of the country, and that state authorities were subtly or openly complicit.
By the same token, Congress could pass the VRA in 1968 because it had a giant legislative record establishing that states and localities were limiting the voting rights of minorities. Thing is, the VRA as originally passed was a temporary measure; it was designed to sunset after 7 years. Each subsequent renewal is subject to the same limitations as the original legislation vis-a-vis the factual predicate, so for a challenge on those grounds it doesn’t matter if the legislation was previously upheld.
The current suit asserts that in 2005, Congress no longer had a sufficient factual predicate regarding minority voting infringements to support reauthorization of the Act.
With regard to the second part of your post quoted above, Congress probably was pretty certain about it in 2006, but that isn’t to say they were certain based on the evidence. In all probability, most congresscritters voted reflexively; after all, who would oppose voting rights? I’d have to go back and look at the legislative record to see how much actual floor debate and stuff there was, which I don’t have time for, though I imagine the SCOTUS briefs discuss it.
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In other words, it’s not about whether it was a good law. It’s about whether Congress had sufficient data to justify passing it, which isn’t the same thing. They could have written a really stupid law so long as the legislative history established that something needed to be done.
Does anyone here NOT think that we’ll see some party challenge a state’s anti-SSM law or constitutional amendment in federal court ASAP? I don’t think Kennedy can’t count on his retirement shielding him from having to weigh in on this issue.
There will be at least three challenges by the end of July. But remember that *Perry *was filed in late 2009. It would easily be another three or four years before it makes it back to SCOTUS. That probably doesn’t take Kennedy out of the picture, but the goal might be to have the issue mooted by state legislative or state law fights, or at least for the change to be even further along.
As Amy Howe of SCOTUSBlog is fond of pointing out, RBG can do 20 strict push-ups. That’s probably more than Chris Christie. I think she’ll retire when she’s good and ready, which will be in the Chelsea Clinton administration.
We’ve had dozens of challenges already. As a general rule, though, challenges have proceeded under state rather than federal constitutions because they tend to offer more protection (except in states where the constitutions have been amended to prohibit SSM, obviously.)
Remember that a) the Court doesn’t have to take every single case that floats up to it and b) they have a lot of ways to dodge making a substantive ruling if they so choose. Kennedy is the key vote on this. It’s fairly clear he’s pro-gay rights, but it’s also fairly clear that he’s not going to make a big sweeping decision until there’s plenty of political cover. So, if a challenge comes up, the four “liberal” members of the court will lobby him to decide in favor, he’ll refuse to do so, and they’ll settle for dodging it on procedural issues. (Meanwhile, Scalia will write a modestly warm dissent–it’s hard to get worked up to “fiery” on standing or whatever.)
Just wasn’t raised in this case (and probably couldn’t have been given the citizenship of the persons involved). I’m sure we’ll see plenty get started very soon; they’ll start percolating up to the Court in a few years.
Tactically, it’s a much more aggressive move to challenge it on FFC grounds; success would make gay marriage de facto legal in all fifty states, as all anyone would have to do is zip off to the state of their choice, meet whatever residency requirements that state imposes (has any state/city stepped up to be the gay Las Vegas yet? :D), tie the knot, and then head back home to enjoy full marriage benefits. I can see why The Homosexual Agenda has held off on it for now.
Because the corollary to the FF&C Clause is that “the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” Explicit delegation of a power to a branch = lots of deference.
I agree that any lawyer can try to distinguish. But for all of the dicta about federalism, Kennedy didn’t use that as his rationale. He used the 5th amendment “equal protection” clause.
If I’m the lawyer for MS in the next case, I’m hammering his federalism dicta all the way until my red light comes on, but I agree with Scalia that the other shoe is dangling. Kennedy wants to be retired or dead before it drops.
Because under FF&C it is Congress that determines the manner in which state judgments or proceedings are binding on other states. In this case Congress has determined: they don’t at all.
Further, the FF&C has never been used when a particular state judgment violates the public policy of the other state. Gun permits and brothel licenses come to mind as two things that aren’t recognized. Right or wrong, over 30 states have enshrined a public policy against SSM in their constitutions. That would be a hard nut to crack unless the Court does what is so far reluctant to do: declare that SSM is a fundamental right.
