No argument that DOMA Section 2 is the next target and it will fail based upon the equal protection clause as well as the full faith and credit clause. DOMA was created to discourage Hawaii from legalizing same-sex marriage at the time. Little has the legislative and/or executive branches ever cared about the Constitutionality of the law. Not only are the legislative and/or executive branches willing to pass and enforce unconstitutional law but then they fight against those that challenge it.
There was a movement to get a Constitutional Amendment defining marriage as between a man and a woman, and it was picking up steam. DOMA took the wind out of it's sails. If not for DOMA, we might very well have had to wait decades to amend the constitution before we got marriage equality in the US. I think DOMA was engineered to remove the fuel from the Marriage Amendment, and be conveniently unconstitutional when the time was right. So now all that remains is section 2, and I am sure they are looking for plaintiffs.
Two and one-half years from date of filing for United States v. Windsor to finally be successful in striking down DOMA Section 3. It will be three or more years for a new lawsuit against DOMA Section 2 to reach the Supreme Court and be struck down. That would only require a State to recognize same-sex marriages from other states but would not require the state to allow same-sex marriage under their law. Some states have statutory laws prohibiting same-sex marriage and those have to go through the State Court System to be struck down as a violation of the equal protection clause. Those decision do not affect the laws in other states. Some states have state Constitutions that prohibit same-sex marriage. These have to go through the federal courts (like Prop 8 ) and they would lead to the Supreme Court ruling on equal protection and that would legalize same-sex marriage throughout the US. Once again though it would take at least three years to wind through the federal courts to the Supreme Court. This is overly optimistic IMO because it's about the shortest time for this to happen. If it has to go through the courts every step of the way we're looking at 10-20 years realistically. Or the 1/3rd of Republicans could convince just one more 1/3rd of Republicans to support equality in marriage as opposing it. That could optimistically happen in a few of years and the problem would be resolved by the repeal of the prohibition laws and revisions to the state Constitutions.
It's a race (albeit in super slow motion) between the courts and the ballot box to make marriage equality a reality in 50 states. Public opinion on marriage equality moves every year, in every state, in the direction of greater acceptance. In some states like Massachusetts it represents an overwhelming majority, in other states like Mississippi, it's still a minority although it grows every year. Yet given the trends, marriage equality should prevail, state by state, at the ballot box, and in the legislatures, even without court intervention. The unknown is the bandwagon effect, given the supreme court ruling, which has the effect of saying "Hey, it's coming get over it", and some people will jump on the bandwagon, because who wants to be the last holdout for an idea who's time has passed. And that could speed things up.
Public Policy on such will be hard to overcome even under FFC, as current SC Rulings are against them. Whether statutory or constitutional, a suit can be filed directly in federal court bypassing state court if a federal element is pleaded.
That is absolutely correct and I believe the ACLU has already filed cases challenging DOMA Section 2 in federal court based upon the US Constitution which can't be addressed by a state court. A State Supreme Court only has jurisdiction related to the State Constitution and has no jurisdiction related to the US Constitution. If (or more accurately when) DOMA Section 2 falls then all states will have to recognized same-sex marriages from other states and logically will have to allow same-sex marriage under their own laws because to fail to do so would violate the equal protection clause of the 14th Amendment. That may already be in work though because of the IRS determination that same-sex couples in states that don't recognize those marriages can still file joint income tax returns. Because same-sex couples in those same states are prohibited from marrying they are not being afforded equal protection under the law because they cannot marry and file a joint income tax return. The fact is that prohibitions against same-sex marriage are in their death throws because they're clearly unconstitutional. The violate the equal protection clause as well as the full faith and credit clause of the US Constitution.
The SC has already ruled they anti SSM laws do not violate the 14th AM, back in 1971. FFC has a possibility, but there is case law on record which would contradict the proposal.
This is erroneous and refers to the case of Baker v Nelson (1971) that was a Minnesota State Supreme Court decision based upon the Minnesota State Constitution at the time. A State Supreme Court cannot rule on the US Constitution as it has no jurisdiction in US Constitution cases that are under the jurisdiction of the federal courts. http://en.wikipedia.org/wiki/Baker_v._Nelson We can also note that the decision in a case is based upon the arguments presented by the Plaintiffs and in Baker v Nelson many of the issues being addressed today were absent. For example Richard Baker and James Michael McConnell, the plaintiffs, were not raising a child which would have been key in the Baker v Nelson decision where the court ruled that raising children was a primary reason for "marriage" under the law. The only legal precedent I'm aware of related to Full Faith and Credit and marriage is a case that I believe took place in either Arizona or New Mexico where a couple that were citizens of the state left the state to marry to by-pass the state law prohibitions against the marriage of those closely related (i.e. there are different laws in different states about "incestuous" marriage). I forgot the details but fundamentally the court nullified the marriage because they were citizens of the state that specifically went to another state to by-pass the marriage laws of their own state. Had the couple been citizens of the state where they were married then the marriage would have been recognized under the Full Faith and Credit clause. We can see that in action today where Mississippi has a "legal consent age" of 21 for marriage but recognizes the marriages of couples from all other states where the age of consent is 18 and then relocate to Mississippi. Basically the legal precedent for nullification of marriage is based upon whether it was a nefarious attempt to circumvent state marriage laws. If it was not nefarious then the marriage is recognized under the Full Faith and Credit clause. The marriages of citizens of a state under their state's marriage laws have always been recognized by other states if the couple relocates to another state.
Did you read the Precedential value of Baker in that wiki article? Certiorari was not denied, it was dismissed for want of a substantial federal question, which is by MOST Courts analysis, is a ruling ON THE MERITS. This case discusses FFC on marriage issues, however, not on SSM. U.S. Supreme Court Loughran v. Loughran, 292 U.S. 216 (1934) Decided April 30, 1934 292 U.S. 216 CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA Syllabus 1. Marriages not polygamous or incestuous, or otherwise declared void by statute, will, if valid by the law of the State where entered into, be recognized as valid in every other jurisdiction. P. 292 U. S. 223. Additionally, FFC case law dictates that a state is not bound to honor the public policy of another state if it violates thier own, see Nevada v. Hall, but does not deal with SSM.
The "merits" in question was whether there was a "federal" issue related to the Minn. Supreme Court decision and there wasn't. The case was limited to Minnesota and Minnesota state marriage laws as the federal government had no statutes addressing the definition of marriage at the time. In fact there were no states at the time that expressly prohibited same-sex marriage as those laws did not originate until after 1971 when states realized that their laws didn't expressly prohibit same-sex marriage. As also noted in the Baker v Nelson case the plaintiffs failed to provide any evidence of "harm" by being denied marriage under the Minnesota marriage law. I would still cite the fact that we don't see court cases of nullification of marriages related to "First Cousin Marriages" (i.e. incest laws) where the marriage is between first cousins that are citizens of a state where it's legal such as California if that couple later moves to another state where it's prohibited such as Arizona even though Arizona's statutes establish that such marriages are void (nullified). http://en.wikipedia.org/wiki/Cousin_marriage_law_in_the_United_States_by_state It would be my contention that if Arizona actually tried to nullify a "first cousin" marriage between citizens of California that moved to Arizona and it went to court that the law would be struck down as unconstitutional. It is completely illogical to believe that the marriage of a couple that could have existed for 5, 10, 20 years or more could instantly no longer exist simple because the couple relocated to another state. As I've also mentioned I don't believe that Mississippi could nullify a marriage between two 18 year olds that move to Mississippi before they turn 21 years old. That is also illogical and I don't believe the US Supreme Court would allow it to happen. BTW the US Supreme Court decision in Reynolds v United States in 1878 that allowed laws prohibiting polygamy is one of the most flawed Supreme Court decisions in American history. The Court in that case established legal precedent (i.e. laws cannot be based solely upon religious opinion) and then completely ignored the precedent it established in rendering it's decision (i.e. that precedent established by Western European nations that based their marriage laws on the Christian definition of marriage while ignoring marriage laws in other nations based upon non-Christian religious beliefs allowed polygamy that the Court acknowledged existed). In short the Supreme Court based its decision on the Christian definition of marriage after just establishing that it couldn't do this.
Can unmarried couples file joint returns? If they can, there is no discrimination under the tax code. Obviously people who live as a couple for many years should have the same options as married couples regardless of why they live as a couple. What about other pairs of people who live together for over a year? Suppose a retired widow earns $50,000 per year on dividends, interest, pensions and social security and pays $5,000 per year in taxes. An adult child of the widow lives alone, earns $10,000 per year at a part-time job and pays no taxes. If they move in together their combined income is now $60,000 but because they are now a family of two their joint taxes fall to $3,000 per year. Should that be illegal? by simply adjusting the rules to allow any combination of cohabitants to file joint returns if they wish, marriage issues are removed from the equation and can be fought on constitutional issues, not financial ones.
This does present an issue related to "common law marriages" that I'm unsure of. I don't believe that the federal government recognizes "common law" marriages at all. Only if the couple obtain government documentation of their common law marriage (i.e. change it from "common law" to "lawful" marriage) will the federal government recognize it. I haven't read any court decisions on this but we should understand that for most of American history common law marriages were probably more prevalent than lawful marriages. Almost all "Western" marriages were generally common law marriages. For example, Wyatt Earp's first "marriage" was a common law marriage and his second probably was as well. What I would say is that the legal institution of marriage reflects "government creeping into the personal lives of the people" that should never have occurred in the United States. Our government should not be regulating the personal relationships of the people. It should be solely concerned with protecting the rights of those involved in personal relationships.
The Harm/Injury was that the Plaintiff's claimed selected Federal Constitutional provisions were violated, and the ruling was by the MSC; . In 2004 California's SC ruled that Baker v. Nelson was BINDING precedent upon them.
The plaintiffs in Baker v Nelson did not establish that they were suffering any harm by being denied marriage under the laws of Minnesota. Of course the Minnesota addressing the US Constitution in it's decision has no real authority as US Constitutional interpretations are under the jurisdiction of the federal courts, not the state courts. In 2007 in the Prop 22 decision the California State Supreme Court determined that Baker v Nelson did not apply. Of note the only courts subjected to the legal precedent are those subordinate to that court that makes the decision. For example, in the DOMA Section 3 case, I believe that was by the 2nd Court of Appeals (although the First Court of Appeals had also ruled DOMA Section 3 unconstitutional) and that decision only affected the courts in the states under the Appeals Court's jurisdiction. The US Supreme Court questioned whether the House Republicans had "standing" to defend DOMA Section 3 and waived that determination based upon the fact that DOMA Section 3 could not be unconstitutional in some states while being Constitutional in others which would have occurred if the House Republicans were ruled to not have standing in the case. As the same time the Supreme Court in the Prop 8 case ruled that the defendants didn't have standing which vacated the Ninth District Court of Appeals ruling leaving the Ninth District Court's ruling intact as a default judgment for the plaintiffs. In short, even though the Ninth District Court heard arguments the case really became one of "no contest" where the only decision the Ninth Court could have made was on behalf of the Plaintiffs providing the relief they sought (i.e. striking down Prop 8 as unconstitutional) because the "defendant" did not have standing to defend Prop 8. Back to the point. the only courts that were required to accept the Baker v Nelson decision as legal precedent were the courts in Minnesota as they are subordinate to the Minnesota State Supreme Court. California Courts are not subordinate to the Minnesota State Supreme Court nor are any Minnesota Supreme Court decisions binding on the courts in any other state.
This California SC ruling states Baker is precedent. Can you copy/paste the relevant part of the decision you cite from 2007? http://www.law.berkeley.edu/files/Lockyer_v._San_Francisco_Cal..pdf
Oh, I might add, every state that has legalized SSM has done so under thier OWN constitutions/laws. The crux case out of MASS. was based on thier Constitution.
Why was the relevant part not in bold. Courts in California are not subordinate to the Minnesota State Supreme Court and the Minnesota Supreme Court rulings do not establish legal precedent in California. The prior part noted related to US Supreme Court decisions that establish legal precedent for all of the courts in the nation. The US Supreme Court did not issue any decision on Baker v Nelson as it found no grounds of national interest. As far as the US Supreme Court was concerned the case of Baker v Nelson was a state issue and not a national issue. Baker v Nelson was a very limited decision where the plaintiffs did not address any issues where they could claim they suffered harm by being denied equality in marriage. I believe they could have but they didn't. What has changed over time is that more and more issues have come up where denial of equality under the law have been clearly established since same-sex marriage has been allowed by some states. Bankruptcy protection, Social Security benefits, federal inheritance laws and taxation, as well as over 1,100 different federal laws alone are all based upon the legal institution of marriage where denial of equal protection were the grounds for US Supreme Court overturning DOMA Section 3. What we'll find in the future is that the denial of equal protection by states that deny same-sex marriage because those couples cannot marry is also going to be a legal issue. If a same-sex couple in Kansas is denied the Right to Marry then the State is denying them federal benefits that are exclusive to married couples. DOMA Section 2 is the next federal statute that will be overturned and it was the only foundation for states to nullify same-sex marriages. It will unquestionably be found unconstitutional when it goes before the US Supreme Court.
Oh looking back a page, this is totally incorrect as a matter of law, I can cite MANY case where a state court has ruled on the federal constitution. State courts are not divested of federal law constitutional questions (few exceptions)
. Huh! The decision was a SUMMARY decision, did you not read that? I had it there in quote from the CA SC on the binding precedent of Baker, can't do much more in a legal argument!
In 2007, in it's Prop 22 decision, the California State Supreme Court tossed out Baker v Nelson as not applicable because same-sex couples were being denied equal protection under the law in violation of the California State Constitution's equal protection clause.
Mebbe would help the move to open software... Supreme Court could limit software patents Mar 31,`14: WASHINGTON (AP) -- Is it too easy for high-tech companies to patent inventions that are not really new, but simply take an old idea and blend it with computer wizardry?
It looks like the right decision and the best possible reasoning on both sides. The most important thing about this is the lineup, and the story about how it got that way. If all opinions started this way Clarence Thomas was first in seniority on the losing side. That's rare because he normally agrees with the chief and/or Scalia. He rarely agrees with Breyer and if he does chances are the chief, Scalia or at the least Kennedy has seniority. Obviously Thomas chose the correct justice to write the opinion. Kennedy is nearly always the right person to write the opinion in any close vote. However it is possible that the three ladies originally joined with Breyer (as usual) meaning that-perhaps for the first time in his career-Thomas was first in seniority in what looked like the majority opinion. Breyer was still the best choice since you can't trust a woman on such a delicate matter, but he might have chased them all away.
