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View Diary: Marriage equality in front of Supreme Court for second day (63 comments)

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  •  If the court finds the BLAG has standing (5+ / 0-)

    I don't see any way that they uphold section 3.

    I'm more interested in the cases working their way through the system that challenges Section 2.

    •  Section 2 is where the states are allowed to deny (2+ / 0-)
      Recommended by:
      Aunt Pat, MPociask

      full faith and credit and refuse to recognize valid out of state same-sex marriages right? What cases are in the pipeline for this?

      If section 2 is also found unconstitutional then the only discrimination prerogative left to the states with respect to same-sex marriage will be that they will still be allowed to refuse granting marriage licenses to same-sex couples (but they will still have to recognize the ones celebrated out-of-sate).  

      Seek not that the things which happen should happen as you wish; but wish the things which happen to be as they are, and you will have a tranquil flow of life.

      by Montreal Progressive on Wed Mar 27, 2013 at 06:45:50 AM PDT

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      •  I don't believe there are any cases (3+ / 0-)
        Recommended by:
        Montreal Progressive, Aunt Pat, Loge

        in the pipeline regarding Section 2.

        Section 2 is unlikely to be struck down as unconstitutional.  Section 2 mirrors he public policy exception to the FFC clause.

        I think the only way we get marriage equality country wide is for a Supreme Court decision on the scale of Loving v. Virgina - namely declaring it unconstitutional to deny marriage rights to same-sex couples.  And that's not happening any time soon is yesterday was any indication.

        One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

        by AUBoy2007 on Wed Mar 27, 2013 at 06:50:39 AM PDT

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        •  It seems that it could only happen after a (0+ / 0-)

          conservative S.Ct. judge retires or passes away during the tenure of a democratic president.

          Seek not that the things which happen should happen as you wish; but wish the things which happen to be as they are, and you will have a tranquil flow of life.

          by Montreal Progressive on Wed Mar 27, 2013 at 07:00:07 AM PDT

          [ Parent ]

          •  Yeah, and more time passing. (0+ / 0-)

            I'm not sure the liberal judges are ready for it either.

            One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

            by AUBoy2007 on Wed Mar 27, 2013 at 07:05:16 AM PDT

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        •  Hmmm. (3+ / 0-)
          Recommended by:
          MPociask, Helpless, davelf2

          But say they strike down Sec. 3 and the Federal government has to recognize those marriages that occur in states where it's legal, then how is this not a violation of Full Faith and Credit?

          If they do so, one can STILL drive the drive between Boston and Washington DC and be married in MA, unmarried in RI, married again in CT, NY, unmarried in NJ and PA and DE and married again in MD.

          I think overturning sec.3 would lead, eventually, to a Loving v. Virginia style decision fairly soon, like within a decade or so (and even the Warren Court punted on an interracial marriage case in the 1950s).

          Do I have this remotely right?

          •  Well, I agree that the patchwork (1+ / 0-)
            Recommended by:
            terrypinder

            system won't last for long, but I don't think it is necessarily unconstitutional in an of itself (at least in theory without a Loving-type decision).  I don't think overturning DOMA really changes the calculus.

            Basically, the public policy exception has been used to allow states not to recognize marriages performed elsewhere.  (This was the Lovings' exact situation; they were married in D.C. and it was illegal in VA.)  So without a similar "denying same-sex marriage is unconstitutional" decision, I can easily see a stituation where your status differs depending on where you are.

            But I agree with your conclusion for the most part.  This type of patchwork won't be sustainable.  The question is, and why I don't know if I agree with you 100%, whether we will have a Court willing to go there in 10/15 years.  Unless we get some serious turn over, and replacements picked by Dems, we might have to wait even longer.

            One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

            by AUBoy2007 on Wed Mar 27, 2013 at 08:46:18 AM PDT

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            •  So if a RI couple married in MA (1+ / 0-)
              Recommended by:
              terrypinder

              Then they could file joint Federal returns but would have to file single state returns?  Bizarre.

              Even Democrats can be asses. Look at Rahm Emanuel.

              by Helpless on Wed Mar 27, 2013 at 09:16:35 AM PDT

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              •  that's correct (1+ / 0-)
                Recommended by:
                Cali Scribe

                if I married in MD, which I can do now, but went back to PA I still would not be able to file jointly at the state level but could at the fed level. The Patchwork is going to fall apart.

                (Several conservatives have made note of the patchwork too, most notably Rick Santorum, but their solution is to ban marriage equality entirely and forcibly unmarry those 200,000 or so people who did marry.)

              •  Er, (1+ / 0-)
                Recommended by:
                fenway49

                I'm pretty sure Rhode Island recognizes same-sex marriages that have been performed in other states. I think you'd need another state (Pennsylvania?) for your hypothetical.

              •  Not sure. (0+ / 0-)

                Might be that the married NY couple who move to NC have to file single Federal and state returns.

                I don't know.

                One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

                by AUBoy2007 on Wed Mar 27, 2013 at 10:15:09 AM PDT

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            •  Would a federal agency have to treat a married (0+ / 0-)

              couple differently if they marry legally in one state but then move to a state that does not recognize their marriage?  How does a federal agency determine if a couple is validly married, if it can't depend on their reported domicile?

              The influence of the [executive] has increased, is increasing, and ought to be diminished.

              by lysias on Wed Mar 27, 2013 at 09:23:36 AM PDT

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              •  We'd have to see. (0+ / 0-)

                I'm sure they've addressed this question before - pre-Loving with interracial marriages perhaps?

                One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

                by AUBoy2007 on Wed Mar 27, 2013 at 10:15:45 AM PDT

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            •  Kennedy seems to abandon the framework he laid (0+ / 0-)

              down in Lawrence, that animus is not a justifiable basis for law.  He seems to cave in to the bigots in antigay marriage states.  That was the whole basis for the argument and going to the Supreme Court.  WTF?

              GOP Wars against: Iran, Iraq, Afghanistan, Immigrants, Mexicans, Blacks, Gays, Women, Unions, Workers, Unemployed, Voters, Elderly, Kids, Poor, Sick, Disabled, Dying, Lovers, Kindness, Rationalism, Science, Sanity, Reality.

              by SGWM on Wed Mar 27, 2013 at 11:48:34 AM PDT

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        •  I don't buy the public policy exception... (0+ / 0-)

          applying to Section 2.  It's fine that it can be the public policy to not GRANT same-sex marriage licenses.  It's a bridge too far to say they won't RECOGNIZE same-sex marriage license.  A marriage license has as much or more legal force than a judgment, child support, or protective order - and all those get full faith and credit (indeed, judgments have no exception at all).  

          •  Umm... that's exactly how the public (0+ / 0-)

            policy exception works.  Marriage licenses are not considered to have more force than judgments.  That's what states did for years with interracial marriages before the Supreme Court said that it was unconstitutional under the 14th amendment to bar interracial marriages.

            I had an article that I liked citing to that went into this topic, but I can't seem to find it.

            One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

            by AUBoy2007 on Wed Mar 27, 2013 at 08:59:23 AM PDT

            [ Parent ]

        •  Over the next decade, many states are likely to (3+ / 0-)
          Recommended by:
          Rieux, AUBoy2007, cocinero

          legalize same-sex marriage. Eventually, we'll get to a position like that before Loving, where it is the states that limit marriage rights that are the outliers.

          The influence of the [executive] has increased, is increasing, and ought to be diminished.

          by lysias on Wed Mar 27, 2013 at 09:20:27 AM PDT

          [ Parent ]

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