Appeals Court Rules Against Federal Marriage Act

[loinburger]

I should damn well be allowed to take my slaves with me wherever I travel

[Tupac Shakur]

The NYT article in the OP sure does bury the important facts about this decision. Only one section of DOMA was nullified, and states that don't allow gay marriage still don't have to recognize gay marriages performed in states that do.

[Aeson]

Essentially, you would end up with a conflict between states that would not recognize a marriage, to which someone had recieved a visa. And we all know how that would end up working out.

It is USCIS (which is Federal) which determines whether there is a marriage/relationship or not and then issues the visa, not a state.

So it wouldn't be a big deal. A fiancee visa simply states that the couple must be married within 90 days of entry to the US, it doesn't require the marriage to be in a specific state. No state would be required to observe a marriage. At worst you have gay couples taking a vacation to gay friendly states to get married. Given all the other expenses and hassles, and the potential to double up the vacation as a honeymoon, it's not going to be a big issue even then.

A visa for a spouse would be even simpler. The marriage would have already happened. USCIS would determine if the marriage was valid and whether or not to issue a visa. The state is not involved at all.



Reynolds discusses both of these, and argues that the tradition of the Common Law provides for variances along age and 1st cousins. It does not provide accommodation for polygamy and homosexuality, arguing that one man and one woman is a core part of marriage, whereas changes in the age limit is not.

Reynolds also argues that while the federal government has the responsibility to enforce the common law definition, they do not have the right to change the definition, any more than they could change habeaus corpus. Hence prohibiting changes to the Common Law definition.



Reynolds goes on to say that admission as a state would require adherance to the English Common Law definition. If it were a state power, then Utah could have simply became a state and then passed laws permitting polygamy. Reynolds explains why that doesn't work, and why the definition has to be uniform across the United States, and goes on to finish with why that definition should permit only one man and one woman to marry.

So, in short - setting age limits and degrees of consanguinity, ok. Polygamy and homosexuality, not ok.[/QUOTE]

[Imran Siddiqui]

Reynolds also argues that while the federal government has the responsibility to enforce the common law definition, they do not have the right to change the definition

Why am I not surprised that Ben has no clue what common law jurisprudence is.

Reynolds discusses both of these, and argues that the tradition of the Common Law provides for variances along age and 1st cousins.

Locate the word "cousin" in the opinion please:

http://supreme.justia.com/cases/federal/us/98/145/case.html

Reynolds goes on to say that admission as a state would require adherance to the English Common Law definition.

Once again, locate that in the opinion please.

[Imran Siddiqui]

The NYT article in the OP sure does bury the important facts about this decision. Only one section of DOMA was nullified, and states that don't allow gay marriage still don't have to recognize gay marriages performed in states that do.

DOMA never changed this. States don't have to allow marriages entered into in other states that offend the conscious of the state being asked to recognize the marriage (this has been used in the past to nullify marriages involving a 12 year old, IIRC).

[Tupac Shakur]

DOMA never changed this.

Under the law, no U.S. state or political subdivision is required to recognize a same-sex marriage treated as a marriage in another state.

...

The main provisions of the act are as follows:

Section 2. Powers reserved to the states

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

http://en.wikipedia.org/wiki/Defense_of_Marriage_Act

One thing left uncertain in Thursday’s ruling was the impact of the ruling on legally married gays who now live in states that refuse to recognize any such marriage. A part of DOMA that deals with this point — Section 2, giving states permission not to recognize such a marriage performed in another state — was not at issue before the First Circuit.

http://www.scotusblog.com/2012/05/doma-ban-on-gay-marriage-falls/

[Imran Siddiqui]

I know what DOMA says, I'm just saying that part of the law is superfluous. That's already a carve out of the Full Faith & Credit Clause as per SCOTUS precedent.

[Ben Kenobi]

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

So the Federal government won't be issuing spousal visas? Can a state refuse entry?

[Ben Kenobi]

Once again, locate that in the opinion please.

Some Lawyer!

[giblets]

Gosh Imran, what kind of lawyer asks people to support their claims with evidence???? Some lawyer!

[Ben Kenobi]

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79),

Next time do your job, search for 'common law', within the opinion and save yourself the trouble. I hope you don't charge for your lawyering skills.

Reynolds goes on to state:

By the statute of 1 James I (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death.

Then goes on to state the following:

Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor, Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chancellor Kent observes that this remark is equally striking and profound. 2 Kent, Com. 81, note (e). An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

Goes on to state:

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

This also refutes, quite succinctly what we are discussing here. You cannot have a plurality of laws on this particular manner.

[Ben Kenobi]

It is USCIS (which is Federal) which determines whether there is a marriage/relationship or not and then issues the visa, not a state.

Ergo - it is a power of the federal government, not the states. That's the consequence of the issuance of the marriage visa. States cannot deny entry, but the federal government can.

No state would be required to observe a marriage.

What would happen is that people would be legally married under the federal government, and receiving benefits in the federal government and would be petitioning state governments for similar recognition. So yes, the legal consequence would be the the states would be forced to recognise it.

At worst you have gay couples taking a vacation to gay friendly states to get married. Given all the other expenses and hassles, and the potential to double up the vacation as a honeymoon, it's not going to be a big issue even then.

It is going to be a huge issue. First thing we are going to see, is someone going to Texas petitioning the Texas state government for recognition, and going from there. I'd lay my house on it. All the liars saying that the 'states will not be forced', bull****. It's a federal issue. Always has been. If it wasn't a federal issue, than Utah could have been admitted with polygamy. They were not.

The marriage would have already happened. USCIS would determine if the marriage was valid and whether or not to issue a visa. The state is not involved at all.

Hence my point. The states have no say whatsoever.

[giblets]

Uhh... no it doesn't. You may be in for a surprise when the Supreme Court rules on this.

[Ben Kenobi]

Reynolds also states quite clearly, "And BTW, if two homos ever want to get married a century or so from now, then this decision about religious polygamy should be applied. Because that's obviously what I'm talking about. Also, remember to avoid eating pork and shellfish, even if we develop the technology to make it safe."

It uses the marriage law standard under James VI/I, as the standard for the Court. If you can find recognition of gay marriage there, be my guest.

[Ben Kenobi]

Uhh... no it doesn't. You may be in for a surprise when the Supreme Court rules on this.

I haven't been surprised in the last 10 years on this issue. SSDD. You wanna bet with me that we won't be seeing gay people petitioning individual states? I'll take your bet. How much you want to wager?