Comments on: Ol’ Dirty Watch: Moral Majority Edition

By: Scott Austin

Scott Austin — Wed, 12 Oct 2005 00:02:44 +0000

I’m not sure why everyone assumes that I somehow think that the Courts should have anything to do with what so obviously should be a States’ power. I think States, and States alone, ought to have the power to determine marriage, and what constitutes it. If the State of Vermont or Massachusetts wants to recognize gay marriage, it is their right. My only fear is that the federal courts will step in and grossly abuse the meaning and power of Article IV Section 1. How we got to Marbury is beyond me, as I am by no means hung up on the compex issues of federalism.
Your argument, if anything, gives at least some merit and weight to my concern, in that Story’s opinion for Martin held supremacy of the Constitution to State powers and concerns. In that do we find my ultimate worry, namely that a group of 9 imbeciles will somehow find it a guaranteed right that a gay couple married in Mass can compel the State of Kansas to recognize that union. In the end, I have become a liberal, but hear me out. I think that, if an amendment is passed at all, it should not be one that defines marriage, but rather one that guarantees the issue of marriage as the sole power and purview of the State governments and their selected representatives. I think that would settle the issue on a federal level, and grant each geographic and State local the power to answer the question for itself.

Scott

By: Danimal

Danimal — Tue, 11 Oct 2005 23:25:53 +0000

Of course, I don’t know why I’m bringing up Martin when Scott here is still hung up on Marbury v. Madision! Am I right, people?

By: Danimal

Danimal — Tue, 11 Oct 2005 23:23:12 +0000

I don’t know the names of these cases or I’d give you a definite answer. I do know that there are state “DOMAs” that were enacted after the federal DOMA authorized them. (I.e., federal DOMA says states need not honor gay marriages; state DOMA makes plain that that is what a state is going to do.) If these cases are going through state courts, I doubt the federal DOMA is implicated. If it is, these courts certainly don’t have the last word on it. I mean, Martin v. Hunter’s Lessee, hello!

By: Timothy

Timothy — Tue, 11 Oct 2005 18:08:44 +0000

I’d also presume, in my uneducated way, that the MA and VT courts are unlikely to reach the question of DOMA as they’d be looking at whether or not their own States’ constitutions demanded that they recognize such. Guess: MA concludes that they do, following their earlier precedent, federal law unaffected because the decision is made based on MA state law.

Am I intuiting correctly? Dan?

By: Danimal

Danimal — Tue, 11 Oct 2005 17:43:43 +0000

If DOMA gets tossed, the situation just reverts to the states’ common law on the recognition of out-of-state marriage. Which, in well-worn and nearly uniform fashion, holds that a state may refuse to give legal force to marriages deemed to be contrary to the public policy of that state.

This principle has been around as long as cousins have had bad ideas, and I think it would work pretty well to keep gay marriage out of those states that don’t want it. For example: Oregon voters have rejected gay marriage by majority vote. Therefore, it wouldn’t take long to convince a court that gay marriages from other states are contrary to Oregon’s public policy.

By: Scott Austin

Scott Austin — Mon, 10 Oct 2005 21:43:29 +0000

And the un named courts are the Massachussetts Supreme Judicial Court, the Vermont Appelate Division Court and the Federal Appeals Court of DC, all scheduled to hear arguments on the validity and enforceability of DOMA and specifically Article IV Section 1.

By: Scott Austin

Scott Austin — Mon, 10 Oct 2005 21:39:47 +0000

Timothy,

I do not at all disagree with your assessment of Congress having the sole authority to govern Article IV, any more than I disagree with the Constitutional Premise that it is the State Legislatures, not the people, who hold the sole power to determine Electoral College members. If you refer to Bush v. Gore, however, you will notice how wonderfully the 9 wise morons in DC butured that rather simple premise. In the same fashion, what I fear the most is an activist Court determinig, under whatever misguided guise they might use, that it is the Courts, and not Congress, granted with the power to make that determination. Would that be grossly untrue from an historical and constitutional perspective? Absolutely. Should DOMA be allowed to reign? Surely. Should the courts stay out of it? Yes. Is this likely to be true? If you think so, then I fear you have more faith in the system than I do. Anyway, just my thoughts. I am as ever ignorant, but am as always trying to remedy the situation.

Scott

By: Timothy

Timothy — Sun, 09 Oct 2005 17:10:38 +0000

Well being that the DOMA specifically states that same-sex marriages don’t have to be recognized in states where they were not performed, it doesn’t really matter what these here-to-fore unnamed courts are considering.

“But what if the DOMA is declared unconstitutional?” Unless ye olde emanations and penumbras make another appearance, unlikely. Given that Art. IV specifically grants Congress the right to regulate how Full Faith & Credit is enforced.

Do we really need to go through this again, Scott?

By: Scott Austin

Scott Austin — Sun, 09 Oct 2005 15:08:17 +0000

Hey there everybody,

It’s Austin, live from Vegas. I’m teaching High School English here, and adjusting to American culture from being in Asia quite nicely. I just wanted to point out that there are several Courts, both State and Federal, looking at the Article IV Section 1 FUl Faith and Credit guarantee of the US Constitution with regards to Massachusetts Gay Marriages and those being married in that State having the right to compel other States to recognize those marriages. I hate to say “See, I told you so”, but in this case it might actually be worth saying.

Scott

By: Tyler

Tyler — Fri, 07 Oct 2005 16:44:24 +0000

Glad you wrote something about this. Good post.

By: Casey

Casey — Fri, 07 Oct 2005 12:36:12 +0000

I’m pretty sure you can get a blow job for twenty bucks (assuming you’re not too picky), but I’ve never gotten out of a strip club without spending at least fifty. Everyone wins with live sex in a nice, “clean” alcohol serving establishment. Besides, I’m sure the ODE wouldn’t have much of a problem of two unshaven lesbians were performing a horrible one-act play in some smoke-free beatnik flophouse, as long as there were a positive multicultural message.

By: Mindi Rice

Mindi Rice — Fri, 07 Oct 2005 00:39:56 +0000

Good post Ian. And thanks guys.