Integrity Legal

Posts Tagged ‘10th Amendment’

1st August 2011

It recently came to this blogger’s attention that the current Attorney General of the sovereign State of New York is challenging the Constitutionality of the so-called “Defense of Marriage Act” (DOMA) on the grounds that it violates the 5th and 10th Amendments of the United States Constitution. In order to provide insight into these developments it is necessary to quote directly from an article posted to the website

Attorney General Eric Schneiderman has filed court papers charging that the federal Defense of Marriage Act (DOMA), which defines marriage as being between a man and a woman, is unconstitutional on a number of fronts, including an “unprecedented intrusion” on the right of states to regulate marriage. DOMA, passed in 1996, has been under heightened scrutiny since the Obama administration announced in February that it would no longer uphold the part of the law that bars the federal government from recognizing legal same-sex marriages…In a brief filed in the case Windsor v United States of America, Schneiderman argued that DOMA violates the Fifth Amendment by failing to provide equal rights to all Americans and the Tenth Amendment by impeding the right of states to regulate marriage.

Readers are asked to click upon the hyperlinks noted above to read this article in full.

Frequent readers may recall that Representative Jerrold Nadler has rather recently introduced legislation colloquially referred to as the Respect for Marriage Act (RFMA) which attempts to rectify the current legal discrimination faced by those who have entered into a same sex marriage. The RFMA would provide federal “certainty” to validly licensed State sanctioned same sex marriages which would presumably allow federal protection for marital benefits regardless of the geographic location of a same sex married couple. Meanwhile, those same sex bi-national couples who are currently separated from their loved ones due to the discrimination which currently prohibits same sex couples (even those validly married in a State jurisdiction) from receiving visa benefits for their foreign spouse in the same manner as those who seek a K-1 visa, CR-1 visa, or an IR-1 visa. Representative Nadler has also introduced legislation to specifically rectify discrimination in an immigration context in the form of the Uniting American Families Act (UAFA). It has long been this blogger’s opinion that inter-jurisdictional issues pertaining to same sex marriage will ultimately be resolved in the US Courts, but a final resolution has yet to present itself.

In matters related to the Association of Southeast Asian Nations (ASEAN), it was recently noted that diplomatic progress has been made with respect to negotiations pertaining to the South China Sea. In order to provide further insight it is necessary to quote directly from the official website of the Japan Times,

KANEOHE, Hawaii — Last week a sense of optimism wafted out of the Bali meetings of the Association of Southeast Asian Nations. ASEAN and China agreed on “guidelines” for implementing their previously agreed 2002 Declaration on Conduct of Parties in the South China Sea (DOC). Some players including China hailed this as a breakthrough. Others agreed with U.S. Secretary of State Hillary Clinton that “It was an important first step but only a first step” and that ASEAN and China should move quickly — even urgently — toward an actual code of conduct…ASEAN made a major compromise by agreeing to drop a clause that would mandate that it form an ASEAN position before dealing with China on South China Sea issues. This gesture was important to convince China that the other claimants (Brunei, Malaysia, the Philippines and Vietnam) are not using ASEAN to “gang up” on it. China also deserves considerable credit. It had long resisted the draft guidelines and made a major compromise by agreeing to them…

Readers are encouraged to click upon the relevant hyperlinks above to read this interesting posting in full.

As the tensions in the South China Sea seem to be subsiding there seem to be many who hope that a lasting framework can be implemented in order to deal with the myriad issues that are raised by the complexity of this multi-jurisdictional dispute. The issue of maritime freedom of navigation is an important and salient one for those nations which maintain sea power. Therefore, balancing the interests of all such parties in any agreement can be difficult and the drafting of such an agreement could be time consuming as well.  Hopefully, any possible future agreement will operate to the benefit of all concerned.

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

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18th May 2011

It recently came to this blogger’s attention that some have been discussing tactics underlying the overall political strategy pertaining to passage of the Uniting American Families Act (UAFA), a recently introduced piece of legislation by Representative Jerrold Nadler designed essentially to circumvent the current prohibition of Federal recognition for same sex marriages. Such marital unions are currently legalized and/or solemnized by multiple sovereign American States as well as the District of Columbia. To quote directly from the article No Republicans, No News posted on the website UnitingAmericanFamilies.Net:

The UAFA-related blogosphere is alive with reports of the bill being re-introduced into Congress. This will seem like a wet blanket, but my jaded response is… so what? The bill (and its predecessor) has been introduced into every subsequent Congress since the year 2000, and it has never come close to passing.

The administration of this web log strongly encourages readers click upon the hyperlinks above to read more from the enlightening piece.

Of especial interest to this blogger was the analysis of the current political predicament facing proponents of UAFA or a bill, such as the Reuniting Families Act, which utilizes UAFA-like language. To quote further from the aforementioned article:

It’s no longer the Dems who need to be convinced. We will NOT get our basic human rights until we start to convince Republicans — whether right-wing, Tea-Party, or “moderate” (if such a thing still exists). It’s a simple game of numbers.

This is an insightful notion as it is so acutely correct. The way for the LGBT Community, same sex bi-national couples, and anyone else who is a victim of government discrimination based upon sexual orientation to effect change is through gaining broad based, possibly bi-partisan, support (under the circumstances the word “bi-partisan” simply does not seem accurate as this truly is an issue of personal liberty and not party ideology). Importantly, supporters of UAFA and bills similar to UAFA have one relatively new political “arrow” in their “quivers” and that arrow is States’ Rights. The 10th Amendment of the United States Constitution reserves certain rights to the Several Sovereign States. Marriage, and the licensure thereof, has traditionally been viewed as a purely intraState matter. Therefore, when the Defense of Marriage Act (DOMA) came into conflict with State policies such as those currently maintained by the Commonwealth of Massachusetts issues surrounding the 10th Amendment came to the foreground of the debate.

The fate of DOMA, UAFA, the Reuniting Families Act, and the Respect for Marriage Act remains to be seen, but one thing is clear, at least in this blogger’s personal opinion: the issue of same sex marriage may become one of those issues that, in politics, is truly a “game changer”.

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

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