more on full faith and credit
> Article IV ยง 1 reads, "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."
Actually, the big weakness is more that the Supreme Court has generally held that a state may ignore things that "violate public policy of that state", which is a much stronger argument, and was applied against miscegenation, etc. The ACLU has cited many examples where this was not held to be the case, but I don't know what the arguments are on the other side, and I don't know enough about case law to say much for sure. but if you want to read their brief, with the associated citations, check out http://archive.aclu.org/congress/defmarr.html .
> In DOMA, Congress prescribed "the effect thereof," so the issue might well
> boil down to what "general" means. DOMA says that no state is required to
> give effect to same-sex marriages sanctioned by other states. Is
> targeting
> the recognition of marriage sufficiently "general"? Or is it too
> specific?
The ACLU argues, in its brief on the matter, that "the effect thereof" does not extend to permitting DOMA to eliminate the FFC requirement altogether. The idea was to *regulate*, not eliminate:
--------------------
Moreover, while Article IV doubtless gives Congress the power to decide how the judgments and acts of one state are to be proven in another, that power does not extend to nullifying Article IV's basic requirement of Full Faith and Credit. Congress can not, under the guise of deciding what effect to give to judgements and acts which have been proven under a mechanism it has created, decide that no Faith and Credit need be given at all. See, e.g., Powell v. McCormack 395 U.S. 486, 550 (1969)(Congress has the power to decide if its members have the qualifications set out in the Constitution, but it may not, in the guise of doing so, manufacture additional qualifications). See also, Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 n.18 (1980). That, however, is precisely what the bill purports to do.
---------------------
Beats me what the Washington Gas Light Co was up to, but it's an interesting legal argument. Anyone know what the case law arguments are for the other side?
> Does the FFC clause require a single rule for recognition of all types
> statuses such that a more specific law, targeting one particular
> status, is not "general"?
Dunno. Interesting question, though. There's not really much on the FFC in case law, so it may be unbroken ground.
There are a lot of cases in which states do not permit certain people to marry (the age of consent varies widely, first cousins, etc.), but I don't know of a currently extant case in which one state has invalidated a marriage performed in another state on those grounds. The ones I know about usually involve miscegenation, incest, or bigamy.
The Democrats, of all people, make a strong argument for why the Full Faith and Credit Clause does not apply to gay marriages, with or without DOMA:
http://www.house.gov/judiciary_democrats/dlv40024.htm
---------------------
Courts have considered a marriage offensive to a state's public policy either because it is contrary to natural law or because it violates a positive law enacted by the state legislature. Courts have invalidated incestuous, polygamous, and interracial foreign marriages on the ground that they violate natural law. 11[Footnote] For invalidation based on positive law, some courts have required clear statutory expressions that the marriages prohibited are void regardless of where they are performed, 12[Footnote] and sometimes a clear intent to preempt the general rule of validation. 13[Footnote] Other courts have set up not so high a hurdle, such that a statutory enactment against the substantive issue was sufficient. 14[Footnote] Those states that are enacting anti-same sex marriage statutes may well find they have satisfied the first exception to the choice of law rule validating a marriage where celebrated.
[Footnote 11: See, e.g., Earle v. Earle, 126 N.Y.S. 317, 319 (1910).]
[Footnote 12: State v. Graves 307 S.W.2d 545 (Ark. 1957).]
[Footnote 13: See, e.g., Estate of Loughmiller, 629 P.2d 156 (Kas. 1981).]
[Footnote 14: Catalano v. Catalano, 170 A.2d 726 (Conn. 1961)(finding express prohibitions in a marriage statute and the criminalization of incestuous marriages sufficient to invalidate an out of state marriage).]
Interracial marriages were, before Loving v. Virginia, treated with the above choice of law analysis, and `courts frequently determined the validity of interracial marriages based on an analysis of the public policy exception. Early decisions treated such marriages as contrary to natural law, but later courts considered the question one of positive law interpretation.' 15[Footnote]
[Footnote 15: Hovermill, 53 Md. L. Rev. 450 (1994), at 464.]
------------------------
It'll be interesting to see what the Supreme Court has to say. My guess is that whatever decision they hand down will be a narrow decision on procedural grounds, sidestepping the larger issue if they can.
Constitutional law is both very straightforward and extremely complex; the more I read about it, the more fascinated I get. If I don't watch it, I'm going to spend a couple weeks doing nothing but reading up on Supreme Court cases. And then I'll wind up in law school, and then where will I be?
(Okay, in law school. But you know what I mean. :-) )
Tien
> 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."
Actually, the big weakness is more that the Supreme Court has generally held that a state may ignore things that "violate public policy of that state", which is a much stronger argument, and was applied against miscegenation, etc. The ACLU has cited many examples where this was not held to be the case, but I don't know what the arguments are on the other side, and I don't know enough about case law to say much for sure. but if you want to read their brief, with the associated citations, check out http://archive.aclu.org/congress/defmarr.html .
> In DOMA, Congress prescribed "the effect thereof," so the issue might well
> boil down to what "general" means. DOMA says that no state is required to
> give effect to same-sex marriages sanctioned by other states. Is
> targeting
> the recognition of marriage sufficiently "general"? Or is it too
> specific?
The ACLU argues, in its brief on the matter, that "the effect thereof" does not extend to permitting DOMA to eliminate the FFC requirement altogether. The idea was to *regulate*, not eliminate:
--------------------
Moreover, while Article IV doubtless gives Congress the power to decide how the judgments and acts of one state are to be proven in another, that power does not extend to nullifying Article IV's basic requirement of Full Faith and Credit. Congress can not, under the guise of deciding what effect to give to judgements and acts which have been proven under a mechanism it has created, decide that no Faith and Credit need be given at all. See, e.g., Powell v. McCormack 395 U.S. 486, 550 (1969)(Congress has the power to decide if its members have the qualifications set out in the Constitution, but it may not, in the guise of doing so, manufacture additional qualifications). See also, Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 n.18 (1980). That, however, is precisely what the bill purports to do.
---------------------
Beats me what the Washington Gas Light Co was up to, but it's an interesting legal argument. Anyone know what the case law arguments are for the other side?
> Does the FFC clause require a single rule for recognition of all types
> statuses such that a more specific law, targeting one particular
> status, is not "general"?
Dunno. Interesting question, though. There's not really much on the FFC in case law, so it may be unbroken ground.
There are a lot of cases in which states do not permit certain people to marry (the age of consent varies widely, first cousins, etc.), but I don't know of a currently extant case in which one state has invalidated a marriage performed in another state on those grounds. The ones I know about usually involve miscegenation, incest, or bigamy.
The Democrats, of all people, make a strong argument for why the Full Faith and Credit Clause does not apply to gay marriages, with or without DOMA:
http://www.house.gov/judiciary_democrats/dlv40024.htm
---------------------
Courts have considered a marriage offensive to a state's public policy either because it is contrary to natural law or because it violates a positive law enacted by the state legislature. Courts have invalidated incestuous, polygamous, and interracial foreign marriages on the ground that they violate natural law. 11[Footnote] For invalidation based on positive law, some courts have required clear statutory expressions that the marriages prohibited are void regardless of where they are performed, 12[Footnote] and sometimes a clear intent to preempt the general rule of validation. 13[Footnote] Other courts have set up not so high a hurdle, such that a statutory enactment against the substantive issue was sufficient. 14[Footnote] Those states that are enacting anti-same sex marriage statutes may well find they have satisfied the first exception to the choice of law rule validating a marriage where celebrated.
[Footnote 11: See, e.g., Earle v. Earle, 126 N.Y.S. 317, 319 (1910).]
[Footnote 12: State v. Graves 307 S.W.2d 545 (Ark. 1957).]
[Footnote 13: See, e.g., Estate of Loughmiller, 629 P.2d 156 (Kas. 1981).]
[Footnote 14: Catalano v. Catalano, 170 A.2d 726 (Conn. 1961)(finding express prohibitions in a marriage statute and the criminalization of incestuous marriages sufficient to invalidate an out of state marriage).]
Interracial marriages were, before Loving v. Virginia, treated with the above choice of law analysis, and `courts frequently determined the validity of interracial marriages based on an analysis of the public policy exception. Early decisions treated such marriages as contrary to natural law, but later courts considered the question one of positive law interpretation.' 15[Footnote]
[Footnote 15: Hovermill, 53 Md. L. Rev. 450 (1994), at 464.]
------------------------
It'll be interesting to see what the Supreme Court has to say. My guess is that whatever decision they hand down will be a narrow decision on procedural grounds, sidestepping the larger issue if they can.
Constitutional law is both very straightforward and extremely complex; the more I read about it, the more fascinated I get. If I don't watch it, I'm going to spend a couple weeks doing nothing but reading up on Supreme Court cases. And then I'll wind up in law school, and then where will I be?
(Okay, in law school. But you know what I mean. :-) )
Tien
