I’m guessing that this topic has been fully discussed here, but I’m slow and search sucks so I’m starting it up again. I’m also not very bright so I don’t think I’ll actually participate much in the ensuing discussion; I just want to throw the subject out there so I can either watch the debate OR have a bunch of people roll their eyes and say “Here’s a link to what we talked about LAST week, you idiot”.
Several states have legalized some form of SSM. Eventually, one of those many happy couples is going to move to a state that absolutely opposes SSM. Or perhaps Sally (Sam) - who works for a company based in Iowa but lives in Minnesota - is going to want health care coverage for Jane (Jim), her (his) partner.
Eventually someone’s going to say that it’s stupid you can drive in MN with an IA license but can’t live with your SS spouse in MN with an IA license, right?
My understanding is that DOMA was written just so this stupid situation could arise. It seemed unconstitutional to me at the time it was passed, but IANAL. I am hoping a lawyer will drop by and explain it to us both.
I hate to say it, being a proponent of gay marriage, but I think that when it was passed in 1996 it was a (shudder) somewhat (egad) good idea. 1996 was quite a cultural distance from today, and even now there isn’t universal acceptance of the concept. This law allowed the federalist nature of the democratic experiment to work itself out, allowing for the inevitable change to happen as a process, not as a fiat.
Why, though, I think Brown v. Board was a good thing – good in that by fiat it overturned a national travesty – is a bit difficult to reconcile.
So, the argument goes that Congress, by passing DOMA, has determined the “effect” that marriages will have in states in which they are not performed; namely that same sex marriages are not required to be recognized.
You may disagree with the wisdom of it, but I don’t see a Constitutional issue.
Except that what you quoted is from The People’s Paraphrased Constitution or something. Here’s the actual text of Article IV, Section One:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. "
The first sentence mandates each state to give full faith and credit to the official acts of other states. It os a direct constitutional requirement on the states. Congress can no more excuse them from that than it can authorize them to retroactively make at-the-time-legal acts committed as part of a terrorist plot illegal after the fact.
Congress’s job is to spell out one uniform means by which one may prove in State A what was determined in State B. “And the effect thereof” seems to mean 'and the effect which such proof will have" not “and that Congress may override this section and say that they can ignore it.” That’s why back in the Fifties people went to Nevada for a divorce – they were easy to arrange there, while most states made them nearly impossible to get.
And it sets a precedent I think is highly dangerous. Which I’ve ranted on in the past, so I won’t again.
That’s not consistent with the legislative and judicial history of the clause. See, for instance, in re May’s Estate (a state doesn’t have to recognize a marriage from another state if it is “offensive to the public sense of morality to a degree regarded generally with abhorrence.”) So, it seems like DOMA was unnecessary. A state can already not recognize a marriage if it goes against the state’s public policy. The courts have only taken a really strict reading of the full faith and credit clause when it comes to judicial decisions
Specifically, whether or not Congress can specifically excuse a state from full faith and credit has never come up in the courts. The first time Congress ever tried was in 1980, (the Parental Kidnapping Prevention Act and the Full Faith and Credit for Child Support Act), and a case on point hasn’t gotten the the Supremes.
But, even if the states are not required to recognize SSM from another state, are they allowed to make it a crime to get a SSM in another state*, as I seem to recall one state proposing to do? ISTM that if the FF+C clause meant anything, it would mean that you can’t punish a person in one state for doing something completely legal in another state.
*Or, as they tried to weasel around it, to appear in the home state after getting a SSM in another state.
It would be possible to amend the Constitution to get rid of the full faith and credit clause. I don’t see the set of circumstances that would make an attempt feasible, though.
The Constitution says that all states must provide FF+C to public acts from other states, then allows Congress to say that the “effect” of such FF+C is that other states can completely ignore all aspects of those acts if they want? The point is that Congress can legislate the effect of FF+C, not legislate a complete lack of it.
If you allow this sort of legislation, then this clause is completely irrelevant, we only get FF+C if Congress allows it.
Sorry about the misquote of the text above; brain isn’t working (insert joke here).
But, I don’t see how Congress is simply ignoring laws here. They are basically saying that as far as marriages go, a state only has to recognize ones that they have a similar policy towards.
If John and Jane get married in state X, they are still married in their home state Y because the law is the same for all intents and purposes.
Now, if John and Billy get married in state X, but state Y’s laws don’t allow such a marriage, then you are mixing oil and water there. Since state Y doesn’t have such a thing, then how could they recognize it and have any semblance of a state law?
What if I were to get a Nevada Gaming License? Could I take that license and try to open a casino on Main St., Podunk, Alabama under the FF&C clause? I’ve got a concealed weapon permit from the state of Florida. Why can’t I carry a pistol in Times Square with it under the FF&C clause?
If such a broad interpretation was used, there really couldn’t be any distinctive laws for a state. If New York wants to outlaw cell phones while driving, then Pennsylvania could simply issue “Cell Phone Driving Licenses” and override the law. You name a restrictive law and I’ll name the license that the next state could issue to thwart the law…
Let me just say that “prescribe” is not the same as “proscribe”. It will be interesting to see how the strict constructionists weasel out of this one. And they will, at least until Obama has had the chance to replace one or two of the radical rightists on the Supreme Court.
I think the gaming license thing falls under a commercial endeavor and is judged differently from a civil matter.
As for the gun license I think FF&C allows you to at least drive through states legally carrying a gun that is illegal to possess in that state. I.e. If you are passing through then you are legal carrying the gun. Kind of like some states mandate a front plate and some don’t but if you are from a state that does not require a front plate you can legally drive through a state that does demand them with no issue.
So what if John and Billy are legally married in Iowa and are driving through Alabama and get in a car accident. Billy is critically injured and medical decisions need to be made for him. Alabama refuses to let John make those decisions because he is not a “spouse” under their laws. Just driving into Alabama removed all rights they have as each others’ spouse. If it were John’s wife Jane critically injured then John absolutely would be allowed to make medical decisions on her behalf anywhere in the US.
My take on it is if one state can allow a adoption of a child that another state would not allow, but once the adoption takes place that family is accepted in both states then the same thing should apply to marriage as that is also a accepted family unit in one state.
An even closer example is first cousin marriage. Some states allow it, others do not, but I have not heard of another state which would not recognize the marriage after the fact.
We don’t know if the current law is constitutional, do we? It hasn’t been taken up by the Supreme Court yet. Hell, it hasn’t been taken up by ANY court yet. We haven’t had a case of either state or federal DOMAs being tested.
There is a Massachusetts case currently pending in which various widows/widowers who were married to someone of the same sex in Massachusetts are suing the federal government to receive federal survivor benefits (Social Security, etc. I believe the widower of former Rep. Gary Studds is a party to it), but I don’t believe it’s been heard yet.