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View Diary: Elena Kagan proves that DOMA's original intent was bigotry, not tradition (129 comments)

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  •  Another question or observation (8+ / 0-)

    Massachusetts is a marriage equality state but say I live in a state that doesn't allow it but I go to Massachusetts and fulfill whatever is required to get a marriage license. I get married in Massachusetts and move back to my home state.  Now I assume that my marriage will be recognized by the federal government and I can get all those benefits. Right?

    My marriage would not be recognized in my home state so I would still have to file state taxes as single and may even have issues regarding things like hospital visitation or medical decisions for an incapacitated partner, etc. And what happens if the relationship deteriorates and we decide to divorce?

    I just don't believe that marriage is an issue that should be dependent upon the state in which I live. Maybe it made more sense when the big issues may have been age and residency but no longer after the Loving decision.

    •  Not quite: (7+ / 0-)

      In this scenario, if you're a resident of the other state, you would still not be considered married even by the federal government, because you would be subject to the laws of your own state.   If your own state considers you unmarried, so would the feds.

      It'd be nice if we got a Loving-style decision that ended this once and for all, but it doesn't look like it from the oral arguments, unfortunately.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Wed Mar 27, 2013 at 01:20:49 PM PDT

      [ Parent ]

      •  But those aren't the only considerations (7+ / 0-)

        The bigger consideration for the SC, IMHO, is the military one.

        A same sex couple gets married in a state that allows it. If they were any other couple, the military benefits would be automatic - bring in the marriage license, get the ID card, medical care, BX privileges, etc.

        But now, that's not possible, and THAT is out and out discrimination. That's what they should be looking at.

        I know this case isn't about that. But that's the case that's going to change things, and I know it's coming.

      •  Well that's depressing (4+ / 0-)
        Recommended by:
        viral, pico, alice kleeman, mmacdDE

        So if my address says South Carolina but my marriage license says Massachusetts I'm SOL but if I move to Massachusetts or another state that allows same-sex marriage, all his well.

        So this would also be the case of a couple who resided in Massachusetts and got married. Now time passes and a spouse's company transfers them to a state that doesn't allow same-sex marriage. If they move they lose all the benefits of marriage.

        I may be overthinking this but there are way too many complications for marriage not to be a universal right.

        •  Not quite so depressing (2+ / 0-)
          Recommended by:
          BlueSue, True North

          Once you are legally married, merely moving your residence should not change that fact or work an "involuntary divorce" of sorts.  The new state of residence gives "full faith and credit" to the former state's marriage law, even if you could not in the same circumstances marry in the new state.

          •  Not necessary. There's the public policy (3+ / 0-)
            Recommended by:
            BlueSue, pico, mmacdDE

            exception to the FFC clause.  It's not a done deal.  Take pre-Loving Virginia.  They arrested the Lovings and banned them from the state.  Moving from one to another won't automatically force them to recognize 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 01:57:57 PM PDT

            [ Parent ]

            •  It won't UNLESS (0+ / 0-)

              The sc rules that states must abide by the full faith and credit clause of the constitution and recognize all LEGAL marriages, regardless of where they were performed.

              A straight couple can get married in canada, or Jamaica, or Mexico, or the Bahamas and there's no question that they're legally married. A gay couple that gets married in Canada, and they might as well not have bothered UNLESS they live in a state that recognizes it.

              That's crazy, and that's exactly the situation that was supposedly resolved by Loving.

              Which was, IMHO, the most appropriately named case ever decided by the court.

        •  No, if legally married in MA, SC *MUST* recognize (5+ / 0-)

          the marriage. You would certainly have a "Federal Case." Article 4 of the Constitution (not even one of those pesky Amendments) requires

          "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
          If you are denied any benefits due to different-gendered couples, then you can (and should) sue. The state may prevent same-gendered couples from marrying IN the state, but they can't ignore the legal act of another state.
        •  on a related note (0+ / 0-)

          Apparently 19 states + DC allow first cousins to marry. I know this isn't a DOMA issue, but will the feds recognize that marriage if they move to one of the 31 other states?

          And then there's the whole minors getting married thing.

          These capitalists generally act harmoniously and in concert, to fleece the people... -Abraham Lincoln

          by HugoDog on Wed Mar 27, 2013 at 02:23:29 PM PDT

          [ Parent ]

      •  which could increase incentives (3+ / 0-)
        Recommended by:
        msmacgyver, viral, doraphasia

        on gay couples to move to gay-friendly states, benefiting those states' economies.

      •  If legally married in MA, legally married in CO (7+ / 0-)

        The Constitution's "full faith and credit" clause:

        Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
        requires that a legal marriage in one state must be recognized in another. One of the major reasons for DOMA was to provide cover for states that wanted to discriminate against other states providing for marriage of same gendered individuals.

        Assuming the DOMA is stricken, then we'll move on to various "full faith and credit" suits addressing just the question of how does a non-marriage equality state deal with residents legally married elsewhere. Seems pretty clear to me that once those cases reach the SC they'll have to effectively allow nationwide marriage equality. Same-gendered couples may not be able to receive a marriage license in Texas, for example, but if married in Maryland (yeah!) they can obtain married benefits (if they still exist) in Texas.

        Texas has already granted a divorce of 2 men married in Massachusetts, so part of the equation is in place.

        •  And it's Texas. Doesn't the irony make it extra- (0+ / 0-)

          true? An extra potent legal precedent?

        •  No, it does not: (3+ / 0-)
          Recommended by:
          AUBoy2007, mmacdDE, BlueStateRedhead

          if you move to a state that legally bars recognition of same-sex marriage, it does not matter if you were married in another state.   This falls well under the traditional policy exception against FF&C, and either 1. the Supreme Court has to decide otherwise, or 2. the states have to legalize marriage on their own.   Repealing DOMA isn't enough: DOMA section 2 only reiterates what's already been the constitutional reality about interstate marriage.    

          (There's a long history of jurisprudence on this issue, and needless to say, it's often contradictory.  e.g, and most relevant for this case, some parties have sued and won FF&C claims, and others have lost, with no rhyme or reason. See here pp4-6 [pdf] for a ton of examples.)

          The state of Texas, by the way, does not allow same-sex divorce.  The only successful case (Naylor/Daly) was successful because the state did not appeal the ruling before the statute of limitations ran out, and even now Texas is still challenging the ruling.  The actual case that's (still) making its way through the system, In re: J.B. is still being decided, with the Texas government - and the 5th Circuit - firmly against granting the divorce.  If SCOTUS doesn't take the case, then the 5th Circuit's ruling stands and divorces cannot be granted in Texas.

          And they most certainly cannot receive marriage benefits.  I don't know where you're getting this information from.

          Saint, n. A dead sinner revised and edited. - Ambrose Bierce

          by pico on Wed Mar 27, 2013 at 03:12:38 PM PDT

          [ Parent ]

      •  Not so fast... (1+ / 0-)
        Recommended by:
        pico

        "If your own state considers you unmarried, so would the feds."

        That question will be the issue of a whole new round of marriage equality cases in the very near future. It goes to Section 2 of DOMA and to the issue of Full Faith and Credit. If, as BlueSue wrote, she fulfilled the requirements for a marriage license in a marriage equality state, and got married lawfully, that license does not become null and void simply because she moves to another state. And the extent to which a non-equality state can refuse to recognize her as a married person remains to be litigated. In any event, it is doubtful the Feds would require her to deny her own status as a married person, simply because she moved. It may be that Arkansas, for example, may not grant her state benefits, but calling her "single" will have Federal implications. Before we even get to changing states of residence, what about travelers? If a married same sex couple gets into a car accident in a non-equality state, can that state treat them in the hospital as legal strangers? Or if they sue the other driver, can the state courts treat them as strangers in a legal proceeding?

        This is headed for court the day Section 3 comes down. Count on it.

    •  You're right (1+ / 0-)
      Recommended by:
      BlueSue

      it will make for a lot of confusion, esp. with civil unions.

      But the Court needs more cases to make these rulings...or at least to push state legislatures.

    •  aoeu (0+ / 0-)

      Assuming section 3 goes away but the rest does not...so a couple marries in Massachusetts, one of them is a federal worker so both have access to federal health insurance programs. They move to a hate-state. Health insurance goes away?

      All my rights reserved.

      by TealVeal on Wed Mar 27, 2013 at 01:43:21 PM PDT

      [ Parent ]

      •  Nobody knows, really. (0+ / 0-)

        But the usual presumption is that you're subject to the laws of your state of residence.  Except another slew of lawsuits on this issue, though.

        Saint, n. A dead sinner revised and edited. - Ambrose Bierce

        by pico on Wed Mar 27, 2013 at 03:13:24 PM PDT

        [ Parent ]

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