You should really read the footnotes to the passage you cited. All of the cases cited are to state court decisions interpreting their state’s laws regarding marriage; none of them deal with the full faith and credit clause, and none of them involve federal courts. While the cases cited could be used to argue that some states have been willing to expansively read their own laws about marriage when dealing with out-of-state marriages, they cannot be used to argue that the full faith and credit clause requires recognition of certain out-of-state marital arrangements. You are conflating interpretation of a particular state’s domestic laws with interpretation of the federal constitution.
And while the cases I cited did not deal with marriage directly, they do deal with related aspects of family law that are no less fundamental (divorce is a subset of marital law, and adoption is no less solemn than marriage). I think they persuasively argue that the FFC clause would not require interstate recognition of one state’s gay marriage laws.
I confess to a substantial lack of understanding and a fair amount of discomfort at the fit between the “full faith and credit” requirement and the “legitimate public policy” exclusion. For example, might not Virginia’s right to withhold recognition of the marriage between the Lovings that always gets brought up in these discussions be considered a part of its “legitimate public policy”? Might a state requiring a significant waiting period on a divorce refuse to recognize a Nevada “quickie” divorce on th same grounds?
There is obviously some sort of guide to what constitutes “legitimate public policy” that would exclude miscegenation law but include some of the acts that have been upheld – but exactly what those guidelines are escapes me. Any of our resident jurisconsults want to take a stab at explaining it?
Antimiscegenation laws are unconstitutional under the equal protection clause – no state is allowed to have such laws on their books, period. The FFC clause doesn’t even enter the picture.
But I believe the answer to your Nevada example is “yes;” indeed, that appears to be pretty damned similar to the result in Estin v. Estin I linked to earlier. States continue to recognize quickie Nevada divorces because they want to, not because the constitution compels them to.
Yes…and what happens, exactly, when the ruling becomes effective?
You miss my point. The problem is not that the SC is requiring the leg to rewrite the law. The problem is that the SC is breaking out the white-out and rewriting the law themselves.
In the first place, when you tinker around at such a fundamental level with an institution that is thousands of years old, that not only predates the State but even the idea of a State, you are going to cause upheaval. Do they lack the courage of their convictions?
In the second place, they could have struck down the law but given the same grace period, in which case I am quite confident the legislature would have taken some kind of action.
I do not consider paperwork reduction to be an excuse for courts legislating from the bench.
I’m sure they do this, but where do you get this “must”? Is it written in the MA constitution?
And here you get to the core of my problem. I have not read the MA constitution, but I am quite sure it does not delegate to judges the authority to issue marriage licenses.
Same-sex couples who apply for marriage licenses will be granted them. What are you getting at?
Please explain in more detail how you conclude that the SC is rewriting the law themselves, instead of giving the Legislature the chance to do it.
Please explain where you get the idea that “traditional” opposite-sex marriage is affected at all.
See above question. You can’t have it both ways, for one - either the legislature or the court is “changing” the law. For another, the legislature has not acted yet, and may not at all. As I said already, they haven’t found a way yet to do anything that can stand up. Please explain the source of your confidence to the contrary.
No, but they can and do control the laws and administrative procedures under which civil servants act.
The (very convincing) concurring opinion in MA was, in fact, based on equal protection rather than due process, although the Justice who wrote it also signed the majority opinion.
Polycarp, your answer may be that “legitimate public policy interest” is whatever the public says it is, via the political process. That obviously depends on time and place. While Mass. looks like it’s going to look to the future, Ohio’s legislature looks like it’s going to define banning gay marriage under the very rubric of the state’s claimed interest in defending traditional morality etc.
I consider the Massachusetts decision, from what I know of it, to be a fine example of judicial self-restraint.
Reading the Constitution of the Commonwealth, the Supreme Judicial Court understand its guarantees to include the right to marry the person of one’s choice if one so chooses. They considered, in response to an actual controverted case brought before them, that the present marriage law unduly interferes with that right, and is thus in contravention of the state constitution.
Rather than declaring the law void as unconstitutional as an immediate judicial act – which is their right and duty under judicial review – they ruled that in their understanding it did conflict with the constitution as both are presently worded. Then they suspended the execution of their ruling for six months to enable the General Court (state legislature) to act to bring one into conformity with the other.
In doing so, they made the ruling which their understanding of the state Constitution required of them, but refused to substitute their judgment as to what the state’s public policy on a hot-button issue ought to be for that of the legislature, giving the latter time to confront the contradiction they identified and act to resolve it.
One grants that the state constitution does not address gay marriage, nor did it ever intend to do so. But the U.S. Constitution never addressed many of the dozens of issues that have been brought up under it, too. A constitution – any constitution – defines powers and rights in broad language, getting specific only when particular controverted issues have caused it to be written or amended to deal specifically with them. If the rights and privileges of citizens of Massachusetts include the right to marry the person of one’s choice, the two parties being unmarried adults wishing to marry each other, then two persons of the same sex are not explicitly excluded from that right by it. If the Commonwealth statute limiting marriage to persons of opposite sex is to be considered valid under the state’s constitution, then wording to that effect needs to be included in it – or the statute changed to conform to the constitution.
If the legislature refuses to act to change either within the six months, then the law’s prohibition of gay marriages is voided after the six months are up and the suspension of the court’s ruling expires. But the court gave the legislature time to make the fix, whichever way it sees fit. To do anything else would be to abnegate its responsibilities under American jurisprudence, and to engage in one form or another of judicial activism.
I am getting at the fact that same-sex couples who apply for marriage licenses will be granted them, without that having been provided for by the law as written by the legislature.
That’s a loaded question, there is no “instead”. The SC is “permitting” the leg to rewrite the law to suit them, but with a 6 month deadline; if it isn’t met, then the SC will rewrite the law to, as you say, grant marriage licenses to same-sex couples.
In all honesty, in those last two points I don’t know what you are talking about, or what point you are trying to make.
They can and do, or should, only be able to “control” the laws to the extent of striking them down if found unconstitutional.
I vehemently, vehemently disagree.
There appears to be a profound misunderstanding here. Polycarp, you seem to be implying that the MA marriage law was written with gender-neutral language throughout, and then they stuck in a clause at the end of it saying “Oh by the way, a man can only marry a woman, and a woman can only marry a man.”
I haven’t actually read the thing, but I will give you 1000 to 1 odds, if you care to bet, that it doesn’t look like that. The law does not “prohibit” same sex marriage. It creates a state sanction for opposite sex marriage, ie marriage with the gender makeup it has had since before recorded history, and which people simply assumed it was supposed to have, up until very, very recently.
If the courts feel that it is unconstitutional for the state to create a law that delineates a state sanction for opposite sex couples, then the proper thing for the court to do is to strike down that law, not rewrite it to extend the sanction in a way the legislature never provided for or intended. That’s judicial activism.
Al, what exactly do you suppose the court should have done? Or do you feel that the law didn’t conflict with the equal protection clause (i.e., without reading the MA constitution (which I don’t expect anyone in this thread to) what part or parts of the majority opinion do you disagree with)? You indicate in your first post to the thread,
This means, as Polycarp noted, that they showed even more restraint.
They found the laws in conflict, and instead of rewriting the law flat-out, gave the legislature an opportunity to correct the problem. So is your position, being against judges “rewriting” law, that they should have just rewritten the law instead of giving the legislature the opportunity to amend it? Striking the law itself down would have accomplished [what] when compared to the existing ruling?
The Constitution take precedence over laws. The legislative and executive branch cannot act in violation of the Constitution no matter what laws they pass, or procedures they implement. The final arbiters of the Constitution’s meaning is the Supreme Court. Really, that’s Civics 101.
That may be due to the factually confused and logically-contradictory positions you yourself are taking.
Which is what they’ve done, or will have done when the clock runs out. The limitation of marriage to opposite-sex-only couples has been found unconstitutional and will be struck down barring legislative action to the contrary. What do you still disagree with?
quote]I vehemently, vehemently disagree.
[/quote]
Then it is up to you to explain, clearly, why.
Are you suggesting that a more proper course for the court to take would have been to eliminate government recognition of marriage entirely? That from someone defending a traditional institution? If not, please explain how what they’ve done is not what you think they should.
Their other option, a constitutional amendment of some sort meant to solidify discrimination in a manner the court can’t touch, would take until 2006, while in the meantime the marriages must be permitted anyway.
Interesting to note that it isn’t that there’s <i>no support</i> for continuing discrimination, indeed the governor has made comments that he supports it!, the lawmakers themselves do not feel they have the ability to create a discriminatory law that will pass both judicial muster <i>and</i> public opinion.
As I’ve said more than once, if the law was unconstitutional they should have struck it down.
Without having read the MA constitution I can’t say. I suspect that the judges indulged in some highly…creative interpretation in order to advance their political agenda.
I don’t understand why people keep bringing this up to defend the MA SC. Yes, they are graciously “permitting” the legislature to have a say in writing the law. But if the leg fails to act within their timeframe, then the SC will bring out the white-out and rewrite the law. I mean, really…if I am going to rob you at gunpoint, but then I say that I will graciously give you 15 minutes to hand your money over to me “voluntarily”, am I not still commiting robbery?
I’m not sure I understand the relevence of this question. The only thing the court is supposed to “accomplish” is to fulfill it’s duty to strike down unconstitutional laws. This has not happened, and won’t happen after the deadline. The law will still be in effect, it will simply have been changed, either by the leg or by the court itself.
And that’s why we have courts, to strike down laws that are unconstitutional. But the courts are not delegated the power to write legislation.
A lot of things may be true, but let’s stick to the facts, shall we?
See my response to Polycarp above.
Yes, exactly.
But I am not defending a traditional institution. Or, rather, I am not defending the traditional institution of marriage. For the purposes of this thread, you may consider me agnostic on the subject. I am defending the traditional understanding of the role of the courts.
Al, if you’re not going to try to understand what you’re being told, or even to read the source material, then any remaining disagreements you may have are on you, okay?
A situation was presented to the court. They found it unconstitutional. They’re letting the legislature fix it. An unconstitutional situation cannot be allowed to exist indefinitely, though, hence a time limit. But you think that’s *making * a law? It’s not. It’s doing what courts are supposed to do.
The law itself wasn’t; marriage isn’t unconstitutional. The implied discrimination was.
Read the decision. It’s right there in the OP, including dissenting opinions. They reference the MA consitution, yes, but don’t do so (I feel) in a manner that prohibits reasonably intelligent individuals from reading the arguments.
Your contention, then, is that they should have struck the law down, then, banning all marriage until suitable regulations are made? Huh? The law is assumed to be roughly valid, barring its discriminatory effects. Why throw the baby out with the bathwater? Check Bricker’s second post in the thread.
MA does not have a DOMA, like many states do. If it did, then the court could have struck it down. And it’s clear from the court’s decision, that a DOMA law would be struck down.
If you want to believe that the court is not being activist, you have to believe that for the last 250 yrs, the people of MA really meant for marriage to be between any two people, even of the the same sex. This certainly might be true, but only in the sense that invisible pink unicorns might exist.
Had the court wanted to take a non-activist stance, it would have allowed civil unions to exist for a time-gap necessary for the people (you know-- those guys who are supposed to govern themselves) to amend the constitution. If the people choose not to amend the constitution, then so be it. Let gay marriage blossom.
Or you might believe that, regardless of what the people might have thought one way or the other, the laws are unclear if not outright contradictory, and the state did not present a compelling argument warranting the discrimination.
Two and a half years to allow unconstitutional discrimination to exist? I see. Tell me: are the people still somehow forbidden from amending the constitution to enable the discrimination again? Has the court made it more difficult to do this in some way? Or do you figure that the default stance in the face of “equal rights” should be “Discriminate unless the constitution says otherwise”?
No. The logical conclusion is to assume that “the people” didn’t put DOMA type wording the law or constitution because marriage is commonly meant to be between people of opposite sex. The court can recognize that times change, but it should allow “the people” to write the laws. It has short-circuited the process that would alllow “the people” to clarify what marriage means.
No. The default stance is to enterpret the consitution as it was written. Marriage has always meant “between a man and women” in this country. That is why the civil unions option should be allowed as an interim solution. It allow same sex couples the legal recognition they need until “the people” have a chance to express their will.
I don’t believe marriage is in the constitution. The equal rights part is.
The court never contested that “marriage” means “between a man and a woman.” The decisions said so, and I indicated it in the OP as well. What they contest was that the state could descriminate against others due to its own interests, semantics or not. The constitution forbids discrimination, absent a compelling state interest. The state did not demonstrate such an interest. I love semantics as much as (hell, more) than the next guy, but the fine art of quibbling over meaning is not a compelling interest for discrimination.
I have gotten to the point here where I really feel like I am talking past people. So I am going to quote myself here, from my response to Polycarp::
I will repeat for emphasis. The MA marriage law does not “forbid” same-sex marriage. It extends a state sanction to the pre-existing institution of opposite-sex marriage.
Please read all the cases cited in the decision, Wierd Al. It is not a privilege the state cooked up for white males back in puritanical times. It is a right the courts recognize which has been passed into law and denied to homosexuals.
Which is irrelevant to the point I was making. The Massachusetts court was interpreting the state constitution, not the federal constitution. Whatever rationale they elect to use, it has no applicability to the interpretation of the federal constitution, including the FFC clause.
Loving was decided under the federal constitution’s equal protection clause. Under it, no state is allowed to have miscegenation laws. Ergo, no state can possibly have the opportunity to deny benefits to out-of-state mixed-race married couples – they simply aren’t allowed to under federal constitutional law. Therefore, the FFC clause never comes into play on that particular issue (which is what Polycarp was asking about).
This is not the case with Massachusetts. Their state’s equal protection or due process clauses are not the same as their federal counterparts. Thus, the Massacushetts ruling only applies within Massachusetts, which sets up potential conflicts with the laws of other states, thus triggering FFC inquiry. And as I’ve demonstrated, the FFC clause will not require other states to honor Massachusetts gay marriages.