How can the federal gov't not recognize SSM?

[Hadrian0117]

The Defence of Marriage Act does two things; it says states don’t have to recognize same-sex marriages performed in other states, and it prevents the federal government from recognizing SSMs performed in states where they are legal. Leaving aside the question of state recognition/full faith & credit, how can the federal gov’t refuse to recognize marriages? The Constituion only gives Congress power over marriage in DC and the territories. Whenever the federal government gave a right/ benefit involving marriage in the past(widows’ pensions, tax laws, etc) didn’t they go by the law of the state the couple resided in? Doesn’t the federal gov’t have to recognize same-sex married couples who live in Massachusetts? When the federal gov’t gives rights

[Nametag]

The Constitution doesn’t give Massachusetts power over federal programs – Congress can do whatever it wants with “its” money. “Full Faith and Credit” has exactly as much standing as governments choose to give it – it’s not a bedrock article, it’s a policy that can be set aside in deference to other policies.

[Otto]

FF&C is not “a policy;” it is a part of the supreme law of the land which has as much force and effect as any other part of the Constitution.

The reason the federal government can ignore SSM in MA and from outside the US is that the federal government has the power to set federal definitions. It may define “marriage” to mean a union of one man and one woman. It may define “spouse” to mean a party to a so-defined “marriage.” The federal definition does not supercede the state’s definition for purposes of the law of the state, but by the same token the state has no power to require that the federal government abide by the state’s definition.

The open question, of course, remains whether failing to recognize legally valid SSM at the federal level is a violation of the Constitution’s guarantees of equal protection and due process.

[barbitu8]

@Otto

FF&C is not “a policy;” it is a part of the supreme law of the land which has as much force and effect as any other part of the Constitution.

True, but if to do so would contravene the state’s public policy, the state need not apply ff&c. FindLaw Legal Blogs - FindLaw

Granted, some states have carved out public policy exceptions - refusing to recognize other states’ incestuous marriages, for instance - that are seen as consistent with Full Faith and Credit. Thus, some commentators maintain that the “public policy exception” itself allows states to refuse recognition to same-sex marriage–at least in the many states that have adopted a statute or amended their own constitution to declare such unions impermissible–and thus moots the need for DOMA in the first place. But others disagree whether such an exception is consistent with the Clause at all.

[Otto]

True enough, but that wasn’t the point I was making.

[Nametag]

@Otto

FF&C is not “a policy;” it is a part of the supreme law of the land which has as much force and effect as any other part of the Constitution.

Every part of the Constitution has exactly as much effect as the Supreme Court says it has, and they’ve made it pretty clear that FF&C can be set aside easily, if “public policy” (aka “the prejudices of enough people”) requires it.

The reason the federal government can ignore SSM in MA and from outside the US is that the federal government has the power to set federal definitions. It may define “marriage” to mean a union of one man and one woman. It may define “spouse” to mean a party to a so-defined “marriage.” The federal definition does not supercede the state’s definition for purposes of the law of the state, but by the same token the state has no power to require that the federal government abide by the state’s definition.

Which was my point in the first half of my post.

[jnglmassiv]

So…I suppose I’ll have to wait for a surface to surface missile thread to share my SSM detection knowledge.