Patterico's Pontifications

5/18/2008

JCG: Other States Need Not Honor California Gay Marriages

Filed under: Constitutional Law,Court Decisions — Patterico @ 11:12 am



As a matter of federal constitutional law, do gay marriages performed in California have to be honored in, say, Texas? Jan Crawford Greenburg says no.

33 Responses to “JCG: Other States Need Not Honor California Gay Marriages”

  1. Good short answer. But I disagree with the reasoning. “Reno divorces” were against the public policy of many states before the general adoption of no-fault divorce.

    I think that people who concern themselves with the Full Faith and Credit clause are reading it far too expansively. I believe that it is no more than a rule of evidence, a variation of judicial notice. Or is California bound by the Public Acts of Illinois?

    I think the Full Faith and Credit Clause just says “do you know how to read an official, certified document?” Whether what was just read is law in the second State is up to that State.

    nk (954dd7)

  2. P.S. A guy with an Indiana concealed carry permit carried his gun onto a riverboat casino moored on an Illinois shore (because he did not realize he had left Indiana). Did he have a Full Faith and Credit defense?

    nk (954dd7)

  3. He should, but under current practice, he will now probably be adjudicated a felon, and lose all sorts of rights including his right to own a firearm.
    CA would never recognize that CCW, as it recognizes no act by another state in this area of law.
    Someone once said that the strongest law in existence is the Law of Un-intended Circumstances.
    Though I voted for Prop-22, and will most likely vote for any Constitutional Amendment on the ballot this Nov on this matter; If the Homosexual Rights community can ride this issue to nation-wide acceptance through the FFC clause, I’m right there behind them just to cram down CA’s (and all of her PC-pandering police-chiefs’ & sheriffs’) throat my valid FL CCW and say:
    So, there!

    Another Drew (8018ee)

  4. nk, no – there is no full faith and credit issue with a concealed weapon permit at all.

    There is US supreme court precedent on the issue, and in fact one of the key cases was about a difference in tort liability law between California and Nevada law. Nevada v. Hall. The holding is as mentioned in the Greenberg piece, that the Full Faith and Credit Clause does not require a State to apply another State’s law in violation of its own legitimate public policy.

    SPQR (26be8b)

  5. Right, but what on earth kind of “legitimate public policy” justifies issuing carry permits to one’s own residents while refusing either to issue them to nonresidents or recognize permits issued by other states?

    Xrlq (8374fb)

  6. “Long standing exceptions” are just more grist for the mill, if there are five votes on the US Supreme Court to nullify DOMA and to declare that Full Faith and Credit does apply to gay marriage. The votes almost certainly aren’t there right now, but that can change.

    M. Scott Eiland (b66190)

  7. XRLQ: perhaps the public policy in question regulates where concealed weapons can be carried. IIRC, it’s illegal in New Mexico to take a gun into a church, even with a concealed carry permit; perhaps in Illinois it’s illegal to take a gun onto a riverboat?

    aphrael (db0b5a)

  8. Another Drew: why, as a policy matter, are you in favor of an amendment to the state Constitution to ban gay marriage?

    aphrael (db0b5a)

  9. Illinois has very strict firearm laws. So, in that sense, it is a good example here. We can also look at drivers’ licenses, child support enforecement, and the registration of foreign judgments, all of which are under multi-state compacts and/or statutes enacted in the several states.

    Nevada v. Hall went only a very little way to explain Full Faith and Credit, probably because it did not really need to follow that approach at all. If a state court has jurisdiction to try a case, it has jurisdiction to apply its own rule of decision.

    I think we might see this played out better in “Reno divorce” case. Where a couple married in Massachusetts tries to divorce in New York City. I believe there is one out there already.

    nk (d7f5f5)

  10. #6 Xrlq:

    what on earth kind of “legitimate public policy” justifies issuing carry permits to one’s own residents while refusing either to issue them to nonresidents or recognize permits issued by other states?

    More to the point (for me, anyway) is ‘why won’t my state issue me a carry permit/license, or recognize my out of state license when my when its deemed valid in 28 other states as well?’

    #7 aphreael: Since the validity of carry permits/licenses are regulated between states by reciprocity agreements, it is incumbent on the concealee to abide by the laws and regulations of the state they are guesting in as its a requirement of issuance to begin with.

    EW1(SG) (84e813)

  11. aphrael @ #8…
    My policy position is that this is something that is to be decided by a vote of the people; win or lose, good or bad, but a vote!
    The Legislature could have taken this route each time the Governor vetoed their bill. But, they didn’t. They didn’t have the votes to over-ride, and they knew (or thought they knew) that the votes would not be there in the ballot boxes either.
    As has been well discussed over the years, if Roe had been decided by the People, on a state-by-state basis, a lot of the political bile that we have been subjected to the last 30+ years would have been, if not eliminated, at least alleviated.
    Only in dictatorships do questions of the culture get decided by an unapproachable elite. In democracies composed of free citizens, these questions are worked out in the market-place of ideas.

    Another Drew (8018ee)

  12. My policy position is that this is something that is to be decided by a vote of the people; win or lose, good or bad, but a vote!

    Issues of discrimination against marginalized and ridiculed minorities can’t exactly be resolved by an up-or-down headcount, that’s the whole problem. Blacks didn’t earn their freedom by garnering 51% of the vote, did they?

    This is basic civil rights, basic equal protection under the law stuff, and that’s what the judicial branch was designed to arbitrate over. These justices aren’t inventing law, or making things up, this is their interpretation of their state’s Constitution, which provides equal protection and the right to marry. They didn’t write the Constitution, but it’s their job to apply it equally and consistently, and it can no longer be said that they aren’t doing that.

    Levi (76ef55)

  13. “Gays” are not “Blacks”.

    The Court is to follow the law, not make it.

    Another Drew (8018ee)

  14. “Gays” are not “Blacks”.

    No, they’re not. But they’re two different examples of the same thing, a ridiculed, discriminated against, and marginalized minority wholly dependent on government to protect their rights from bigoted assholes.

    Got anymore genius-level nuggets like that? ‘Apples are not oranges!’

    The Court is to follow the law, not make it.

    What do you think happened, these guys walked out of the decision and just yelled, ‘Gay marriage is legal!’ Their decision was more than 100 pages long, the crux of the argument is based on fundamental tenets of the state’s Constitution, it cites all sorts of precedent, and it counters most of not all of the right’s arguments against gay marriage.

    They didn’t ‘make’ a law. They’re applying an already existing law. Someone else wrote up that Constitution, why don’t you go after them for not including ‘except for the gays!’ wherever you feel it is appropriate?

    Levi (76ef55)

  15. Another Drew: i’m sorry, but that doesn’t answer the question.

    You said you will most likely vote for a state constitutional amendment to ban gay marriage.

    Arguing that “this is for the people to decide” is a fine argument, but it doesn’t explain why you think the people should make a particular decision.

    Why do you think the people of the state of California should prohibit gay marriage?

    aphrael (db0b5a)

  16. Another Drew, at 13: the Court would argue that it *did* follow the law.

    As far as I can see, there are two places where the decision is vulnerable to criticism:

    * the assertion that homosexuality is an immutable characteristic

    * the claim that there is no compelling state interest in not allowing gay couples to marry.

    I happen to agree with both of these claims as a policy matter. However, I understand that others do not.

    That said, while it’s possible the decision is wrong in these two claims, it’s not clear to me that it’s sufficiently wrong to justify the assertion that it’s “making the law”; both claims strike me as being the kind of claims that are regularly made by courts in interpreting law.

    aphrael (db0b5a)

  17. IMPEACH THE CALIFORNIA SUPREUM COURT THROW THOSE SHAMLESS FOUR JUDGES INTO PRISON FOR LIFE

    krazy kagu (524740)

  18. Each of us will have to make this decision based on our own moral beliefs.
    I have stated which way I will vote.
    Enough said.

    Another Drew (8018ee)

  19. There are a bunch of out of state same-sex divorces out there, actually. I have only skimmed them but I have not found any rulings relying on Full Faith and Credit. Yet.

    nk (d7f5f5)

  20. Another Drew: I’m sorry to hear that you are unwilling to discuss the matter.

    aphrael (db0b5a)

  21. Well, aphrael, our masters have found the way to control us. They polarize us on everything.

    Not that I’m immune. Abortion is still a deal-breaker for me.

    And Little League, too, now that my daughter is involved and I am on the way to being a coach. 😉

    There is a joke: Q. What do you get when [ethnicity of your choice] get together? A. Four political parties.

    nk (d7f5f5)

  22. when *three* [ethnicity of your choice]

    nk (d7f5f5)

  23. Each of us will have to make this decision based on our own moral beliefs.
    I have stated which way I will vote.
    Enough said.

    Now who’s the activist judge?

    Levi (76ef55)

  24. NK: abortion used to be a deal breaker for me, back in the days before I listened to conservatives. 🙂

    It’s a good joke, and sadly true: unless confronted by a common enemy, we tend to focus on the things we disagree on rather than seek agreement.

    aphrael (db0b5a)

  25. Levi: the voters are not required to behave like judges.

    I disagree with the way Another Drew has said he is likely to vote, and would like the opportunity to persuade him to change his mind. But I respect the fact that he has the same right I do: to vote his beliefs.

    aphrael (db0b5a)

  26. Thank you!

    Another Drew (8018ee)

  27. I disagree with the way Another Drew has said he is likely to vote, and would like the opportunity to persuade him to change his mind. But I respect the fact that he has the same right I do: to vote his beliefs.

    I know he’s not a judge, nor does he have to behave like one. But for someone to remain loyal to a political movement that from all quarters goes on and on about ‘activist judges’ that make up laws and rule based on their emotions to say flatly that it’s up to all of us to decide for ourselves however which way we want to is hypocritical and just plain stupid.

    See how fast all this respect for the rule of law and strict, originalist interpretation bullshit goes right out the window when these guys are pressed?

    Levi (76ef55)

  28. Levi, you’re misunderstanding the entire point behind their argument.

    The point, as I understand it, is that judges have a responsibility, in their capacity as judges, to refrain from injecting their personal political, ethical, and moral beliefs. Political, ethical, and moral decisions are to be made by the legislature or the voters; judges are merely to enforce and interpret the decisions made by the voters.

    What a judge does as a voter is his own business. What a judge does as a judge is informed by his responsibility, as a judge, to do his job according to the rules for the job.

    ——–

    I’m with the conservatives on this, to an extent. Where we part ways is on the question of how realistic it is. I think that — with the possible exception of Justice Thomas — all judges to some degree inject their personal political, ethical, and moral beliefs into their decision making. They are human, and that makes it unavoidable.

    It’s something to be minimized, but it’s not something which can be entirely excluded. And, since (a) it’s better to design systems to incorporate people as they actually work instead of trying to design systems around the assumption that people will not behave like people, and (b) the framers of the constitution were generally fairly wise men who understood how people interact with political systems, I don’t think the framers of the constitution intended that it be entirely excluded.

    So the question for me is: in what way should a judge make reference to his own personal beliefs, and in what context? What are the reasonable bounds on that, and how can a judge tell when he has exceeded them?

    But, note: this applies entirely to a judge’s behavior as a judge. What he does as a voter is a completely different question.

    aphrael (db0b5a)

  29. Levi, you’re misunderstanding the entire point behind their argument.

    The point, as I understand it, is that judges have a responsibility, in their capacity as judges, to refrain from injecting their personal political, ethical, and moral beliefs. Political, ethical, and moral decisions are to be made by the legislature or the voters; judges are merely to enforce and interpret the decisions made by the voters.

    What a judge does as a voter is his own business. What a judge does as a judge is informed by his responsibility, as a judge, to do his job according to the rules for the job.

    Oh, I get their ‘argument,’ if you can call it that. Anybody that hands down a ruling that Republicans don’t agree with is an activist judge, as simple as that. If he had another job where he was doing something that Republicans didn’t agree with, he’d get branded as something else, ‘a disgruntled ex-employee,’ a ‘far-left extremist,’ or a ‘sufferer of BDS.’ Character assassination is the only play that Republicans run, ‘activist judges’ is one of its many incarnations.

    You can go on and on about how the judiciary works, and what judges are supposed to base their decisions upon, these idiots don’t care. They want people to blame, and ‘activist judges’ fit the bill.

    Another Drew is having a little panic attack and insisting that this be held to a popular vote because that’s the only way left for him to get his way. The CA legislature, the CA governor, and the CA Supreme Court are now all on the same page, and since it’s something he disagrees with, he wants to leave it up to himself and the other Rush Limbaugh listeners.

    Levi (76ef55)

  30. Anybody that hands down a ruling that Republicans don’t agree with is an activist judge, as simple as that

    I think there’s something to what you’re saying, in that I think many judicial conservatives are a bit hasty to conclude that a judge is being activist.

    But I reject the contention that “judicial activism” is a form of character assassination; I think the overwhelming majority of people who object to it are doing so in good faith, and that they are actually concerned with the notion that an unelected judge is thwarting the will of the majority for reasons which are fundamentally illigitimate.

    And, in the particular context of this conversation, I see neither hypocrisy nor even inconsistency in maintaining that a judge has a duty to interpret the law without that interpretation being governed by his internal political and moral compass, while at the same time maintaining that a citizen’s vote can be governed by anything he chooses for it to be governed by.

    aphrael (e0cdc9)

  31. Each of us will have to make this decision based on our own moral beliefs.
    I have stated which way I will vote.
    Enough said.

    If I’m reading you correctly, you’re saying that the Supreme Court, in writing its 100-page opinion, acted inappropriately. And you seem to disagree with the elected legislature of California, who twice voted for legal same-sex marriage.

    Instead, the best political system is one in which laws are enacted by people who don’t discuss them? That’s good democracy?

    Phil (27e012)

  32. Homophobes.

    JD (5f0e11)

  33. Phil, you conveniently neglected to mention that in both cases, the Legislature acted in direct violation of the California Constitution – the real one, that is, not the emanating and penumbral crap 4 Justices made up last week. Legislatures could have voted on a bill that expressly repealed Prop 22, and put that bill to a popular vote as the Constitution requires. They didn’t do that because they knew how Prop 22 itself had fared, and suspected such a measure would be doomed. So instead, they attempted a lame end-run around the initiative process by frivolously “finding and declaring” that Prop 22 applied only to out of state marriages – a frivolous position that was ultimately rejected by all seven Justices on the court (and, for that matter, by all three appellate judges to rule on the question previously).

    Of course, the California Legislature was free to enact a gay marriage law any time they wanted until 2000. For some reason, they never did.

    Xrlq (b71926)


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