I think this little 2-3 day debate and subsequent vote in Congress will be so long forgotten come November, that it won’t make one hoot of a difference in the midterm elections. Maybe if the Republicans had scheduled this for the end of Oct, they might’ve gotten some mileage out of it. Still, there are plenty of solidly Republican reasons for voting against this amendment, and I don’t think any Democrats are going to be hurt for doing so.
This amendment doesn’t have a snowball’s chance in hell of passing Congress, and it wouldn’t survive in the states, either. All bets are off, though, if we get a SCOTUS decision striking down DOMA or echoing the MA court’s decision some time in the future (which I highly doubt will happen either).
How you figure that? Suppose a same-sex couple from MA – legally married in MA – filed a joint tax return. If the IRS refuses to recognize them as a married couple they could sure as hell sue, based on the “full faith and credit” clause, to challenge the constitutionality of the relevant IRS regulation and/or the DOMA.
The federal involvement there is limited to ensuring that the states’ implementation of marriage, like any issue, survives the strict scrutiny test if it creates a racial classification. So… no, I don’t feel the same way.
There has long been a public policy exception to the Full Faith and Credit clause, and I think that is sufficient here. A state is not required to recognize acts of another state that are contrary to its own public policy. I don’t see a need for an additional constitutional amendment to solidify that in the realm of marriage, nor do I object to the existence of the public policy exception in the first place.
I’m really not sure how or why the FF&C is so relevant as an IRS matter, but as far as states are concerned, citing this article just as a f’rinstance…
Indeed, it would appear from the analysis above, consistent with my own impressions, the language of the DOMA limiting marriage to the “legal union between one man and one woman as husband and wife” is enough for the IRS, and the fact that some states view things otherwise is interesting, but not relevant. The Federal Govt. is not a State.
Nope, not at all. Given the dramatic level of difference in the country (San Francisco compared to, say, Opelika, Alabama) I think it woiuld benefit us to protect against sexual orientation discrimination in the same way we protect againsr racial discrimination.
Doesn’t “equal protection under the law” already imply that a legal classification with legal benefits available to heterosexual couples but not gay couples is unconstitutional?
IOW, without a constitutional amendment “in defense of marriage,” how could a state have any law which passes constitutional muster?
Given the Constitution’s Full Faith & Credit provision then isn’t a constaitutional amendment absolutely banning SSM necessary given that through the FFC provision a liberal state (or in the case of Massachusetts, a liberal state supreme court) can inflict its will upon a conservative state where the great majority opposes SSM? It seems specious to me to say that each state should be allowed to go its own way, when Full Faith and Credit means that states can be stuck with the lowest common demoninator of what their sister states authorize.
Yes. Once such an amendment passed, then state laws that forbid same-sex marriage would be in violation of it.
No. Equal Protection Clause violations are analyzed under three different types of scrutiny. Laws that impact people in a racially disparate way are analyzed under “strict scrutiny.” Laws that impact genders differently are analyzed under an “intermediate scrutiny.” Laws that create other classifications, such as hetero/homosexual, are analyzed under a “rational basis” standard.
Indeed, the 14th Amendment, in light of Loving v. VA, is the only part of the Constitution I can see as relevant to the matter on a Federal level. Baker v. Nelson may cast serious doubt on Loving’s power, however, I’m not sure. There is the matter of Nebraska, but it could be argued the Nebraska law was far too sweeping, and so was uniquely susceptible to 14th Amendment objections. Has this ruling been appealed, or has there rather been efforts to tidy up the law to make it less vulnerable?
Pacific Employers Ins. Co. v. Indus- trial Accident Comm’n, 306 U.S. 493, 501 (1939); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985); Wisconsin v. Pelican Insurance Co., 127 U.S. 265 , 8 S.Ct. 1370; Huntington v. Attrill, 146 U.S. 657 , 13 S.Ct. 224; Finney v. Guy, 189 U.S. 335 , 23 S.Ct. 558; Clarke v. Clarke, 178 U.S. 186 , 20 S.Ct. 873; Olmsted v. Olmsted, 216 U.S. 386; Hood v. McGehee, 237 U.S. 611; cf. Gasquet v. Fenner, 247 U.S. 16.
No. Outside the hard core who couldn’t be pried away from the GOP if you used the Jaws Of Life[tm], it’s just too obvious an attempt to divert attention away from the party’s miserable failures to rein in spending, deal with the immigration issue, etc.
I don’t think many on this board would. Would you be willing to live with not having strict scrutiny (or intermediate scrutiny, for that matter) be the judicial test if you floated that amendment and it failed?
Goddamit, I’d been building up to one specific question all along here, and I just went back and realized the whole thing was predicated on a mis-reading of your initial post. :smack:
Anyway, thanks for your patience with my 20 Questions routine.
Well, I’d “live with it” in the sense that I wouldn’t eat a bullet over it, but I certainly would continue to push for the ammendment, even if it initially failed. 'Course, I doubt I’ll live long enough to see this country evolve to the point where even proposing such an ammendment would be feasible, so that’s pretty much a moot point.
How you figure that? Suppose a same-sex couple from MA – legally married in MA – filed a joint tax return. If the IRS refuses to recognize them as a married couple they could sure as hell sue, based on the “full faith and credit” clause, to challenge the constitutionality of the relevant IRS regulation and/or the DOMA.