They can actively select, for the reasons I enumerated earlier regarding the FFC clause. Ohio isn’t require to recognize Massachusetts arrangements insofar as those arrangements violate Ohio public policy. The legal niceties of how Massachusetts goes about creating those arrangements doesn’t change that analysis at all.
Dewey, this is growing tiresome. the only “absurd” thing is this strawman you’ve set up about what I’ve said.
You want to know where you’ve said that the state can ignore the federal constitution? It’s every time you’ve asserted that the case was decided only an a special definition of due process that applies only in MA, with the federal concept being somehow something entirely different. It was not, and could not be, decided “wholly on state law” as you so blithely assert. It’s in your ignoring the fact that the case laws referred to in the MA opinion are federal ones. The overlap of concepts cannot be avoided. You still refuse to explain why they would have done that, unless it was precisely to *prepare * for federal review, something I’ve said several times already without effect. Now how the hell could gays in MA be discriminated against under state DP considerations while not under federal DP ones if the protections are essentially the same? Please.
Yes, theoretically, a state court could flout federal constitutional rights in reaching a decision, but only at the risk of being overturned in federal courts on that basis. So what’s your point - that a ruling only stands until it’s overturned?
Bricker, of course federal review hasn’t happened yet, it’s only been a few months since the first ruling. But do you really think it won’t or can’t?
False quiz argument there. The VA constitution grants a right to state defendants that the federal one does not grant to federal defendants. There is no conflict in that example. In MA, the state constitution grants essentially the same rights as the federal one does. The state cannot rule on state law without considering compliance with federal rights. Last I checked, MA was still part of the Union and its citizens still enjoyed all rights guaranteed by the federal constitution.
I agree that this is growing tiresome – your willful embrace of ignorance is quite astonishing. Or perhaps not.
:rolleyes:
I’m not sure how many times I have to explain this before you get it through your thick skull, but here goes:
This case was decided on the provisions of the Massachusetts constitution. The fact that the federal constitution arguable contains similar provisions is wholly irrelevant. The federal constitution simply doesn’t play a role in the Massachusetts decision.
However, this doesn’t mean that a state can “ignore” the federal constitution. As I’ve said repeatedly, if there is a conflict between state law and federal law, federal law wins.
The key to this particular opinon, however – the singular fact that you simply do not appear to grasp – is that there is NO CONFLICT between the federal constitution and the Massachusetts constitution as interpreted.
It can, and it was.
And you keep ignoring the fact that this is irrelevant to the point that the case was decided strictly on state law grounds. The citations to federal cases are no more binding insofar as the meaning of the Massachusetts constitution than citations to law review articles or to scholarly treatises. The court is just saying that it finds the reasoning in those cases persuasive, not that those cases compel any particular result.
And you still haven’t explained upon what possible grounds this opinion could be subject to federal review.
Seriously, dude. This is not some arguable point between strict constructionists and living constitutionalists. This is plain 'ol black-letter law of the type they teach you on the first day of law school. This isn’t a matter for debate. You are plainly, indisputably, factually wrong.
For the same reason that certain types of free speech are not protected under the federal constitution and yet receive protection under the New York constitution. For the same reason that in Bricker’s hypothetical, the Virginia constitution can provide broader double jeopardy protections than the federal constitution. The federal constitution only establishes a irreducible minimum of protection – state constitutions are permitted to more expansively define the terms of their own constitutions, even when those terms are strikingly similar to terms in the federal constitution.
Again: there would be no basis for the federal courts to overturn the Massachusetts decision, regardless of what that decision might have been. Massachusetts, in determining that its state constitution demands recognition of gay marriages, does not “flout federal constitutional rights,” nor does it conflict in any way with any other aspect of federal law.
And had they decided in the opposite direction, the same would hold true – if they had decided that the Massachusetts constitution did not require recognition of gay marriage, that decision also would not be subject to federal review. The federal courts might, at some later date, hear a challenge suggesting that the federal constitution demands recognition of gay marriage, but that decision would be quite independent of the current determination of the Massachusetts high court about the meaning of their state constitution.
Did you even read Bricker’s hypothetical? His Viriginia law tracks the language of the federal constitution even closer than the due process and equal protection language of the Massachusetts constitution.
The point, again, for the umpteenth time, is that state constitutional provisions can provide greater protections than the federal constitution, even when the provisions in question read in a strikingly similar fashion. The determination of such state protections in no way impacts the way the federal constitution’s protections are intepreted.
No.
No, no, no. A state law (from a legislature or a court) that applies LESS protection that the federal constitution may be reviewed and overturned. A state law that provides more protection than the federal rule is safe.
Right. It won’t. It can’t. There can be no review of this decision. It rests on Massachusetts law. The highest authority on interpretation of Massachusetts law has spoken. THERE CAN BE NO FEDERAL REVIEW.
No, no, no. You fail the quiz.
The Massachusetts court ruled that the Massachusets constitution does NOT grant the same rights as the federal constitution. The rights granted in Massachusetts are more extensive than the analogous rights in the federal constitution.
And again, if you were correct, you’d be in trouble, because the Supreme Court would be unlikely to reach the same conclusion the Massachusetts court did. But we will never know, because the Supreme Court has no authority whatsoever to modify a state court decision that interprets and applies state law, unless that interpretation of state law is NARROWER than the federal guarantees. A state may offer MORE rights than the federal system, but not less.
This is why commentators everywhere are saying that the only way to change the situation in Massachsetts is to amend the Massachusetts constitution. Not one mainstream commentator has speculated on whether the Supreme Court will take this case… BECAUSE THE SUPREME COURT CANNOT.
I begin to understand why we have such a disconnect on these discussions. Even when the outcome does not favor you, you seem to believe the US Supreme Court is the ultimate arbiter of all things. I grant you points for consistency, but no points for understanding the system of dual sovereignty. This ruling cannot be touched by the Supreme Court.
Period.
- Rick
Does this not give the lie to your contention that this issue should be decided state by state, and is not in need of a national solution? Gays may be marrying in MA in a few months, but they still won’t have equality, even in MA, if the federal government refuses to recognize them.
Nitpick: a state constitutional provision that provides less protection than the federal rule also won’t be reviewed and overturned. It just effectively becomes irrelevant because the federal rule provides an irreducible minimum.
An example: suppose New York state decided to eliminate all free speech protections from its constitution. That decision would not be subject to federal review. However, if New York then decided to pass a law that infringed on free speech, that law would be subject to federal review.
No, it just means they need to fight to have the DOMA overturned (which I’d like to see happen, BTW). Again, these battles should be won in the legislature, not the courts.
Yup. What he said.
The United States Constitution is self-defined as “the supreme law of the land.” Where it speaks, all courts must pay attention.
But by the “federal question” doctrine, when the U.S. Constitution is silent on an issue or where it leaves a given area of law in the hands of the states, then the state courts are supreme in that particular element.
What is the proper punishment for driving while intoxicated? Unless one is drunk driving in D.C. or on a Federal reservation, the laws of the state are supreme. A trial must conform to “due process” standards and may not impose a “cruel or unusual punishment” on conviction, but beyond that the states are free to slap the wrist of, or imprison for several years, the convicted drunk driver. If they’ve met the minimal procedural safeguards of the U.S. constitution, they’re free to make whatever judgment they choose – it’s a state, not a federal, question.
Present U.S. law prohibits double jeopardy for the same crime – holding that someone committed crimes against both state and federal law is not considered double jeopardy; they’re distinct crimes. If a state chose to regard the federal law as incorporating the state law, and protected its citizens against state prosecution after conviction in a federal court for the same illegal act (which is a crime under both sets of law), it would be entitled to do so – it would be extending a right beyond the Federal standard. However, stating that someone may be retried after being acquitted in a properly conducted criminal trial of a crime would constitute double jeopardy, and would improperly restrict a guaranteed right under the U.S. Constitution.
…and your point, Poly?
…was to attempt to illustrate the less protection/more protection turn that the discussion had taken.
My apologies for trespassing on your turf!
A less-patient man than Polycarp might have said that his point was to show that your gotcha attempt had failed of its own inconsistency. Mine would have been that the state decision does touch upon the issue of rights granted under the federal constitution, laws passed by the federal government, the implications on federal laws and regulations from having the inconsistent nationwide application of a basic, widespread institution, the virtual inevitability of it having to be dealt with at a federal level (not entirely by the court system), and the need to prepare for that debate, even preemptively. The MA justices demonstrated, between the lines if not always in them, that they’re aware of being actors in a political drama, and not operating in a dry, hermetically-sealed environment of briefs and rules of evidence and such.
To try to restrict one’s own discussion of a legal matter with political ramifications to the legal ones themselves misses a large part of the point, and maybe all of it. But then we’ve gone over that with you before, haven’t we?
No need; I just figured you had an angle in there somewhere that I wasn’t seeing. 
And that inconsistency would be…what, exactly?
False. Unless you’d care to expand on this theory?
False. Unless you’d care to explain how the state decision impacts federal law in any way?
False. As already noted, the only aspect of the federal constitution that touches on this is the FFC clause, which does not apply, and which is not mentioned at all in the Massachusetts decision. And quite properly so, since state courts are not arbiters of federal constitutional law.
Arguably true, but not a matter for the Massachusetts state courts. This kind of thing falls within the realm of political op-ed, which is not the business of the courts, state or federal.
False. Even if the judges had expressed an opinion on potential future federal issues and their resolution (which would be a fairly improper injection of political opinion into a judicial decision), such an opinion would be mere dicta, and not an operative part of the opinion.
I’m not restricting the discussion to legal issues. What I am doing is correcting your manifestly incorrect view of how the legal side of these things work. Again, this is black-letter law type of stuff – it isn’t a matter of our having differing, debatable positions here, it’s a matter of your view of things being demonstrably, factually wrong.
Okay, so I’ve been reading DCU and Bricker discuss the legal ramifications here to federal law, and I’ve got a question: some conservative pundits I’ve read fear that the massachusetts decision will directly lead, and contribute positively to, a Supreme Court challenge that will force all states to recognize gay marriage. Some in this argument have invoked the FFC clause. Now, reading these two actual legal-type people talk about it, I’m confused. Is there a legal way for these pundits to be correct? Why or why not?
There’s no way for the pundits you describe to be literally correct – that is, there is no way for the Supreme Court to review the Massachusetts decision. It’s a done deal.
This doesn’t mean that the federal judiciary won’t come into play as a collateral result of the Massachusetts decision. A couple undoubtedly will marry in Massachusetts, move to another state, and sue under the FFC to have their marriage recognized by that state. While both Dewey and I believe that this effort will fail, it’s admittedly not a rock-solid, you-bet-your-life proposition. I would be surprised to be wrong, but not so much so that my entire world-view would be rocked to its foundations.
The idea that the Supreme Court can review the Massachusetts decision because it involves federal law in some way, as Elvis keeps suggesting, is utterly wrong, and lawyers of all political stripes would agree with this analysis.
- Rick
Bricker: Ah, I see. That clarifies things quite a bit for me. I’ll have to reread your earlier posts to see why exactly you think that a collateral challenge based on the FFC would fail; this is where you and the more alarmist social-conservative pundits disagree.
Just to ask, is that belief the reason why you think a state-by-state solution is practical? Because it occurred to me that if you thought that a challenge based on the FFC would be successful, then there’s no way you’d think that a state-by-state answer would ever hold up. (This seems to be, again, the view of the more alarmist social-conservative pundits.)
As a BTW (and not addressed directly at Bricker), I also read Andrew Sullivan point out that the Musgrave amendment (which he also seems to think is the one being taken the most seriously at this point) doesn’t necessarily bar civil unions, though many of its supporters think it does. This was the first time I’d heard of opposition to gay civil unions as well (though it makes clear, perfect sense in hindsight, given even the most basic poll news on this issue; ignorant me). It boggles my mind how some people think that any joining of gays of any sort whatsoever is a danger to the social fabric of the country (though, again, it shouldn’t surprise me, given that article I found on how Scandanavian marriage as a concept has been completely ruined by those damn gays). Astounding.
I think a state-by-state solution is practical both because the FFC challenge will fail, and because it’s the result mandated by an honest and correct interpretation of the federal constitution.
My view does involve federal law to this extent: I would allow residents of a state that permits civil unions (or same-sex marriage) that are married or joined in such union to file federal income taxes at the married joint rate.
I would repeal DOMA to the extent it conflicts with that rule.
- Rick
I think a state-by-state solution is practical both because the FFC challenge will fail, and because it’s the result mandated by an honest and correct interpretation of the federal constitution.
My view does involve federal law to this extent: I would allow residents of a state that permits civil unions (or same-sex marriage) that are married or joined in such union to file federal income taxes at the married joint rate.
I would repeal DOMA to the extent it conflicts with that rule.
- Rick
If I’m reading the interpretation of FFC properly, the principle of comity requires that a state give FFC to the actions of another state to the extent that the differing perspective of the other state does not conflict with the “legitimate public policy” of the first state.
In other words, Mississippi cannot simply say, we reject the decisions of Idaho courts on the estates of Idaho citizens who own property in Mississippi – they have to honor wills probated and valid in Idaho so far as transfer of ownership of Mississippi property is concerned.
But a Nevada divorce, though deemed valid in Connecticut, does not require Connecticut to follow its decisions as regards property owned in Connecticut by the Connecticut resident being divorced, if such decision is contrary to the public policy of Connecticut.
However, the catch here is what a court deems to be “legitimate public policy.” In the examples I earlier gave, Virginia’s public policy against miscegenation was deemed not to be “legitimate” by SCOTUS.
Personally, I feel that that rule of law gives far too much scope for what is truly judicial legislating – what parts of what laws constitute “legitimate public policy”? Pick your judges carefully to get one that agrees with the outcome you look for. But it is the state of the law today, AFAICT.