demagogue on 12/5/2012 at 07:28
It's going to have to just invalidate being able to get a civil union in the state though. The full faith and credit clause in the Constitution means that if a marriage is legally obtained in one state, it must be legal in all states... The other states have to give that state's license full faith and credit as if it had been legal there too... And that principle has already been well tested on this issue. So gay marriages/ civil unions still have to get recognized in NC (if they didn't, the couple could sue and NC would lose), just you can't get one there.
jay pettitt on 12/5/2012 at 08:16
Ooooh, I see a profit opportunity whereby nobody teaches science properly and we invent a despotic religion to demonise homosexuality in nearly all the states and then, and this is the good bit, charge ginormous amounts of pink dollars for gay weddings in Las Vegas.
Trance on 12/5/2012 at 12:57
Quote Posted by demagogue
The full faith and credit clause in the Constitution means that if a marriage is legally obtained in one state, it must be legal in all states... The other states have to give that state's license full faith and credit as if it had been legal there too... And that principle has already been well tested on this issue. So gay marriages/ civil unions still have to get recognized in NC (if they didn't, the couple could sue and NC would lose).
You sure about that?
(
http://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause#Application_to_family_law)
demagogue on 12/5/2012 at 17:35
You have to understand how law works. Yes, the full faith and credit clause requires that if a marriage is recognized in one state, it *must* be recognized in another state. The dispute that that wiki page is talking about is that some states don't recognize gay marriage as marriage at all, so that's why they're refusing (I think illegally). They're not saying they're not recognizing another state's marriage, but that it isn't a marriage (which I personally think is an insane argument; of course it's a marriage because the state made it a marriage. That's the whole fucking point of giving that state's law "full faith and credit", asshole (not you, the people making that argument)). But what I said isn't inconsistent. Ok, maybe I should have worded it, if they aren't recognized then the couple can sue and they *should* win if the judge were applying the law correctly. The state could only keep not recognizing other states' gay marriages if they tossed out any fair interpretation of the FF&C clause like a normal human would interpret it, or if they just don't care and have no problem pissing on the constitution and their fellow states' law.
The thing about practice is that sometimes you can get these different interpretations co-existing, and it requires a court to make a decision to resolve the dispute and settle the interpretation, and even then only under its jurisdiction, so you could have federal courts going in different directions, and only the Supreme Court can settle it for all the states. But I don't know the state of cases on this issue, if there have been any.
Edit: Ah, I should have been more clear in saying this principle has been well tested on this issue. I actually meant that it's been well tested on "marriage", for things like interracial marriages, and different ages of marriage, marrying cousins, things like that, so the principle applying to marriage is well established. But as I said I don't know the state on gay marriage in particular. To me it seems just obvious it applies to gay marriage just like all those other categories of marriage, so maybe I just assumed it'd apply just the same (as it should). But obviously to some states that have challenges with the whole "law" part of government it doesn't, the part where law is what the words say & how it's been applied in similar cases, and to meet the whole effing purpose of it (don't piss on your fellow states' law), not what's at your convenience.
heywood on 13/5/2012 at 03:30
Quote Posted by Vasquez
They surely will, as long as the parents and the whole society show negative reactions to homosexuality. But the sad thing is, kids will always find a reason for cruelty, if it's not GAY it's red hair, eyeglasses, different colored skin, unfashionable clothes or whatever. And if we start giving free hair dye and Lasik surgery and all-body-makeup to children, and ban poverty and make fashion slavery mandatory, they'll just find some other reason to pick on each other.
I think fucktardism
is hardwired, we're social animals so there will always be something of a hive mind telling us what's "normal" and what is not, just as there will always be the sort of characters who refuse to tolerate the "not normal", who want to dictate to others the correct way of living. It's depressing how often those who prefer following to leading choose to follow the intolerant one rather than ganging up to defend his victim. I guess that's where the "greater cause" comes into play - it's easier to get the group on your side if you have some all-powerful supernatural entity backing up your opinions.
Good point.
Yes, it's depressing when people who I've known to be tolerant start to change their attitude once they have kids. I have a few old university friends like that, who now seem happy with their kids behaving like little homophobes because it gives them comfort thinking their kids aren't gay.
Quote Posted by demagogue
You have to understand how law works. Yes, the full faith and credit clause requires that if a marriage is recognized in one state, it *must* be recognized in another state. The dispute that that wiki page is talking about is that some states don't recognize gay marriage as marriage at all, so that's why they're refusing (I think illegally). They're not saying they're not recognizing another state's marriage, but that it isn't a marriage (which I personally think is an insane argument; of course it's a marriage because the state made it a marriage. That's the whole fucking point of giving that state's law "full faith and credit", asshole (not you, the people making that argument)). But what I said isn't inconsistent. Ok, maybe I should have worded it, if they aren't recognized then the couple can sue and they *should* win if the judge were applying the law correctly. The state could only keep not recognizing other states' gay marriages if they tossed out any fair interpretation of the FF&C clause like a normal human would interpret it, or if they just don't care and have no problem pissing on the constitution and their fellow states' law.
The thing about practice is that sometimes you can get these different interpretations co-existing, and it requires a court to make a decision to resolve the dispute and settle the interpretation, and even then only under its jurisdiction, so you could have federal courts going in different directions, and only the Supreme Court can settle it for all the states. But I don't know the state of cases on this issue, if there have been any.
Edit: Ah, I should have been more clear in saying this principle has been well tested on this issue. I actually meant that it's been well tested on "marriage", for things like interracial marriages, and different ages of marriage, marrying cousins, things like that, so the principle applying to marriage is well established. But as I said I don't know the state on gay marriage in particular. To me it seems just obvious it applies to gay marriage just like all those other categories of marriage, so maybe I just assumed it'd apply just the same (as it should). But obviously to some states that have challenges with the whole "law" part of government it doesn't, the part where law is what the words say & how it's been applied in similar cases, and to meet the whole effing purpose of it (don't piss on your fellow states' law), not what's at your convenience.
(emphasis above is mine)
I believe this is exactly the reason why states are putting a precise definition of "marriage" into their Constitutions.
demagogue on 13/5/2012 at 04:05
Yeah I understand what they're trying to do, but it's incredibly perverse.
This may start up a circular argument, but that shouldn't make a difference to full faith and credit because the whole point is, what matters for FF&C is what the other states define as marriage, not what your own state says. If all a state had to do to nullify the law of every other state in its own borders (the precise problem FF&C was written to stop) was just change the definition of it in their own constitution, then FF&C would lose all meaning: Sorry people from California, you can't drive your car into our state. Why not? Because according to our constitution we gave a definition of "drivers" which explicitly excludes Californians. Sorry chumps, but the duty to have faith in you doesn't apply when we *really* don't have faith in you. I mean maybe it applies when we don't have faith in you just a little, but when we have ZERO faith in your law, like your law isn't even the law of a civilized fucking people so we're going to call it "non-law" by definition, well then the duty to have faith in you can't apply at all because you are disgusting heathen pig-people we can't have any faith in, and the duty to give "full faith and credit to other states" can't possibly have intended to mean actually giving "faith" and "credit" to other states we don't like. Surely it intends to require us to give credit to states we already give credit to so we don't need the requirement.
Its perverse because FF&C should apply *more* the less faith one state has in another, and this argument is perversely saying it should apply *less* or even *not at all*. That argument is effectively saying that FF&C only applies when our state already has full faith & credit so it doesn't need to apply, but of course when our state gives no faith or credit to your law by definition, the requirement to give FF&C can't apply because we don't give FF&C!!! It only applies when it doesn't need to, and it's impossible to apply precisely when it needs to be applied the most. So to allow states to circumvent FF&C just through a definition in their constitution would effectively just toss the point of FF&C completely out the window IMO. The argument is about as perverse as legal arguments get.
heywood on 14/5/2012 at 07:04
If so, doesn't that make DOMA unconstitutional? And do you think that's a minority or majority view among Constitutional scholars?
Not having a legal background, I thought FF&C was primarily about honoring court records and judgments made by other states, to prevent people from escaping judgment by moving and/or relitigating settled cases in a more favorable jurisdiction. But it doesn't necessarily force one state to enforce another state's statute over their own, especially if they are conflicting. For example, a child custody decision made by a family court in one state is enforceable in another state based on FF&C, so that a parent can't simply kidnap their child and seek custody in another state. But on the other hand, if a person is granted a concealed handgun license in Texas, FF&C doesn't obligate Illinois to honor that license and allow the person to carry concealed in Illinois.
If I have that much correct, I have a hypothetical question: Suppose SSDI follows the way of AFDC and federal disability benefits become state administered and funded by federal block grants. Now if California establishes eligibility rules that define anyone with an alcohol or drug addition as legitimately disabled, does FF&C mean an alcoholic who enrolls in California retains their eligibility upon moving to Arizona? Even if the eligibility criteria there differ? I'm hoping the answer to that would be no, because now we're talking about the laws of one state dictating the budgetary obligations of another.
Getting back to marriage... When Massachusetts started marrying same-sex couples, residents from other states started applying for marriage licenses in Massachusetts. I remember there was a court battle over a 1913 statute which said:
[INDENT]Section 11. No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void. Mass. Gen. L. ch. 207, § 11.[/INDENT]
This statute was upheld by the courts and then a couple years later it was repealed, creating a cottage industry of marriage tourism in Massachusetts. If these marriages have to be recognized everywhere, it means that one state acting unilaterally can effectively overrule the marriage laws of every other state and the federal government, with the only caveat being the travel. Even though I'm a proponent of same sex marriage rights, I don't think this is a reasonable way to approach it. If we interpret FF&C that way to other issues across the board, it would seemingly make choice of law into a giant mess and create a nightmare for law enforcement. I would rather see the DOMA repealed and the federal government recognize same-sex marriages first.
---
FWIW, we have a similar mess of marriage law over here. Since 2004, marriage in Australia has been defined as a voluntary union between a man and woman. However, there are a hodge podge of state laws regarding domestic partnerships and a variety of state and some federal rights which apply to "de facto" cohabitating couples of any sex. The net effect is that same-sex couples enjoy most of the same rights as married couples. Same-sex marriage is also supported by a majority in polls, so you'd think it would be easy to change the marriage laws. Unfortunately, as is the case in the US, most of the people who support same-sex marriage rights are pretty quiet about it while those who oppose it are much more vocal.
demagogue on 14/5/2012 at 07:24
Quote Posted by heywood
If so, doesn't that make DOMA unconstitutional? And do you think that's a minority or majority view among Constitutional scholars?
Well I would hope it's unconstitutional, if it actually went to federal court. But I think they may be worried about taking it to court since it's a calculated risk; if you get a decision against you you're screwed forever, whereas if you just hang back and let things take a political course, everybody can just do this cat & mouse dance and it's a little more flexible. I think (or I guess) that may continue for a while yet, which makes the constitutional question somewhat moot in the meantime. I don't know what most constitutional scholars have to say on gay marriage's relation to all the other marriage cases; I haven't read many scholarly articles on it, but it's a good question.
Quote:
Not having a legal background, I thought FF&C was primarily about honoring court records and judgments made by other states, to prevent people from escaping judgment by moving and/or relitigating settled cases in a more favorable jurisdiction. But it doesn't necessarily force one state to enforce another state's statute over their own, especially if they are conflicting. For example, a child custody decision made by a family court in one state is enforceable in another state based on FF&C, so that a parent can't simply kidnap their child and seek custody in another state. But on the other hand, if a person is granted a concealed handgun license in Texas, FF&C doesn't obligate Illinois to honor that license and allow the person to carry concealed in Illinois.
If I have that much correct, I have a hypothetical question: Suppose SSDI follows the way of AFDC and federal disability benefits become state administered and funded by federal block grants. Now if California establishes eligibility rules that define anyone with an alcohol or drug addition as legitimately disabled, does FF&C mean an alcoholic who enrolls in California retains their eligibility upon moving to Arizona? Even if the eligibility criteria there differ? I'm hoping the answer to that would be no, because now we're talking about the laws of one state dictating the budgetary obligations of another.
Me and another lawyer friend were talking about this recently, and I think the punchline was that FF&C is for "status" types of licenses that travel with the person, but not for "activity" types of licenses that stick with the state. So marriage isn't about something you do in the state, it's about something you legally are as a personal status, whereas like a hunting license is about an activity right in a state, and of course that's going to be something different for State A from State B, so even if the person travels to State B, the activity-right inside State A isn't traveling with him, so State B doesn't have to honor his gun license. (I think a drivers license is another example of a status license, but for practical reasons they have legislation to standardize that across the country anyway.)
I'll have to get back to you on the marriage stuff. I just had a few minutes to post here.
CCCToad on 13/5/2012 at 23:23
Thanks for the post in spite of the brevity, it was fairly informative.
DOMA makes the practical applications fairly odd in a lot of cases. The leadership briefing we got on how to apply the policies following repeal of DADT reflected this: its now OK in the military to be as flaming gay as you like, but because of DOMA same-sex partners don't get the same benefits that heterosexual partners do. For example the government won't put up a homosexual "partner" in family housing with the service member. Since this is because the various military perks are technically considered federal benefits, I'd assume that this also applies to any other civilian incentives which are federal funded and thus fall into the same category as military benefits.
CCCToad on 13/5/2012 at 23:24
Edit: There's a bizarre forum bug in which it seems to think I posted this yesterday. The actual time of this post is Mon 14, 1130 Z (GMT) in response to Demagogue's post.
Thanks for the post in spite of the brevity, it was fairly informative.
DOMA makes the practical applications fairly odd in a lot of cases. The leadership briefing we got on how to apply the policies following repeal of DADT reflected this: its now OK in the military to be as flaming gay as you like, but because of DOMA same-sex partners don't get the same benefits that heterosexual partners do. For example the government won't put up a homosexual "partner" in family housing with the service member. Since this is because the various military perks are technically considered federal benefits, I'd assume that this also applies to any other civilian incentives which are federal funded and thus fall into the same category as military benefits. So the practical effect is that gay "couples" have fewer "rights" than do heterosexual ones.
