Thread: Full Faith And Credit Clause Effect on Same-Sex (gender) Marriage

From the Constitution of the United States:

Article IV

Section 1
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.

http://caselaw.lp.findlaw.com/data/c...ion/article04/

In the annotations for Article IV it shows that the inclusion of this clause in the US Constitution had it's roots in international laws and customs. I quote, in part, from the annotation:

This comprises a body of rules, based largely on the writings of jurists and judicial decisions, in accordance with which the courts of one country, or ''jurisdiction,'' will ordinarily, in the absence of a local policy to the contrary, extend recognition and enforcement to rights claimed by individuals by virtue of the laws or judicial decisions of another country or ''jurisdiction.'' Most frequently applied examples of these rules include the following: the rule that a marriage which is good in the country [jurisdiction] where performed ( lex loci ) is good elsewhere;

http://caselaw.lp.findlaw.com/data/c...le04/01.html#1

This is very relevant related to same-gender marriage in the United States today. As we know Judge Joseph L. Tauro of the Federal Court of Boston has declared the Defense of Marriage Act unconstitutional based upon two Amendments to the US Constitution. In the case Judge Tauro ruled that the definition of marriage under DOMA of being exclusively related to marriage between a man and a woman violated the Commonwealth of Massachusetts rights under the 10th Amendment. Marriage has always been defined by state law and there was no legal precedent for the federal government to violate the state's rights in defining marriage. Judge Tauro also determined that the limitation by DOMA that the federal government deny benefits to same-sex couples violated the individual right of equal protection under the law established by the 14th Amendment. From Judge Tauro's decision:

"This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status," Tauro wrote. "The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state."

The Obama adminstration originally appealed this decision but upon further review of the evidence it withdrew it's appeal. Since then the House Republicans retained legal services to re-instate the appeal. The first law firm the House Republicans hired, a very conservative law firm, later withdrew after reviewing the evidence presented in the initial court hearing. The House Republicans have retained a new law firm but the Court's decision is so well founded that all logical observers realize that there isn't a chance in hell of that the decision will be overturned.

When the legal dust settles the provisions in DOMA that limit marriage to a man and a woman is going to be declared unconstitutional and struck down. House Republicans are merely playing politics with the social conservatives because they know that DOMA is unconstitutional. That's why candidates for president like Mitt Romney signed a pledge to get a Constitutional amendment that would deny the recognition of same-sex marriage at the federal level. The fact that such an amendment would never be ratified isn't a concern to someone like Romney because he's merely putting on a show for the social conservatives.

Back to Article IV where one of the key considerations related to the full faith and credit clause is that a marriage in one jurisdiction (state) must be accepted by all other jurisdictions (states) in the United States. We have some states, such as N Carolina this week, which have gone so far as to ban same-sex marriage in their State Constitution but the US Constitution take precedent over all State Constitutions. With the demise of DOMA all states will have to give "full faith and credit" to every married couple that enters their state including same-sex couples married in states like Massachusetts.

While the N Carolina State Constitution states that they don't recognize same-sex marriage the US Constitution says that N Carolina must recognizes same-sex marriage if the individuals were married in a state which doesn't prohibit same-sex marriage. This is going to be true for every state regardless of whether they have a law or a state constitution which denies the recognition of marriage for same-sex couples as each of these must acknowledge that marriage under Article IV of the US Constitution.

This is going to cause another problem for these states. While they won't be issuing marriage licenses for same-sex couples, which is technically their legal right under the 10th Amendment, the fact that same-sex marriage for individuals married in other states must be recognized is going to create a case of denial of equal protection under the law for the State's own same-sex couples.

Once DOMA falls the prohibitions against same-gender marriage fall like a house of cards. Even state constitutional prohibitions have to fall to the authority of the US Constitution. We really must wonder why states are passing these laws and state constitutional amendments when they know that the denial of equal protection and the full faith and credit clause of the US Constitution are going to force them to accept same-sex marriage in the very near future.

Originally Posted by Shiva_TD

Once DOMA falls the prohibitions against same-gender marriage fall like a house of cards. Even state constitutional prohibitions have to fall to the authority of the US Constitution. We really must wonder why states are passing these laws and state constitutional amendments when they know that the denial of equal protection and the full faith and credit clause of the US Constitution are going to force them to accept same-sex marriage in the very near future.

Probably much the same reason you provided for why Romney made his pledge: it let's the politicians that backed them argue "they've done something." Ironically, that's the same thing Pelosi and Obama said about Obamacare. Kind of frustrated with politicians trying to look busy, instead of actually getting problems solved.

Originally Posted by Taxpayer

Probably much the same reason you provided for why Romney made his pledge: it let's the politicians that backed them argue "they've done something." Ironically, that's the same thing Pelosi and Obama said about Obamacare. Kind of frustrated with politicians trying to look busy, instead of actually getting problems solved.

We often see politicians doing the "political" thing as opposed to doing what's right. There is no doubt that Obama, Pelosi and Reid knew that they were walking on Constitutional prohibitions with Obamacare and they passed it anyway. The current political philosophy seems to be "To hell with the Constitution. We'll pass the law and then force people to establish that it's unconstitutional in court. If nothing else we can screw them for several years before the laws declared unconstitutional."

I actually remember reading of historical cases where Congress reviewed the Constitutionality of the law before they even voted on it. In fact they reached a consensus that is wasn't so they didn't pass it. I've also read of presidents vetoing a law because it was unconstitutional. That simply won't happen today because no one in Washington really gives a hoot about the Constitution. They use it if its on their side and ignore it if its not.

Originally Posted by Shiva_TD

While the N Carolina State Constitution states that they don't recognize same-sex marriage the US Constitution says that N Carolina must recognizes same-sex marriage if the individuals were married in a state which doesn't prohibit same-sex marriage.

So according to you if a State says it is okay for a 90 year old man to marry six six-year old boys it automatically means "the US Constitution says that N Carolina must recognize" such marriages? I do not think you can remove this part:

"And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

Originally Posted by DivineComedy

So according to you if a State says it is okay for a 90 year old man to marry six six-year old boys it automatically means "the US Constitution says that N Carolina must recognize" such marriages?

I always love how some resort to absurdity in their arguments.

Marriage establishes a contract and a six-year old cannot enter a contract therefore they cannot marry.

Originally Posted by DivineComedy

I do not think you can remove this part:

"And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

Yes, the Congress may specify the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof" but it cannot be discriminatory in it's actions in doing so. DOMA was an attempt at invidious discrimination related to the State controled institution of marriage and the federal government cannot do this as was determine by the Federal Court in Boston. The federal government must accept all marriages as being equal to all other marriages. Once again, when this happens, the equal protection clause of the 14th Amendment drives other states to recognize the same rights under the federal laws for their citizens that another state provides for their citizens.

By way of example, if same-sex couples are afforded joint bankruptcy protection in Massachusetts because they can marry then same-sex couples in N Carolina must also be afforded joint bankruptcy protection under federal law and that protection is afforded based upon marital status. N Carolina would have to allow same-sex couples to marry so that they would receive the identical protections under federal bankruptcy laws that are afforded to a same-sex couple in Massachusetts.

It is a three-pronged sword because Article IV, the 10th Amendment and the 14th Amendment are all applicable.

Granny says, "Dat's right, dey shouldn't be forced to go against dey's religion fer the gay agenda - it'd be a violation of the separation of church an' state...

House Armed Services Committee: Chaplains Cannot be Forced to Perform Same-Sex Marriages
May 10, 2012 – Just hours after President Obama came out Wednesday in favor of homosexual "marriage," members of the House Armed Services Committee voted 36 to 25 to adopt an amendment protecting the religious liberty of military service members, especially chaplains, on the issue of same-sex marriage.

The amendment would effectively protect chaplains from being forced to perform same-sex marriages and from being disciplined for maintaining traditionalist moral views about human sexuality. “Moral or religious concerns about same-sex marriage or the repeal of Don’t Ask, Don’t Tell have become potentially career-ending,” said the amendment's sponsor, Rep. Todd Akin (R-Mo.). Akin, the chairman of the Seapower and Projection Forces subcommittee, said the pressure in the military to conform to Obama’s view on homosexuality has become particularly acute since the repeal of Don’t Ask, Don’t Tell last year.

In fact, Akin said his amendment actually came in response to requests from military chaplain organizations “who have reported an uptick in censorship and recriminations for chaplains and servicemembers who have moral or religious concerns about same-sex marriage” since the military’s policy on homosexuality was lifted last year. “Our service members are putting their life on the line for our country,” the Missouri Republican said. “We should not respond by limiting their religious freedom. These heroes are fighting to defend the Constitution and our freedom. We cannot allow their constitutional freedoms to be violated.”

Earlier in the day, Wednesday, Obama cited the inability of homosexual soldiers to marry as a reason why he was changing his mind to support homosexual marriage. He told ABC News: “When I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don't Ask Don't Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I've just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.” Akin criticized the president for using the military “as a campaign prop to advance the liberal agenda.”

“Whatever Obama’s views may be, I find it appalling that he would so blatantly use the military for political cover on this controversial issue,” Akin said. “Our sons and daughters don’t volunteer for the military to be used to promote a political agenda.” Now, with Obama coming out in favor of gay "marriage," the pressure to conform is bound to intensify, the Missouri Republican said. “Obama’s use of the military to justify his new support for same-sex marriage will only add fuel to this fire, potentially forcing service members and chaplains to violate their own conscience or face recriminations,” the congressman added. The Akin amendment creates a statutory conscience protection clause for members of the military in general and military chaplains in particular.

MORE

Originally Posted by waltky

Granny says, "Dat's right, dey shouldn't be forced to go against dey's religion fer the gay agenda - it'd be a violation of the separation of church an' state...

House Armed Services Committee: Chaplains Cannot be Forced to Perform Same-Sex Marriages
May 10, 2012 – Just hours after President Obama came out Wednesday in favor of homosexual "marriage," members of the House Armed Services Committee voted 36 to 25 to adopt an amendment protecting the religious liberty of military service members, especially chaplains, on the issue of same-sex marriage.

Is it at all surprising that the "social conservative" Republican's that control the House Armed Services Committee would ignore the history and Mission Statement of Chaplains?

Let's start with the fact that US Army chaplains, which are typical of all US military chaplains, have always provided services to all religions and have never been allowed to simply impose the specific views of religion upon the members of the US military. They are cross-trained to be able to provide spiritual and religious guidance to all members of the US military and it is not uncommon for a Christian chaplain to provide religious assistance for a Muslim or a Jew or a Buddhist. This is exemplified by their Mission Statement and Vision Statement:

Mission Statement:

The U.S. Army Chaplaincy provides religious support to America's Army while assisting commanders in ensuring the right of free exercise of religion for all Soldiers. In short, we nurture the living, care for the wounded, and honor the fallen.

Vision Statement:

Religious and Spiritual Leadership for the Army Family.

http://www.army.mil/info/organization/chaplaincy/

The Republican controlled House Armed Services Committee has now compromised both the Mission Statement and the Vision Statement with their attempt to impose fundamentalist Christian beliefs on the US military. No longer under the proposed law would a Chaplain be required to provide religious services to anyone that doesn't believe in the very limited religious beliefs of the Chaplain. For example a Christain chaplain is no longer required to provide spiritual comfort or guidance to a Muslim because they don't believe in Mohammad and to do so would be to violate their myopic Christain beliefs.

The completely miss the point that the Chaplaincy is not about the religious beliefs of the Chaplain but instead about the religious and spiritual beliefs of the soldier!!! It is the Chaplain that must conform to the religious and spiritual beliefs of the soldier and not the soldier that must comply with the religious and spiritual beliefs of the Chaplain.

Based upon the proposal of the House Armed Services Committee I would support the abolition of the entire Chaplian corps because it has lost it's unbiased foundation of catering to the religious beliefs of the Soldier and would become nothing more than a Christain indoctrination component of the US military violating the Freedom of Religious beliefs of the US Soldier and an attempt to impose fundamentalist Christianity upon the US military.

Originally Posted by Shiva_TD

I always love how some resort to absurdity in their arguments.

Marriage establishes a contract and a six-year old cannot enter a contract therefore they cannot marry.



Yes, the Congress may specify the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof" but it cannot be discriminatory in it's actions in doing so. DOMA was an attempt at invidious discrimination related to the State controled institution of marriage and the federal government cannot do this as was determine by the Federal Court in Boston. The federal government must accept all marriages as being equal to all other marriages. Once again, when this happens, the equal protection clause of the 14th Amendment drives other states to recognize the same rights under the federal laws for their citizens that another state provides for their citizens.

By way of example, if same-sex couples are afforded joint bankruptcy protection in Massachusetts because they can marry then same-sex couples in N Carolina must also be afforded joint bankruptcy protection under federal law and that protection is afforded based upon marital status. N Carolina would have to allow same-sex couples to marry so that they would receive the identical protections under federal bankruptcy laws that are afforded to a same-sex couple in Massachusetts.

It is a three-pronged sword because Article IV, the 10th Amendment and the 14th Amendment are all applicable.

There is no absurdity if theoretically a majority of NAMBLA pedophiles across the country could form a movement to move to a smaller State overwhelming their legislature, and ruling that the age of consent is lower. I once had someone born in Morocco tell me of a rather disgusting cultural practice of women calming their babies, want a description or can you guess? It makes the new Time breastfeeding cover tame be comparison. Without a showing of actual wording in the US Constitution with regard to age of consent, MoHamMad in such a State could marry Aisha. The US Constitution does not demand all States accept the culture of others.

Whether or not a 14 year old girl (knew a married one once), or many of them, can enter into a marriage contract with an older man is according to State law, not Federal law (except in that district that is a supposed to be a district and not a STATE for a reason). Unless the US Constitution specifically spells it out, we are left with "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," "And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

What if the Mormon's had got their State of Deseret, and there was no illegal threat of war to prevent it on the sole grounds of other States opposing polygamy, according to your argument all other States would have to recognize polygamous marriages from that State; people would be able to cross State lines and marry many wives, and there is nothing a State could do about it when they move back, because your argument would effectively remove the phrase "reserved to the States respectively."

It is not a three-pronged sword, because Lawrence v. Texas made it a four-pronged sword. Without the Supreme Court ruling, your argument that, "While the N Carolina State Constitution states that they don't recognize same-sex marriage the US Constitution says that N Carolina must recognizes same-sex marriage if the individuals were married in a state which doesn't prohibit same-sex marriage," fails miserably. The US constitution does not say, the Supreme Court said in Lawrence v. Texas, "The State cannot demean their existence or control their destiny."

The argument for use of the 14th Amendment with regard to Gay marriage only comes into play because of the ruling in Lawrence v. Texas. And the Supreme Court itself has not ruled, yet, that was their intent, thereby striking down DOMA.

Without a ruling by the Supreme Court to the contrary the Congress can be discriminatory against Gay marriage, MoHamMad's marriage, and Polygamous contract's effects in States preserving what is "reserved to the States."

Any attempt to claim the US Constitution, as so worded, gives rights to Gay marriage being respected by States opposed to it also demands a potential "absurdity" be respected too.

"The federal government must accept all marriages as being equal to all other marriages," but that does not mean all States (States have representatives in Congress, it is called the Senate, which exists for a REASON) must accept all such contracts.

Originally Posted by DivineComedy

There is no absurdity if theoretically a majority of NAMBLA pedophiles across the country could form a movement to move to a smaller State overwhelming their legislature, and ruling that the age of consent is lower. I once had someone born in Morocco tell me of a rather disgusting cultural practice of women calming their babies, want a description or can you guess? It makes the new Time breastfeeding cover tame be comparison. Without a showing of actual wording in the US Constitution with regard to age of consent, MoHamMad in such a State could marry Aisha. The US Constitution does not demand all States accept the culture of others.

The least populated state is Wyoming and I wouldn't suggest that pedophiles move there. If they weren't shot by outraged cowboys they would be quickly arrested, prosecuted, convicted and incarcerated and would lose their right to vote. Yes, in a distorted mind a "theoretical" situation can be invented but it's absurd because it would never happen in reality. To avoid absurdity one must be addressing reality.

Originally Posted by DivineComedy

Whether or not a 14 year old girl (knew a married one once), or many of them, can enter into a marriage contract with an older man is according to State law, not Federal law (except in that district that is a supposed to be a district and not a STATE for a reason).

Yes, there are some states that allow marriage for individuals as young as 14 (as I recall Hawaii is one of those states) and those marriages are recognized by every state if the couple moves to that state. If a person filed a lawsuit because their state recognized the marriage of a 14 yo from another state but denied marriage for a 14 yo and could show how it is discriminatory then they would have a valid case IMO. In such a case it would be age discrimination that is the issue and not marriage per se. Of course we're not addressing child marriage when we discuss same-sex marriage which is between consenting adults.

Originally Posted by DivineComedy

Unless the US Constitution specifically spells it out, we are left with "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," "And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

True but the federal government cannot create discrimination related to the Acts, Records, or Proceedings of any State. The definiton of Marriage is established by the States and the Federal government cannot override that definition has it has no Constitutional authority related to Marriage.

Once again the federal government does have authority related to equal protection and all states are prohibited from denying equal protection under the law by the 14th Amendment. As was noted above marriage of a 14 yo in one state is recognized in every other state if the couple moves there based upon Article IV's full faith and credit clause so a same-sex marriage must also be recognized because to not recognize it would violate Article IV and the 14th Amendment which are both in the US Constitution.

Originally Posted by DivineComedy

What if the Mormon's had got their State of Deseret, and there was no illegal threat of war to prevent it on the sole grounds of other States opposing polygamy, according to your argument all other States would have to recognize polygamous marriages from that State; people would be able to cross State lines and marry many wives, and there is nothing a State could do about it when they move back, because your argument would effectively remove the phrase "reserved to the States respectively."

What's wrong with polygamy as long as all of the adults involved do so based upon informed consent?

Originally Posted by DivineComedy

It is not a three-pronged sword, because Lawrence v. Texas made it a four-pronged sword. Without the Supreme Court ruling, your argument that, "While the N Carolina State Constitution states that they don't recognize same-sex marriage the US Constitution says that N Carolina must recognizes same-sex marriage if the individuals were married in a state which doesn't prohibit same-sex marriage," fails miserably. The US constitution does not say, the Supreme Court said in Lawrence v. Texas, "The State cannot demean their existence or control their destiny."

The rights of same-gender couples to marry has nothing to do with sexual behavior as sexual behavior is not codified into any of the marriage laws. It is an issue of gender discrimination and not sexual behavior discrimination. Lawrence v Texas had nothing to do with marriage.

Originally Posted by DivineComedy

The argument for use of the 14th Amendment with regard to Gay marriage only comes into play because of the ruling in Lawrence v. Texas. And the Supreme Court itself has not ruled, yet, that was their intent, thereby striking down DOMA.

DOMA does not address gay marriage. It limited federal recognition of marriage based upon gender and was gender discrimination and not sexual behavior discrimination. People need to actual read the laws.

Originally Posted by DivineComedy

Without a ruling by the Supreme Court to the contrary the Congress can be discriminatory against Gay marriage, MoHamMad's marriage, and Polygamous contract's effects in States preserving what is "reserved to the States."

It does not require a Supreme Court "decision" to overturn federal law. The Supreme Court can refuse to listen to a Federal Court case allowing the decision of the lower Court to prevail. In such a case then the law, if declared unconstitutional, is unconstitutional based upon the lower court ruling.

Currently DOMA is unconstitutional although that decision is "stayed" pending the appeal. If, for example, the House Republicans had not filed an appeal after the Justice Department withdrew it's appeal to the Boston Courts decision then DOMA Section 3 would have become null and void based upon the Boston Federal Court decision.

Originally Posted by DivineComedy

Any attempt to claim the US Constitution, as so worded, gives rights to Gay marriage being respected by States opposed to it also demands a potential "absurdity" be respected too.

There is no such thing as "gay" marriage. The prohibitions are against same-gender marriage and not sexual orientation or behavior.

Originally Posted by DivineComedy

"The federal government must accept all marriages as being equal to all other marriages," but that does not mean all States (States have representatives in Congress, it is called the Senate, which exists for a REASON) must accept all such contracts.

The full faith and credit clause does mean that the records, such as birth certificates and marriage certificates, issued by one state must be accepted by all other states.

Originally Posted by Shiva_TD

distorted mind

End of Debate.