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Privileges and Immunities
bmdevine
Member Posts: 429
Since we so like to discuss politically charged topics here in off-topic, I'm curious to see what people have to say regarding a potential prop 8 issue. In the news, I hear some people throwing around an equal protection argument in opposition to prop 8, but what about the privileges and immunities clause? The text of prop 8 says not just that non-man/woman marriages won't be allowed, but also that they won't be "recognized." Couldn't the unwillingness of a state to recognize marriages that are legalized in other states create all kinds of P&I issues? Does anyone know if the P&I clause of the 14th amendment is going to be argued in the appeal, or just the equal protection clause?
Comments
As long as advocates of gay marriage continue to try to use legal means to cram this down the throat of an unwilling populace, the result will be voter backlash.
Whether you think that gay marriage should be permitted or not , and whether you think it should be considered a right or not, what you have to realize is that in the long run it won't sustain unless the majority of Americans support it.
Any court victory which goes against the majority will is fragile -- because courts can be changed, and legal decisions can be overturned.
No civil rights issue has ever prevailed without majority support.
Thank you for completely ignoring the question, OOC. Not that I would have expected you to be able to discuss Privileges and Immunities anyway.
...and in other news New Hampshire legalizes same-sex marriage.
"If we don't attack them, they will attack us first. So we'd better retaliate before they have a chance to strike"
Dang, pretty soon OOC and his "majority" aren't going to have anywhere to hide. It's interesting to see rhetoric being used that mirrors the Plessy v. Ferguson to Brown v. Board of Education shift, but I'm curious to know whether people believe that the interstate P&I issues have applicability in addition to equal protection. An example of one conflict might that might arise is dealing with property distribution for people who own real estate in different states.
Full Faith and Credit. No matter what state you live in contracts formed in other states still apply to you. Granted it also becomes somewhat cloudy for a few reasons due to how states can interupt their own enforcement rights.
I find it amazing that by 2020 first world countries will be competing to get immigrants.
I don't believe prop 8 infringes on the 14th ammendment. It only applies to rights and priveledges granted by the fed, not ones granted by other states. Its the whole reason for the federal system, so 1 state can make laws dependant on their populace without the objection of individuals outside that state.
The law that came about from prop 8 is actually a little different then the way you wrote it. Same sex marriages are recognized by the state for the individuals who were married while it was legally recognized by California, and it recognizes marriages made from other states that have it legalized.
It depends on whether or not the Defense of Marriage Act is Constitutional, which has not been decided.
Works like this.
Normally full faith and credit would apply. States have to recognize laws and judgements from other STATES. Federal law always trumps State, so full faith and credit doesn't apply there.
However, there is the Defense of Marriage Act:
Passed in 1996.
1. No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
2. The federal government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.
http://en.wikipedia.org/wiki/Defense_of_Marriage_Act
It basically says, screw full faith and credit, it doesn't apply to Gay Marriage.
Same-sex marriage
The Full Faith and Credit Clause has been noted for its application involving orders of protection, for which the clause was expounded upon by the Violence Against Women Act; child support, for which the enforcement of the clause was spelled out in the Federal Full Faith and Credit for Child Support Orders Act (28 U.S.C. § 1738B); and its possible application to same-sex marriage, civil union, and domestic partnership laws and cases, as well as the Defense of Marriage Act (DOMA) and the proposed Federal Marriage Amendment. The clause has been the chief constitutional basis for challenges to the DOMA.
As of early 2004, 39 states have passed their own laws and constitutional amendments, sometimes called "mini DOMAs," which restrict marriage to opposite-sex couples. Most of these "mini DOMAs" explicitly prohibit the state from honoring same-sex marriages performed in other jurisdictions.
Supreme Court Justice Antonin Scalia stated in his dissenting opinion to the Lawrence v. Texas decision that he feared application of the Full Faith and Credit Clause to the majority's decision in that case might destroy "the structure... that has permitted a distinction to be made between heterosexual and homosexual unions." If Scalia's dissenting opinion holds true, the majority ruling could potentially negate the DOMA and create a legal situation in which all states might eventually be obliged to recognize same-sex marriages performed in Massachusetts, Iowa, Vermont, Connecticut, New Hampshire, or Maine.
In August 2007, a federal appeals court held that, "Oklahoma's adoption amendment is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples."[16]
If the clause applied to same sex marriage the supremes on the Cali court would have applied it...Thats for sure.
Trade in material assumptions for spiritual facts and make permanent progress.
Now all the sudden we want to follow the Constitution? I wish that BOTH sides would make up their minds and not when it's convenient.