Question about gay marriage and full faith and credit clause.

[Deep13]

If Ohio, for example, has to recognize Jerry Lee Lewis' marriage to his thirteen-year-old cousin, how come it doesn't have to recognize a same sex marriage between adults?

[trayfoot]

1. Defense of Marriage Act......

The Defense of Marriage Act, or DOMA, is the short title of a federal law of the United States passed on September 21, 1996 as Public Law No. 104-199, 110 Stat. 2419. Its provisions are codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. The law has two effects:

No state (or other political subdivision within the United States) need treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.
The bill was passed by Congress by a vote of 85-14 in the Senate<1> and a vote of 342-67 in the House of Representatives<2>, and was signed into law by President Bill Clinton on September 21, 1996.

At the time of passage, it was expected that at least one state would soon legalize same-sex marriage, whether by legislation or judicial interpretation of either the state or federal constitution. Opponents of such recognition feared (and many proponents hoped) that the other states would then be required to recognize such marriages under the Full Faith and Credit Clause of the United States Constitution.

Including the results of the 2008 general elections, two states (Massachusetts and Connecticut) allow same-sex marriage, five states recognize some alternative form of same-sex union, twelve states ban any recognition of any form of same-sex unions including civil union, twenty-eight states have adopted amendments to their state constitution prohibiting same sex marriage, and another twenty states have enacted statutory DOMAs.

******************

People thought at the time this would be ruled unconstitutional under the "Full Faith and Credit Clasue", but that has not happened.

[TexasObserver]

5. I've never thought DOMA could alter the duty under Full Faith & Credit.

Congress cannot pass any law that violates the constitution. Well, they can, but they're not supposed to do so. It is the duty of the Supreme Court to declare such laws unconstitutional.

The Supreme Court should rule in favor of any gay married couple which seeks to enforce in one state their marital rights gained legally in another state.

If the statute would work, the fundies would not clamor for a constitutional amendment, as they do.

[enlightenment]

6. While searching for an answer to this same question the

other day, I found this book: "Same Sex, Different States: When Same-Sex Marriages Cross State Lines" by Andrew Koppelman (Yale UP, 2006)

I thought he did an excellent job of explaining things, even in the limited preview on Google Books:

http://books.google.com/books?id=9uB1co0bGaMC&pg=PA117&lpg=PA117&dq=same+sex+marriage+full+faith+and+credit+clause&source=web&ots=7ESPW50Q_Y&sig=O-bDaZLRAlYsNrQkiMcPeMDuuNk&hl=en&sa=X&oi=book_result&resnum=9&ct=result#PPA120,M1

The chapter on DOMA (incomplete, but enough to give you a sense of it) starts on page 120.

[TexasObserver]

9. Thanks. Good article, and it highlights the constitutional problems of DOMA.

DOMA is a wretched attempt to avoid the constitutional necessity of passing a constitutional amendment to stomp on gay marriage. It is, in fact, merely the long version of Prop 8, but on the federal level. It has only one purpose: to avoid the duty of one state to recognize the marriage of gays obtained in another state.

The notion that a mere majority can alter the fundamental rights, such as the right to life, liberty, and the pursuit of happiness, is anathema to our long held principles. We evolve, and because we evolve, we stop doing things like denying non land owners to vote. We stop the myriad of anti-black actions that previously had legal cover. We have to do with gay rights the same thing. We have to say "no, you can't do that to any American citizen, no matter what state they're from, no matter which state married them."

It's going to take one compelling case and opinion by the Supreme Court, the case that says finally ENOUGH! I believe we will have such a majority on the court before Obama concludes his second term, and we will have such an opinion. Until then, it's going to be more of the same, a not so Civil War where the forces that hates gays will be pressing to retain or regain the ability to treat gays poorly.

[AntiFascist]

10. That's why we need to stand behind the effort to overturn Prop. 8...

In California sexual orientation is a suspect classification (protected minority) with the Fundamental Right to marriage under the state's equal protection clause. There are very strong arguments for why Prop. 8 is an unconstitutional amendment, since, if anything, it should be considered a major revision to the state constitution. As more states adopt this understanding of sexual orientation, then eventually this could be brought before the US Supreme Court for its precedents and overturn DOMA in the process.

[TexasObserver]

12. I agree 100%.

The battle will go until the US Supreme Court steps up on the issue.

In 50 years, all these anti gay efforts will be studied in the same light as Jim Crow laws are viewed in our history: the outright and shameful actions of bigots driven my meanness.

[trayfoot]

16. Even if it APPEARS on its face to be unconstitutional........

there has to be a case brought before the USSC will be able to determine that DOMA is unconstitutional. The USSC cannot just peruse laws passed by Congress and decide which ones are constitutional and which ones are not.

[TexasObserver]

17. The Supreme Court doesn't simply issue opinions on constitutionality without having a case.

Of course the Supreme Court doesn't simply issue opinions on constitutionality without having a justiciable controversy before them.

There will be no problem with finding a case arising on which the Supreme Court could rule on DOMA. There are many such cases. The Supreme Court decides which cases it will hear, and therefore chooses which matters it will opt for issuance of an opinion. When there are five justices ready to rule that DOMA is unconstitutional, it won't be difficult to find a case which would allow them to act.

[Ioo]

2. It is a matter of time, courts are not friendly ATM, that is why we are not pushing it

We had a meeting, we are waiting...

[peruban]

3. I think we're looking at a matter of the definition of "consent" and civil liberties.

Not to mention the incest taboo that exists in most cultures. I don't think we can draw an equivical line in the sand here for comparison. Consent, legal or otherwise

Plus, isn't the JLL case a little old and outdated to be citing for such a radical new approach at liberty? Most of our allies already embrace this notion of civil liberty and they did not exactly think the same of JLL, he was boo'd offstage in England and similarly treated in the rest of his shortly cut European tour.

[Deep13]

4. I was just wondering about the legal distinction.

Why do states give FFC for one but not the other.

[peruban]

11. Please humor me, I'd like to undestand your response.

What's FCC (Federal Communications Commission)?

I think what your asking is why there is a disparity in consensual age and marriage. It's a sort of contradictory point if you think about it. It's ok to be young and consent to sex at a young age, you can even get married young enough with parental consent. This is a leftover from the "Gone with the Wind" days of the South when you could marry off your daughter (who was a "financial burden" until married off), or breed a couple slaves (always an economic gain), as soon as menstruation began. Misogyny is the grease of the human success story.

This practice was questioned but quickly quieted when scripture supporting child marriage, slavery, and subsequently early age sexual consent were used as defenses of the practiced atrocities. The arguments were so fierce that the National Baptist Convention saw a session into the Southern Baptist Convention out of the defense of slavery.

Anyhow, abolition, woman's suffrage, and the revolution of music, media, culture, and civil liberty struggles still crumble away at the "establishment", adding to the further awakening of those with influence.

Maybe there is hope in proles after all.

[Deep13]

15. FFC-full faith and credit.

So basically, the only reason is religious.

My point has nothing to do with consent. I am asking if state A can refuse to recognize a marriage from state B on "moral" grounds in one case, how come state A is stuck recognizing a different kind of marriage that it finds morally objectionable for other reasons?

[peruban]

18. It's obviously a Venn diagram discontinuity.

Marriage, in any form, has common grounds, we can not define marriage in separate ways if the object is the same. Marriage is a mutual consent between two people to create a unified life where support and care is provided when needed by on party or another.

Religion is an artificial construct to allow two people to care for one another while allowing for genetic procreation, a biblical recommendation to be fruitful and multiply. This concept is no longer needed, people can find happiness despite their ability to procreate, this is evidenced by infertile couples, and there are enough children on the planet where no one ever needs to grow up without parents who love and care for them.

Use your "Jesus" to argue against that.

[Maven]

7. There have been several lawsuits in the federal circuits, all dismissed because of DOMA

So far the SCOTUS has declined to rule on its constitutionality.

[gollygee]

8. Hopefully Obama will be able to replace some more conservitive justices

and the SCOTUS will strike down DOMA because it is unconstitutional.

So let's hope and work for a 8 years of Obama.

[Freddie Stubbs]

13. The Full Faith and Credit Clause does not require that states recognize contracts which are

contrary to "a strong public policy of the State."

[Radical Activist]

14. It took years for the Supreme Court to recognize full equal rights granted under the 14th amendment.

One day the Supreme Court will have to rule that DOMA is unconstitutional, unless its repealed first.

Sometimes the court waits until the public is ready on an issue. Someday I think people will look back with shame that it took so long for those constitutional rights to be applied for gay couples.