Not just normally constitutional, but a different, super-enriched kind of constitutional, that is? :dubious:
Yes, how do you reach that conclusion? Via reasoning?
The case is Gill v OPM, filed on March 3.
Your first paragraph is a very good point.
Re your second: Has Federal DOMA faced a clear-cut challenge to its Constitutionality in the Federal courts, ideally at SCOTUS level?? I’m not aware of it, but you may know something I don’t. If not, it simply has that rebuttable presumption of constitutionality that attaches to all laws – that it’s putatively constitutional until and unless someone challenges it and gets it declared unconstitutional.
And, this being an Internet message board and not a court of law, one is free to express one’s opinion as to whether it is or isn’t.
We are not lawyers, and simple reading indicates to us that FF&C would mean that marriages are recognized, and since it is in the constitution, we don’t understand how congress can just make a law that says, no, they don’t have to be recognized. Can you explain that to us? This is a serious GQ sort of question on my part. I want to understand.
It really seems they just set aside part of the constitution, and I want to understand why they can do that, and what prevents them from setting aside other parts without an amendment as well.
This is not about wishful thinking. This is about not being a lawyer.
Bricker, when I had one of my first leases there seemed to be language in it that said they could end the lease at any time without notice. It was explained to me that the language really meant they did not have to tell me the end of the lease was coming up when it was approaching the end of the term of the lease specified in the document. I think this might be another example of English having a very different meaning in the minds of lawyers and laymen.
I’m not him, and and oversimplifying here, but here goes.
The full faith and credit clause of the Constitution says that states have to recognize the “public acts, records, and judicial rulings of other states”, and that it’s up to Congress to determine how this should be carried out.
The courts have generally divided this clause into two sections for analysis, looking at the “public acts” section and the “judicial ruling and records” section.
Now, the “judicial ruling” question, the courts have ruled really strictly on. So if I sue you in New York for something, and lose, I can’t turn around and sue you in New Jersey for the same thing. The New Jersey court has to say, “Sorry, this was already decided in New York, and you lost”. If I won a judgment against you in New York, though, and the New York court said you had to pay me $10,000 dollars, and you moved to New Jersey and wouldn’t pay, I could go to the Jersey courts, and they’d make you pay because of the New York ruling. If we get divorced, and you’re awarded custody of the kids, I can’t just run off to another state and keep the kids, and so on.
Now, when it comes to the “public acts” section, the court has been a lot more lenient in its interpretation. It’s said that when it comes to that section, there’s a “public policy exception”, which says that one state doesn’t have to recognize the public acts of another state, if it goes against the public policy of the first state. So, for instance, if a state were to lower the marriage age to 10, another state wouldn’t have to recognize married 10 year olds. If a state were to allow polygamy, other states wouldn’t have to recognize marriages beyond the first one as legal, for instance. In both those cases, the state could decide that 10 year old spouses and second wives go against that state’s public policy.
The final section, dealing with Congress’s role, hasn’t really been litigated that much, but it’s generally accepted that it’s up to Congress to decide which public acts other states have to accept. So, to take an example in the last paragraph, if Congress were to pass a law saying, “Polygamous marriage is legal in the United States and each state shall recognize a polygamous marriage carried out in any other state.”, then all the states would have to do that.
There is also the matter of DOMA’s compliance, or not, with equal protection.
Good point. But, let me ask this: if, as some argue (and I disagree with them on), DOMA is authorized by the final sentence of Art IV Sec 1, does not this constitute full proof of constitutionality, regardless of whether it complies with equal protection? To parallel this:
California may not ban Florida oranges, nor Maine ban Idaho potatoes, in order to protect the local growers; as products in interstate commerce, the Federal government has exclusive control over regulation of such products. However, a state may regulate, restrict, or even ban beer, wine, whiskey, etc., because the 21st Amendment sets alcoholic beverages as regulatable by the states, superseding the Commerce clause on that specific product.
Personally, as outlined above, I’m of the opinion that DOMA is not a valid use of Congress’s Article IV power, and is unconstitutional. But if it is, then whether or not it gives effect to the equal protection clause is immaterial – I think.
Oh, the “public policy” exception? Must be one of those emanations and penumbras! It’s far too ectoplasmic for me to read it in the text of the Constitution.
If the Public Policy is so lenient, then why were Nevada Divorces legal? Shouldn’t that have left someone divorced in Nevada and married in the original state?
That’s why we have appellate and supreme courts. DOMA, and the analogy you gave, are examples of the many places that Constitutional principles come into conflict with each other.
Why? What makes one part of the Constitution supersede another?
But at least we agree that Bricker’s confident blanket assertion is in error.
Because divorces are court proceedings and not acts of the legislature. But see the associated cases of Williams v North Carolina.
One of the reasons we have the Supreme Court is to interpret the Constitution and statutes, especially when an overly strict reading would lead to inconsistent results. If there was no public policy exception to the full faith and credit law, then federalism would disappear, because the laws of any one state would then be applicable throughout the entire country. The New York State legislature would be able to pass laws binding on the citizens of New Hampshire, and so on.
I’m curious, as others have been, on how you reached this conclusion. It seems to me that when Congress passed the Marriage Protection Act, much of the argument for the passage of said idiocy was because DOMA might be found unconstitutional.
There was an IF earlier in the sentence you quoted: “But, let me ask this: if, as some argue (and I disagree with them on), DOMA is authorized by the final sentence of Art IV Sec 1, does not this constitute full proof of constitutionality, regardless of whether it complies with equal protection?”
Sorry for the confusion. I don’t believe DOMA is constitutional – I think Congress was ultra vires in passing it. I set that up as an if-then question to see how it would play out on the presumption it were valid. Hopefully the reformatted quote of my previous post helps make clear what I intended.
No. If Joe is (a) married, (b) convicted of a felony, or (c) licensed to drive large interurban buses by his state of residence, and he (a) travels with his wife to, (b) applies for a job for which being a felon is a bar to employment in, or (c) drives a bus run passing through a second state, that second state is obliged to recognize his marriage, his felony conviction, or his commercial drivers license as relevant. If I sue you in State A and get a judgment against you, I can ask State B to allow execution of that judgment against your property in that state.
But that doesn’t mean that any law in State A is automatically applicable in State B, any more than Florida’s law banning gay people from adopting stops a court in Massachusetts from granting a gay couple the child they have petitioned to adopt and who loves them.
No. Just because DOMA doesn’t violate the full faith and credit clause doesn’t mean that it doesn’t violate some other section of the constitution. For instance, Virginia’s interracial marriage ban overturned in Loving v Virginia didn’t violate the full faith and credit clause (due to the public policy exception, Virginia didn’t have to recognize their out of state marriage), but the court said it did violate the due process and the equal protection clauses.
A fair question. I meant, and should have said explicitly, that it’s clearly constitutional with respect to the full faith and credit issue, which was afater all the subject of the thread. I agree that it’s an unsettled question if DOMA is consistent with DP and EP guarantees.