tag:blogger.com,1999:blog-13589532.post1715102379235218074..comments2023-10-09T04:11:47.358-07:00Comments on Not A Potted Plant: Federalism: It Isn’t Just For Conservatives AnymoreBurt Likkohttp://www.blogger.com/profile/16060980744675990412noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-13589532.post-76991382999563414592010-07-13T17:58:06.900-07:002010-07-13T17:58:06.900-07:00Judge Tauro didn't analyze the rational basis ...<i>Judge Tauro didn't analyze the rational basis claim that you propose because that rationale was not offered to him for analysis. Indeed, the government stipulated that none of the articulated justifications within DOMA itself passed muster under the rational basis test, and instead tried to offer new and different justifications.</i><br /><br />This, alas, offers perhaps the best reason why Tauro's rulings will almost certainly be overturned on appeal; the higher that appeals go, the more groups will offer up <i>Amicus</i> briefs, and the brighter spotlight will be on those who are representing the government's case. Obama's cronies may have been able to "play to lose" in District court, but if they try it again down the line - especially if they deliberately ignore strong arguments put forth by other groups in <i>Amicus</i> - there won't just be a major public outcry, but there's a real chance they could be disbarred on the grounds of either raw incompetence, deliberate failure to exercise due diligence, violation of oath of office, or any of another dozen reasons related to deliberately "playing to lose" and failing to represent their client (the government) to the best of their ability.Unknownhttps://www.blogger.com/profile/03466940518082972363noreply@blogger.comtag:blogger.com,1999:blog-13589532.post-31598935110763353292010-07-09T13:29:00.798-07:002010-07-09T13:29:00.798-07:00Judge Tauro didn't analyze the rational basis ...Judge Tauro didn't analyze the rational basis claim that you propose because that rationale was not offered to him for analysis. Indeed, the government <i>stipulated</i> that none of the articulated justifications within DOMA itself passed muster under the rational basis test, and instead tried to offer new and different justifications.<br /><br />Prof. Balkin does indeed have much to criticize about the <i>Commonwealth</i> opinion; I'm not real sure I'm a fan of it either, all things considered (as in, I like the result but I'm kind of sketchy on the reasoning used to get there). I linked to Prof. Balkin's analysis in my original post.<br /><br />As to your last point, that is not my understanding of the state-recognition section of DOMA. It does not establish a uniform process for the presentation of a marriage certificate to a new state. Rather, it says that no state is obligated to recognize a same-sex marriage from another state if the form state's own laws do not recognize same-sex marriages. No <i>process</i> is created; rather, a particular result is (purportedly) authorized. The validity of that authorization is questionable after yesterday's rulings, but I don't think they directly challenge them since those were not the sections of DOMA that were struck down in either of the two Massachusetts cases.<br /><br />By the way, I intend to allow you the last word in this exchange, if you want it. I only responded here because you asked direct questions of me.Burt Likkohttps://www.blogger.com/profile/16060980744675990412noreply@blogger.comtag:blogger.com,1999:blog-13589532.post-13417115840288549362010-07-09T12:34:41.431-07:002010-07-09T12:34:41.431-07:00What Congress can do under FFCC is establish a uni...<i>What Congress can do under FFCC is establish a uniform procedure by which A and B can present their marriage certificate to Ohio for recognition -- the same way that, in McElmoyle, Congress established a way for the creditor to present his out-of-state judgment for collection in the debtor's state, and the debtor's state had to treat that judgment the same as if it had come from its own courts.</i><br /><br />As I understand it, this is precisely what the DOMA (at least the state-recognition part) does. It leaves, very pointedly, the option for the a Massachusetts gay, married couple to present their Massachusetts marriage license to the State of Michigan, and the State of Michigan to say "so sorry, but according to our State constitution, this document is not recognized as valid", just as the State of Michigan could take a legal judgment of debt from Massachusetts and (theoretically) say "so sorry, but by our State law this debt is too old to be enforceable."<br /><br />Is that in disagreement?Unknownhttps://www.blogger.com/profile/03466940518082972363noreply@blogger.comtag:blogger.com,1999:blog-13589532.post-75407950377955284452010-07-09T11:48:30.024-07:002010-07-09T11:48:30.024-07:00FTB v. Hyatt certainly is another example - it cer...<i>FTB v. Hyatt</i> certainly is another example - it certainly leaves room that, even had the DMCA not passed, States with laws and/or constitutional amendments prohibiting gay marriage might refuse to recognize gay marriages issued by other states, since such would be contrary to their own State law or constitution.<br /><br />To wit: as you state earlier (re: <i>McElmoyle v. Cohen</i>), if a gay-married couple in Massachusetts currently moves to, say, Michigan, they do not have marital rights <b>in Michigan</b>. But they still have them in Massachusetts, and any other state that has legal provisions recognizing them. Likewise, if you are subject to a legal judgement that your current state rules unenforceable, you are "safe" until such time as you travel through a state which will honor the judgement (should there be a warrant put out for your failure to pay in the issuing state), or you acquire property interests or some other interest in a state honoring said judgement that could be attached by lien.<br /><br />The other arguments made by Tauro are very unlikely to prevail, because he rejected an amazing number of arguments out of hand in order to veer into the "rational basis" test, a class of review that has always been weak and has more often than not been ruled invalid when faced with clear arguments relating to .<br /><br />The "rational basis" for the Federal DOMA could today be declared quite simply: some States use one standard for Marriage, some for another, States using a more restrictive standard are not being fairly treated in the use of their tax dollars if the Federal gov't does not administer Federal programs using a singular, common standard, therefore, the Federal government, in accordance with Article IV, Section 1, has decided to use the lowest common denominator (e.g. not recognizing gay marriages, nor domestic partnerships) for the purpose of administration of Federal programs and definitions.<br /><br />Is there anything in that argument that you feel does not pass "rational basis" argumentation? I'd really like to know, both the answer and the reasoning.<br /><br />The coverage over at Newsweek is quite compelling as well today. In specific, the reference to <a href="http://www.newsweekinteractive.org/2010/07/09/federal-judge-rules-the-defense-of-marriage-act-unconstitutional-will-it-stick.html" rel="nofollow">Steven Taylor</a> and the idea that Tauro's 10th-amendment ruling actually supports the State laws and constitutional clauses banning gay marriage in those particular states. The article also links <a href="http://balkin.blogspot.com/2010/07/be-careful-what-you-wish-for-department.html" rel="nofollow">Jack Balkin</a>, another of your pro-gay-marriage compatriots, with some very incisive things to say about the ruling.Unknownhttps://www.blogger.com/profile/03466940518082972363noreply@blogger.comtag:blogger.com,1999:blog-13589532.post-71954299311855020732010-07-09T10:39:10.747-07:002010-07-09T10:39:10.747-07:00I don't think you've quite hit the target ...I don't think you've quite hit the target with those examples, but I can see the target from there, and as an SSM advocate, I am provisionally uncomfortable. Where I think you're headed is <i>Franchise Tax Board v. Hyatt</i> (2003) 538 U.S. 488, 494.<br /><br /><i>FTB v. Hyatt</i> is a recent addition to a line of cases going back at least to the 1930's, judicially creating an exception to (or, if you prefer, an interpretation of) the FFCC. The upshot is that a state can balance its own "fundamental policies" against the policy goals of the state issuing the judgment, decree, etc. which is the subject of the FFCC dispute. The forum state has a big advantage in such a balancing test.<br /><br />I'm not concern-trolling for your side here, I promise you. Take a look at <i>Hyatt</i> yourself. You'll see why I don't think your Mann Act and common-law marriage examples are quite on target, but you'll also see that they are near an area that looks quite dangerous to the pro-SSM side of the debate.<br /><br />I intend to research and develop this concept in a future post. But for today, we've veered off topic, because the FFCC isn't a factor in the <i>Commonwealth</i> decision at all.Burt Likkohttps://www.blogger.com/profile/16060980744675990412noreply@blogger.comtag:blogger.com,1999:blog-13589532.post-68790531171611620002010-07-09T09:25:12.109-07:002010-07-09T09:25:12.109-07:00Unfortunately, you are still incorrect.
For insta...Unfortunately, you are still incorrect.<br /><br />For instance, by federal law, a 25-year-old man may not transport a 16-year-old girl from one state (say, Mississippi, marital age of consent 21) to, say, Georgia (age of consent "16 with judge's approval) and get married to her there, and expect it to recognized back in the previous state. The state may both refuse to recognize the marriage (which violates their age of consent law and is therefore invalid in the home state) as well as throw him in jail for statutory rape, as well as federal law concerning the transportation of a minor across state lines for sexual purposes.<br /><br />(Yes, this has been adjudicated before, and is especially relevant in case law regarding Fundie Mormon cults).<br /><br />Likewise, States are free to ignore "Common-Law" marriages which are administered and recognized by other States. Thus, you may not live in Texas for 10 years, declare yourselves "Common-Law Married", and then move to Wisconsin and immediately register yourselves as Married and file your taxes in Wisconsin as Married.<br /><br />So, to claim that there are not already "differing categories" of marriage, in which one State cannot fail to recognize marriages recognized by other States, is simply incorrect.Unknownhttps://www.blogger.com/profile/03466940518082972363noreply@blogger.comtag:blogger.com,1999:blog-13589532.post-47761778779995204962010-07-09T07:49:52.217-07:002010-07-09T07:49:52.217-07:00For viewers playing along at home, the case Mike r...For viewers playing along at home, the case Mike refers to is <i>McElmoyle v. Cohen</i> (1839) 38 U.S. 312 and I haven't had a chance to Shepardize it. I'll assume it's still good law, unmodified since it was handed down.<br /><br />So am I completely wrong to say that a judgment in one state must be enforced in another? I don't think so. I agree that <i>McElmoyle</i> holds that if I seek to enforce a CA judgment against you in TN, you can use defenses in TN state law to resist enforcement in TN. Why? Because the Full Faith and Credit Clause means TN treats the CA judgment debt the same way it treats a TN judgment debt. <br /><br />Nevertheless, even if TN law provides you with a shield against enforcement of the judgment that you would not have under CA law, <i>there is still a judgment against you</i>. I just can't collect it in TN -- the same as if I had originally obtained the judgment in TN rather than in CA.<br /><br />By analogy to marriage, then, let us assume that A and B are married in Iowa, where A and B live, and C and D are married in Ohio, where C and D live. A and B then move to Ohio. As I read the Full Faith and Credit Clause, Ohio has to treat A and B the same way it treats C and D. The marriage is conclusive and binding upon Ohio by virtue of the FFCC. What Congress can do under FFCC is establish a uniform procedure by which A and B can present their marriage certificate to Ohio for recognition -- the same way that, in <i>McElmoyle</i>, Congress established a way for the creditor to present his out-of-state judgment for collection in the debtor's state, and the debtor's state had to treat that judgment the same as if it had come from its own courts.Burt Likkohttps://www.blogger.com/profile/16060980744675990412noreply@blogger.comtag:blogger.com,1999:blog-13589532.post-20671661089746563612010-07-09T07:20:27.654-07:002010-07-09T07:20:27.654-07:00So a money judgment against me in California can b...<i>So a money judgment against me in California can be enforced against me if I move to Tennessee;</i><br /><br />See response to your previous post: you are, by US Supreme Court precedent, <b>completely incorrect</b> with this assertion.Unknownhttps://www.blogger.com/profile/03466940518082972363noreply@blogger.com