In this site, author David Frum asks eight questions about the consequences of a state-based solution for the gay marriage issue. He asks this questions in order to assert that such a thing is unworkable, and that a federal response (assumably an amendment) is needed to avoid a huge mess of legal tangles.
First of all, can the legal experts here on the Dope answer the questions? (I don’t want to repeat them here for copyright concerns.)
Second, whether you have answers or not, is the point he’s trying to make, that non-federal solutions for gay marriage are completely impractical, valid? I’m especially interested in the opinions of the conservatives here on the boards who’ve taken this view (especially given that many are versed in the law). Do the potential complications change your mind in any way?
Each of those scenarios has prior comity-based precedent in normal straight marriages. What most people are missing in all this is that what we laymen construe as a requirement under Full Faith and Credit isn’t – each state extends to the decisions of other states such credence as does not conflict with its own public policy. Bricker or Dewey can explain and defend this much more clearly than I – I hold the doctrine to be a blatant violation of the Constitution, so I am loath to go into it. But nonetheless it is settled law.
My conclusion is that in the absence of a strict constructionist decision overturning DOMA and holding for the strict application of the FF&C mandate, there is no real problem in state gay marriage laws that differ from state to state. (And I find real irony in the logic above! ;))
So what’s wrong with lawsuits? (he said innocently). Frum seems to be horrified by the fact that we don’t know all the answers right away to all his hypotheticals, so there will be law suits if some states have gay marriage and others don’t. So what?
Lawsuits allow diferent state court systems to work out the issues on a case-by-case basis, balancing issues such as individual fairness, equities, public policy, comity and so on. What’s wrong with that? Frum seems to argue that no social change can be made unless we know in advance every single permutation and outcome. But just as different states can be laboratories for trying out new policies, courts can provide case-by-case answers without trying to settle everything all at once. Is that such a bad thing?
When a person dies intestate (without a will), real property passes in accordance with the laws of the state where the real property is located. Assuming that Florida does not recognize the decedent’s marriage, the property goes (at least under the law most states, including Florida, I assume) to the dead guy’s children, parents, siblings, etc., in that order.
Given that the ex-wife cannot establish her paternity of the child, and has not adopted the child, the Connecticut court should tell the ex-wife to take a hike.
Depends upon the precise language of the federal DOMA, which I ain’t looking up right now. If it says something like “No same-sex marriage is recognized under federal law,” the husband must testify. If they instead take the laundry-list approach (No social security, no tax deductions, etc.), DOMA may not touch the federal procedural and/or evidentiary rules that recognze the marital privilege.
Not under the laws of Texas.
The hospital should ask whoever is next-of-kin under the local law. Presumably, that’s not the husband.
Not likely under DOMA.
Yes, the Massachusetts court should consider the trust assets in dividing the couple’s assets. If the Delaware trustees refuse to comply, the ex-husband will have to file suit against them in Delaware. The trustees will probably prevail, since Delaware’s public policy (presumably) is opposed to gay marriage, thus defeating application of the Full Faith and Credit requirement.
If the Massachusetts woman died with a will naming the wife as the sole heir, then the wife gets to collect on the judgment. If the Massachusetts woman died without a will, then the Massachusetts intestacy law would presumably still make the wife the person who inherits everything, including the judgment against the California corporation. She can collect on any property the company has in Massachusetts. If she has to take it to California or another state, the company may be able to resist by claiming that local public policy does not recognize the wife’s authority to collect on the judgment of the dead spouse.
minty: Thanks for the go at it. I don’t remember what sort of legal experience you have, but I appreciate the attempt!
Northern Piper: You make a good point. Frankly, I think it’s just grasping at straws, just plain desperation at wanting/needing the amendment. But that’s just me.
Any lawyers care to take a crack at the questions, and what they mean for the debate?