Judge calls Texas' gay-marriage ban into question

[goldcatt]

Sorry gentlemen, but marital status does not fall under full faith and credit. A marriage is NOT a judicial proceeding, nor is recognizing it the same as accepting a record of something that has happened (such as a birth certificate), nor is it a public act under the definition. Marriages are recognized through comity, not full faith and credit.
While there are some interesting debates out there as to the force of comity in the same-sex marriage issue, it is NOT the same as full faith and credit, nor does the current mainstream view require recognition of marriages that would otherwise be illegal.
For a couple different points of view:
SSRN-From Slavery to Same Sex Marriage: Comity Versus Public Policy and Inter-Jurisdictional Recognition of Controversial Domestic Relations by Lynn Wardle (abstract with link to full article)
Leonard Link: More on N.J. Marriage Recognition Ruling (discussion of similar ruling to the OP in New Jersey, with comity principles addressed)
Text & History » D.C. Gets It Right on Marriage Recognition (progressive viewpoint arguing for application of full faith and credit)

 

[Modbert]

say what? the u.s. constitution doesn't apply?
okay

Don't you get it by now Del? The Constitution doesn't apply when they don't want it to.

 

[BasicGreatGuy]

Article IV - The States

Section 1 - Each State to Honor all others

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.

The United States Constitution - The U.S. Constitution Online - USConstitution.net

That doesn't apply to DOMA, which this case is.

say what? the u.s. constitution doesn't apply?
okay

Before you call me crazy, you might want to read what you posted more carefully. DOMA does not apply. Why? Because Congress saw to it that it didn't apply, which, is one of its rights.

If you want to look it up, it is U.S.C. S 1738c

 

[BasicGreatGuy]

say what? the u.s. constitution doesn't apply?
okay

Don't you get it by now Del? The Constitution doesn't apply when they don't want it to.

Another ignorant reply. You should study more and talk less. It would save you embarrassment.

 

[BasicGreatGuy]

Sorry gentlemen, but marital status does not fall under full faith and credit. A marriage is NOT a judicial proceeding, nor is recognizing it the same as accepting a record of something that has happened (such as a birth certificate), nor is it a public act under the definition. Marriages are recognized through comity, not full faith and credit.
While there are some interesting debates out there as to the force of comity in the same-sex marriage issue, it is NOT the same as full faith and credit, nor does the current mainstream view require recognition of marriages that would otherwise be illegal.
For a couple different points of view:
SSRN-From Slavery to Same Sex Marriage: Comity Versus Public Policy and Inter-Jurisdictional Recognition of Controversial Domestic Relations by Lynn Wardle (abstract with link to full article)
Leonard Link: More on N.J. Marriage Recognition Ruling (discussion of similar ruling to the OP in New Jersey, with comity principles addressed)
Text & History » D.C. Gets It Right on Marriage Recognition (progressive viewpoint arguing for application of full faith and credit)

Thank you gold.

 

[goldcatt]

Not true Gunny. The state of Texas is under no obligation in that regard. Cite the applicable statute of law if you think they do.

Article IV - The States

Section 1 - Each State to Honor all others

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.

The United States Constitution - The U.S. Constitution Online - USConstitution.net

That doesn't apply to DOMA, which this case is.

If the answer were that easy, I wouldn't have bothered asking Gunny to cite.

No, this case has nothing to do with DOMA. DOMA was an absurd gimmick whose only real contribution to the same sex marriage wars was to pass a statute saying exactly what the prevailing law was already doing.
The issue here is twofold: whether Texas state law is constitutional, and whether granting a divorce is the same as recognizing the marriage.
My answer is yes and yes.

 

[goldcatt]

Sorry gentlemen, but marital status does not fall under full faith and credit. A marriage is NOT a judicial proceeding, nor is recognizing it the same as accepting a record of something that has happened (such as a birth certificate), nor is it a public act under the definition. Marriages are recognized through comity, not full faith and credit.
While there are some interesting debates out there as to the force of comity in the same-sex marriage issue, it is NOT the same as full faith and credit, nor does the current mainstream view require recognition of marriages that would otherwise be illegal.
For a couple different points of view:
SSRN-From Slavery to Same Sex Marriage: Comity Versus Public Policy and Inter-Jurisdictional Recognition of Controversial Domestic Relations by Lynn Wardle (abstract with link to full article)
Leonard Link: More on N.J. Marriage Recognition Ruling (discussion of similar ruling to the OP in New Jersey, with comity principles addressed)
Text & History » D.C. Gets It Right on Marriage Recognition (progressive viewpoint arguing for application of full faith and credit)

Thank you gold.

Haven't we had this conversation before? Or am I just getting a little deja vu?

 

[Modbert]

Another ignorant reply. You should study more and talk less. It would save you embarrassment.

Says the person who I see never responded to my newer post beforehand.

 

[del]

That doesn't apply to DOMA, which this case is.

say what? the u.s. constitution doesn't apply?
okay

Before you call me crazy, you might want to read what you posted more carefully. DOMA does not apply. Why? Because Congress saw to it that it didn't apply, which, is one of its rights.

If you want to look it up, it is U.S.C. S 1738c

i'm aware of the provision in DOMA that tries to do an end run around the constitution. when it finally winds up in front of SCOTUS, congress will be found to have overstepped its bounds and it will be ruled unconstitutional, imo.

 

[BasicGreatGuy]

Article IV - The States

Section 1 - Each State to Honor all others

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.

The United States Constitution - The U.S. Constitution Online - USConstitution.net

That doesn't apply to DOMA, which this case is.

If the answer were that easy, I wouldn't have bothered asking Gunny to cite.

No, this case has nothing to do with DOMA. DOMA was an absurd gimmick whose only real contribution to the same sex marriage wars was to pass a statute saying exactly what the prevailing law was already doing.
The issue here is twofold: whether Texas state law is constitutional, and whether granting a divorce is the same as recognizing the marriage.
My answer is yes and yes.

DOMA is not a gimmick at all gold. You may not think it applies, but it does albeit behind the two issues you mentioned. There is also the issue of standing. It is not clear to me via the article, that the two litigants actually had standing.

 

[lawbuff]

I wish they would release the names of the litigants and the docket number. Given what little we know, I think she stepped out of line. Her reasoning was flawed. It is not her job to adjudicate the federal Constitution of the United States. And that is what she did.

This is the only document I could find online, the divorce petition is public record, but it was not on the Judge's web page, nor was this, but on another one.

A simple one page order, no case law citations, but perhaps there was in another legal order?? The DP obviously cited the 14th AM as authority, ergo, she ruled on it.


http://pdfserver.amlaw.com/tx/intervenor.pdf


As we discussed Baker about a week ago, she obviously did not do enough research on it, or ignored it, one or the other.



The TX AG has given notice of appeal. The ruling will be vacated, no doubt.

 

[BasicGreatGuy]

say what? the u.s. constitution doesn't apply?
okay

Before you call me crazy, you might want to read what you posted more carefully. DOMA does not apply. Why? Because Congress saw to it that it didn't apply, which, is one of its rights.

If you want to look it up, it is U.S.C. S 1738c

i'm aware of the provision in DOMA that tries to do an end run around the constitution. when it finally winds up in front of SCOTUS, congress will be found to have overstepped its bounds and it will be ruled unconstitutional, imo.

Like it or not, it is a power of Congress per the article you cited. The case at hand is a state matter, in my opinion.

 

[BasicGreatGuy]

I wish they would release the names of the litigants and the docket number. Given what little we know, I think she stepped out of line. Her reasoning was flawed. It is not her job to adjudicate the federal Constitution of the United States. And that is what she did.

This is the only document I could find online, the divorce petition is public record, but it was not on the Judge's web page, nor was this, but on another one.

A simple one page order, no case law citations, but perhaps there was in another legal order?? The DP obviously cited the 14th AM as authority, ergo, she ruled on it.


http://pdfserver.amlaw.com/tx/intervenor.pdf


As we discussed Baker about a week ago, she obviously did not do enough research on it, or ignored it, one or the other.



The TX AG has given notice of appeal. The ruling will be vacated, no doubt.

I agree with you.

 

[Contumacious]

"In a first for Texas, a judge ruled Thursday that two men married in another state can divorce here and that the state's ban on gay marriage violates the U.S. Constitution."

Texas is wrong, again:

Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3-18.

(a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding

Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (U.S. 06/26/2003)

.

 

[del]

Before you call me crazy, you might want to read what you posted more carefully. DOMA does not apply. Why? Because Congress saw to it that it didn't apply, which, is one of its rights.

If you want to look it up, it is U.S.C. S 1738c

i'm aware of the provision in DOMA that tries to do an end run around the constitution. when it finally winds up in front of SCOTUS, congress will be found to have overstepped its bounds and it will be ruled unconstitutional, imo.

Like it or not, it is a power of Congress per the article you cited. The case at hand is a state matter, in my opinion.

and it is a power of scotus to tell congress to go shit in its hat.

if you consider it a state matter, why do you cite DOMA?

 

[BasicGreatGuy]

Another ignorant reply. You should study more and talk less. It would save you embarrassment.

Says the person who I see never responded to my newer post beforehand.

I did respond. I said that the XIV Amendment and the FF Clause did not apply in this case. You go on to mock me just because you disagreed with me. I don't appreciate that.

 

[BasicGreatGuy]

i'm aware of the provision in DOMA that tries to do an end run around the constitution. when it finally winds up in front of SCOTUS, congress will be found to have overstepped its bounds and it will be ruled unconstitutional, imo.

Like it or not, it is a power of Congress per the article you cited. The case at hand is a state matter, in my opinion.

and it is a power of scotus to tell congress to go shit in its hat.

if you consider it a state matter, why do you cite DOMA?

I was refuting your argument is why. I am not crazy. I was right with my retort to you. It is a state matter. And if it were to go federal, the DOMA issue makes it dead in the water.

 

[goldcatt]

That doesn't apply to DOMA, which this case is.

If the answer were that easy, I wouldn't have bothered asking Gunny to cite.

No, this case has nothing to do with DOMA. DOMA was an absurd gimmick whose only real contribution to the same sex marriage wars was to pass a statute saying exactly what the prevailing law was already doing.
The issue here is twofold: whether Texas state law is constitutional, and whether granting a divorce is the same as recognizing the marriage.
My answer is yes and yes.

DOMA is not a gimmick at all gold. You may not think it applies, but it does albeit behind the two issues you mentioned. There is also the issue of standing. It is not clear to me via the article, that the two litigants actually had standing.

Now here we part ways.
First, standing. This is a case before a Texas state court, is it not? Federal standing requirements are irrelevant, those exist to satisfy the Article 3 cases & controversies requirement for jurisdiction. I don't know what formal "standing" requirements, if any, exist in Texas state level courts, but Texas courts obviously have jurisdiction to hear a divorce proceeding under Texas law. The question is whether granting the divorce would also mean granting recognition of the marriage in violation of the Texas constitution, a point in which I agree with you. The problem, however, isn't one of jurisdiction or the power of the court to hear the case but of legal impossibility.

And yes, DOMA is a gimmick in regards to same sex marriage. What does it do that the existing principles did not?

 

[BasicGreatGuy]

And technically speaking, the SCOTUS does not have the power to tell Congress any such thing.

 

[lawbuff]

Exactly how does it NOT apply? Cite YOUR legal source that allows a State to ignore the Constitution.

Section 1 - Each State to Honor all others

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.


DOMA is authority under this paragraph.

The legislative history/intent/enactment of it bears this out.

FFC case law also states a seperate sovereign, that is, a state, is not generally required to honor the public policy of another state that violates it own, per the US SC.