Judge calls Texas' gay-marriage ban into question

[DiveCon]

From the opening post: "The purpose of the thread is to discuss the decision of the judge as it pertains to the state of Texas and the Constitution of the United States."

and wasnt this part of the view of those against gay marriage in the first place, that it would cause just this type of legal situation


(and before anyone decides to jump my ass, i want the government, both federal and state to get the hell OUT of the marriage business and take all the "rights" accorded marriage and put them into a domestic partnership type contract and return marriage to religious services)

 

[Modbert]

and wasnt this part of the view of those against gay marriage in the first place, that it would cause just this type of legal situation


(and before anyone decides to jump my ass, i want the government, both federal and state to get the hell OUT of the marriage business and take all the "rights" accorded marriage and put them into a domestic partnership type contract and return marriage to religious services)

On this we agree 100%.

 

[BasicGreatGuy]

From the opening post: "The purpose of the thread is to discuss the decision of the judge as it pertains to the state of Texas and the Constitution of the United States."

and wasnt this part of the view of those against gay marriage in the first place, that it would cause just this type of legal situation


(and before anyone decides to jump my ass, i want the government, both federal and state to get the hell OUT of the marriage business and take all the "rights" accorded marriage and put them into a domestic partnership type contract and return marriage to religious services)

Many did make that contention.

On a personal level, I agree with you. But as we both know, that isn't going to happen. It needs to be kept at the state level to handle as they see fit.

 

[DiveCon]

From the opening post: "The purpose of the thread is to discuss the decision of the judge as it pertains to the state of Texas and the Constitution of the United States."

and wasnt this part of the view of those against gay marriage in the first place, that it would cause just this type of legal situation


(and before anyone decides to jump my ass, i want the government, both federal and state to get the hell OUT of the marriage business and take all the "rights" accorded marriage and put them into a domestic partnership type contract and return marriage to religious services)

Many did make that contention.

On a personal level, I agree with you. But as we both know, that isn't going to happen. It needs to be kept at the state level to handle as they see fit.

yup too much money involved

 

[RetiredGySgt]

From the opening post: "The purpose of the thread is to discuss the decision of the judge as it pertains to the state of Texas and the Constitution of the United States."

and wasnt this part of the view of those against gay marriage in the first place, that it would cause just this type of legal situation


(and before anyone decides to jump my ass, i want the government, both federal and state to get the hell OUT of the marriage business and take all the "rights" accorded marriage and put them into a domestic partnership type contract and return marriage to religious services)

Many did make that contention.

On a personal level, I agree with you. But as we both know, that isn't going to happen. It needs to be kept at the state level to handle as they see fit.

Which means full faith and credit applies.

 

[goldcatt]

and wasnt this part of the view of those against gay marriage in the first place, that it would cause just this type of legal situation


(and before anyone decides to jump my ass, i want the government, both federal and state to get the hell OUT of the marriage business and take all the "rights" accorded marriage and put them into a domestic partnership type contract and return marriage to religious services)

Many did make that contention.

On a personal level, I agree with you. But as we both know, that isn't going to happen. It needs to be kept at the state level to handle as they see fit.

Which means full faith and credit applies.

Interesting to see you take the Progressives' position, RGS.
Go back and look at the Full Faith and Credit clause again, any reading that includes marriage or marital status is overbroad. While it's a bit of an oversimplification, for most purposes including this one there are three basic areas where FF&C apply:
1. Judgments
(A final or otherwise enforceable judgment rendered by another State's court under Due Process and registered appropriately for enforcement)
2. Public records
(Accepting the validity of another State's documents with the appropriate certification, such as a stamp or seal)
3. Public Acts
(Of the State, not the individual)
In other words, Full Faith and Credit speaks to actions of the STATES, not of individuals. It does not address individual status or contract.
It does require a State accept an official marriage license from another State is genuine and that a marriage under that State's laws actually occurred. It does not and cannot require one State to recognize the individuals' contractual marital status if that status would be illegal in their own State for rational policy reasons.
Do you understand the difference?

 

[RetiredGySgt]

Many did make that contention.

On a personal level, I agree with you. But as we both know, that isn't going to happen. It needs to be kept at the state level to handle as they see fit.

Which means full faith and credit applies.

Interesting to see you take the Progressives' position, RGS.
Go back and look at the Full Faith and Credit clause again, any reading that includes marriage or marital status is overbroad. While it's a bit of an oversimplification, for most purposes including this one there are three basic areas where FF&C apply:
1. Judgments
(A final or otherwise enforceable judgment rendered by another State's court under Due Process and registered appropriately for enforcement)
2. Public records
(Accepting the validity of another State's documents with the appropriate certification, such as a stamp or seal)
3. Public Acts
(Of the State, not the individual)
In other words, Full Faith and Credit speaks to actions of the STATES, not of individuals. It does not address individual status or contract.
It does require a State accept an official marriage license from another State is genuine and that a marriage under that State's laws actually occurred. It does not and cannot require one State to recognize the individuals' contractual marital status if that status would be illegal in their own State for rational policy reasons.
Do you understand the difference?

Your last point is wrong. The legal action of State sanctioned Marriage has always been covered under Full Faith and Credit. The recent attempt by Republicans aided and abetted by Democrats to create a LAW that supersedes the Constitution is simply wrong. It is Unconstitutional and illegal. Congress does NOT have the power to violate the Constitution by making such a law.

Marriage IS covered by the fact it is State sanctioned and the State regulates it, issues a license for it and provides LEGAL DOCUMENTS to verify the marriage was legal and proper. They file those documents and maintain them. Using your logic a birth certificate is able to be ignored by another State because it too involves an INDIVIDUAL and not the State.

Lets get one thing straight, I am OPPOSED to same sex Marriages. But I will not violate the Constitution nor support the violation of the Constitution just because I dislike something allowed under it.

The Government needs to cease and desist involvement in marriage. The State is only concerned for monetary reasons. Allow marriage to return to the religious and the State will regulate CIVIL UNIONS. Problem solved.

 

[goldcatt]

Perhaps it would help to look at the historical basis for legal marriage.
Marriage controlled and sanctioned by the State rather than the Church or the individual is a feudal concept. At the time, most property was owned by a few "noble" families and the Crown (or Caliphate, or Raja, if you're interested in the non-Western traditions - but it was basically all the same feudal system and all boils down to the same concept).
When I mean it was owned by the families and the Crown, I mean just that. There was a type of ownership called the fee tail, or property that was "entailed". That means most land and wealth was owned by the family for use by and for the family as the patriarch saw fit, not by any individual. And control of property generally could only be passed to the eldest biological son or it would revert to the Crown. Not just land was invovled, but an entire family's fortune.
Lacking things like modern paternity testing, the Crown instituted the contract of marriage. Strictly speaking, all legal marriage was designed to do is serve as a binding contract between a man, a woman and the State (Crown, etc.) for the purpose of inheritance. Its primary purpose was for the parties to produce children who would be recognized by the State as legitimate heirs of entailed property, the concept of legitimacy or being a legitimate heir. No claims to the property by sons of women other than the contracted spouse could be recognized. The contract served as de facto proof of paternity.
Our ideas of marriage have evolved with our society, and we're a long way from feudal days. But the law still recognizes legal, civil marriage as a contract between three parties - the spouses and the State.
Full Faith and Credit cannot require a State to enter into a contract which is against its own public policy.

 

[goldcatt]

When a State recognizes a foreign marriage (one performed anywhere outside the State - whether another state or another country) it is inserting itself as a party to the marital contract, replacing the original sovereign. Full Faith & Credit requires acceptance of the marital document issued by another State and acceptance of the fact that those individuals did in fact enter a valid contract with that State. There is a difference, however, between acknowledging that a contract with another party exists and entering into that contract as a party yourself.
Which brings up the most fascinating point in all this to me, anyway. Which is whether applying their divorce laws means Texas is merely acknowledging that a contract exists, or whether they are affirming that contract and becoming party to it in order to dissolve it? I believe it's the latter, which is where my position comes from.

 

[lawbuff]

State courts are not divested of federal claims, so DOMA can be litigated there, as in the TX District court. Unless Congress or the SC has specifically ruled such on a certain law etc., a state court has jurisdiction.

IF a complaint is federal in nature, irrespective as to whether it is so characterized, the opposing party can Petition to remove it to Federal court under 28 USC 1441.

Whether granted or not is another matter.

 

[lawbuff]

Full Faith and Credit cannot require a State to enter into a contract which is against its own public policy.

I agree. As same sex mariages are NOT valid in most states, FFC would not apply, as a properly solemnized marriage would.

 

[Contumacious]

State courts are not divested of federal claims, so DOMA can be litigated there, as in the TX District court. Unless Congress or the SC has specifically ruled such on a certain law etc., a state court has jurisdiction.

IF a complaint is federal in nature, irrespective as to whether it is so characterized, the opposing party can Petition to remove it to Federal court under 28 USC 1441.

Whether granted or not is another matter.

Correct.

.

 

[JD_2B]

I read your post. It didn't take long. I don't have my panties in a knot. If you want to act childish and talk down to people, have at it. I didn't need you to dummy down anything for me. It was rather pretentious of you to think you had to with me. You do not know my background. You assumed.

Seeing how you want to continue on with the churlish style posting, I am not going to waste my time responding to you anymore. If you want to post in a mature manner to me minus the other crap, I will respond.

With all due respect, PAL- I only explained something- You, in turn, called my simplified explanation "Sesame Street" and advised me to gain some maturity based on my post's simplistic and educational nature- in spite of the fact that I did not ONCE bash YOU in it. I asked the question "How do you figure?" and you got pissed. <knock knock is anyone home??> So why DID you get so pissed, ey? If I had a mans picture on my profile, would you have gotten that upset, or are you just all discombobulated now, because a girl proved you wrong?

Dont throw shit at me, and I wont throw shit at you.. Hows that for a fucking deal? Asshole.

Your gender has nothing to do with the issue at hand. I am not pissed. I have merely articulated the fact that I didn't appreciate your condescending reply to me. For some reason, you felt you had to go the simplified route with me. The metaphorical listen up and I am going to explain how the law works to you, was not necessary. You knew exactly what you were doing. And now you want to throw it back on me. I haven't insulted you. I have spoken about your actions towards me and my interpretation thereof. I haven't used vulgar words towards you.

I would have been glad to have a civil debate with you. But, it doesn't appear that you are interested in that. You prefer to throw out the gender card, talk down to people, and curse at them. Those kind of things don't make for substantive civil debate.

I am sure others will be glad to engage you in like manner. I am not going to waste anymore of my time with you.

Whatever- you are just pissed that my explanation actually explained the reasons it is federal- which is what you asked in your question, in the first place. The fact that you think that my giving a simplified explanation of the order or supremacy in our country's legal system when it refers to law, is somehow demeaning or belittling to you, and also somehow uncivil for God's sake, has NOTHING to do with it BEING belittling or demeaning or uncivil in the least.
Youre just pissed because I answered your question accurately and correctly, and in doing so, proved that you are wrong about it not being federal.

If there is something you would like to say in response to any of my points in fact, you are always welcome- just please don't let someone else being right get you so upset in the future that YOU start demeaning THEM- because the door swings both ways compadre..

 

[goldcatt]

Full Faith and Credit cannot require a State to enter into a contract which is against its own public policy.

I agree. As same sex mariages are NOT valid in most states, FFC would not apply, as a properly solemnized marriage would.

You're partially right, my friend.
Same sex marriages are not valid in most states, and FF&C does not apply. HOWEVER, there are states where a same sex marriage is, for all purposes under the law, a "properly solemnized marriage" the same as any other.
The question being debated in interested circles now is whether FF&C, which has never been used to recognize foreign marriages of any kind, should be applied to force states that do not currently allow same sex marriage to recognize those marriages if valid in the State where they were performed.
I've explained in some depth why I feel it does not, cannot and should not apply - even though I actually support allowing same sex marriages. The FF&C clause cannot reasonably be construed to grant the Federal government the power to force a State into a contractual relationship with any of its individual residents against its will. Period.
Until and unless the legal underpinnings of civil marriage change (unlikely) or sexual orientation becomes a protected or suspect class receiving higher scrutiny in equal protection cases (far more likely, but will not happen soon), the judge in the OP is dead wrong.

 

[RetiredGySgt]

Full Faith and Credit cannot require a State to enter into a contract which is against its own public policy.

I agree. As same sex mariages are NOT valid in most states, FFC would not apply, as a properly solemnized marriage would.

You're partially right, my friend.
Same sex marriages are not valid in most states, and FF&C does not apply. HOWEVER, there are states where a same sex marriage is, for all purposes under the law, a "properly solemnized marriage" the same as any other.
The question being debated in interested circles now is whether FF&C, which has never been used to recognize foreign marriages of any kind, should be applied to force states that do not currently allow same sex marriage to recognize those marriages if valid in the State where they were performed.
I've explained in some depth why I feel it does not, cannot and should not apply - even though I actually support allowing same sex marriages. The FF&C clause cannot reasonably be construed to grant the Federal government the power to force a State into a contractual relationship with any of its individual residents against its will. Period.
Until and unless the legal underpinnings of civil marriage change (unlikely) or sexual orientation becomes a protected or suspect class receiving higher scrutiny in equal protection cases (far more likely, but will not happen soon), the judge in the OP is dead wrong.

Full Faith and Credit does not now and never has applied to foreign countries, they are covered by Federal Treaties. That is a red herring. If a birth certificate which is individual in nature is covered by FF&C then so is a marriage which requires a STATE license, with a fee paid and specific laws enacted to create said marriage. More to the point, since each State have their own laws on Marriage then using your logic NO MARRIAGE ever is covered. So one must get married anew in every State they move to or live in. Go ahead explain why THAT is not in fact what happens?

Your argument fails on every premise.

 

[Father Time]

Holy shit, rgs, goldcatt, this is the first time I've ever seen two people on opposite sides say 'the constitution does not comply with my personal beliefs but we should follow it anyway'.

No seriously it's usually 'follow the Constitution when it's convenient for me, ignore it when it isn't'.

 

[goldcatt]

Holy shit, rgs, goldcatt, this is the first time I've ever seen two people on opposite sides say 'the constitution does not comply with my personal beliefs but we should follow it anyway'.

No seriously it's usually 'follow the Constitution when it's convenient for me, ignore it when it isn't'.

Refreshing, isn't it?
Especially since this is probably the first, last and only time you'll ever see me arguing the conservative position and him the progressive.

 

[goldcatt]

I agree. As same sex mariages are NOT valid in most states, FFC would not apply, as a properly solemnized marriage would.

You're partially right, my friend.
Same sex marriages are not valid in most states, and FF&C does not apply. HOWEVER, there are states where a same sex marriage is, for all purposes under the law, a "properly solemnized marriage" the same as any other.
The question being debated in interested circles now is whether FF&C, which has never been used to recognize foreign marriages of any kind, should be applied to force states that do not currently allow same sex marriage to recognize those marriages if valid in the State where they were performed.
I've explained in some depth why I feel it does not, cannot and should not apply - even though I actually support allowing same sex marriages. The FF&C clause cannot reasonably be construed to grant the Federal government the power to force a State into a contractual relationship with any of its individual residents against its will. Period.
Until and unless the legal underpinnings of civil marriage change (unlikely) or sexual orientation becomes a protected or suspect class receiving higher scrutiny in equal protection cases (far more likely, but will not happen soon), the judge in the OP is dead wrong.

Full Faith and Credit does not now and never has applied to foreign countries, they are covered by Federal Treaties. That is a red herring. If a birth certificate which is individual in nature is covered by FF&C then so is a marriage which requires a STATE license, with a fee paid and specific laws enacted to create said marriage. More to the point, since each State have their own laws on Marriage then using your logic NO MARRIAGE ever is covered. So one must get married anew in every State they move to or live in. Go ahead explain why THAT is not in fact what happens?

Your argument fails on every premise.

Sorry, lapsed into jargon there. "Foreign" in this case means anything from outside the jurisdiction, or from a court not subject to that State's laws - including a different State.
The problem with your argument is that you are completely ignoring the principle of comity. I posted a few links way back in the thread explaining the concept and laying out some of the arguments from different points of view.
In a nutshell, Comity is the concept of States respecting and honoring each other's actions that are not covered under FF&C so long as doing so does not require them to break their own laws, violate their own public policy, or go against the Federal Constitution. It's more than a suggestion, but less than the FF&C compulsion.
In this case, marriages from other States ("foreign" marriages) are universally recognized under comity UNLESS they violate the law or policy of that State. That includes marriages legal elsewhere but illegal in the new State due to age, or degree of kinship, or common law status, or inability to consent....or where the two spouses are of the same gender.

 

[DiveCon]

Holy shit, rgs, goldcatt, this is the first time I've ever seen two people on opposite sides say 'the constitution does not comply with my personal beliefs but we should follow it anyway'.

No seriously it's usually 'follow the Constitution when it's convenient for me, ignore it when it isn't'.

actually, MOST(not all) conservatives will argue on the side of the constitution
although you might not agree with their interpretation, it is still on the side of the constitution

 

[Father Time]

Holy shit, rgs, goldcatt, this is the first time I've ever seen two people on opposite sides say 'the constitution does not comply with my personal beliefs but we should follow it anyway'.

No seriously it's usually 'follow the Constitution when it's convenient for me, ignore it when it isn't'.

actually, MOST(not all) conservatives will argue on the side of the constitution
although you might not agree with their interpretation, it is still on the side of the constitution

I spend too much time listening to the ones that don't then.