The point that you seem to be overlooking is that when the Supreme Court deems a public policy “illegitimate” in the manner of Loving it is making a finding of unconstitutionality. That being the case, their decision immediately binds all fifty states – the FFC clause never comes into play because by virtue of the court’s decision two states are not allowed to have differing rules in the first place.
To use the miscegenation example: by virtue of Loving, racial restrictions on marriage are void as unconstitutional. Therefore there can never be a situation where Virginia is forced by the FFC clause to recognize a Pennsylvania mixed-race marriage, because by virtue of Loving Virginia is already required to recognize mixed-race marriages under the equal protection clause, for both marriages performed inside and ouside its borders.
Bricker: I concur, though I would go farther and repeal the denial of federal benefits aspects of the DOMA entirely. There’s more than just income taxes involved: there’s the unlimited gift and estate tax exemption (assuming the repeal fails to be made permanent), social security benefits, veteran’s benefits and the like.
(In fact, given that the other aspect of the DOMA is merely cumulative if the FFC clause doesn’t mandate state recognition of out-of-state gay unions, and irrelevant if the FFC clause does impose such a requirement – a statute can’t trump the constitution, after all – I’d say repeal the whole damn thing.)
I agree. There is no useful purpose served by DOMA whatsoever, assuming our FFC analysis is correct. Repeal it, and provide completely equal federal benefits of all stripes to civilly-oined or married same-sex couples of states which permit such unions.
Nitpick, yet again: it also serves no useful purpose if our analysis is incorrect, either.
If, contra to our analysis, the FFC clause mandates that states recognize other state’s gay marriages, then Congress can’t undo that requirement with a mere statute.
I see the point you are making clearly – but I was not using Loving as an example of FFC, but rather referencing the arguments made by the Commonwealth that the anti-miscegenation policy constituted the public policy of the sovereign Commonwealth of Virginia.
My complaint, insofar as it goes, is that it is extremely hard for a layman to grasp the bounds of what constitutes “legitimate public policy” and what particular attitudes lie beyond the bounds of legitimacy, absent a finding of total unconstitutionality.
If, to revert to the OP, Massachusetts does in fact license gay marriages, and Alabama declares in a DOMA that its public policy is to regard marriage as solely between one man and one woman, does the Alabama statute trump the affirmative requirement of Art IV, Sec 1 of the U.S. Constitution requiring each state to give FFC to the acts of other states? Why? How does this square with the entire concept of constitutional law? I gather that comity is voluntary – two sovereign entities voluntarily giving credence to each other’s acts in a given sphere of law – but IMO FFC is not comity – it’s a constitutional requirement on member states of this nation to give recognition to each other’s acts, superseding their reserved sovereignty to the extent that it is applicable.
I recognize that that is not the received wisdom of the American Bar – but it seems to me the only way in which the principle of the Constitution as the supreme Law of the Land can be preserved in such a case.
I look forward to your analyis of that perspective.
Yet it’s on the books anyway. Unless a future Congress repeals it, it’s the law of the land until declared unconstitutional by the Supremes. Are you as adamant about that having no possibility of coming up as you so dismissively were earlier in this thread?
All your other questions to me were addressed adequately and repeatedly earlier in this thread, as well, and I have no intention of futilely rerepeating myself.
The answer is “no, because the FFC clause does not require a state to recognize the laws of another state when they violate that state’s legitimate public policy.” The definition of marriage, like the requirements for adoption, is one such policy.
The Alabama law doesn’t “trump” the FFC clause; instead, the FFC clause simply doesn’t apply to the facts as stated.
To make this perfectly clear: if there was no equal protection clause in the constitution (and to be crystal clear, no due process clause either), and a Pennsylvania mixed-race couple moved to Alabama, the FFC clause would not demand that Alabama recognize that marriage. The legitimate public policy exception to the FFC clause is not a back-door by which the judiciary can inject their own moral values onto the states.
You really have a problem paying attention, don’t you?
The Massachusetts decision cannot be directly appealed to the federal courts. It is, again, premised entirely on state law, in a way that presents no conflict with federal law, and thus is beyond the purview of the federal courts.
That does not mean that the marriage laws of Massachusetts or any other state could not be separately challenged in a separate lawsuit raised under the federal constitution, nor does it mean that the DOMA could not be challenged under the federal constitution (presumably both under the equal protection clause). All it means is that the specific decision rendered by the Massachusetts high court cannot be appealed to a federal court. Period.
Again, this point is uncontroversial, black-letter law. That you cannot seem to grasp it is to your great discredit.
Yeah, sure. Care to point out the posts addressing my points? Thanks to the new BB software, they’re even conveniently numbered for your reference.
I haven’t found a coherent description of the Mass. decision, but…
I suspect that the court is “Discovering” rights in a text that is long-standing and that says nothing about a right to be a homosexual. I further suspect that the court decided that the public morality has changed, and I do not believe the courts have the authority to decide these questions. A judge is not the Pope of Massachusetts. I further suspect that the actual cause of the change on the part of the court is the presence of charming homosexuals in sitcoms and TV melodramas, backed up by literate, intelligent gays at the cocktail parties attended by the power elite, in other words, a fad.
Now, if, in fact, the Constitution of the State of Massachusetts contains wording to the effect that discrimination by the government on the basis of gender or orientation is forbidden, then my suspicions are partly or completely unfounded.
Oh good grief. The Massachusetts court did not invent any rights. The Massachusetts Constitution guarantees equality before the law (i.e., contains an equal protection clause). The court interprets this to mean that the state cannot discriminate against people unless it has a compelling reason to do so. Naturally, it’s entirely likely that the people who wrote the equal protection provision wouldn’t have taken themselves to be guaranteeing equal rights for gays, but this isn’t because they didn’t intend the clause to cover gays - rather, it’s because they had no concept of gays. Sexual orientations are a relatively recent discovery. A century ago, it was all just behaviour. As we have come to understand the nature of human sexuality, it has become obvious that proscribing homosexual behaviour is not merely attempting to limit socially undesirable behaviour, but rather is preventing ordinary adults from expressing their sexuality in a healthy way. That the authors of the Massachusetts Constitution would have seen no problem with the former is no indication that they wouldn’t have seen, with the benefit of a factually accurate understanding of human sexuality, the latter to be a violation of the equal protection clause.
Disclaimer: any legal term of art I may have used in the above post is to be read in its ordinary sense, and not its technical sense.
Dewey, I’ve made it extremely clear that the MA decision will inevitably wind up in the federal system, which includes more than just the courts. This is not the end of the question because this is now a national *political * issue. They were writing in an attempt to influence that political discourse, which will include court discourse as well, the courts being part of the political process. But that may not be apparent to those who are so comfortable with their own tunnels that they may not be aware of a world outside them. To continue with that vein undermines the applicability of any specific, narrow, technical point you may be trying to make while the world around it changes. This is not simply a point of law the rest of us are discussing here - we’re aware it’s more than that.
Please keep the “reading comprehension” cracks and similar nonnpertinent remarks out of this forum as well, if you want to be taken seriously in the future, that is.
Radon, try reading the decision itself [here](news.findlaw.com/cnn/docs/conlaw/ maglmarriage20304.html ) first. It isn’t that long. Let us know what you think afterward.
Don’t the Williams v North Carolina cases, as well as others, suggest, though, that in matters of marriage and divorce, the FCC overrides “public policy considerations”? I realize Williams concerned divorce and matters of jurisdiction; but I think a parallel can be drawn. I’m not going to argue that FCC will win the day, but I see it as a reasonable arguement not as easily dismissed as Dewey suggests.
ElvisL1ves, I think you find that Dewey filters everything through a legal lens. He seems unwilling or incapable of thinking in terms of “Right and Wrong” but rather sticks just to “Legal and Illegal”
For the twenty billionth time (or at least it feels like it), the legal principle in question is not about “the right to be a homosexual” – it is, purely and simply, the question of whether “equal protection” means that some people have the right to legally contract marriage with a person with whom they choose to enter into a marital relationship while others do not. The only way in which sexual preference or orientation enters into it is that heterosexual people do have that right, being the one-man/one-woman combination contemplated by existing marriage laws, and homosexual people do not as the statutes at present read, since their chosen partner is of the same sex.
Homebrew, I’m well aware of that from previous discussions, and have told him so more than once. Thanks for the backup, though.
The concurring opinion in MA, with no more but no less persuasive power outside MA than the majority one, was based on equal protection. It is not at all clear to me why the majority thought due process was a stronger argument at all, much less how they thought it was so much stronger that equal protection didn’t merit discussion. So I guess we agree on that, too.
A judge is correctly not the Pope of Ma, but niether are the people or the legislatures that represent them. Please be aware that except in very limited areas, constitutions in the US do not spellout the rights of individuals, they spell out the rights/limits of a government, i.e the representatives of individuals.
Its almost as if you have a problem with one branch of government (the judiciary, in allowing gay marriage) perceivedly inflicting its morality on everyone, but no problem with another (the legislature) doing it (in not allowing gays to marry).
This whole thing is silly. Purely my own opinion, but as far as Im concerned for a law restricting some type of behavior to be valid, the government at any level must provide empirical evidence that the behavior is a threat to the freedom of a number of individuals. This I think is the main reasoning behind such concepts and limitations as ‘compelling state interest’.
Now, if upon getting married, gay people started exuding massive doses of radioative waves, then you and others against gay marriage would have a case. But the fact of gays being married is no way, ~no way~, a potential risk to your freedom to live your life as you see fit. There is no demonstrable or empirical evidence whatsoever that there is a compelling state interest anywhere to limit this individual activity, therefore, as far as Im concerned, niether you nor anyone has any right or claim whatsoever to decide whether or not they can do it, whether by vote, by violence, or by anything.
Christ, its not as if morality can be inflicted by something as silly as majority rules. Its not the method by which a law comes about that establishes its validity.
The Massachusetts “decision” cannot go any further, because the highest court of appeal has been reached in that case. The issue dealt with in the Massachusetts opinion – gay marriage – may well end up involving the federal government, but that isn’t the same thing. And the federal government’s involvement is not a necessary result of the Massachusetts opinion – to the extent gay marriage is dealt with by federal legislation or by a separate federal lawsuit is a matter quite independent of the outcome of the Massachusetts opinion.
I quite disagree, and hope for the sake of the Massachusetts court that they were not using the prestige of their office to stake out a position on a legislative matter. Do do so is quite probably a violation of the Massachusetts Code of Judicial Ethics (warning: PDF), which includes provisions against “lend[ing] the prestige of judicial office to advance the private interests of the judge or others” and extensive prohibitions on judges engaging in political activity (indeed, the fifth canon begins: “A Judge Shall Refrain from Political Activity”). I have no problem with judges expressing political opinions on their own time, but it would be staggeringly unethical for them to state such an opinion as part of their courtroom duties.
Fortunately, I do not think one can plausibly read the Massachusetts opinion as doubling as a political tract.
To the extent we are talking about the decision itself and the mechanisms by which that opinion will or will not be honored outside of Massachusetts, we are talking about a point of law. This “you’re being too narrow and technical” nonsense is just a convenient dodge to avoid discussing things in a substantive way. Your arguments are failing, so you’re trying to change the subject to something less relevant.
Demonstrate some reading comprehension and I’ll stop with the cracks. Seriously. You haven’t demonstrated an understanding of one word I’ve written.
As for being “taken seriously” – I note that the serious-minded folks in this forum do take me seriously, which is all I really concern myself with. And you are not among their number.
This is pretty close to my point – there does not seem to be a coherent legal definition of what a “legitimate public policy” that will supersede comity consists in, and what the limits on one of them is (short of a case-by-case challenge under Fourteenth Amendment grounds, itself debatable under Dewey’s shibboleth of “substantive due process.”
Whenever I’ve asked the question with examples to show what I mean, I get responses limited to defining the examples as one or the other. I’m asking – what are the perimeters of “legitimate public policy” as it impacts on supposed constitutional rights? Who decides? What rules do they use in deciding? Can I sit down with a given state’s laws and say “this is part of the legitimate public policy, and this is not” with some degree of accuracy? The whole thing is beginning to remind me of Scholastic theology.
ElvisL1ves, I think you find that Dewey filters everything through a legal lens. He seems unwilling or incapable of thinking in terms of “Right and Wrong” but rather sticks just to “Legal and Illegal”
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This, bluntly, is unfair to Dewey. He’s a practicing lawyer with a pronounced legal philosophy, one I don’t share, who is answering questions about the law to the best of his ability, as something of an expert in the field. I give to Dewey on the law the same respect that I give to Qadgop the Mercotan on questions of medicine.
What he thinks may be right or wrong, he refuses to bring into a discussion of what is considered legal or illegal under our current court system. My statement “DOMA is unconstitutional” is my firm belief, but it’s objectively false – it’s a law passed by Congress on which the Supreme Court has not yet ruled, and thus putatively constitutional until and unless SCOTUS declares it otherwise. My statement is an affirmation of my own belief based on what I know of constitutional law.
As it happens, Dewey has indicated in a Pit thread that he personally has absolutely no objections to gay marriage as a potential legal entity; his objections are founded in the court challenges to it being based in a jurisprudential philosophy that he finds objectionable. To draw an extreme parallel, you could get consensus for gay marriage by simply taking an AK-47 and killing everyone who objects to it. That would achieve your results but in an illegal and immoral way; for Dewey, founding arguments on substantive due process is, though not so extreme a case, as morally objectionable.
Dewey, have I summarized your position accurately?
Not to put too fine a point on it, but at the end of the day, Williams v. North Carolina upheld North Carolina’s finding that the couple was a North Carolina resident, notwithstanding their six-week stay in Nevada for divorce purposes and a finding of domicile by the Nevada courts, and that thus North Carolina could proceed with its bigamy prosecution. If you’re going to cite a case, you might want to cite one that supports your position.
Nonetheless, there are cases that apply the FFC clause to divorce, albeit only after the parties have jumped through a hell of a lot of hoops (mostly related to domicile). I still think the overwhelming weight of precedent would not allow the FFC clause to apply to recognition of gay marriage, and to pick out some fairly narrow holdings relating to divorce to support the opposite contention is a rather slender thread upon which to hang your hopes.
Oh, bullshit. When I’m in a discussion about the courts and the law, it should be unsurprising that I talk about – Gasp! – THE LAW. Indeed, it’s fairly absurd to suggest that it is somehow untoward or overly narrow to let one’s knowledge of the law shape those particular discussions.
OTOH, in non-legal contexts, such as those discussing policy proposals or social issues in a way that does not involve the courts or the constitution, I don’t talk about the law much at all.
I talk about the law when it is germane to the conversation; when it isn’t, I don’t. Your comments only show that you haven’t really been paying attention.
On preview: yes, Poly I think that is fair. In fact, I’m filing the AK-47 example away for future reference.
WTF? Williams Part 1 (1942) was not overturned by Williams Part 2. The issue was one of jurisdiction. Had Williams established residency in Nevada for a sufficient time before returning to North Carolina, the bigamy prosecution would have failed.
Williams (1942) and subsequent decisions clearly establishes that divorce degrees must be given Full Faith and Credit when the deciding court has jurisdiction. If you’re going to comment, make sure you understand what you’re talking about. (Perhaps you didn’t realize this was a two-parter.)
