Sen. Sam Brownback--You're a fuckwit.

[Oakminster]

I’d counter-argue that the “receiving state” is not being asked to substitute another statute for its own. No one is asking that state to permit SSM among its own citizens. Instead, they are asked to recognize the existing relationship of the couple, as recognized in their home State. This is important because of the right of US Citizens to travel among the States.

[Bricker]

@CandidGamera

What’s the use of the Full Faith and Credit bit, then?

It ensures that judgements from one state do not have to be relitigated in another state. If I sue you and win in Virginia, I don’t have to re-sue you in Maryland to collect on assets you might have in Maryland.

[Una_Persson]

@fetus

I read in Thomas Frank’s excellent book “What’s the Matter with Kansas?” that Sen. Brownback once attempted to emulate Jesus by forcibly and literally washing the feet of an assistant who was quitting the campaign. The recipient of this act was reportedly horrified and bewildered.

If that’s true, it’s almost terrifying.

[Bricker]

@Oakminster

I’d counter-argue that the “receiving state” is not being asked to substitute another statute for its own. No one is asking that state to permit SSM among its own citizens. Instead, they are asked to recognize the existing relationship of the couple, as recognized in their home State. This is important because of the right of US Citizens to travel among the States.

That’s a very myopic presentation. We’re not talking about tourists passing through; the “home state” concept is meaningless if the couple simply moves to a new state.

And your home state argument was exactly the situation faced in Pacific Employers Ins. Co. v. Industrial Accident Commission. A Massachusetts employee of a Massachusetts employer was injured in California. He failed to follow the required procedure under Massachusetts law, and would have been ineligible for benefits. He sought benefits under California’s more liberal law, and his employer objected, claiming that they were simply askign California to recognize the existing rules as recognized in the home state of the employer and employee. But nope – the court said that California was not required to give effect to Massachusetts’ rules when they had a public policy that dictated a different result.

In Franchise Tax Board v. Hyatt, the Court refused to force Nevada to honor California’s blanket immunization of its tax agency, because while California was perfectly competent to immunize its agency within its own borders, the full faith and credit clause did not force Nevada to accept that immunity for purposes of its own transactions. Again the language is clear:

…we abandoned the balancing-of-interests approach to conflicts of law under the Full Faith and Credit Clause. Allstate Ins. Co. v. Hague, 449 U. S., at 308, n. 10 (plurality opinion); id., at 322, n. 6 (Stevens, J., concurring in judgment); id., at 339, n. 6 (Powell, J., dissenting). We have recognized, instead, that “it is frequently the case under the Full Faith and Credit Clause that a court can lawfully apply either the law of one State or the contrary law of another.” Sun Oil Co. v. Wortman, supra, at 727. We thus have held that a State need not “substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Pacific Employers Ins. Co. v. Industrial Accident Comm’n, supra, at 501; see Baker v. General Motors Corp., supra, at 232; Sun Oil Co. v. Wortman, supra, at 722; Phillips Petroleum Co. v. Shutts, supra, at 818-819.

[Bricker]

@Oakminster

I’d counter-argue that the “receiving state” is not being asked to substitute another statute for its own. No one is asking that state to permit SSM among its own citizens. Instead, they are asked to recognize the existing relationship of the couple, as recognized in their home State. This is important because of the right of US Citizens to travel among the States.

Bill, a wealthy older man, and Ted, a hot but broke young guy, meet and fall in love in Richmond, Virginia, and Ted moves in to Bill’s palatial estate. They subsequently travel to Massachusetts and marry. Then they return to Virginia to live; Virgina does not recognize their marriage.

They then travel to Kansas and buy a vacation home. Subsequently, they fight and decide to terminate their association with each other. Bill asks Kansas to declare that the vacation home is his: he bought and paid for it, and Kansas must give full faith and credit to Virginia’s law absolutely forbidding marriage, or any equivalent state, being recognized between two members of the same sex, since they are Virginia residents.

Ted asks Kansas to give full faith and credit to Massachusetts’ law recognizing their marriage.

Which state’s full faith and credit must be applied?

[Oakminster]

@Bricker

That’s a very myopic presentation. We’re not talking about tourists passing through; the “home state” concept is meaningless if the couple simply moves to a new state.

Actually, we very well could be talking about tourists. Travelling gay couple, married or civil unioned at home, car wreck, injuries, medical decisions to be made by next of kin…

Another argument is that a couple lawfully wed in one state would have their fundamental right of interstate travel impaired if they could not move to another state and remain lawfully wed.

[Oakminster]

@Bricker

Bill, a wealthy older man, and Ted, a hot but broke young guy, meet and fall in love in Richmond, Virginia, and Ted moves in to Bill’s palatial estate. They subsequently travel to Massachusetts and marry. Then they return to Virginia to live; Virgina does not recognize their marriage.

They then travel to Kansas and buy a vacation home. Subsequently, they fight and decide to terminate their association with each other. Bill asks Kansas to declare that the vacation home is his: he bought and paid for it, and Kansas must give full faith and credit to Virginia’s law absolutely forbidding marriage, or any equivalent state, being recognized between two members of the same sex, since they are Virginia residents.

Ted asks Kansas to give full faith and credit to Massachusetts’ law recognizing their marriage.

Which state’s full faith and credit must be applied?

My guess would be that if the suit is filed in Kansas, then Kansas law will determine the outcome of the property dispute. How was the land titled? If Bill holds a fee simple, he may win. If the land is held in joint tennacy or as tennants in common, he probably loses, without the need for reaching issues of FFC or SSM.
Other issues…can the couple file for divorce, and if so, where? VA says they can’t be married, so a divorce ain’t happening there. MA recognizes the relationship, but neither party is currently a resident, so there may not be jurisdiction. Kansas probably would not allow a divorce action either. It could be that Ted needs to move back to MA, establish residency, and then sue for divorce…and Bill gets to argue a lack of in personam jurisdiction for the division of marital property…
In Equity, it could be argued that Bill should not be allowed to claim the protection of Virginia’s non-recognition, since he was a willing participant in the MA wedding/union deal. Any way you slice it, you get a legal mess that is fixable if you grant FFC to the marriage and then divide the property as in any other divorce…

[Don_t_Call_Me_Shirley]

@Bricker

They then travel to Kansas and buy a vacation home

Here’s where you lost me. A gay couple buying a vacation home in Kansas? Is flirting with death their idea of a vacation?

[Bricker]

@Don't Call Me Shirley

Here’s where you lost me. A gay couple buying a vacation home in Kansas? Is flirting with death their idea of a vacation?

That’s why they call them “hypotheticals.”

[elucidator]

You sure? Heard them called a lot of things, but not “hypotheticals”.

[Hostile_Dialect]

@Una Persson

If that’s true, it’s almost terrifying.

I was satisfied with the book’s citation. I can’t find the book now, or I would share the reference.