Integrity Legal

Posts Tagged ‘Full Faith and Credit’

12th January 2012

It recently came to this blogger’s attention that the Prime Minister of the Kingdom of Thailand made no comment regarding the possibility of a Cabinet reshuffle although she did note that attendance at upcoming children’s day festivities is apparently encouraged by the Thai government. To quote directly from the official website of the Thai-ASEAN (Association of Southeast Asian Nations) News Network at Tannetwork.tv:

Prime Minister Yingluck Shinawatra avoided answering questions about a possible Cabinet reshuffle today and only smiled at reporters...The PM added that she would like to invite children to attend the Children’s Day celebration on Saturday at Government House as she has prepared some surprises for the kids…”

Concurrently it also came to this blogger’s attention that the government of Canada seems to have made some comments regarding same sex marriages performed in that nation. To quote directly from the website Advocate.com:

“Thousands of non-resident same-sex couples married in Canada may not be legally wed if the marriage is not recognized in their home country or state, according to the Canadian government…”

The issues surrounding the status of same sex couples has been an issue of debate in the United States of America especially as the Presidential elections continue to draw closer. However, politics does not appear to be the core concern of those who are the most effected by these issues. For example, those families wishing to maintain a same sex bi-national relationship with a non-American in the United States could be deeply impacted by both American and Canadian policy regarding same sex marriage. This issue could further be hypothetically defined where the same sex marriage (or civil union depending upon the jurisdiction) takes place outside of the United States as such a fact pattern could place the merits of the marriage under the purview of the United States Citizenship and Immigration Service (USCIS). How this issue will ultimately be resolved in North America remains to be seen, there is one thing that seems to be a certainty: this issue is not one that will simply disappear since there are many in the LGBT (Lesbian, Gay, Bisexual, and Transgender) Community who wish to see full equality in matters reflecting their marital status. American Courts have dealt with this issue in recent months although a definitive decision does not seem to have been reached hopefully this issue will be resolved in short order.

For related information please see: Full Faith and Credit Clause.

For general legal information pertaining to South East Asia please: Legal.

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23rd August 2011

It recently came to this blogger’s attention that the Obama Administration’s Department of Justice has apparently filed a memorandum noting un-Constitutional discrimination imposed pursuant to the provisions of section 3 of the so-called “Defense of Marriage Act” (DOMA). In order to provide further insight this blogger is compelled to quote directly from the official website of Instinct Magazine, InstinctMagazine.com:

President Obama’s Department of Justice filed a memo in support of Edie Windsor’s case against the “Defense of Marriage Act” on Friday, marking the second time the Administration has officially stated its opposition to the discriminatory law.

Windsor, who was subjected to unjust federal taxes after her partner of 44-years passed away in 2007, filed a lawuit challenging DOMA. Last week, the DOJ added its weight of support to her claims.

Written in the memo:

Section 3 of DOMA unconstitutionally discriminates. Section 3 treats same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition, and significant federal benefits otherwise available to married persons. Under well-established factors set forth by the Supreme Court to guide the determination whether heightened scrutiny applies to a classification that singles out a particular group, discrimination based on sexual orientation merits heightened scrutiny. Under this standard of review, Section 3 of DOMA is unconstitutional.

But the DOJ states in the brief:

-DOMA is discriminatory

-Sexual orientation is an immutable characteristic

-Anti-gay discrimination on religious grounds is unconstitutional

-LGBTs make good parents

-DOMA is harmful to children…

The administration of this web log encourages readers to click upon the relevant hyperlinks above to learn more from this interesting article.

As DOMA is currently interpreted and enforced by the American government same sex married couples cannot obtain immigration and visa benefits such as a K-1 visa, a CR-1 visa, or an IR-1 visa. This current state of affairs may contravene notions of Full Faith and Credit as enshrined in the United States Constitution’s Full Faith and Credit Clause. However, as there has yet to be a final resolution in the US Courts on the matter and as the United States Congress has yet to pass legislation such as the Respect for Marriage Act or the Uniting American Families Act the ultimate fate of same sex bi-national couples in America remains to be seen.

In news related to the Association of Southeast Asian Nations (ASEAN which includes the following jurisdictions: Brunei Darussalam, Cambodia, Indonesia, Laos, Myanmar, Philippines, Singapore, Thailand, Malaysia, and Vietnam), it recently came to this blogger’s attention that there are those noting the possibility of further ASEAN economic progress in the coming months and years. In order to provide further information on these issues it is necessary to quote directly from the website of the Bangkok Post, BangkokPost.com:

CIMB Thai Bank is developing an infrastructure base to cope with greater business opportunities offered by the Asean Economic Community (AEC) in 2015, said chief finance executive Narongchai Wongthanavimok. Its major shareholder, CIMB Group, expects the AEC will increase deals in the region. The group has a strong network across Asean that can support CIMBT’s expansion in the region. The bank developed a core banking system and improved its financial support to cope with international transactions, he said. The Malaysia-based CIMB Group has the largest branch network in Asean with 1,105 subsidiaries across Malaysia, Singapore, Indonesia and Thailand. It also has plans for branches in Cambodia, India and Sri Lanka. The financial group is helmed by people from the region and it reaches 81% of the Asean population, representing 89% of the region’s gross domestic product…

This blogger asks readers to click upon the hyperlinks above to view this insightful article in detail.

One could infer from the information above that the increasing economic integration of ASEAN and the emergence of the Asean Economic Community (AEC) may result in further economic benefits for the jurisdictions which comprise the organization and region. As noted above, the ramifications of these developments could have implications for economies such as those of India and Sri Lanka since the increasing business and trade occurring in Southeast Asia could “spillover” into those nations. Meanwhile, discussion pertaining to an ASEAN visa have yet to result in the creation of a tangible unified ASEAN travel document. How all of the developments noted above will evolve over time and the ultimate fate of ASEAN’s economy remains to be seen, but there is clearly a trend of increasing optimism regarding the future of Southeast Asia’s economy.

For information related to legal services in Southeast Asia please see: Legal.

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22nd August 2011

Loss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. Loss of consortium arising from personal injuries was recognized under the English common law. For example in Baker v Bolton, (1808) 1 Camp 493, a man was permitted to recover for his loss of consortium while his wife languished after a carriage accident. However, once she died from her injuries, his right to recover for lost consortium ended. After the enactment of the Lord Campbell’s Act (9 and 10 Vic. c. 93) the English common law continued to prohibit recovery for loss of consortium resulting from the death of a victim. The availability of loss of consortium differs drastically among common law jurisdictions and does not exist at all in several of them. Damages for loss of consortium are considered separately from, and are not to be confused with compensatory damages

Quoted Directly From Wikipedia, Wikipedia.org

Up until this point in time, the issue of federal recognition of same sex marriage was of primary interest to this blogger due to the immigration implications; but after further contemplation on a currently pending situation involving a same sex married couple in the sovereign State of California this blogger felt it noteworthy to discuss some immigration matters and how they may relate to the concepts noted above. However, in order to provide further context this blogger is compelled to quote directly from the official website of the Huffington Post, HuiffingtonPost.com:

Due to a surprise announcement by the Obama administration to consider same-sex marriage in deportation decisions, as reported by The Huffington Post, Australian-born Anthony Makk, who is currently facing deportation, may be able to stay in the U.S. with his husband Bradford Wells. Earlier this month, The Huffington Post reported the story of Anthony Makk and Bradford Wells, a same-sex married couple that faces deportation for Makk when his visa expires on August 25. Makk and Wells have lived together for 19 years and were legally married in Massachusetts in 2004. Makk is also the primary care taker for Wells, who suffers from AIDS…

The administration of this web log strongly encourages readers to click upon the appropriate hyperlinks noted above in order to read this article in detail.

At the time of this writing it does appear that the United States Citizenship and Immigration Service (USCIS) may not remove the same sex spouse of an American Citizen suffering from a debilitating illness. However, this should not be viewed as a foregone conclusion. Moreover, it should also be noted that the Commonwealth of Massachusetts‘ reserved right to marry those in her jurisdiction predates the US Constitution, the Articles of Confederation, and the Declaration of Independence. Therefore, it could be reasonably argued that where a State with such a constitution has manifested her political will in favor of legalizing and/or solemnizing same sex marriage the federal government should accord said unions Full Faith and Credit pursuant to the Full Faith and Credit Clause. It should be noted that proposed legislation such as Representative Jerrold Nadler‘s Respect for Marriage Act would seem to provide Full Faith and Credit to States which license same sex marriage while allowing other jurisdictions to retain their own interpretation of marriage through a “certainty” scheme. That stated, such a scheme does not deal with the dilemma in the instant case. The Uniting American Families Act appears to have been drafted to specifically address the immigration implications of the so-called “Defense of Marriage Act” (DOMA) since DOMA specifically precludes federal recognition of same sex marriage thereby denying visa benefits such as the K-1 visa, CR-1 visa, or the IR-1 visa for same sex couples.

This blogger must wonder whether the US Courts, in an effort to prevent loss of consortium in the case noted above, could use an equitable remedy such as an injunction to impose something akin to a temporary restraining order upon the USCIS thereby placing a hold upon the removal with an eye toward sorting out the Full Faith and Credit issues: would this not be especially poignant in a forum such as the Massachusetts Federal Courts, assuming jurisdiction, due to the Erie Doctrine since the underlying marriage took place therein? The ultimate fate of the same sex couple noted above remains to be seen, but there is hope as recent developments would seem to suggest that there could ultimately be a positive outcome.

For information related to legal services in Asia please see: Legal.

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14th August 2011

It recently came to this blogger’s attention that the United States Consulate in Chennai, India has issued an apology statement pertaining to remarks made by a Consular Officer in that jurisdiction. In order to provide further insight it is necessary to quote directly from the official website of Yahoo News at Yahoo.com:

The United States has apologised for controversial remarks made by a US diplomat who spoke of “dark and dirty” Indians, calling the comments “inappropriate”. US Vice-Consul Maureen Chao told Indian students on Friday that her “skin became dirty and dark like the Tamilians” after a long train journey, according to Indian media — referring to people from the southern state of Tamil Nadu. During her speech in the Tamil Nadu capital, Chennai, Chao was quoted as saying: “I was on a 24-hour train trip from Delhi to (the eastern Indian state of) Orissa. “But, after 72 hours, the train still did not reach the destination… and my skin became dirty and dark like the Tamilians.” Following her speech, the US Consulate in Chennai on Saturday issued a “statement of apology”. “During the speech Ms. Chao made an inappropriate comment. Ms. Chao deeply regrets if her unfortunate remarks offended anyone, as that was certainly not her intent,” the US Consulate said on its website…”As US Secretary of State Hillary Clinton recently noted, the US-India partnership is based on our shared values of democracy, liberty, and respect for religious and cultural diversity,” the US consulate added…

The administration of this web log strongly encourages readers to click upon the relevant hyperlinks noted above to read this article in detail.

Although the comments noted above are unfortunate, inappropriate, and downright impolite it should be noted that mistakes do happen. Notwithstanding the fact that the individual in question is a civil servant of the United States government she is also human and therefore not immune from making mistakes. It is admirable that the US Consulate noted above took the opportunity to quickly and maturely respond to the comments and issue an apology. Hopefully the whole situation will stand as an example to future American State Department personnel.

In news related to the continuing struggle for LGBT equality, it recently came to this blogger’s attention that there has been further analysis of the factual situation surrounding the story of a same sex married couple who may be compelled to separate due to enforcement of the so-called “Defense of Marriage Act” (DOMA). In order to provide further information it is necessary to quote directly from the official website of CNN, CNN.com:

Anthony Makk was trying to become a permanent U.S. resident – like many heterosexual couples do – so he could stay with his loved one who he married seven years ago in Massachusetts. Makk, who has been with Bradford Wells for 19 years, is also doing it because he is a caregiver for his husband who has AIDS.

Frequent readers of this web log may recall that the Commonwealth of Massachusetts has allowed for the legalization/solemnization of same sex marriage through intra-State licensure protocols. Notwithstanding the fact that this sovereign American State and other jurisdictions such as the State of New York have legalized such unions they are neither recognized nor granted routine Full Faith and Credit pursuant to the United States Constitution’s Full Faith and Credit Clause. There are currently cases pending in the US Courts which address these issues, but a final resolution has yet to come to fruition. To continue quoting from the aforementioned article on CNN.com:

..But the federal government denied his final appeal two weeks ago on the basis of the Defense of Marriage Act which doesn’t recognize their same-sex marriage. “The claimed relationship between the petitioner and the beneficiary is not a petitionable relationship,” the government’s ruling said. “For a relationship to qualify as a marriage for purposes of federal law, one partner must be a man and the other a woman.” The U.S. Department of Citizenship and Immigration Services echoed the sentiment, saying as long as DOMA was in place, they will continue to operate under that standard…The couple is calling for the U.S. government to step in and allow Makk to stay and care for Wells. The couple said they feel the federal government is doing everything to keep them from being able to do what any other heterosexual couple already can do. “I feel that my government is trying to destroy my marriage,” Wells said. “And my government is trying to impose a great deal of harm on my life for no reason whatsoever. I feel like I’m being bullied by my government.” But the fight to stay together has strengthened the couple’s bond, Makk said. “We made a big commitment to each other and the harder they make it, the stronger our relationship is.” What’s more frustrating for Wells, who says that the couple never intended for this to become a public debacle, is that they make sure to do everything that all married couples are required to do – like pay joint taxes, but get none of the benefits. “We have all the responsibilities, do the penalty parts of marriage, but then when it gets to the same benefits, we’re told no, you don’t qualify,” Wells said. “The government has decided they don’t like who I marry. For the federal government to say this isn’t a marriage – it’s degrading.” Still, the couple holds out hope. Hope that President Obama could step in to the battle that’s already raging in Congress over a repeal of DOMA, which he said he would support…

This blogger asks readers to click upon the relevant hyperlinks noted above to read this article in detail.

The first question this blogger would pose under the circumstances is: Could the Attorney-General of the United States not issue a hold on this deportation in much the same way that a hold was placed on the removal of the New Jersey same sex civil union partner of an American Citizen? Notwithstanding the fact that the provisions of DOMA preclude the accordance of American visa benefits such as the K-1 visa, the CR-1 visa, or the IR-1 visa to same sex couples the American Attorney-General has rescinded a deportation apparently to scrutinize the Constitutional issues at play where a State has licensed a marital union. Under the circumstances in this case it seems only prudent to infer that there may be even more significant Constitutional issues because the underlying union is a same sex marriage and not a civil union. As noted previously on this blog, it is this blogger’s opinion that once a State sovereign has exercised their prerogatives with respect to the licensure of marriage, then the imprimatur of that State’s recognition of the underlying marriage should be accorded both inter-State Full Faith and Credit and federal recognition. Under the current situation with respect to DOMA, the States’ Rights are being marginalized and the American Citizenry’s individual liberties are being infringed.

Meanwhile, American legislators such as Representative Jerrold Nadler have introduced legislation such as the Uniting American Families Act (UAFA) to directly address the current discrimination being imposed upon same sex bi-national couples. Furthermore, the provisions of the Respect for Marriage Act would seem to deal with the Full Faith and Credit issue by according same sex marriages performed in those States which legalize and/or solemnize such unions with federal “certainty“. How this issue will ultimately be resolved in the American Congress or Courts remains to be seen.

 

–Benjamin Walter Hart

 

For related information please see: Consular Processing.

For information pertaining to legal services in Southeast Asia please see: Legal.

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6th August 2011

It recently came to this blogger’s attention that further support for the Respect for Marriage Act (RFMA) may be forthcoming from membership of the United States Senate. To quote directly from the official website of The Washington Independent, WashingtonIndependent.com:

Long a holdout in signing on to back the Respect for Marriage Act, Sen. Amy Klobuchar indicated this week she’ll sponsor the bill, which would repeal the federal Defense of Marriage Act. Klobuchar is the last Democratic member of the Senate Judiciary Committee to back the measure after Sen. Herb Kohl of Wisconsin expressed his support in April. Fellow Democrat Al Franken was an original sponsor of the act…

This blogger asks readers to click upon the relevant hyperlinks noted above to read this article in detail.

Frequent readers of this blog may recall that Representative Jerrold Nadler introduced a “Respect for Marriage Act” counterpart piece of legislation in the United States House of Representatives where there is some doubt as to the ultimate fate of the bill notwithstanding the fact that it supports fundamental notions connected to States’ Rights pursuant to the United States Constitution’s Full Faith and Credit Clause. Meanwhile, there is also a compelling argument that support for the RFMA as a replacement for the so-called “Defense of Marriage Act” (DOMA) is simultaneously supportive of notions related to Equal Protection and natural law. How all of these issues will ultimately be sorted out by US Courts and/or the American legislature remains to be seen, but following the debate generates a great deal of intriguing insight into the evolving nature of the United States Constitution.

Meanwhile, in news related to the jurisdictions of the Association of Southeast Asian Nations (ASEAN); it recently came to this blogger’s attention that some international media outlets have reported upon the Russian perspective of recent ASEAN meetings. In order to provide further particulars it is necessary to quote directly from the official website of The Voice of Russia, ruvr.ru:

The dialogue between Russia and the Association of Southeast Asian Nations (ASEAN) is actively developing, Russian Foreign Minister Sergei Lavrov said following a ministerial meeting in Indonesia. Experts cannot fully agree with this, saying that the sides have yet to completely activate their potential for both bilateral and multilateral cooperation.

The administration of this blog asks readers to click upon the relevant hyperlinks noted above to learn further from this insightful article.

Although this blog attempts to primarily focus upon issues pertaining to ASEAN from an American context the activities of any of the so-called BRICS countries (Brazil, Russia, India, China, South Africa) in the ASEAN region is of compelling interest to those who follow geopolitics and economics with any degree of frequency. How negotiations regarding the future structure of ASEAN will play out is anyone’s guess. Concurrently, the confluence of economic forces at play in the ASEAN region could yield trade opportunities with the potential for future exponential growth in real terms. As a result, an understanding of the unique nature of ASEAN and her component jurisdictions (Brunei Darussalam, Cambodia, Indonesia, Laos, Myanmar, Philippines, Singapore, Thailand, Malaysia, and Vietnam) could provide real insight to those looking to conduct business in Southeast and Greater Asia.

For information related to legal services in Southeast Asia please see: Legal.

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3rd August 2011

It recently came to this blogger’s attention that the Department of Homeland Security (DHS) is taking steps to encourage entrepreneurial immigration to the United States of America. In order to provide further insight it is necessary to quote directly from the official website of the DHS, DHS.gov:

WASHINGTON—Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas today outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or who otherwise can create jobs, form startup companies, and invest capital in areas of high unemployment. “The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs,” said Secretary Napolitano. “Today’s announcements will help our nation fully realize the potential of existing immigration laws.” “Current immigration laws support foreign talent who will invest their capital, create new jobs for American workers, and dedicate their exceptional talent to the growth of our nation’s economy,” said Director Mayorkas. “USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward.” These actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs…

The administration of this web log asks readers to click upon the relevant hyperlinks above in order to read this article in detail.

In previous postings on this blog it has been noted that travel documents such as the EB-5 visa can be a satisfactory tool for those wishing to travel to the United States for the purposes of investing and residence. It should be noted that there are other employment based visa categories such as the EB-2 visa, the EB-3 visa, the EB-1 visa, and the EB-4 visa which may be used by individuals who find themselves in differing factual circumstances. Meanwhile, visas such as the L-1 visa and the E-2 visa are often used by non-immigrants who wish to travel to the United States of America for the purpose of either undertaking specialized employment or investing in a small business therein. That stated, those seeking immigration benefits are well advised to contact an American immigration lawyer since issues associated with American immigration can be legally complex and the process can sometimes prove cumbersome for those unaccustomed to dealing with matters pending before various agencies within the American federal bureaucracy.

In news pertaining to the continuing struggle for LGBT Equality, it recently came to this blogger’s attention that an attorney for the United States government has filed a response in a case involving a New York woman suing the government to have her same sex marriage recognized. To quote directly from a posting by Mark Hamblett for the New York Law Journal on the website Law.com:

Congress has fired back in a lawsuit challenging the constitutionality of the Defense of Marriage Act’s definition of marriage as between one man and one woman. In a motion to dismiss in the Southern District, former solicitor general Paul D. Clement and his legal team argue that the act, 1 U.S.C. §7, is entitled to a presumption of constitutionality, and that U.S. Supreme Court precedent holds that an exclusively heterosexual definition of marriage does not offend the equal protection clause. The motion came in Windsor v. United States, 10-cv-8435, which was brought by Edith Schlain Windsor…In his papers yesterday, Mr. Clement said that rational basis review, not heightened scrutiny, is the appropriate standard in judging the constitutionality of the statute and §3 “easily” passes that less exacting standard. In support of that view, he argues that DOMA does not infringe on the fundamental right to marriage, that “same-sex marriage is not a fundamental right” and that “DOMA implicates federal benefits, not the right of same-sex couples to marry.” Under the rational basis test, Mr. Clement said, Congress could have acted rationally “in the face of the unknown consequences of a proposed novel redefinition of the foundational social institution,” and it could have acted rationally to “protect the public fisc” in the balance it strikes in allocating federal burdens and benefits, and providing “consistency in eligibility for federal benefits based on marital status.” Congress also could have acted rationally “to avoid creating a social understanding that begetting and rearing children is not inextricably bound up with marriage” and to “foster marriages that provide children with parents of both sexes.”

This blogger recommends that readers click upon the hyperlinks above to read this article in detail as it is very enlightening about this case and the issues associated therewith.

The case noted above is interesting insofar as the underlying same sex marriage appears to have been legalized in Canada as opposed to another United States jurisdiction. How this fact will color a final adjudication remains to be seen, but it could have an adverse impact upon the outcome of the case as Full Faith and Credit issues pursuant to the Full Faith and Credit Clause of the United States Constitution may not be relevant under the circumstances. Frequent readers may recall that in an immigration context the so-called “Defense of Marriage Act” precludes immigration benefits such as the K-1 visa, the CR-1 visa, or the IR-1 visa from same sex bi-national couples even if they have been married in an American jurisdiction which legalizes and/or solemnizes same sex marriages. Legislation such as Representative Jerrold Nadler‘s Uniting American Families Act (UAFA) and the Respect for Marriage Act (RFMA) would ameliorate this discrimination, but such legislation has yet to see enactment.

For information related to legal services in Southeast Asia please see: Legal.

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29th July 2011

Notwithstanding the fact that the American federal government currently finds itself in gridlock due to issues such as the debate over the raising of the debt ceiling and other issues pertaining to the national deficit there appears to be one issue that seems to be continually overlooked by members of both parties in the United States Congress. That issue is: federal recognition of State licensed same sex marriage. Regardless of the provisions in the United States Constitution regarding Full Faith and Credit as elucidated in the language of the Full Faith and Credit Clause, the third section of the so-called “Defense of Marriage Act” precludes federal recognition of same sex marriage even in situations where such unions are legalized and/or solemnized in one of the American State jurisdictions which license such marital unions.

In the interests of full disclosure, this blogger originates from the Great State of Kansas and that State has opted to pass a ban upon same sex marriage as a State Constitutional amendment. This blogger disagreed with the promulgation of that amendment at the time because he has always believed that the States have no right to legislate as to We The People‘s natural rights and prerogatives. That stated, where State legislation augments personal liberty and is not preempted expressly by the enumerated powers of the federal Constitution, such legislation should be accorded Full Faith and Credit pursuant to the United States Constitution not to mention pursuant to the law of the land in the United States of America.

Bearing the above in mind, the issue of same sex marriage and federal recognition thereof is a thorny one since there are those States which expressly ban such unions while concurrently there are those which expressly permit such unions. Therefore, there could be a situation where a same sex marriage is performed and thereby legalized in one State and thereafter the couple cannot be divorced in another State jurisdiction as said jurisdiction does not permit such unions pursuant to State public policy. The courts in the non-recognizing State may be required to recognize that a same sex marriage in another jurisdiction exists in fact, but may not allow the same sex couple to receive a divorce. For more on these concepts it is prudent to review the previous blog posting regarding the concept of vertical vs. horizontal Full Faith and Credit.

Bearing all of the above in mind, it is this blogger’s opinion that the issue of same sex marriage recognition, at least at the federal level, is a virtually non-partisan issue since it touches upon basic human rights as well as those notions inherent to the concept of States’ Rights. As a result, politicians should not have a “tough sell” on this issue with respect to their constituents as Republican legislators can note that support of legislation such as Representative Jerrold Nadler‘s Respect For Marriage Act is supportive of reserved State prerogatives. Meanwhile, Democrats can note that support for repeal of DOMA is in the interests of human rights, civil rights, and Equal Protection.

It remains to be seen how these concepts will come to evolve as the legislative session continues, but it is clear that this issue dovetails many key concepts that Americans associate with personal freedom and Constitutional law.

– Benjamin Walter Hart

For further information regarding federal recognition of same sex marriage please see: Certainty.

For information pertaining to legal services in Southeast Asia please see: Legal.

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26th July 2011

It recently came to this blogger’s attention that there may be a pending matter coming before the US Courts pertaining to same sex marriage in the sovereign State of New York. In order to provide further insight it is necessary to quote directly from the website of the Washington Blade, WashingtonBlade.com:

Before the ink had even dried on many of the first marriage licenses for same-sex couples in New York, the state Attorney General was busy filing a brief in one of the several cases against the Federal Defense of Marriage Act, which prevents the Federal Government from recognizing same-sex marriages performed in the states where such marriages are legal, and preempts the Constitutional ‘Full Faith and Credit’ cause by allowing states to refuse to recognize some marriages performed in elsewhere. Tuesday, Attorney General Eric Schneiderman filed an Amicus Curie brief in the U.S. District Court for the Southern District of New York in the Windsor v. United States, a case brought against the government by the American Civil Liberties Union on behalf of New York widow Edie Windsor. When her wife Thea passed away in 2009, Edie was forced to pay penalties most married couples don’t have to pay because her marriage was not recognized, though the two had shared a life together for over 44 years. [sic]

The administration of this web log strongly encourages interested readers to click on the relevant hyperlinks above to read more from this always interesting website.

Frequent readers of this web log may recall that issues pertaining to Full Faith and Credit pursuant to the Full Faith and Credit Clause of the United States Constitution are central to the issue of federal recognition of State licensed same sex marriages. This blogger has always felt that the issue of Full Faith and Credit in the context of same sex marriage will likely be adjudicated in the American Court system as there are those who would argue that the United States Congress does not have the political will to pass legislation to rectify the current discrimination imposed by the so-called “Defense of Marriage Act” (DOMA). This argument is generally made notwithstanding the fact that legislators such a Representative Jerrold Nadler have introduced legislation such as the Uniting American Families Act (UAFA) and the Respect for Marriage Act (RFMA) which would alleviate immigration discrimination and provide “certainty” to State legalized and/or solemnized same sex marriages, respectively.

Congressional reluctance regarding the repeal of DOMA would seem to exist notwithstanding the fact that there is a fundamentally pro-States’ Rights element which augers in favor of DOMA repeal. States’ Rights arguments are often undertaken by those on the so-called “political right” in America politics. Meanwhile, there is a concurrent Civil Rights and Equal Protection argument which seems to operate in favor of DOMA repeal. Such arguments are often espoused by members of the so-called “political left” in American politics. How these issues will ultimately be resolved remains to be seen, but one this is certain: this situation makes for interesting political and legal theater.

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21st July 2011

It recently came to this blogger’s attention that multiple media outlets are reporting upon the recent Senate hearings discussing the so-called “Defense of Marriage Act” (DOMA). In order to provide sufficient insight it is necessary to quote directly from the official website of Lez Get Real, LezGetReal.com:

Al Franken looks bored. That is not surprising. Committee hearings are rather boring. The Senate Judiciary Committee has been hearing evidence both for and against repealing the Defense of Marriage Act. While the hearing heard testimony about the financial and symbolic damage that DOMA does to couples, it is unlikely that the Respect for Marriage Act will get anywhere in the House where the Republicans will ignore it. Heading up the push for the RFMA is Vermont Senator Patrick Leahy. When DOMA first came in, Senator Leahy voted for it, but a decade and a half later, he has changed his mind and is pushing to end it. He has also hailed the decision by President Barack Obama to support the repeal of DOMA…

This blogger asks readers to click upon the hyperlinks noted above to learn more from this interesting story. This blogger must admit that he was rather pleasantly surprised by the questioning posed by Senator Al Franken which can be viewed by clicking on the relevant links above.

Those unfamiliar with the currently unfolding debate involving DOMA should note that that legislation in its present form precludes those in a same sex marriage (even one solemnized and/or legalized by one of the sovereign American States) from receiving similar benefits compared to those in a different-sex marriage. For example, a same sex bi-national couple is unable to obtain visa benefits such as the K-1 visa, the IR-1 visa, or the CR-1 visa in the same manner as their different-sex counterparts. Meanwhile there are many other federal benefits that are not generally accorded to same sex partners. In order to provide further elucidation on these points it is necessary to quote directly from The New Civil Rights Movement website, TheNewCivilRightsMovement.com:

Immigration for Bi-​National Couples. Nearly 26,000 same-​sex couples in the United States are bi-​national couples who could be forced to separate because they cannot participate in green-​card and accelerated citizenship mechanisms offered to non-​citizen spouses of American citizens…There are 581,300 same-​sex couples in the United States, including 50,000 to 80,000 legally married same-​sex and another 85,000 who are in civil unions or registered domestic partnerships. Approximately 20% of same-​sex couples are raising nearly 250,000 children, and DOMA deprives them of the legal and social protections being married offers. Additionally, almost one-​fourth of same-​sex partners are people of color, over 7% of individuals in same-​sex couples are veterans of the U.S. armed forces, and same-​sex couples live in every congressional district and in almost every county in the United States…

The administration of this blog asks readers to click through the hyperlinks noted above to read this very insightful article in full.

It should be noted that in the United States House of Representatives legislation such as the Uniting American Families Act (UAFA) and the Respect for Marriage Act (RFMA) have been introduced by Representative Jerrold Nadler in order to provide some sort of remedy to the current predicament faced by LGBT couples. As noted in the first excerpt quoted there is pessimism regarding the reaction of Republican legislators to the aforementioned proposed legislation. That stated, there are significant States’ Rights implications of these issues especially in light of the language regarding Full Faith and Credit in the Full Faith and Credit Clause of the United States Constitution. Therefore, speculation regarding willful ignorance of issues pertaining to DOMA and the RFMA by the United States House of Representative may ultimately prove unfounded although vigilance may still be necessary in the continuing struggle for LGBT Equality.

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19th July 2011

It recently came to this blogger’s attention that the President of the United States of America may be changing his position on the issue of same sex marriage in the context of a repeal of the so-called “Defense of Marriage Act” (DOMA). To quote directly from an article written by Helene Cooper and posted on the official website of the The New York Times, NYTimes.com:

WASHINGTON — President Obama will endorse a bill to repeal the law that limits the legal definition of marriage to a union between a man and a woman, the White House said Tuesday, taking another step in support of gay rights. Jay Carney, the White House press secretary, said Mr. Obama was taking the additional step away from the Defense of Marriage Act — which the administration said earlier this year it would no longer defend in court — in order to “uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as straight couples.” If the measure passes, it would make same-sex couples eligible for certain federal benefits that have previously been available only to heterosexual married couples…

The administration of this web log strongly encourages readers to click on the hyperlinks above to read this article in detail.

This news comes virtually contemporaneously with the announcement that the United States Senate’s Judiciary Committee is set to hold hearings on the issue of DOMA and the possible promulgation of legislation such as the Respect for Marriage Act. Such legislation would provide “certainty” to those same sex couples who have married in one of the States which allows same sex unions. Currently, same sex bi-national couples are barred from receiving American immigration benefits such as the CR-1 visa, K-1 visa, or IR-1 visa as section 3 of DOMA precludes awarding such benefits even if a same sex marriage has been legalized and/or solemnized by one of the sovereign American States.

In related news, it would appear as though advocacy groups calling for the repeal of DOMA are stressing the immediacy of the upcoming hearings and how a show of support could have a positive impact upon the legislative process. In order to shed further light upon these developments it is necessary to quote directly from the Instinct website, InstinctMagazine.com:

With the Senate set to begin the DOMA hearing tomorrow, the Courage Campaign is asking the community to help get the urgency across by participating in a new viral campaign. But no signatures here! Find out how to get involved after the jump. Two years ago, Courage Campaign launched “Fidelity,” a multimedia video focused on Prop. 8, urging the courts to not forcibly divorce same-sex families. With the first-ever repeal hearing for the Defense Of Marriage Act about to begin tomorrow in D.C., community leaders are calling on us all to get involved with “Fidelity II…”

The administration of this web log encourages readers to click upon the hyperlinks noted above to read further from this interesting posting.

It remains to be seen how these issues will play out, but it should be noted that there are other considerations inherent to this issue apart from Civil Rights and Equal Protection principles. For example, there are certain States’ Rights components to an analysis of American jurisprudence regarding the legality of the federal government’s refusal to recognize same sex marriages legalized and/or solemnized in the sovereign States since notions of Full Faith and Credit pursuant to the Full Faith and Credit Clause of the United States Constitution come into play. Meanwhile, there are some who could argue that notions of natural rights and natural law should not be overlooked in any analysis of possible DOMA repeal. As this situation continues to evolve it should prove interesting to see how this issue is ultimately resolved.

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