Federal Appeals Court: DOMA unconstitutional

[pbrower2a]

Defense of Marriage Act unconstitutional, federal appeals court declares

By Robert Barnes, Updated: Thursday, May 31, 5:32 PM

A federal appeals court panel in Boston declared the Defense of Marriage Act unconstitutional on Thursday, but said that only the Supreme Court will be able to settle the question of whether the federal government must recognize same-sex marriages from states where such unions are legal.

This is the most blatantly unconstitutional and unprecedented part of DOMA. Let's hope the Supreme Court isn't feeling too results-oriented on this one when they hear it.

Indeed it falls apart on the http://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause\Full Faith and Credit clause of the Constitution

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.

which prohibits one State from denying the legality of the decisions of another State except perhaps as the State considers an immediate threat to Constitutional rights. Consider Loving vs. Virginia, which among other  conclusions prohibited States from denying the legality of an interracial marriage contracted in another State.

President Obama may not have been so awkward as he seemed in choosing the time in which to decide in favor of LGBT rights.

[Brittain33]

Again, this is where I think the distinction that the feds have historically deferred to states to make marriage law and would need to make a strong case to make an exception here is the distinguishing factor. The federal government isn't in the habit of defining which marriages they'll recognize or won't, so why start now?

For a long time, the Federal and State governments used the same core definition of marriage: one man and one woman.

No, for a long time the Federal government didn't define marriage, but left it up to the states. Their "core definition" of marriage was "a marriage recognized by a state." It's an important distinction. This enabled the Federal government not to have to deal with many differences in state marriage legislation that you elide, such as cousin marriage and minimum age. The feds didn't define either of those.

The federal government keeps no registry or lists of married couples and issues no marriage licenses. That is a state responsibility and the federal government defers to the states to define it. Unless it's 1996 and gays are icky.

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You seem to be disavowing the importance of precedent in government decision-making. Why, after 200+ years, should it be constitutional for the government to introduce a discriminatory definition in the recognition of a state's marriage when it virtually never did it before? "Gays are icky." We know. But the Commonwealth of Massachusetts has a say in how it treats its own citizens.

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There were always disparities in how states defined marriage. In addition to the examples above, there were historic disparities in recognition of interracial marriage (or even whether African Americans could legally marry.) The federal government did not get involved then but deferred to the states.

If the disparity between the states was all that matters, then you should be fine with this decision, because it does not affect the ability of Alabama to decide not to observe my marriage. How is it Alabama's business if I file my federal income taxes jointly? DOMA has multiple sections and you continue to conflate the one covered in this case with another one which is different.

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Yes, it does. Most definitely so. It forces Massachusetts to discriminate in how it carries out policies with federal funding, like Medicaid or the administration of military cemeteries. That's the gist of the Massachusetts case that Coakley brought. It brings Massachusetts state policy into conflict with its own laws and constitution. That's not unprecedented - certainly federal policy has invalidated state constitutions from time to time. But you have to answer, why this compelling change in the way we've always done things?

Gays are icky doesn't cut it.

[Brittain33]

Not automatically no, and the precedents are very strong that the full faith and credit clause does not apply here, because states have the right to set their own policies on fundamental policy choices like this. So the law would be a mess if DOMA is struck down potentially. The feds recognize your marriage in Mass, and then when you move to Kentucky, your marriage is dissolved, and you can no longer file a joint 1040 tax return with your partner, get social security based on your partner's SS rights, etc.

All of that already happens in state courts because of DOMA's other provisions, primarily with custody battles and divorce. Lots of same-sex couples end up in legal limbo and there is already the prospect for quasi-legal bigamy. Legalizing federal recognition would amplify the inconsistency but not make it new.

Recognition of marriage is ultimately defined by a million interactions with local officials and any full faith and credit solution would only take root at the top. You still wouldn't be able to get local justice or services as a same-sex couple, who could fight it?

[Brittain33]

It seems like equal protection rather than federalism to me. Sure a state can have same sex marriage, but why do the Feds have to hand out money and whatever based on what a state allows for a marriage? The states can do their thing, and the feds theirs. That's federalism. To force the feds to hand out benefits or costs based on a state definition of who is married, needs the instrument of equal protection, or a Kennedy "fundamental expression of liberty" theory. I tend to doubt Kennedy will bite.

It's what states have always done. They haven't been forced, they've just consistently outsourced definitions of marriage to the state. Then the specter of same-sex marriage came along and you got a radical change of policy at the federal level.

[The Mikado]

If it's struck down, will same-sex marriage be legal in the other 42 states?

Not automatically no, and the precedents are very strong that the full faith and credit clause does not apply here, because states have the right to set their own policies on fundamental policy choices like this. So the law would be a mess if DOMA is struck down potentially. The feds recognize your marriage in Mass, and then when you move to Kentucky, your marriage is dissolved, and you can no longer file a joint 1040 tax return with your partner, get social security based on your partner's SS rights, etc.

Question.  Hypothetical MA resident (let's call him "Dave,") gets married to a man in MA.  Dave moves to Kentucky, where his marriage isn't valid.  Dave marries a woman in Kentucky.  Dave then moves back to MA alongside his wife to reunite with his husband, with whom he's still married in MA.  Dave now has both a husband and a wife.  Is this legal?

[Torie]

If it's struck down, will same-sex marriage be legal in the other 42 states?

Not automatically no, and the precedents are very strong that the full faith and credit clause does not apply here, because states have the right to set their own policies on fundamental policy choices like this. So the law would be a mess if DOMA is struck down potentially. The feds recognize your marriage in Mass, and then when you move to Kentucky, your marriage is dissolved, and you can no longer file a joint 1040 tax return with your partner, get social security based on your partner's SS rights, etc.

Question.  Hypothetical MA resident (let's call him "Dave,") gets married to a man in MA.  Dave moves to Kentucky, where his marriage isn't valid.  Dave marries a woman in Kentucky.  Dave then moves back to MA alongside his wife to reunite with his husband, with whom he's still married in MA.  Dave now has both a husband and a wife.  Is this legal?

If one marries two persons, the second marriage is not legal. If the second spouse does not know about the first marriage, she is called a putative spouse, and has certain rights as a putative spouse (including inter alia standing to sue civilly in a wrongful death action (ala the way the Simpsons sued OJ) if her putative husband is offed). That does not obtain with your hypo, but I thought I would use the opportunity to display my legal erudition. Aren't you impressed?  

Here it appears that Dave is married to his man when he lives in Mass, and married to his women when he lives in Kentucky, so at no one instant in time is he married to two persons (which is why the putative thing does not obtain).  Obviously such a regime would not be long for this world. Something has to crack. In the end, the Feds will have to define what marriage is by federal statute, and preempt the state laws. And given the practical mess, SCOTUS would find that within the scope of the interstate commerce clause.

[minionofmidas]

Certainly that "long time" only begun in 1967? Issues between the states such as now exist regarding gay marriage existed regarding mixed-race marriage until then, after all.
I fail to find an overview of how, exactly, the issue was dealt with then. Not every state ever had a "miscenegation" law. Massachusetts did pass a law against out-of-state couples not allowed to marry in their home state marrying in Massachusetts. In Loving vs Virginia, the case that eventually overturned all remaining laws, the (Virginia-resident) Lovings had been prosecuted by Virginia for marrying in DC and thus living marriedly in Virgina, which strikes me as sort-of-recognizing the marriage as extant (but illegal).

Oh, and for a laugh:

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Incidentally, an 1887 Supreme Court ruling defended anti-miscenegation laws by pointing out that they didn't prevent Blacks from marrying at all, which would be unconstitutional. Guess no one thought of applying that logic to the Arizona law.

[Brittain33]

In the end, the Feds will have to define what marriage is by federal statute, and preempt the state laws.

Couldn't they accomplish the same thing by enforcing the Full Faith and Credit clause for marriage without codifying a federal definition of marriage?

[LastVoter]

Man, where is jmfcst when you need him to post the most.

[Torie]

In the end, the Feds will have to define what marriage is by federal statute, and preempt the state laws.

Couldn't they accomplish the same thing by enforcing the Full Faith and Credit clause for marriage without codifying a federal definition of marriage?

As I say, the precedents are clear it does not obtain, and that is the opinion of most Constitutional law scholars, in addition to this old beat up provincial lawyer. If it did, one state could in effect over time dictate the marriage laws for the whole Fruited Plain. That is why the exception for respecting individual state policies outside of respecting foreign state contracts was carved out by SCOTUS. The Dems should put the Pubs on the hot seat and put up legislation for federal gay marriage, as a way to make the issue more salient, and over time hopefully the Pubs will get the message that the Torie vote will be lost to the Pubs if they don't just get over it. It is much better to have these divisive little social issues decided by the ballot box anyway, rather than by judicial fiat.

[Torie]

Man, where is jmfcst when you need him to post the most.

Well, while the Bible may be inerrant in some alternative universe, it is nevertheless ignored when it comes to Constitutional law, so I am not sure just how "helpful" jmfcst would be here.

[Brittain33]

As I say, the precedents are clear it does not obtain, and that is the opinion of most Constitutional law scholars, in addition to this old beat up provincial lawyer. If it did, one state could in effect over time dictate the marriage laws for the whole Fruited Plain. That is why the exception for respecting individual state policies outside of respecting foreign state contracts was carved out by SCOTUS. The Dems should put the Pubs on the hot seat and put up legislation for federal gay marriage, as a way to make the issue more salient, and over time hopefully the Pubs will get the message that the Torie vote will be lost to the Pubs if they don't just get over it. It is much better to have these divisive little social issues decided by the ballot box anyway, rather than by judicial fiat.

Well, in the absence of congressional action, what do you think would happen if a bigamy case went to the federal courts and with a series of circumstances that compel some kind of resolution?

[Torie]

As I say, the precedents are clear it does not obtain, and that is the opinion of most Constitutional law scholars, in addition to this old beat up provincial lawyer. If it did, one state could in effect over time dictate the marriage laws for the whole Fruited Plain. That is why the exception for respecting individual state policies outside of respecting foreign state contracts was carved out by SCOTUS. The Dems should put the Pubs on the hot seat and put up legislation for federal gay marriage, as a way to make the issue more salient, and over time hopefully the Pubs will get the message that the Torie vote will be lost to the Pubs if they don't just get over it. It is much better to have these divisive little social issues decided by the ballot box anyway, rather than by judicial fiat.

Well, in the absence of congressional action, what do you think would happen if a bigamy case went to the federal courts and with a series of circumstances that compel some kind of resolution?

A "bigamy case" meaning the MA versus KY hypo of The Mikado's, where bigamy does not obtain, or something else?

[Brittain33]

As I say, the precedents are clear it does not obtain, and that is the opinion of most Constitutional law scholars, in addition to this old beat up provincial lawyer. If it did, one state could in effect over time dictate the marriage laws for the whole Fruited Plain. That is why the exception for respecting individual state policies outside of respecting foreign state contracts was carved out by SCOTUS. The Dems should put the Pubs on the hot seat and put up legislation for federal gay marriage, as a way to make the issue more salient, and over time hopefully the Pubs will get the message that the Torie vote will be lost to the Pubs if they don't just get over it. It is much better to have these divisive little social issues decided by the ballot box anyway, rather than by judicial fiat.

Well, in the absence of congressional action, what do you think would happen if a bigamy case went to the federal courts and with a series of circumstances that compel some kind of resolution?

A "bigamy case" meaning the MA versus KY hypo of The Mikado's, where bigamy does not obtain, or something else?

One like The Mikado's but with kids and property and a whole mess that make an elegant solution impossible.

[Torie]

As I say, the precedents are clear it does not obtain, and that is the opinion of most Constitutional law scholars, in addition to this old beat up provincial lawyer. If it did, one state could in effect over time dictate the marriage laws for the whole Fruited Plain. That is why the exception for respecting individual state policies outside of respecting foreign state contracts was carved out by SCOTUS. The Dems should put the Pubs on the hot seat and put up legislation for federal gay marriage, as a way to make the issue more salient, and over time hopefully the Pubs will get the message that the Torie vote will be lost to the Pubs if they don't just get over it. It is much better to have these divisive little social issues decided by the ballot box anyway, rather than by judicial fiat.

Well, in the absence of congressional action, what do you think would happen if a bigamy case went to the federal courts and with a series of circumstances that compel some kind of resolution?

A "bigamy case" meaning the MA versus KY hypo of The Mikado's, where bigamy does not obtain, or something else?

One like The Mikado's but with kids and property and a whole mess that make an elegant solution impossible.

Well, who knows. If I were on SCOTUS, I would suggest that maybe Congress should get to work. The Constitution is not a universal solvent for all that ails the Fruited Plain. In the meantime, every closeted gay should just come out. That is the single most effective way to change hearts and minds - really. It is hard to demonize and objectify those whom you know and admire, particularly well, if they seem - dare I say it - and shocking though it may be to some - normal!  I mean look at you Brittain33. Out of the gang of the host of "unusuals" in this hood, you sir are probably in the top 10% on the normality scale. Who knew? 

[True Federalist (진정한 연방 주의자)]

But you have to answer, why this compelling change in the way we've always done things?

I already answered,  Go back and read what I already wrote if you want the details, but the short version is that State governments changed the definition of marriage and the Federal government declined to go along with that change.

[Brittain33]

But you have to answer, why this compelling change in the way we've always done things?

I already answered,  Go back and read what I already wrote if you want the details, but the short version is that State governments changed the definition of marriage and the Federal government declined to go along with that change.

We're talking past each other.

The change is for the federal government to decide to break from the states, when in the past it rode along with them through many other changes, principally about race.

I get the "common sense" argument here--people couldn't conceive of the federal government recognizing same-sex marriage when it was a fringe idea because one state had it. I get that. What people need to recognize is why thus policy, which seemed conservative, actually represented a radical break from the past. And now that a significant share of Americans live in states where it's an option, more than just Vermont, it's past time to account for that.

[True Federalist (진정한 연방 주의자)]

Those changes concerning race were primarily achieved via the legislation and only the tidying up at the end was achieved via the courts.  Whereas from the beginning, government recognition of same-sex civil unions and marriages has been predominantly a court-imposed change that has run far ahead of public sentiment.

[minionofmidas]

Those changes concerning race were primarily achieved via the legislation and only the tidying up at the end was achieved via the courts.  Whereas from the beginning, government recognition of same-sex civil unions and marriages has been predominantly a court-imposed change that has run far ahead of public sentiment.

As long as these are state courts, that would be of highly secondary relevance.

[LastVoter]

Man, where is jmfcst when you need him to post the most.

Well, while the Bible may be inerrant in some alternative universe, it is nevertheless ignored when it comes to Constitutional law, so I am not sure just how "helpful" jmfcst would be here.

By accruing views to this thread.

[H.E. VOLODYMYR ZELENKSYY]

Hold it! We forgot something:

Congratulations afleitch!