Massachusetts, the first state to legalize gay marriage, sued the U.S. government Wednesday over a federal law that defines marriage as a union between a man and a woman.
The federal Defense of Marriage Act interferes with the right of Massachusetts to define and regulate marriage as it sees fit, Massachusetts Attorney General Martha Coakley said. The 1996 law denies federal recognition of gay marriage and gives states the right to refuse to recognize same-sex marriages performed in other states.
Perhaps states recognizing same-sex marriage should refuse to recognize any marriage from states that do not.
And in the spirit of comity, the other states should reciprocate.
Hmmm.
Painful though it is to type this… Massachusetts probably has a strong case. The Constitution gives no power to the Federal Government to regulate marriage. It has always been understood to be under the jurisdiction of the states as per reserved powers and the tenth amendment. No state can be forced to recognize marriages performed in another state which violate their own laws. Thus Virginia which expressly prohibits gay marriage can not be forced to recognize same sex marriages performed in Massachusetts. However the Full Faith and Credit clause of the constitution does require states to the acts of other states (marriages, contracts etc.) that are more or less consistent with their own state laws. Thus VA is not going to be able to refuse to recognize heterosexual marriages performed elsewhere unless there is some specific defect in them under Virginia law (i.e. they were married below Virginia’s age of consent).
In ICXC
John
FFV, that wouldn’t work because Mass. doesn’t have a public policy against heterosexual marriage. The ground for not granting full and faith and credit is that the legal status gained in the foreign jurisdiction violates the public policy of the enforcing jurisdiction.
herein lies the rub for our church debates. There is another ‘context’ within which we live our lives of faith. If the USA changes the meaning of the word ‘marriage’ then we who cling to the traditional understanding will find new and improved denominational affiliations may not be escaping any conflicts. God is LORD, but I do not think this bodes well for us in the short term.
I hope the feds toss Massachusetts’ case right down the toilet, where it belongs.
This is an interesting constitutional dilemma that I think the Supreme Court might have to take a look at eventually.
Phil, I made an off-the-cuff comment … one that were it even possible to enact would hurt innocent people. I should have thought before posting.
My state of residence (not Virginia) was one of the last to hold out against the National Council of Architectural Registration Boards’ (NCARB) test regulating the practice of architecture. There was a time in the 1980s when a majority of the states had no reciprocal agreement with my particular state … and this state responded similarly in return. Fortunately for me, I had an active professional license in the state of New York … and could use it to gain entry into other states. While that made my situation easier … there were many innocent people caught in the middle of this bureaucratic nightmare.
I recall a conversation with a state official on behalf of a young architect who moved here when her husband was a seminary student. I inquired about the possibility of reciprocity and was told “She’ll receive a license from us when hell freezes over (click).”
While she was qualified to practice … it took more than a year for her to gain a license. No, I don’t wish anything akin to this “limbo†on anyone.
Cennycc: The United States (“the feds”) are defendants here. Defendants who toss complaints down the toilet lose by default. You might not want that to happen.
The case appears to raise interesting and important questions about the powers of the federal government. I’m sure that most constitutional conservatives will line up behind Massachusetts. It’s very hard to understand what interest or authority the federal government has over marriage issues. The title of the statute suggests that the federal government was somehow acting under the impression that it had a role to play in “defending” marriage, although it’s not at all clear what the threat was or how the challenged statute protected the institution against that threat.
apologies for the hasty typo: “Cennycc” should read “Cennydd”
This is an interesting constitutional dilemma that I think the Supreme Court might have to take a look at eventually.
I have been hoping for this for awhile. Unfortunately, the ruling could be made very narrow, which would be a shame.
[blockquote]I have been hoping for this for awhile. Unfortunately, the ruling could be made very narrow, which would be a shame. [/blockquote]
Yes, would it not be interesting if the USSC declared the US Constitution, which clearly confers the power to define the scope of such interstate recognition to Congress, unconstitutional?
Then in that case, I hope Massachusetts loses…..BIG time.
Jeffersonian: I thought that the full faith and credit clause was constitutional, not statutory. What did I miss?
#8, NoVaScout, the interest of the federal government in this issue is the question of to whom federal benefits will be extended. Since we have way too many of these, it’s not an insignificant question. The same applies to states. If a state extends certain benefits to married people, it has some say in who should be so recognized.
If this succeeds, who is to stop federal recognition of polygamy and the extension of federal and states benefits to all the spouses? In view of Muslim immigration and more especially Muslim aggressiveness in trying to bring Islamic law to the West, we should be thinking ahead.
The benefits question will be the key to the federal defense, Katherine. It may be a legitimate one. But, of course, then the statute should have been called the Defense of Federal Benefits Act (DOFBA?), not the Defense of Marriage Act.
Nothing requires the federal government to “recognize” polygamy, regardless of how this comes out.
The other part of the federal defense ought to be that the government has an interest in the stability of society and that marriage law is designed with that in mind.
If this is struck down, lawsuits with reference to polygamy will soon follow. If marriage is not one man and one woman, what business does the state have in defining the numbers and descriptions of the participants in general? Courts which force recognition of male-male and female-female marriages will have no arguments left against other numbers and combination.
[blockquote]Jeffersonian: I thought that the full faith and credit clause was constitutional, not statutory. What did I miss? [/blockquote]
It is, but the Constitution also confers upon Congress the power to define the scope and limitations of what states are required to recognize. For example, states are not required to recognize the concealed-carry licenses issued by other states (despite the Second Amendment). DOMA restricted the scope of marriages states were required to recognize, something clearly within the powers of Congress, so if the USSC rules to the contrary, they will essentially be declaring the Constitution unconsitutitonal.
I was not aware of that, Jeffersonian. I think we are referring to different documents.