smooth

If you don't know how it applies to marriage, how can you use it to rebut my statement that there is no law forcing states to recognize each others' marriage proceedures? The simple response is that Article 4, section 1 does not apply to marriages. Please re-read your quoted portion very carefully. Marriages are not judicial proceedings. There is no law the requires states to recognize the marriages of other states. You can keep thinking so if you want, but you're arguing against legal experts and a loooooong history of jurisprudence stating otherwise. Did you skip over my legal brief? Did you not read the article I posted about a specific federal test case on this very issue? I find these kinds of discussions very frustrating. I go through the trouble of digging around to find my professional writings and the opinions of other, known experts, and people want to refute my professional opinion without doing their own research or mishandling the evidence they happen to come across.

On what basis do you think Congress could pass such a law mandating the states to recognize each other's marriages? Any such legislation wouldn't pass Constitutional scrutiny.

I've got a well-written, lay-oriented book sitting on my shelf called, Law 101: Everything you need to know about the American legal system by Jay Feinman. It's just a bit over 300 pages and you could read it at B&N or Borders over some coffee. You could actually refer to any good constitutional law book to better understand the issues surrounding federalism and state sovereignty, but this one is written in an easily consumable format.

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"The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann

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AVoiceOfReason

I generally agree with Charlatan--in a representative republic, the folks elect a person to study the issues and represent their interests. However, when the voters of a state have spoken on a matter--in this case, gay marriage, but it could be any issue--then it's very presumptuous of the elected officals to say, in essence, "we know better than you." Had the matter never been put to a vote statewide, then the assembly members would have the shield of "we believe this bill represents what our constituency wants." But that's not the case here.

I applaud the governor for standing up for what the people of the state said they wanted. It'll be interesting to see how this is reported--will it be the governor overriding the legislature or will it be the governor being on the side of the voters?

I also have to wonder if there is going to be a big backlash in the legislature when those representatives are up for election again, especially those in districts where the issue failed to gain a majority and their representative voted for it anyway (and vice versa--if there were any that voted against it where the voters approved the ballot measure).

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AVOR

A Voice Of Reason, not necessarily the ONLY one.

smooth

Draw your own conclusions about why the DOMA was created and floated into public discourse, but the legal reality is the Full Faith and Credit Clause does not apply to marriages.

I already posted this:

EDIT:
BTW, when a legal expert uses the word "historically" he or she is referring to the concept of jurisprudence. It's not historical in the common sense that yesterday it has been thought of like this, but maybe today it will be thought of differently. Historical precedence directs the court in how to forumulate its current rulings.


It appears it's a case of our governor riding the fence (a bizarre stance, in my opinion, given the Republican stance on "judicial activism"):
--http://www.washingtonpost.com/wp-dyn/content/article/2005/09/01/AR2005090102086_2.html

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"The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann

"You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

Charlatan

I agree with this exactly.

My only interest, as stated above, is what happens when the Prop 22 comes before the Supreme Court. If it is upheld, status quo. If not, what then?

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Paq

just a short aside here, but wasn't there a small little war fought about states rights vs federal rights and who trumps whom?

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hannukah harry

what does the crimean war have to do with anything?

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SirLance

That isn't what you said. What you said was:

Also, you state:


The full faith and credit clause is not limited to judicial proceedings. It specifically also includes public acts and records. This is why your driver's license is recognized by states you don't reside in. If you have a valid Montana driver's license, and you do not have a Missouri driver's license, Missouri can not convict you for driving without a license unless they can prove you actually reside in Missouri.

No, I'm not. I'm saying congress could enact a law under the full faith and credit clause that REQUIRES states to recognize same sex marriages recorded in other states. The defense of marriage act does exactly the opposite. The fact is that the defense of marriage act gets its power to support states in not recognizing gay marriages of other states from the full faith and credit clause.

I did not read your brief, but I did read the test case, which is somewhat more on point. The suit filed was a challenge to the defense of marriage act, a similar florida law, and a claim that the plaintiffs were subject to a civil rights violation under the equal protection clause. The court found that under DOMA:

The Supreme court has also weighed in on the issue of full faith and credit:

In other words, Florida doesn't have to respect gay marriages recorded in Massachusetts because they violate Florida's legitmate public policy. This part of what prevents Massachusetts from legislating for Florida, and vice versa.

By your own admission, your are not an expert in constitutional law, nor are you a lawyer. Your opinion on this matter is no better than anyone else's. Of course, if the someone else IS an expert in such matters, their opinion would certainly have more credibility than yours.

On what basis do you think they couldn't? Under full faith and credit, the congress COULD pass such a law. In fact, they more or less passed it's inverse in DOMA, which the court found appropriate under the full faith and credit clause.

Professor Feinman is a brilliant man, but his focus is more on economics. In these matters, I find more guidance from Thomas, Bader-Ginsburg, Amar, or the like.

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smooth

What difference do you see between the two quotes of mine you provided?

Your analysis is flawed. If the full faith and credit clause applied to driver's licenses, then it wouldn't matter where you resided--your driver's license would be valid regardless of which state you resided in as long as it was valid in the issuing state. In regard to the constitutional provision you are citing and marriage/driver's licenses, states are not required to recognize their validity, they merely choose to do so. But the driving issue is an aside that I didn't bring up. The analogy is flawed from the premise since one does not have a fundamental right to drive in any state.

Actually, you stated that the law already existed. Having been shown that it does not, you now shift your argument to claim that one could be passed. The full faith and credit clause, to the extent that it has been argued to apply to marriages by plaintiffs, has been used to attack the DOMA. Since your initial argument was that the clause requires states to honor marriages from other states, you are contradicting yourself when you now claim the DOMA, which gives states the power to not honor other states' marriage proceedures, derives its power from that same clause.

How do you know which is "more on point" if you haven't read my brief?

Oddly enough, this is what I've been saying all along. The full faith and credit clause does not mandate that states honor each other's marriages. Are you agreeing or disagreeing; it's difficult to discern because you say I'm wrong and then repeat my position as if it's yours.

Where is this admission that I am not an expert on constitutional law? Actually, I laid out my credentials and produced my professional writing on the issue (which you stated you didn't read). Perhaps you are hinging your statement on the fact that I am ABD, but I produced statements from two known experts that agree with my assessment. You have produced none that dispute my stance and support your position.


This is going to degenerate very rapidly if your rebuttals are going to be a "yes they can" variety. You offer no evidence for your position. The best you come up with is the contradictory statement that since they passed it's inverse, they could force states to honor marriages. Congress not have the authority to regulate such affairs and they can not force a state to violate its own constitution. Given that many states have already passed constitutional amendments defining marriage, your opinion and knowledge on this point is very much questionable. Congress could hinge government funding on whether states honor out of state marriages, which is what they've done with other laws they've wanted states to implement, but they have no authority to force them to do so.

hmm.

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"The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann

"You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

loganmule

I AM an attorney, Lance, and regret to inform you that Smooth's explanation of the application of the full faith and credit clause is correct.

The Schoenwether case was dismissed, and will not be appealed for strategic reasons, according to this 9-8-05 article:

http://www.gaylesbiantimes.com/?id=4403

Maybe this is OT, Smooth, but I would be interested in hearing about the status/dispostion of the case wherein your brief was submitted and its citation. The outcome aside, I found your argument to be well presented.