DOMA unconstitutional: question

[HYHYBT]

All right, so yet another court (but this time at the appeals level!) has declared the so-called Defense of Marriage Act unconstitutional. Partly, which leads to my question...

I've found no conclusive answer and very little discussion of one aspect of this, and so Fratching! seems like a good place at least for the latter, even if the former never turns up.

DOMA has two parts of substance, numbered 2 and 3 just for laughs. Part 2 is a "states' rights" provision: states which do not permit gay marriages do not have to recognize those performed in other states. Part 3 is the opposite of states' rights, declaring that the federal government will not recognize gay marriages no matter what any state says. It's part 3 that's been (repeatedly now) declared unconstitutional.

I get that if only 3 is struck, states will still not have to recognize out-of-state marriages they don't like. What's not at all clear, at least that I've found, is which that would leave the federal government recognizing. Would the test be "valid where performed" or "valid where the couple lives?"

As things currently stand, gay couples legally married where they live are treated as married by the state and (mostly) as unmarried by the feds. Would removing only 3 mean that a married couple from Vermont who moved to Tennessee be considered married at the federal level but not the state, or would neither recognize them? Would the answer be the same if, instead of being from Vermont, they were from Tennessee but went up north to have a legal wedding?

[fireheart17]

I suspect that it'll be an interesting issue that will have to be addressed for it to actually work.

[Nekojin]

Part 2 flies directly in the face of the Full Faith and Credit Clause, a part of the US Constitution. In effect, any status that is legally given by one state must be honored by any other state.

I have a pair of cousins who had a kid together (M and F are both cousins of mine, and of each other, just so we're clear on this). They lived in Georgia, with M's family. It's illegal for cousins to marry in Georgia, but it's legal for them to marry in California. So it was perfectly legal under the Constitution for them to visit California, get married while they're here, and continue to be married once they shuffled back to Georgia.

They declined to do this, despite repeated urgings by virtually everyone in the family. Taking the long view, I suppose it's just as well, as they broke up not long after.

Anyway. Part 2 (per your numbering) of DOMA is unconstitutional. In order to bypass or nullify the FF&C Clause, your law has to have Constitutional power - it has to be an Amendment itself, for it to be able to thumb its nose at FF&C.

At least, per my armchair lawyering.

[s_stabeler]

Nekojin, that clause is about enforcement, not laws themself. what it means is that if a state court rules that person A owes person B $500, then it doesn't matter where person B lives, person A can get the judgement enforced.

[Hyena Dandy]

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.

No, Stabeler, it isn't.

[Nekojin]

Perhaps I should mention that my mother is a (now-retired) Family Law lawyer, and she was the one citing FF&C as the reason for my cousins to get married in Cali.

[s_stabeler]

OK, it was how I thought that one applied- I DO know that some permits aren't always valid out-of-state however, CCP( Concealed Carry Permits) come to mind. I simply thoght it was primarily for situations like protection orders ( where your mother probably came across it) and civil stuff. If I'm wrong, then that's good. ( personally, I don't care if gays get married or not- it's up too the two people involved, IMHO.)

[bara]

Im still trying to figure out what the big deal is, I could care less if gay people want to get married. Doesnt hurt me at all and if it makes them happy, go for it.

Yet another fine example of why church and state shouldn't be married.

[HYHYBT]

I'm a bit confused, because every source I've found says first cousins CAN marry in Georgia.

I also know that the Full Faith and Credit clause has at least some of the time been understood not to apply to marriages; for example, when some states outlawed interracial marriage.

Bara: well... so long as enough people in the right places object, it's a tooth and nail fight every step... and for those directly and concretely affected (mainly people who want a legal document they're not allowed to have) it can be a very big deal indeed. And also, well, I'll just stop here because we've had a lot of threads on the more general topic and there's probably not much to add on that.

[bara]

Allow me to explain better, I mean I don't understand what the deal is with those who are against it. People have a right to be happy, or at least try to be happy.

Attempting to foist misery upon people simply because of their sexual preference/orientation is a pointless exercise. Especially when it is denying them the right of being legally recognized as a couple and allowed the same benefits as others who are legally recognized. I understand the viewpoint of the gay/lesbian community, they are pursuing happiness as defined in the Bill of Rights.

Its the other side I dont get.


My apologizes to all for being vague.

[Daskinor]

I'm reading the opinion now. Looks like they declared the provisions against providing federal benefits to gay couples. Like federal tax deductions for married couples, or even a joint filing. So it looks like a equal protection issue, even though that should only apply to the states.


Mehh I had to many beers to figure this out tonight.

[Nekojin]

I'm a bit confused, because every source I've found says first cousins CAN marry in Georgia.

*shrug* That was over 15 years ago, so I might have that detail mistaken - they might have been living at our hyper-judgmental grandmother's place in Mississippi, or maybe someone on that side of the family mistakenly claimed that they couldn't get married in Georgia, and Mom never double-checked since it wasn't her jurisdiction.

I also know that the Full Faith and Credit clause has at least some of the time been understood not to apply to marriages; for example, when some states outlawed interracial marriage.

*shrug* FF&C has been used in lower courts as a reason for not letting one party skip out on marital obligations by simply declaring that moving "forced" an automatic divorce. But it's not exactly the sort of thing that gets tried regularly, y'know? =^_^=

[wolfie]

Mention of FF&C brought this to mind: A few years back, some people were pushing for "Covenant Marriages" (basically, a marriage where divorce would be prohibited except under a very limited set of circumstances).

Suppose a couple gets married (with a "Covenant Marriage") in a bible-belt state (assume Georgia). Things don't work out, and (since that state won't allow them to get a divorce) one of the people moves to Nevada (yep, I'm stereotyping the relative ease of a Nevada divorce). Would FF&C prohibit Nevada granting the divorce, or would Nevada law prevail when someone applied for a divorce in a Nevada court?

Let's make things a bit more interesting - from what I've seen on the FF&C link, FF&C doesn't force a state to recognize another state's law when that law conflicts with their own public policy, therefore it seems that NV law allowing the divorce would override GA law prohibiting it. The petitioner goes to a third state (let's assume Connecticut), falls in love, and wants to get married again. This person has outstanding both a Georgia marriage that states they're not allowed to get a divorce (i.e. CT allowing their remarriage would be bigamy) and a Nevada divorce stating that GA needs to MYOB and not tell NV who can and can't be divorced (i.e. CT allowing their remarriage would be just like any other divorced person getting remarried). FF&C would require CT to recognize out-of-state marriages (under GA law, the person is still married) and out-of-state divorces (under NV law, the person is divorced) - in other words, they'd be required to recognize mutually exclusive conditions. What happens then?

[Nekojin]

After a probably-lengthy legal battle, the courts would rule that laws cannot force people to stay together if they don't want to be together, and that justice is not served by forcing them to stay married when it's merely a legal fiction.

Something similar has come up before, particularly with regard to Catholic marriages.

Edit, an hour-plus later: Keep in mind that there's a difference between honoring another state's laws (FF&C), and allowing another state to dictate terms to ALL other states (your proposed "Covenant" law). Just as Mississippi can't tell California who can or cannot get married, the Covenant law wouldn't allow one state to tell others who can or cannot get divorced.

[s_stabeler]

it's a non-issue, since under the FF&C, GA would be forced to recognise the NV divorce, since a divorce is a legal judgement. So what ahppens is the second marriage is legal. If tyhe first wife will accept that rather than disrupt the second wedding though, is another matter. ( I'm thinking of the part of the ceremony asking for objections.)