Skip to main content

View Diary: Obama Says Federal Benefits Should Go to Same-Sex Married Couples in All States. (29 comments)

Comment Preferences

  •  I think the answer is neither. (2+ / 0-)
    Recommended by:
    kj in missouri, sfbob

    I think existing Federal regulations that were written by Federal agencies (not Congress) would need to be modified.

    In other words, as an example which may or may not be accurate, the IRS itself decided that state of domicile defines whether you are married for tax purposes, not Congress.  So that rule, subject to all the bureaucratic need for publishing, comment period, delays until implementation, etc, would have to be changed.

    •  IRS is a good example - they've actually (5+ / 0-)

      decided for common law marriages it's whether the marriage was valid in the state it was entered into.  Hopefully they can just do the same for same-sex marriages.

      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 Thu Jun 27, 2013 at 12:13:22 PM PDT

      [ Parent ]

      •  Iowa has common law marriage. (0+ / 0-)

        So what if I live in Iowa and declare my marriage via common law vs. civil marriage, then move to another state like Texas?

        Since the IRS uses the state that it was entered into as the determination, then a common law Iowa gay marriage is treated differently than one entered into with a marriage license?

        Radical Activist Homosexual Agenda: 1. Equality 2. See #1

        by skip945 on Thu Jun 27, 2013 at 01:53:20 PM PDT

        [ Parent ]

        •  I don't have the first clue how that would be (1+ / 0-)
          Recommended by:
          skip945

          treated.  It assumes the IRS wouldn't recognize the civil law marriage once you moved to Texas which is an assumption I don't know enough to make.

          I think we need to take a wait and see approach.

          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 Thu Jun 27, 2013 at 02:11:00 PM PDT

          [ Parent ]

        •  So actually, there is no time restriction on (1+ / 0-)
          Recommended by:
          sfbob

          common law marriage in Iowa.

          The state will only recognize a common law marriage in Iowa if the two parties meet the following three elements:

          1. There was intent and agreement in praesenti to be married by both parties

          2. There has been continuous cohabitation between the parties before the common law marriage in IA

          3. There is a public declaration or holding that the parties are husband and wife

          So I live in Texas.
          I should declare a common law marriage in Iowa so the IRS will recognize that I am married for tax purposes?

          Wonder what the airfare is between Houston and Des Moines...

          Radical Activist Homosexual Agenda: 1. Equality 2. See #1

          by skip945 on Thu Jun 27, 2013 at 02:11:06 PM PDT

          [ Parent ]

    •  Changing a regulation is a time-consuming process. (1+ / 0-)
      Recommended by:
      jpmassar

      The agency has to submit a proposed rule to OMB, OMB has to approve the proposed rule, the agency has to publish the proposed rule in the Federal Register and invite comments, the agency then has to redraft the rule in final form with answers to all the comments it receives, and finally the OMB has to approve the final rule.

      It typically takes years, especially in recent years, when OMB has become much more active in blocking and delaying rules.

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

      by lysias on Thu Jun 27, 2013 at 12:25:36 PM PDT

      [ Parent ]

      •  Unless it's the different between (1+ / 0-)
        Recommended by:
        jpmassar

        "exclusive purpose" changed to "primary purpose" in the matter of whether or not your 501(c)(4) is considered a political org or not. Amirite?

        I'd like to start a new meme: "No means no" is a misnomer. It should be "Only 'Yes' means yes." Just because someone doesn't say "No" doesn't mean they've given consent. If she didn't say "Yes", there is no consent.

        by second gen on Thu Jun 27, 2013 at 12:58:52 PM PDT

        [ Parent ]

    •  So, if I am a NH resident, and I am 13 years old, (1+ / 0-)
      Recommended by:
      jpmassar

      and, per NH law, get permission and a signed waiver from my parents to marry, I can file state and Federal taxes. But if my new husband and I decide to move to Nebraska, where the laws there say that you must be 18 to marry, 17 with parental consent, my marriage is no longer valid, either state or Federal taxes/benefits no longer apply?

      I'd like to see if that's ever been done. Because I'm going to guess it hasn't. I'm going to guess that other states' marriages are traditionally respected. Unless they're gay marriages.

      I'd like to start a new meme: "No means no" is a misnomer. It should be "Only 'Yes' means yes." Just because someone doesn't say "No" doesn't mean they've given consent. If she didn't say "Yes", there is no consent.

      by second gen on Thu Jun 27, 2013 at 12:57:30 PM PDT

      [ Parent ]

      •  Pretty interesting overview (2+ / 0-)
        Recommended by:
        jpmassar, second gen

        Piece from 2011 on HuffPo. Seems, as with many a legal matter, the answer is "it depends"
        http://www.huffingtonpost.com/...

        “Texas is a so-called red state, but you’ve got 10 million Democrats here in Texas. And …, there are a whole lot of people here in Texas who need us, and who need us to fight for them.” President Obama

        by Catte Nappe on Thu Jun 27, 2013 at 01:19:46 PM PDT

        [ Parent ]

      •  The pertinent phrase is "public policy exception" (2+ / 0-)
        Recommended by:
        terrypinder, second gen

        Federal courts usually give more weight under the full faith and credit clause to court judgments issued in another state than they do to laws. But even there there are apparently limitations.

        In 1939, the Court in Pacific Employers Insurance v. Industrial Accident wrote:

        [T]here are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. See Wisconsin v. Pelican Insurance Co., 127 U.S. 265; Huntington v. Attrill, 146 U.S. 657; Finney v. Guy, 189 U.S. 335; see also Clarke v. Clarke, 178 U.S. 186; Olmsted v. Olmsted, 216 U.S. 386; Hood v. McGehee, 237 U.S. 611; cf. Gasquet v. Fenner, 247 U.S. 16. And in the case of statutes...the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.

        I'm presenting a cite from Wikipedia here not as an authoritative source but for illustrative purposes only.

        It would appear however that Section 2 of DOMA doesn't really need to exist but is simply one more slap in the face of gay and lesbian couples.

        In Loving vs Virginia the Lovings were, in fact, legally married in Washington, DC. They relocated to Virginia to be closer to Mr. Loving's family and were soon arrested for violating Virginia's anti-miscegenation laws which not only did not recognize or permit interracial marriages but actually criminalized them. At the time I suspect that the public policy exception, though it functioned in other situations, was often used as a means of allowing states with anti-miscegenation laws to refuse to recognize such marriages legally contracted in other states.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site