http://news.yahoo.com/blogs/lookout/defense-marriage-act-unconstitutional-federal-appeals-court-rules-175257996.html
QuoteOn Thursday, a federal appeals court in Boston ruled that the government's ban on gay marriage, called the Defense of Marriage Act (DOMA), violates the Constitution and should be struck down.
If the Supreme Court hears the case and upholds this ruling, it means that the federal government would most likely have to recognize the marriages of gay couples who were wed and reside in the six states that allow same-sex unions.
The First Circuit Court found that the federal government does not have a right to interfere in states' definition of marriage, but stopped short of arguing that gay people have a constitutionally protected right to legal marriage. The First Circuit court is the first federal appeals court to strike down the law, and the case is likely to be taken up by the Supreme Court next year.
A section of DOMA, which was passed under President Bill Clinton, says that gay married couples are ineligible for federal benefits afforded to straight married people, such as tax breaks and Social Security survivor checks. DOMA encompasses about 1,000 federal laws tangentially related to marriage and affects 100,000 couples in the country, according to the decision. A group of gay couples in Massachusetts sued the government over the law, and the state of Massachusetts filed its own suit, saying DOMA makes its Medicaid program illegal because the state combines gay married couples' incomes in calculating eligibility. (Gay marriage is legal in Massachusetts.)
The Justice Department under President Barack Obama initially defended DOMA against this lawsuit, but last year announced that it found DOMA unconstitutional and would no longer back it. House Republicans then appointed outside attorneys to argue for the federal law.
The judges admitted that the decision rested on navigating difficult and thorny precedents. "Only the Supreme Court can finally decide this unique case," they wrote.
But in its decision, the First Circuit argued that the federal government has no interest in rejecting states' definition of marriage, and that the singling out of a minority group—gays and lesbians—was troubling.
"Many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today," the First Circuit wrote. "One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."
If the case makes it to the Supreme Court, all eyes will (as usual) be on Justice Anthony Kennedy, who moved to strike down laws banning anal sex in 2003 and a Colorado law that banned anti-discrimination rules that included gay people. So far, the Supreme Court has never held that sexual orientation can put people in a protected class, as it has with race and a few other things.
"I think this really does set up the issue for the Supreme Court to take this up next year," said Erwin Chemerinsky, a liberal constitutional law professor at UC Irvine.
The decision marks the latest court victory for gay rights proponents after the Ninth Circuit Court of Appeals struck down California's ban on gay marriage in February. After North Carolina voters inserted a ban on gay marriage and civil unions into their Constitution in May, Obama announced that he personally thinks gay people should allowed to be married. But he stopped short of saying that the federal government should guarantee that right, indicating that states should decide.
I eagerly await the explanation of why the Commerce Clause allows this.
Quote from: MadImmortalMan on May 31, 2012, 03:26:38 PM
I eagerly await the explanation of why the Commerce Clause allows this.
I have no doubt that Congress had the power to enact this particular provision. The statute at issue states, in relevant part:
Quote"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife."
The point of this part of the statute is to just provide a definition for the word "marriage" which appears in other statutes, regulations, etc. In other words, it it is just clarifying other statutes and regulations. For instance, that might be a regulation specifying that surviving spouses of married military personnel get certain benefits. That regulation might use the word "marriage" somewhere in there, without defining it. This statute clarifies what the word marriage means.
Under the "necessary and proper clause" in Article I of the Constitution, Congress has the power to enact laws that are "necessary and proper" in implementing its enumerated powers. A definitional provision, such as this one here, would be a classic example of a necessary and proper law, since statutes and regulations obviously need definitions.
Edit: Note that just because Congress has the power under Article I to enact the statute doesn't necessarily make it constitutional- obviously it can be challenged on any other provision of the Constitution or any of the Amendments- as has been done here.
Also, while this litigation is focusing on the definitional portion of DOMA, I think the other provision in DOMA (stating that states do not have to recognize same-sex marriages from other states) is also on shaky grounds. I'm not sure if that provision has been litigated yet.
Quote from: stjaba on May 31, 2012, 06:27:44 PM
Quote from: MadImmortalMan on May 31, 2012, 03:26:38 PM
I eagerly await the explanation of why the Commerce Clause allows this.
I have no doubt that Congress had the power to enact this particular provision. The statute at issue states, in relevant part:
Quote"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife."
The point of this part of the statute is to just provide a definition for the word "marriage" which appears in other statutes, regulations, etc. In other words, it it is just clarifying other statutes and regulations. For instance, that might be a regulation specifying that surviving spouses of married military personnel get certain benefits. That regulation might use the word "marriage" somewhere in there, without defining it. This statute clarifies what the word marriage means.
Under the "necessary and proper clause" Congress has the power to enact laws that are "necessary and proper" in implementing its enumerated powers. A definitional provision, such as this one here, would be a classic example of a necessary and proper law, since statutes and regulations obviously need definitions.
So the unanimous decision is stating that that definition is not legal? :unsure:
But surely if marriage is an issue for state law then it should be left for them to define and the Federal government to follow?
Quote from: Sheilbh on May 31, 2012, 06:32:13 PM
But surely if marriage is an issue for state law then it should be left for them to define and the Federal government to follow?
Yes, you would think so. But the full faith and credit clause of the 4th Article of the Constitution requires the Feds to determine how full faith and credit in the legally enforceable decisions of the states will be enforced against the several states. And that is why the Congress can pass DOMA.
Quote from: Sheilbh on May 31, 2012, 06:32:13 PM
But surely if marriage is an issue for state law then it should be left for them to define and the Federal government to follow?
The question is whether or not the federal government can offer benefits to those legally joined by those states that allow gay marriage or civil unions.
Quote from: merithyn on May 31, 2012, 06:30:51 PM
So the unanimous decision is stating that that definition is not legal? :unsure:
Yep.
Quote from: stjaba on May 31, 2012, 06:27:44 PM
Also, while this litigation is focusing on the definitional portion of DOMA, I think the other provision in DOMA (stating that states do not have to recognize same-sex marriages from other states) is also on shaky grounds. I'm not sure if that provision has been litigated yet.
"Shaky grounds" is giving it too much credit... as in, clear violation of "full faith and credit." ;)
Quote from: Scipio on May 31, 2012, 06:39:08 PM
Quote from: Sheilbh on May 31, 2012, 06:32:13 PM
But surely if marriage is an issue for state law then it should be left for them to define and the Federal government to follow?
Yes, you would think so. But the full faith and credit clause of the 4th Article of the Constitution requires the Feds to determine how full faith and credit in the legally enforceable decisions of the states will be enforced against the several states. And that is why the Congress can pass DOMA.
Indeed. Jaba and Camerus or possibly Captain Carrot are incorrect.
Quote from: Ideologue on June 01, 2012, 12:49:12 AM
Indeed. Jaba and Camerus or possibly Captain Carrot are incorrect.
That's why I hedged my language and said "shaky grounds." :sleep:
Quote from: Ideologue on June 01, 2012, 12:49:12 AM
Indeed. Jaba and Camerus or possibly Captain Carrot are incorrect.
I'm gonna call BS. Full faith and credit gives Congress authority to determine a methodology for communication, not carte blanche to override definitions for state matters. Forms of proof, timelines for requests of proof, that kind of thing-
that's what FF&C delegates to Congress.
Quote from: Sheilbh on May 31, 2012, 06:32:13 PM
But surely if marriage is an issue for state law then it should be left for them to define and the Federal government to follow?
The problem is how to apply that principle in regards to things such as federal survivor's pensions. Suppose a couple is legally married under the laws of state A. Ok, by the principle you suggest, the federal government recognizes that marriage, and if one of the two should die, the other would be eligible for survivor's benefits (assuming that all other requirements are also met). But suppose the couple had moved to state B, where there marriage is not recognized. Would the survivor still be eligible for a federal pension? How about if the survivor moved to state B after the death of the other partner?
To be honest, though, I'm not sure that the Full Faith and Credit clause applies to this at all. The Full Faith and Credit clause deals with the recognition of public acts of a state by other states, but we're talking about the recognition of the public acts of a state by the federal government.
Quote from: dps on June 01, 2012, 03:22:28 PM
The problem is how to apply that principle in regards to things such as federal survivor's pensions. Suppose a couple is legally married under the laws of state A. Ok, by the principle you suggest, the federal government recognizes that marriage, and if one of the two should die, the other would be eligible for survivor's benefits (assuming that all other requirements are also met). But suppose the couple had moved to state B, where there marriage is not recognized. Would the survivor still be eligible for a federal pension? How about if the survivor moved to state B after the death of the other partner?
To be honest, though, I'm not sure that the Full Faith and Credit clause applies to this at all. The Full Faith and Credit clause deals with the recognition of public acts of a state by other states, but we're talking about the recognition of the public acts of a state by the federal government.
This is the way I see it, as well. FF&C is between states, not between the states and the Feds (though, as has been noted, the Feds sometimes get involved in processes by which the states can exercise FF&C, I believe).
An analogy would be Federal pensions for, say, a "black" woman marries a "white" man in, say, 1950 Minnesota, where the marriage is legal, and he gets killed the next year while serving in the Army. She moves back to her mother's house in South Carolina, where the marriage isn't legal. Is she entitled to his survivor's benefits?
FF&C would say that the above marriage would have had to be recognized in South Carolina (and my understanding is that SC would reluctantly have done so), but that would mean that FF&C also requires that states that don't allow same-sex marriages recognize same-sex marriages legally performed in other states, also. I don't understand how this distinction can be squared with the Constitution.
The federal Obstruction of Marriages Act (or whatever it is called) seems even less defensible than state laws refusing to honor FF&C. The Federal government does not seem to have the power to enact such a law, as far as I can see. A legal marriage would seem to be legal, and so no such law would be necessary or proper.
Quote from: grumbler on June 01, 2012, 04:15:36 PM
Quote from: dps on June 01, 2012, 03:22:28 PM
The problem is how to apply that principle in regards to things such as federal survivor's pensions. Suppose a couple is legally married under the laws of state A. Ok, by the principle you suggest, the federal government recognizes that marriage, and if one of the two should die, the other would be eligible for survivor's benefits (assuming that all other requirements are also met). But suppose the couple had moved to state B, where there marriage is not recognized. Would the survivor still be eligible for a federal pension? How about if the survivor moved to state B after the death of the other partner?
To be honest, though, I'm not sure that the Full Faith and Credit clause applies to this at all. The Full Faith and Credit clause deals with the recognition of public acts of a state by other states, but we're talking about the recognition of the public acts of a state by the federal government.
This is the way I see it, as well. FF&C is between states, not between the states and the Feds (though, as has been noted, the Feds sometimes get involved in processes by which the states can exercise FF&C, I believe).
An analogy would be Federal pensions for, say, a "black" woman marries a "white" man in, say, 1950 Minnesota, where the marriage is legal, and he gets killed the next year while serving in the Army. She moves back to her mother's house in South Carolina, where the marriage isn't legal. Is she entitled to his survivor's benefits?
FF&C would say that the above marriage would have had to be recognized in South Carolina (and my understanding is that SC would reluctantly have done so), but that would mean that FF&C also requires that states that don't allow same-sex marriages recognize same-sex marriages legally performed in other states, also. I don't understand how this distinction can be squared with the Constitution.
The thing is, though, that while it would seem that FF&C would require a marriage performed legally in one state to be recognized by all other states, in practice that hasn't been the case, at least to my understanding. For example, until the Supreme Court declared all state laws banning interracial marriage unconstitutional, states where they were illegal didn't recognize such marriages even if performed in states where they were legal, and the federal government never forced them to do so, as best as I can tell. I have no idea how the feds handled survivors' benefits from such marriages.
Also, Scip, I'm kinda surprised you pulled that argument out, since DOMA is a prime example of what full faith and credit was supposed to prevent, e.g. the federal government violating state jurisdiction by imposing an arbitrary definition that upholds some states' laws, while invalidating others.
Quote from: dps on June 01, 2012, 07:23:29 PM
The thing is, though, that while it would seem that FF&C would require a marriage performed legally in one state to be recognized by all other states, in practice that hasn't been the case, at least to my understanding. For example, until the Supreme Court declared all state laws banning interracial marriage unconstitutional, states where they were illegal didn't recognize such marriages even if performed in states where they were legal, and the federal government never forced them to do so, as best as I can tell. I have no idea how the feds handled survivors' benefits from such marriages.
My understanding from reading commentary on the Loving case that overturned the anti-miscegenation laws nationwide, Virginia would have had to recognize the marriage had the couple not previously been residents of Virginia and thus liable to the part of the law which forbad the evasion of the law by getting married in another state. I'm not sure how correct my understanding is, though; all those racial laws were hard to follow because of the preposterousness of attempts to try to define race in legal terms.
Maybe one of our legal experts can explain how the Federal government would have handled the survivor's benefits under the laws of the time.
Can we all just agree that this "controversy" is fucking stupid?
Christ. Let fags get married already, it's not that big a deal.
Surprised noone yet made the "Let fags marry so they can be miserable like everyone else" joke. It's the hack cliche in gay marriage debates. :P
Quote from: dps on June 01, 2012, 03:22:28 PM
The problem is how to apply that principle in regards to things such as federal survivor's pensions. Suppose a couple is legally married under the laws of state A. Ok, by the principle you suggest, the federal government recognizes that marriage, and if one of the two should die, the other would be eligible for survivor's benefits (assuming that all other requirements are also met). But suppose the couple had moved to state B, where there marriage is not recognized. Would the survivor still be eligible for a federal pension? How about if the survivor moved to state B after the death of the other partner?
I don't see that as an issue though. That's a relationship between individuals and the Federal government. The Federal government isn't requiring state B to recognise it or to do anything. They're recognising it because it was legal in state A and they're paying the benefits.
Edit: Obviously I'm enormously ignorant of this, though I find it interesting. So don't come at me assuming that I've any knowledge on this whatsoever.
Quote from: Sheilbh on June 02, 2012, 09:48:12 AM
Quote from: dps on June 01, 2012, 03:22:28 PM
The problem is how to apply that principle in regards to things such as federal survivor's pensions. Suppose a couple is legally married under the laws of state A. Ok, by the principle you suggest, the federal government recognizes that marriage, and if one of the two should die, the other would be eligible for survivor's benefits (assuming that all other requirements are also met). But suppose the couple had moved to state B, where there marriage is not recognized. Would the survivor still be eligible for a federal pension? How about if the survivor moved to state B after the death of the other partner?
I don't see that as an issue though. That's a relationship between individuals and the Federal government. The Federal government isn't requiring state B to recognise it or to do anything. They're recognising it because it was legal in state A and they're paying the benefits.
Edit: Obviously I'm enormously ignorant of this, though I find it interesting. So don't come at me assuming that I've any knowledge on this whatsoever.
Let me try to explain this. Sure, on one level, whether a surviving spouse is eligible for SS survivor benefits is an issue between that individual and the feds, but the feds make that eligibility hinge on whether or not the couple was legally married--and marriage laws are a matter of state, not federal law. See the problem?
It shouldn't matter as long as the marriage was legal in the state where they were married.
Quote from: sbr on June 02, 2012, 02:46:37 PM
It shouldn't matter as long as the marriage was legal in the state where they were married.
But, if they move to a state which doesn't recognize the marriage, are they still married?
In the 1948 Perez v Sharp (http://www.multiracial.com/government/perez-v-sharp.html) it notes that
QuoteCivil Code, section 69, implements Civil Code, section 60, which provides: "All marriages of white persons with negroes, Mongolians, members of the Malay race, or mulattoes are illegal and void."
Presumably that means that, in California's eyes, the marriage did not exist. Were couples of different "races" who married and then move to California before 1948 still married?
Legal status depends on local law????!!!???? :o
Quote from: The Brain on June 02, 2012, 03:04:46 PM
Legal status depends on local law????!!!???? :o
The Full faith and Credit clause seems to say otherwise, but this is open to question in the US.
What's a Malay race? Or a "Mongolian," specifically people from the People's Republic of Mongolia?
Quote from: Ideologue on June 02, 2012, 11:47:44 PM
What's a Malay race? Or a "Mongolian," specifically people from the People's Republic of Mongolia?
Like all other racial constructs, these are probably "I can't define a member of the (x) race, but I know one when I see him."
Quote from: dps on June 02, 2012, 02:43:27 PM
Let me try to explain this. Sure, on one level, whether a surviving spouse is eligible for SS survivor benefits is an issue between that individual and the feds, but the feds make that eligibility hinge on whether or not the couple was legally married--and marriage laws are a matter of state, not federal law. See the problem?
Yeah I get that. But why doesn't the Feds recognise whatever the states determine is marriage? This isn't a case of state A trying to force state B to recognise gay marriage which would be what I understand is the issue of 'full faith and credit'.
I don't get why they need a definition when the problem isn't between different state laws about marriage, but the relationship between the individual and the Federal government. Surely they only need a 'definition' of marriage if there's a conflict between two states' definitions of marriage? If the issue is Federal benefits then I don't see why the Feds don't follow the respective states.
Quote from: Sheilbh on June 03, 2012, 02:06:31 PM
Yeah I get that. But why doesn't the Feds recognise whatever the states determine is marriage? This isn't a case of state A trying to force state B to recognise gay marriage which would be what I understand is the issue of 'full faith and credit'.
State A isn't trying to "force" state B to recognize gay marriage; the Constitution says that state B must recognize a marriage performed in state A, even if the law in state B doesn't allow that marriage. It is similar to other legal determinations; a person sentenced to prison for marajuana possession in Arizona cannot flee to California and claim an exception to the Arizona sentence because California laws don't provide for prison sentences for marijuana possession [this is just an example; I don't know the relevant laws].
QuoteI don't get why they need a definition when the problem isn't between different state laws about marriage, but the relationship between the individual and the Federal government. Surely they only need a 'definition' of marriage if there's a conflict between two states' definitions of marriage? If the issue is Federal benefits then I don't see why the Feds don't follow the respective states.
Two seperate issues:
(1) Politics. The Federal government may not have the power to create laws like DUMA, but politicians can run on the fact that they voted for it, even if some activist court strikes it down.
(2) Which state laws would apply? The laws where the couple were married, or the laws where the surviving spouse lives? FF&C was the mechanism for getting around this, so that the Feds don't need to even consider the question; a legal status from one state carries to them all.
Actually, there is a lot of law in various states which another state's courts will not apply if it offends their public policy. Iirc, this can affect all sorts of things, from the application of another state's tort law to the validity of a will, or a marriage. But don't quote me, because I haven't looked it up, not will I, because you are not a bar exam. :P