Federal Appeals Court: DOMA unconstitutional

[Torie]

It seems like equal protection rather than federalism to me. Sure a state can have same sex marriage, but why do the Feds have to hand out money and whatever based on what a state allows for a marriage? The states can do their thing, and the feds theirs. That's federalism. To force the feds to hand out benefits or costs based on a state definition of who is married, needs the instrument of equal protection, or a Kennedy "fundamental expression of liberty" theory. I tend to doubt Kennedy will bite.

[Torie]

If it's struck down, will same-sex marriage be legal in the other 42 states?

Not automatically no, and the precedents are very strong that the full faith and credit clause does not apply here, because states have the right to set their own policies on fundamental policy choices like this. So the law would be a mess if DOMA is struck down potentially. The feds recognize your marriage in Mass, and then when you move to Kentucky, your marriage is dissolved, and you can no longer file a joint 1040 tax return with your partner, get social security based on your partner's SS rights, etc.

[Torie]

If it's struck down, will same-sex marriage be legal in the other 42 states?

Not automatically no, and the precedents are very strong that the full faith and credit clause does not apply here, because states have the right to set their own policies on fundamental policy choices like this. So the law would be a mess if DOMA is struck down potentially. The feds recognize your marriage in Mass, and then when you move to Kentucky, your marriage is dissolved, and you can no longer file a joint 1040 tax return with your partner, get social security based on your partner's SS rights, etc.

Question.  Hypothetical MA resident (let's call him "Dave,") gets married to a man in MA.  Dave moves to Kentucky, where his marriage isn't valid.  Dave marries a woman in Kentucky.  Dave then moves back to MA alongside his wife to reunite with his husband, with whom he's still married in MA.  Dave now has both a husband and a wife.  Is this legal?

If one marries two persons, the second marriage is not legal. If the second spouse does not know about the first marriage, she is called a putative spouse, and has certain rights as a putative spouse (including inter alia standing to sue civilly in a wrongful death action (ala the way the Simpsons sued OJ) if her putative husband is offed). That does not obtain with your hypo, but I thought I would use the opportunity to display my legal erudition. Aren't you impressed?  

Here it appears that Dave is married to his man when he lives in Mass, and married to his women when he lives in Kentucky, so at no one instant in time is he married to two persons (which is why the putative thing does not obtain).  Obviously such a regime would not be long for this world. Something has to crack. In the end, the Feds will have to define what marriage is by federal statute, and preempt the state laws. And given the practical mess, SCOTUS would find that within the scope of the interstate commerce clause.

[Torie]

In the end, the Feds will have to define what marriage is by federal statute, and preempt the state laws.

Couldn't they accomplish the same thing by enforcing the Full Faith and Credit clause for marriage without codifying a federal definition of marriage?

As I say, the precedents are clear it does not obtain, and that is the opinion of most Constitutional law scholars, in addition to this old beat up provincial lawyer. If it did, one state could in effect over time dictate the marriage laws for the whole Fruited Plain. That is why the exception for respecting individual state policies outside of respecting foreign state contracts was carved out by SCOTUS. The Dems should put the Pubs on the hot seat and put up legislation for federal gay marriage, as a way to make the issue more salient, and over time hopefully the Pubs will get the message that the Torie vote will be lost to the Pubs if they don't just get over it. It is much better to have these divisive little social issues decided by the ballot box anyway, rather than by judicial fiat.

[Torie]

Man, where is jmfcst when you need him to post the most.

Well, while the Bible may be inerrant in some alternative universe, it is nevertheless ignored when it comes to Constitutional law, so I am not sure just how "helpful" jmfcst would be here.

[Torie]

As I say, the precedents are clear it does not obtain, and that is the opinion of most Constitutional law scholars, in addition to this old beat up provincial lawyer. If it did, one state could in effect over time dictate the marriage laws for the whole Fruited Plain. That is why the exception for respecting individual state policies outside of respecting foreign state contracts was carved out by SCOTUS. The Dems should put the Pubs on the hot seat and put up legislation for federal gay marriage, as a way to make the issue more salient, and over time hopefully the Pubs will get the message that the Torie vote will be lost to the Pubs if they don't just get over it. It is much better to have these divisive little social issues decided by the ballot box anyway, rather than by judicial fiat.

Well, in the absence of congressional action, what do you think would happen if a bigamy case went to the federal courts and with a series of circumstances that compel some kind of resolution?

A "bigamy case" meaning the MA versus KY hypo of The Mikado's, where bigamy does not obtain, or something else?

[Torie]

As I say, the precedents are clear it does not obtain, and that is the opinion of most Constitutional law scholars, in addition to this old beat up provincial lawyer. If it did, one state could in effect over time dictate the marriage laws for the whole Fruited Plain. That is why the exception for respecting individual state policies outside of respecting foreign state contracts was carved out by SCOTUS. The Dems should put the Pubs on the hot seat and put up legislation for federal gay marriage, as a way to make the issue more salient, and over time hopefully the Pubs will get the message that the Torie vote will be lost to the Pubs if they don't just get over it. It is much better to have these divisive little social issues decided by the ballot box anyway, rather than by judicial fiat.

Well, in the absence of congressional action, what do you think would happen if a bigamy case went to the federal courts and with a series of circumstances that compel some kind of resolution?

A "bigamy case" meaning the MA versus KY hypo of The Mikado's, where bigamy does not obtain, or something else?

One like The Mikado's but with kids and property and a whole mess that make an elegant solution impossible.

Well, who knows. If I were on SCOTUS, I would suggest that maybe Congress should get to work. The Constitution is not a universal solvent for all that ails the Fruited Plain. In the meantime, every closeted gay should just come out. That is the single most effective way to change hearts and minds - really. It is hard to demonize and objectify those whom you know and admire, particularly well, if they seem - dare I say it - and shocking though it may be to some - normal!  I mean look at you Brittain33. Out of the gang of the host of "unusuals" in this hood, you sir are probably in the top 10% on the normality scale. Who knew?