Mini-DOMAs: "This is, objectively, madness."

[IBCoupe]

At SCOTUSblog, one law professor writes that the real problem with marriage equality is one of recognition.

If there is one thing worse than being denied the right to marry the person you love, it is winning that right in one state, then having your marriage taken away from you by another state.  As same-sex marriage heads toward a possible date with the Supreme Court, attorneys on both sides are arguing about the constitutional right to get married.  But for the nearly fifty thousand same-sex couples who have been wed since 2004, the fight is also about their right to remain married.

...


As a result, property rights are potentially altered, spouses disinherited, offspring put at risk, and financial, medical, and personal plans thrown into turmoil.  Should the couple choose to exit the relationship someday, they may not have access to legal divorce.  And these are just the practical consequences, to say nothing of the affronts to dignity and equality.  Andrew Koppelman has written that such laws could plague same-sex couples with “constant, confusing changes in their legal status,” because “their marriage would cease (or, perhaps, become dormant; it is unclear whether it should spring back to life when they, or one of them, moves back to the state in which they were married).”

This is, objectively, madness.

...

[AZhitman]

Yet another example of something being just fine until an attorney gets a hold of it.

All kidding aside, and being a strong supporter of SSM (while maintaining a personal belief that marriage is between a man and a woman), this one's gonna be a mess. The resultant legal quagmire is going to create a whole new slew of exceptions, inequalities, and workarounds that will clog the courts for decades.

Job security, my brother.

[IBCoupe]

Yet another example of something being just fine until an attorney gets a hold of it.

All kidding aside, and being a strong supporter of SSM (while maintaining a personal belief that marriage is between a man and a woman), this one's gonna be a mess. The resultant legal quagmire is going to create a whole new slew of exceptions, inequalities, and workarounds that will clog the courts for decades.

Job security, my brother.

I think the Court could make it a lot simpler. Either expand our understanding of the Full Faith & Credit clause to say that States must recognize marriages performed by other States (diminishing State autonomy through increased federalization), or expand our understanding of substantive due process under the 14th Amendment to say that no State may nullify, without consent, a marriage formed in another state (diminishing State autonomy through stronger individual rights). Pick your poison.

[AppleBonker]

Been reading a lot of gay stories lately, Isaac?

[IBCoupe]

Been reading a lot of gay stories lately, Isaac?

Nah, SCOTUSblog has a symposium on gay marriage (DoMA challenge, Prop 8...). They recently wrapped up their symposium on the healthcare reform act.

[AZhitman]

I think the Court could make it a lot simpler. Either expand our understanding of the Full Faith & Credit clause to say that States must recognize marriages performed by other States (diminishing State autonomy through increased federalization), or expand our understanding of substantive due process under the 14th Amendment to say that no State may nullify, without consent, a marriage formed in another state (diminishing State autonomy through stronger individual rights). Pick your poison.

Regardless of which you pick, it becomes semantics - the end-result is the beginning of the slipperiest of slopes.

[IBCoupe]

I don't see how. Neither is without precedent in its technique. Even if you want to argue that there is a slope, we're certainly well past the edge. I'm not sure what you think would have its way paved by such a decision.

[AZhitman]

Admittedly, I'm not an expert here... so I'm asking - what's happened before (examples) to diminish State's Rights?

[szh]

All kidding aside, and being a strong supporter of SSM (while maintaining a personal belief that marriage is between a man and a woman), this one's gonna be a mess. The resultant legal quagmire is going to create a whole new slew of exceptions, inequalities, and workarounds that will clog the courts for decades.

I think the Court could make it a lot simpler. Either expand our understanding of the Full Faith & Credit clause to say that States must recognize marriages performed by other States (diminishing State autonomy through increased federalization), or expand our understanding of substantive due process under the 14th Amendment to say that no State may nullify, without consent, a marriage formed in another state (diminishing State autonomy through stronger individual rights). Pick your poison.

Isn't such action by the Supreme Court highly likely to undergo many legal challenges by the States? Both from the States that legalize SSM and, in particular, from those States that significantly oppose it?

BTW, what is the "Full Faith and Credit" clause? Where does it appear and what does it apply to?

Z

[mattblancarte]

I think the Court could make it a lot simpler. Either expand our understanding of the Full Faith & Credit clause to say that States must recognize marriages performed by other States (diminishing State autonomy through increased federalization), or expand our understanding of substantive due process under the 14th Amendment to say that no State may nullify, without consent, a marriage formed in another state (diminishing State autonomy through stronger individual rights). Pick your poison.

I think these options are reasonable. The Violence Against Women Act, and Full Faith and Credit for Child Support Orders Act have been able to cross state lines, so why not apply this to marriage?

Personally, I'd like to see marriage re-defined at the federal level... Not that I haven't said that 100 times before.

Z - The Full Faith and Credit Clause essentially lays out how each state should respect the laws, judicial proceedings, public records, etc. of other states. Article IV, Section 1 of the US Constitution.

[stebo0728]

Picking a poison would lead me to choose the later of your choices, as increased individual rights trump increased federalization in my book. What may end up being a better angle for SSM advocates is to work on improving the individual rights or abilities afforded to a married couple, and try to get them extended to SS couples regardles of marital status, rather than continuing to battle back and forth on the marriage issue. Admittedly that's a harder road, as you have to attack each right or ability on an individual basis, but it may prove easier in the long run, as there's no quibbling with anyone else and their sacred M word.

Disclaimer: That M word IS still sacred to me, on a personal level, but the sanctity of it is bombarded on many fronts, not just SSM, but extra marital relations, completely dysfunctional marital relations with hetero couples, and many others, so why we choose this one thing to be the only demon in the room is beyond me.

[AZhitman]

Personally, I'd like to see marriage re-defined at the federal level... Not that I haven't said that 100 times before.

I'd like to see it removed from government involvement completely and handed back to churches. I'm fully aware this would be a civil case nightmare, but perhaps we'd have a little more "caveat emptor" without a guarantee of nice clean divisions upon dissolution (with the attorneys taking the biggest cut).

[mattblancarte]

Yes, that's even better than changing its definition. I'm all for that idea.

Federal definitions and laws regarding marriage are akin to officially recognizing one religion as more privileged than another. Utter and complete nonsense.

[szh]

Z - The Full Faith and Credit Clause essentially lays out how each state should respect the laws, judicial proceedings, public records, etc. of other states. Article IV, Section 1 of the US Constitution.

Thanks! I did not know it was called that ...

Z

EDIT: For reference, (although you all appear to know it fully ) here are the actual words from the Con.

Article IV - The States

Section 1 - Each State to Honor all others

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.

[IBCoupe]

Admittedly, I'm not an expert here... so I'm asking - what's happened before (examples) to diminish State's Rights?

The Constitution was signed and the Articles of Confederation were abandoned, for starters.

[IBCoupe]

Isn't such action by the Supreme Court highly likely to undergo many legal challenges by the States? Both from the States that legalize SSM and, in particular, from those States that significantly oppose it?

not really. What would they be suing the Supreme Court for? An appeal of the Supreme Court's interpretation of the Constitution? They can do that, but there's a reason I'm pretty sure that no one has tried.

Either the Constitution grants the state the autonomy to strip marriage benefits from those granted by other states, or it either never did (in the case of FFC) or Congress and 3/4 of the States took it away (the 14th amendment) or both.

Supreme Court is the final word on what is and is not Constitutional. Marbury v. Madison, Martin v. Hunter's Lessee

In fact, that second case goes to Greg's desire to see an example of a case that "took away" States Rights (I put it in quotes because the determination would always be that they didn't have it to begin with): Virginia's opinion of what the Constitution means doesn't matter if the Supreme Court has held Virginia's opinion to be wrong.

[szh]

Okay ... fwiw, I am not saying that they would have any legal cause to sue or win - I haven't a clue about that.

But they may still try anyway, no? Particularly on such a hot topic?

Z

[Encryptshun]

Personally, I'd like to see marriage re-defined at the federal level... Not that I haven't said that 100 times before.

I'd like to see it removed from government involvement completely and handed back to churches. I'm fully aware this would be a civil case nightmare, but perhaps we'd have a little more "caveat emptor" without a guarantee of nice clean divisions upon dissolution (with the attorneys taking the biggest cut).

Interesting concept -- but how would it play in terms of separation of church vs. state?

Meaning, what happens to people who don't belong to a church? Would that mean they couldn't get married? And would their decision then have the power to change how individuals and households were treated under the law (taxes, bequeathments, living wills, custody, etc.)?

Also, as even churches can't internally agree whether or not to recognize same-sex marriage, how would that play?

[stebo0728]

Do you know alot of unreligious people who want to get married because of the religious reason? No, they are after the benefits it brings, tax, insurance, and what not. Remove those from marriage and you'd probably have alot less marriages, and a lot less divorces. However, now you need some new form of legal partnership agreement procedure to tie these sort of benefits back into. Now you have the choice to enter either/both a legal patnership and/or and religious partnership.

[Encryptshun]

Back to my question, if marriage becomes a purely religious institution, how do you separate those legal issues around taxes, bequeathments, living wills, child custody, etc. etc.? Those are legal matters.

[AZhitman]

I don't know the answer to that.

However, marriage is, by history and definition, a "religious institution".

It didn't "become" that, and it can't heretofore "become" that. It always HAS been.

We MADE it a legal institution.

Flip that timeline over, it's backwards.

[Encryptshun]

I would argue that it comes from a time when there was no distinction between religion and law, so it was both and became separated later on. Therefore the question of whether something is a legal issue or a religious issues when marriage is in question is material.

[IBCoupe]

Okay ... fwiw, I am not saying that they would have any legal cause to sue or win - I haven't a clue about that.

But they may still try anyway, no? Particularly on such a hot topic?

Z

Probably they wouldn't. It's a waste of money. You're asking the Supreme Court, after it's heard your argument already, to reconsider its determination that you're wrong. They'll say, "Get the f*** out of my courthouse" or "Hmmmm. Okay, you're still wrong." The Supreme Court's word is final. If the Court says the mini-DoMAs are unconsitutional, all the States can do is press for a constitutional amendment.

[IBCoupe]

Do you know alot of unreligious people who want to get married because of the religious reason? No, they are after the benefits it brings, tax, insurance, and what not. Remove those from marriage and you'd probably have alot less marriages, and a lot less divorces. However, now you need some new form of legal partnership agreement procedure to tie these sort of benefits back into. Now you have the choice to enter either/both a legal patnership and/or and religious partnership.

Why not just let "marriage" mean what the two people entering it define it to be? Why is that not an option? Why can't a marriage be perfectly religious for some folks and perfectly non-religious for others? I don't understand the hang-up here. I don't understand why we need the State deciding what your "marriage" or "union" is. Why is it y'all are so stuck on the State creating a separate (but equal, of course...) institution?

[IBCoupe]

And in case I was too subtle:

separate (but equal
separate (but equal
separate(but equal
separate (but equal
separate (but equal

[AZhitman]

Why is it y'all are so stuck on the State creating a separate (but equal, of course...) institution?

That's kinda the question that DOMA supporters have been asking of their opposition.

Letting parties define the terms of their partnership creates a legal mess though, doesn't it?

Again, I'm asking, not telling.

[IBCoupe]

I'm not saying that they ought to set the terms. The legal benefits associated with the "union" are what they are. The contractual benefits with your insurance company, for example, are what they are, too. I'm talking about whether your marriage is one that places value on religion or not. I'm saying whether your marriage is a representation of a "religious institution" ought to be something you decide, and the State shouldn't even attempt to figure it out.

Leave marriage alone, and let everybody participate. Very simple. We don't need civil unions (which might be of questionable constitutionality in their very nature, let alone their execution), we just need people to focus on their own marriages, rather than the marriages of others.

[AZhitman]

That I'll buy.

So if I understand you correctly, you and your spouse could get married in a synagogue, and your marriage would be defined as a primarily religious affair, with that set of criteria.

And my spouse and I decide to go get hitched by the JP, in a strictly civil arrangement, with the rights and privileges that come with that.

Now, let's say we both split from our respective spouses - are we in for a very different set of experiences (legally / civilly)?

[szh]

Where does "Common Law Marriage" fit into this?

As I recall, in California, if you live with someone (albeit not same sex?) for more than 7 years, you are effectively married according to the State ... from the perspective of joint property ownership, taxes, and the like.

If this is still true (and I don't know this), how does this impact the discussion in this thread?

Z

[AZhitman]

It is, as I said, a mess.

And people can point fingers at DOMA (or its opponents) all day long, but none of them have presented viable alternative options.