Integrity Legal

Much to her credit Secretary of State Hillary Clinton once declared:

“Gay rights are human rights.”

Although this blogger may not have personally agreed with every one of the opinions espoused by Mrs. Clinton over the years, he can at least state that she has been a zealous and effective advocate, where possible, for the rights of the LGBT community. However, this blogger might add that the statement quoted above could be construed as incomplete.  In order to elucidate why this statement may be incomplete this blogger would need to quote directly from a recent posting on the website Lez Get Real:

Sen. Al Franken is the newest co-sponsor of legislation introduced in the U.S. Senate late last week that would give binational same-sex couples the same rights as married couples for immigration purposes. The Uniting American Families Act is authored by Democrat Patrick Leahy of Vermont and is sponsored by 18 other Democrats. Even though same-sex marriage is legal in seven jurisdictions in the United States, couples in which one partner is not a citizen do not have any right under current federal law.

Frequent readers of this blog may recall that Representative Jerrold Nadler recently introduced similar legislation in the United States House of Representatives. To continue by quoting an interesting question raised in the previously cited posting on Lez Get Real:

DOMA’s repeal will enable gays and lesbians – same-sex spouses – to sponsor foreign spouses for green cards so why do we need both bills before an unfriendly house at the same time?

The administration of this web log strongly encourages readers to click upon the hyperlinks noted above to read the full story on the website cited above in order to gain further insight and perspective into this posting.

The question above raises a great many issues that are both complex and, at times, controversial; but go to the heart of the current struggle to secure equal rights for all Americans under the law of the United States of America.  Getting back to Mrs. Clinton’s remark: it is perhaps incomplete because it fails to take into consideration the rights of the Several States. The United States Constitution is composed of 50 co-equal sovereign States as well as a Federal government which has enumerated powers to perform certain functions while reserving the residual inalienable rights to the States and the People respectively. One of the rights which the States have always reserved unto themselves is the right to legalize and/or solemnize a marriage within their jurisdiction. Notwithstanding this fact, the United States Federal government decided to pass legislation referred to colloquially as The “Defense of Marriage Act” (DOMA). By doing so, they rode roughshod over the rights of the States to make decisions regarding the intra-State definition of marriage and how State sanctioned marriages between two people of the same sex would be treated by other States (including the Federal government which is a separate sovereign from the 50 States), but at that time this was not readily apparent due to the fact that States had yet to change the law regarding what constitutes a marriage.

To shed more light upon these issues it may be best to quote directly from an extremely insightful article on the subject of Full Faith and Credit by Justice Robert H. Jackson and posted on the website, RobertHJackson.org:

By other articles of the Constitution our forefathers created a political union among otherwise independent and sovereign states. By other provisions, too, they sought to integrate the economic life of the country. By the full faith and credit clause they sought to federalize the separate and independent state legal systems by the overriding principle of reciprocal recognition of public acts, records, and judicial proceedings. It was placed foremost among those measures(n69) which would guard the new political and economic union against the disintegrating influence of provincialism in jurisprudence, but without aggrandizement of federal power at the expense of the states.

To quote the Full Faith and Credit Clause directly:

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.

Some have discussed the issue of Full Faith and Credit at length with this blogger and cite the quotation above noting that Congress does have the power to prescribe laws regarding the “Effect” of State legislation. This blogger would concur with such an assessment, but the current provisions of the Defense of Marriage Act (DOMA) do not merely regulate the Effect of duly solemnized and legalized same sex marriage in the States which allow such unions, but instead DOMA makes such legislation wholly INEFFECTIVE because that law simply refuses to recognize the validity of same sex unions. In this blogger’s opinion this is clearly violative of the U.S. Constitution as true Full Faith and Credit has not been accorded to same sex marriages legalized within those sovereign States.

In Justice Jackson’s concurring opinion in the case of Youngstown Steel & Tube Co. v. Sawyer the following framework was created for analyzing executive action:

In determining whether the executive has authority, there are three general circumstances:

1. When the President acts pursuant to an express or implied authorization of Congress, the President’s authority is at its greatest.
2. When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and Congress may have concurrent authority. When this is the case, the test depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, the authority of the President is at its lowest.

This blogger asks that readers click on the hyperlinks above to understand this case further.

To continue analyzing this issue: it is this blogger’s opinion that States’ Rights issues in connection with Full Faith and Credit could be analyzed in a similar manner to the first prong of the analysis used by Justice Jackson to adjudicate Presidential authority. When the Sovereign States act pursuant to an express or implied authorization of their legislatures or pursuant to the will of the People (ex. a State referendum), then shouldn’t the greatest amount of Full Faith and Credit be accorded to the laws created therefrom? Why does the Federal government get to override sovereign prerogatives clearly reserved to the States and the People, respectively? Clearly, from the plain language of the Full Faith and Credit Clause Congress can make rules regarding the regulation of the Effect of such legislation on other States which do not have similar prerogatives, but, in this blogger’s opinion, the Federal government simply cannot unilaterally overrule, either preemptively or after the fact, State prerogatives simply by citing their power to regulate the Effect of such prerogatives.

To get back to the issue of the Uniting American Families Act (UAFA) vs. repeal of DOMA (either outright or through a statute similar to the Respect for Marriage Act). In this blogger’s opinion the reason that both of these bills are on the floor stems from the inherent tensions which arise as a result of the fact that the USA uses a federal system within her Constitution providing concurrent jurisdiction for 1 Federal government as well as 50 State sovereigns. Institutions within government, especially the US Federal government, are often loathe to give up power. By recognizing that refutation of marriages solemnized and legalized within sovereign State jurisdiction is outside of their bailiwick the Federal government could be construed to have conceded to a practical loss of authority on such issues (which this blogger believes that they do not have to begin with).

Concurrently, there are sound political reasons for having both bills out there on the floor of the Federal legislature. One, it provides a better chance of seeing at least some progress on this issue. If a DOMA repeal is not possible within this session, but passage of UAFA can occur, why not take it? At the very least passage of UAFA could lead to reunification of same sex bi-national couples who are geographically separated due to the provisions of DOMA. Therefore, this blogger would argue that such a strategy is sound, but those within the LGBT should not lose sight of the ultimate goal: full equality under the law. IF UAFA can be secured along the way, all the better, but mere passage of that legislation should not be viewed as the end of the struggle.

To sum up, the issues associated with accordance of Full Faith and Credit to same sex marriages solemnized and legalized by a sovereign State with appropriate jurisdiction are myriad and few, if any, have been resolved, but they continue to be some of the most interesting issues to be currently debated in the realm of U.S. Constitutional law. In conclusion, although it is not debatable in this blogger’s mind that Gay Rights are Human Rights. Perhaps Gay Rights are States’ Rights as well?

For related information please see: Same Sex Visa.

Tags: Defense of Marriage Act, DOMA, Full Faith and Credit, Full Faith and Credit Clause, Gay Rights, Gay Rights News, Justice Robert H. Jackson, Representative Jerrold Nadler, Respect for Marriage Act, RFMA, Senator Al Franken, Senator Patrick Leahy, uafa, Uniting American Families Act
Posted in same sex visa, States' Rights | No Comments »

Those who read this blog with any degree of frequency may have noticed that the administration of this resource considers the issue of same sex marriage; and Federal recognition thereof, to be one of, if not the, foremost pending political and legal issues of the age. This opinion is based upon the fact that currently discriminatory Federal policies regarding recognition of properly solemnized and legalized State marriages between same sex couples are clearly operating in violation of long held Constitutional notions regarding State Sovereignty, Federalism, Separation of Powers, Full Faith and Credit, and Equal Protection.

Bearing the above in mind, it should be noted that there are legislators in Washington D.C. who seem committed to the cause of Equal Rights for the LGBT Community. To quote directly from a post on the website ImmigrationEqualityActionFund.org, apparently authored by Steve Ralls (Contact Details: 202-347-7007, [email protected]):

Today, Congressman Jerrold Nadler (D-NY), the ranking Democrat on the Judiciary Subcommittee on the Constitution, Congresswoman Zoe Lofgren (D-CA), the ranking Democrat on the Judiciary Subcommittee on Immigration, and Representatives John Conyers (D-MI), Tammy Baldwin (D-WI), Jared Polis (D-CO), Mike Honda (D-CA), Luis Gutierrez (D-IL), and Jackie Speier (D-CA) announced the re-introduction of the Uniting American Families Act (UAFA). This overdue legislation would allow gay and lesbian Americans to sponsor their permanent partners for legal residency in the United States, a right currently enjoyed only by married heterosexuals under immigration law. Because the U.S. does not legally recognize gay and lesbian couples and their children as families, many same-sex binational couples are torn apart. Senator Patrick Leahy (D-VT) also introduced UAFA today in the Senate.

In previous postings on this blog, the efforts of Representative Jerrold Nadler in support of the LGBT Community and same sex bi-national couples have been noted and Representative Nadler’s current reintroduction of the Uniting American Families Act (UAFA) is simply one more example of this legislator’s continuing dedication to the cause of Equal Rights for the LGBT community. On a related note, it was recently pointed out that Representative Nadler is also a proponent of the so-called “Respect for Marriage Act” (RFMA) which would provide Federal recognition for same sex marriages solemnized and legalized in a sovereign State.

At the time of this momentous event this blogger would ask all interested parties in matters pertaining to Liberty, States Rights, Civil Liberties, and Personal Freedom to take heed of the current events involved in the struggle to obtain equal protection under the law for the LGBT community as a whole as well as same sex bi-national couples who are currently separated due to the current state of American Immigration law. On that point, it should be noted that the United States Citizenship and Immigration Service (USCIS) recently attempted to put policies in place to halt deportations of foreign same sex partners of American Citizens. It would appear as though USCIS’s policy was aimed at providing some relief, akin to that once accorded to individuals impacted by the so-called “Widow’s Penalty,” to those who are currently subjected to Federal non-recognition of same sex marriages, even those lawfully solemnized and legalized in a sovereign US State,  pursuant to what are clearly Unconstitutional provisions of the so-called “Defense of Marriage Act” (DOMA). That said, as of the time of this writing it is this blogger’s understanding that the Department of Homeland Security (DHS) has rescinded USCIS’s hold on such deportations thereby allowing the same sex bi-national spouse, even if the underlying marriage was solemnized and legalized in one of the Several States, to be deported.

The current discriminatory practices, pertaining to the LGBT community, on the part of the United States government are so pervasive that even first-year law students are aware of the issue. The current legal discrimination faced by a same sex bi-national couple seeking immigration benefits in much the same manner as their different-sex counterparts is so noticeable that even those with only an elemental grasp of the dynamics of United States law can discern many of the issues. To quote directly from a blog post titled Why Denying Homosexuals the Right to Marry is Completely Unconstitutional, authored by Sarah McCarthy on the site My Dog Ate My Blog:

Our country (as I’ve learned over the past week) essentially works like this: states are presumed to have all the power. Our founding fathers were most worried about tyrannical government, and hence wanted to give individual states the power to govern themselves and make their own laws in almost every situation. Hence, in the U.S., we really do have 50 different sets of law governing 50 different states.

Some of these 50 States have opted to use their lawmaking powers to provide marital benefits to same sex couples wishing to marry within their jurisdiction. The administration of this blog would strongly suggest that readers click on the hyperlinks noted above to read more from the above cited posting.  As noted by Ms. McCarty above, pursuant to the 10th Amendment of the United States Constitution, those powers not specifically enumerated to accrue to the Federal government are to be reserved to the States and the People respectively. Therefore, pursuant to the explicit language of the 10th Amendment and the implications present throughout the Constitution as a whole inherent State rights, such as the right to marry those within the jurisdiction of a given State, are generally considered to be beyond the bailiwick of the Federal government.

Even though legislative initiatives may ultimately prove to be effective for the LGBT community in securing some of the rights, privileges, and immunities associated with marriage it is this blogger’s opinion that only through full repeal of DOMA by the US Congress or the overturning of that legislation on Constitutional grounds by the US Supreme Court can the issue be laid to rest. In this blogger’s opinion, it is especially desirable that a “case or controversy,” such as that which recently arose in Massachusetts Federal Court, be brought before the United States Supreme Court as only that body has the authority, and possibly expertise, to delineate the application of the Full Faith and Credit Clause with regard to interstate vs. State-Federal recognition of same sex marriages.

There are some who have raised the argument that the same sex marriages which are legal in certain jurisdiction are only legal as a result of judicial fiat. However, this blogger would argue that, especially in the case of Massachusetts, there are strong indications that there is a political will manifesting itself in favor of same sex marriages, at least within that jurisdiction. To support this claim it may be best to quote directly from an article written by Pam Belluck and published by the New York Times on June 14, 2007:

Same-sex marriage will continue to be legal in Massachusetts, after proponents in both houses won a pitched months-long battle on Thursday to defeat a proposed constitutional amendment to define marriage as between a man and a woman.

“In Massachusetts today, the freedom to marry is secure,” Governor Deval Patrick said after the legislature voted 151 to 45 against the amendment, which needed 50 favorable votes to come before voters in a referendum in November 2008.

The administration of this blog strongly encourages readers to click upon the hyperlinks above to read this story in detail. Clearly, there are those within the jurisdiction of the Commonwealth of Massachusetts who support equal marital rights for same sex couples. However, Federal recognition of same sex unions remains to be seen. Hopefully, through continued action on the part of legislators such as those mentioned above the notions of Equal Protection under the law and State sovereignty will be upheld to the benefit of all American families.

For more information please see: Same Sex Visa or same sex marriage.

Tags: Congressman Jerrold Nadler, Congresswoman Zoe Lofgren, Defense of Marriage Act, DOMA, Full Faith and Credit, Full Faith and Credit Clause, lgbt immigration, lgbt visa, Representative Jackie Speier, Representative Jared Polis, Representative John Conyers, Representative Luis Gutierrez, Representative Mike Honda, Representative Tammy Baldwin, Respect for Marriage Act, RFMA, Same Sex Marriage, same sex visa, uafa, United States Citizenship and Immigration Service, Uniting American Families Act, US Department of Homeland Security, USCIS
Posted in same sex visa | No Comments »

It recently came to this blogger’s attention that the Attorney General of the United States, apparently at the request of the President, has opted to discontinue pursuing cases that would enforce the provisions of section 3 of the so-called “Defense of Marriage Act” (DOMA). To quote directly from a letter written from United States Attorney General Eric Holder to the Speaker of the United States House of Representatives the Attorney General noted:

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.

The administration of this blog highly recommends that those reading this posting click on the links above to read the Attorney General’s actual letter to Congress regarding this matter. That said, the administration of President Barack Obama should be guardedly commended for their position on this controversial and important matter. This announcement could be a boon to the LGBT community and the unfortunate same sex bi-national couples who are separated due to the fact that there has yet to be passage of legislation such as the Uniting American Families Act (UAFA) which would circumvent DOMA and thereby allow those persons married to someone of the same sex to petition for immigration benefits in the same manner as their different sex counterparts. Bearing that in mind, there are some who could argue that the administration’s position on the issue could cause some unanticipated problems for those who wish to see swift equalization of rights for the LGBT Community, at least in the short term. Such an argument could be based upon the fact that failure to pursue these cases could lead to a situation where the public is unable to get the issue before the Supreme Court (more analysis on this below). To continue quoting from the Attorney General’s letter to Congress:

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

As noted in the first sentence of this above cited paragraph, the administration’s decision not to pursue Federal cases to block recognition of same sex marriages could theoretically stall efforts at ultimate recognition of same sex marriage in the Courts. The reason for this is based upon the fact that Courts can only “make new law” when there is a “case or controversy” pending before them. The President’s failure to pursue such cases could effectively blunts efforts to get same sex marriages recognized in the Courts. To put it simply: a case involving the issue of the Defense of Marriage Act (DOMA) can only get before an Appellate Court (including the Supreme Court) if the party that lost in the lower court brings an appeal. Where the Obama administration has stated that they have changed their position on the issue of judicial scrutiny of same sex couples the fact still remains that in order for the Courts to render a final decision on the issue, a case must be properly brought before them. The Holder letter went on to note:

We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

Interpretation of this line of the letter is critical for the future of same sex marriage cases pending before the Courts because the Obama administration (or a later administration, for that matter) may be placed in a position in which they are forced to appeal against a ruling in favor of same sex couples in order for the issue to be brought to the official attention of the higher Courts (most especially the United States Supreme Court). Failure on the part of the Obama administration to pursue the government’s current position in favor of DOMA all the way to the Supreme Court could lead to a situation, not unlike that once seen in the cases involving the old Widow’s Penalty in an immigration context, where same sex marriage is ruled legal in, say, the Second Circuit, but might not be legalized across the United States if the Attorney General’s office refuses to request certiorari from the United States Supreme Court and simply opts to accept the 2nd Circuit’s ruling.

At the same time, the administration is not actively involved in efforts to discourage recognition of same sex marriages. From a political standpoint, the President’s apparent decision to discontinue pursuit of such cases is rather shrewd in that, as noted in the last sentence of the paragraph cited above, it allows the administration to avoid something of a “political hot potato” without actually doing anything that might offend those arrayed against the recognition of same sex marriage. Meanwhile, as a practical matter, the administration’s decision changes nothing about the current state of affairs with regard to same sex marriage. In fact, if the administration refuses to appeal such cases to the Supreme Court, they would effectively close off one of the two avenues by which DOMA could be overturned (the other being outright repeal by the US Congress). The Defense of Marriage Act remains “on the books” and therefore continues to be an impediment to Federal recognition of same sex marriage (even those solemnized and legalized by the States).

From this blogger’s perspective, the administration appears to be attempting to make efforts in support of the LGBT community on the issue of same sex marriage, but in reality the two branches of government that can truly make a change to the current Federal policy on same sex marriage are the legislative branch of government and the judiciary. At present, two significant cases are pending in the judicial system. One case in California attacks DOMA from more of a civil right’s perspective while the Massachusetts Federal District Court found DOMA unconstitutional based upon, among other things, an analysis of that State’s (or more accurately: Commonwealth’s) inherent right to solemnize and legalize marriages within their jurisdiction. To quote directly from the opinion in the Massachusetts case:

State control over marital status determinations predates the Constitution. Prior to the American Revolution, colonial legislatures, rather than Parliament, established the rules and regulations regarding marriage in the colonies. And, when the United States first declared its independence from England, the founding legislation of each state included regulations regarding marital status determinations.

Many analyze this issue from the perspective of the Equal Protection Clause of the United States Constitution. There is a very valid argument that discriminating against same sex couples due to their gender/sexual orientation is a violation of Equal Protection. However, the argument in favor of the States’ inherent rights to make rules and regulations regarding marriages within their jurisdiction is a potent argument which should not be overlooked. Equal Rights for the LGBT community is a Civil Rights matter, but where 6 Sovereign States and the District of Columbia have taken the initiative and allowed same sex unions it begs the question: why is the Federal government contravening clear State policy on matters that have traditionally been within the exclusive bailiwick of the States?

This blogger has repeatedly written postings analyzing the issue of same sex marriage from the perspective of States’ Rights as well as Full Faith and Credit Clause of the United States Constitution. What is the most interesting aspect of this issue from the blogger’s perspective is the fact that the more socially conservative wing of the Supreme Sourt could end up voting in favor a same sex marriage based upon a States’ Rights line of thought. To quote directly from the dissenting opinion written by Justice Scalia in the Lawrence v. Texas case (which both the Chief Justice of the United States Supreme Court and Justice Thomas joined):

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

All of the Justices noted above dissented in the Lawrence opinion based upon the reasoning that the States’ retain the right to regulate homosexual conduct within their jurisdiction. The Court itself went the other way in that decision, but the above citation from the dissent is important because it shows that those Justices might rule favorably upon an issue involving Federal recognition of same sex marriage if the underlying facts were to show that the State sovereign had duly recognized such unions pursuant to their aforementioned “police powers” noted in the Massachusetts case cited above.

As of yet, these issues remain to be resolved, but one thing is clear: the political winds are changing with regard to LGBT rights. However, said rights have yet to be fully secured and until such time as they are advocates for equal marriage rights should continue to monitor this issue.

Tags: Barack Obama, Defense of Marriage Act, DOMA, Eric Holder, Full Faith and Credit, Full Faith and Credit Clause, LGBT, Same Sex Marriage, uafa, Uniting American Families Act
Posted in lgbt immigration, News, same sex visa, States' Rights, US Constitution | No Comments »

It recently came to this blogger’s attention that a State Judge in a Nebraska Court appears to have been unwilling to grant a divorce to a same-sex married couple on the grounds that the State of Nebraska does not recognize the existence of the underlying marriage. It would appear as though the parties in question were originally married in Vermont (a State which recognizes and solemnizes marriages between individuals of the same gender), but wished to have their marriage dissolved in Nebraska (a State which does not solemnize nor recognize same sex marriage). To quote directly from a posting on WCAX.com, a website dedicated to providing news pertaining to Vermont:

According to Judge Randall Rehmeier, the state can’t dissolve their marriage because gay marriage isn’t recognized by the Nebraska Constitution. That means their marriage doesn’t exist in the state’s eyes.

The administration of this blog highly recommends readers go to the website noted above to read the full posting. The Judge’s reasoning may go to the heart of the overall conundrum that arises from what some would consider to be the uncertain nature of the current legal status of same sex marriages in the United States. As noted previously on this blog, within the USA there are currently 5 sovereign American  States that recognize and perform same sex marriages. Meanwhile, there are many other States and jurisdictions which do not recognize such marital relationships. Furthermore, there are even some American States which have State constitutional amendments banning same sex marriage or defining marriage as exclusively to mean a marital union between two people of differing gender. Concurrently, the United States Federal Government does not recognize same sex marriages pursuant to the language of the so-called “Defense of Marriage Act” (DOMA). Under the provisions of the Defense of Marriage Act the Federal government is legally barred from recognizing marriages between two people of the same gender. This is a significant issue in the area of United States Immigration law as same sex bi-national couples are unable to obtain the same family based visa benefits as different-sex bi-national couples, regardless of the fact that the couple may have been lawfully married in one of the American States which recognizes same sex marriage.

In the midst of all of these conflicting policies and laws there are currently cases pending in the United States Federal Courts which address the issues associated with same sex marriage and government recognition thereof. At the time of this writing, Federal District Courts in Massachusetts and California have ruled that Federal failure to recognize State sanctioned same sex marriage is unconstitutional. However, those decisions have been stayed pending appeal. Those appeals could very possibly go all the way to the United States Supreme Court.

At the time of this writing, the issue of same sex marriage is far from settled, but one thing is clear: it is unlikely that a solution will be easy to find. It is this blogger’s opinion that the issues associated with same sex marriage touch most particularly upon legal notions inherent in the Constitutional doctrine of Full Faith and Credit pursuant to the Full Faith and Credit Clause. However, analysis under the Full Faith and Credit Clause may not lead to uniform State acceptance of same sex marriage. In this blogger’s opinion, the Defense of Marriage Act was rendered unconstitutional the moment that a sovereign American State began recognizing and performing marriages for people of the same sex. This opinion is based upon the belief that the right to solemnize marriages between parties within the jurisdiction of a given State is a right reserved to said State under the 10th Amendment to the United States Constitution. Under certain circumstances, States have cited their power to promote “public health and safety” as a basis for issuing marriage licenses.

In this blogger’s opinion, if a State has duly legalized a same sex marriage within their jurisdiction pursuant to the laws and procedures of said State, then the Federal government must recognize that marriage pursuant to what this blogger would describe as Vertical Full Faith and Credit (i.e. Federal recognition of certain State prerogatives regarding intrastate matters pursuant to the Full Faith and Credit Clause). However, the law dealing with what this blogger would describe as Horizontal Full Faith and Credit (State to State recognition of State adjudicated matters) can be opaque especially with regard to issues which one state has deemed to be in violation of State public policy. If a sovereign American State has a Constitutional Amendment which specifically defines marriage as a marital union between a man and a woman, then there is a strong argument in favor of denying divorces to same sex couples within that State since it would violate State public policy to recognize the existence of the marriage in order to dissolve it.

As more and more same sex couples legalize marriages in the United States, it stands to reason that more such couples may one day seek divorce. The issues associated with Full Faith and Credit and LGBT rights have yet to be fully resolved, but it seems likely that this issue will remain controversial both from a political perspective as well as a legal perspective.

Those reading this posting should take note of the fact that there are myriad legal and political opinions on this subject and until such time as a binding decision is made in the US Courts or Federal legislature this issue will probably continue to remain unresolved.

For information about legislation designed to deal with the immigration restrictions placed upon same sex bi-national couples please see: Uniting American Families Act or UAFA.

Tags: Constitutional Law, Defense of Marriage Act, DOMA, Full Faith and Credit, Full Faith and Credit Clause, Gay Rights, Gay Rights News, Horizontal Full Faith and Credit, LGBT Rights, LGBT Rights News, Same Sex Divorce, Same Sex Immigration, Same Sex Marriage, same sex visa, States' Rights, uafa, Uniting American Families Act, US Constitution, US Courts, Vertical Full Faith and Credit
Posted in Editorial, lgbt immigration, Opinion, same sex visa, States' Rights, US Constitution | No Comments »

The issue of Federal recognition of same sex marriage is one which remains stuck in this bloggers mind like a splinter. The issue is vexing because the United States Federal government has clearly usurped sovereign State prerogatives on the issue while simultaneously trampling upon individual civil rights to equal protection under the laws of the United States as well as the fundamental Constitutional right to freely and peaceably associate with whomever one wishes to associate with. That said, the issue is, in this blogger’s opinion, best analyzed pursuant to the Full Faith and Credit Clause of the Constitution of the USA.

The Defense of Marriage Act (DOMA) currently prohibits the United States Federal government from recognizing a marriage or civil union between two individuals of the same sex. Most legal scholars approach the issue of same sex marriage and the preclusion of Federal recognition from a civil rights perspective. Although this blogger wholeheartedly agrees that LGBT rights issues do generally fall under the umbrella of civil liberties, the ramifications of DOMA upon the sovereign American States is the most unfortunate aspect of the current state of affairs.

To quote directly from Wikipedia.com:

In Massachusetts, Connecticut, Iowa, New Hampshire, Vermont, and Washington, D.C., marriages for same-sex couples are legal and currently performed.

This is important to note as there are American States which explicitly prohibit the recognition of marriages between two people of the the same sex. Conversely, as noted above, there are currently five (5) states which allow same sex marriage. This has lead to a situation in which there is little interstate uniformity regarding this issue. As their site puts things so succinctly it may be best to quote Wikipedia.com’s entry on this issue further:

There has been much speculation on the clause’s possible application to same-sex marriage, civil union, and domestic partnership laws and cases, as well as the 1996 Defense of Marriage Act (DOMA) and the proposed Federal Marriage Amendment. Between 1996 and 2004, 39 states passed their own laws and constitutional amendments, sometimes called “mini DOMAs,” which define marriage as consisting solely of opposite-sex couples. Most of these “mini DOMAs” explicitly prohibit the state from honoring same-sex marriages performed in other states and countries. Conversely, several states have legalized same-sex marriage, either legislatively or by state supreme court judgment.

The United States Supreme Court has not ruled on how (if at all) these laws are affected by the Full Faith and Credit Clause. However, in August 2007, a federal appeals court held that the clause did require Oklahoma to recognize adoptions by same-sex couples which were finalized in other states.^[18]

If the Full Faith and Credit clause is given its traditional interpretation, it has no application to same-sex marriage, and the DOMA legislation is superfluous and even dangerous, as it may lead to a misconstruction of the Full Faith and Credit clause. If a state is required to recognize a same sex marriage, it will be pursuant to the Equal Protection Clause, as was the case with respect to interracial marriages.

The final paragraph of this citation is most notable to this blogger as it is the section in which he is in disagreement. To understand the reasoning behind this blogger’s disbelief in the assertions stated in this Wikipedia.com posting one must first read the actual text of the Full Faith and Credit Clause of the US Constitution:

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.

It is virtually self-evident, in this author’s opinion, that the plain language of the Full Faith and Credit Clause will compel broad recognition of same sex marriage in the USA. Rather than looking at the issue from a civil rights perspective (which requires lengthy analysis into what are, in this author’s opinion, superfluous issues such as personal or religious feeling regarding same sex marriage which have no place in a reasoned legal analysis of the issue) simply examine the plain language of the Clause itself. The clause explicitly states that Full Faith and Credit SHALL be given to the public RECORDS of every other State.

What does this mean from a practical perspective? To use a hypothetical: two people of the same sex go to the State of Iowa (a jurisdiction which, according to a citation above, both recognizes and solemnizes same sex marriage) and get married. To quote the official Iowa County, Iowa website:

Iowa Vital Records are official registrations of births, deaths and marriages. Certified copies of Vital Records can be obtained from a County Recorder’s office or the Iowa Department of Public Health.

Once an official record is made of a registered same sex marriage does not the Full Faith and Credit Clause operate to compel interstate recognition of such a record? One would think, but there are exceptions to this kind of broad application of the Full Faith and Credit Clause as States which have clear public policies in conflict with foreign State Judgments, Acts, or Records may be permitted to ignore such Judgments, Acts, or Records (foreign judgments always seem to be accorded more preference from an interstate enforcement standpoint).

InterState recognition of same sex marriage, or as this blogger prefers to refer to it: Horizontal Full Faith and Credit of same sex marriage; is not really the main thrust of this post as the more pressing concern for the purposes of this article is Federal recognition of same sex marriage notwithstanding the Defense of Marriage Act (DOMA). The interstate implications of some states fully recognizing same sex marriage while other states fail to recognize such unions are interesting topics, but the main issue of this posting is what this blogger refers to as Vertical Full Faith and Credit. Namely, Federal recognition of same sex marriage lawfully solemnized in a sovereign State. Since when was the United States Federal government able to pick and choose which State laws it was willing to recognize? To quote directly from USLegal.com:

The full faith and credit doctrine as applicable to the federal courts in recognizing the records and judicial proceedings of state courts is contained in 28 U.S.C. § 1738.  The full faith and credit rule pertains to recognition by state courts of the records and judicial proceedings of courts of sister States; this includes every court within the United States.  This provision also includes recognition of the records and proceedings of the courts of any territory or any country subject to the jurisdiction of the United States.  By this provision, the federal courts are also bound to give to the judgments of the state courts the same faith and credit that the courts of one State are bound to give to the judgments of the courts of their sister States…

Pursuant to a plain language analysis of the Constitution it is this author’s opinion that the Defense of Marriage Act is unconstitutional as it requires the Federal government to disregard the Acts, Records, and Judgments creating same sex marital relationships within the jurisdiction of Sovereign States in direct violation of the plain language of the Full Faith and Credit Clause itself. Although there is a Civil Rights perspective to this issue, the major point that should not be overlooked is that fact that the US Congress is attempting, through enforcement of the Defense of Marriage Act, to dictate to the States what shall constitute a valid marriage. In the past, legalization and solemnization of marriage was within the exclusive bailiwick of the State especially as such matters tend to pertain to public health and safety issues.

This has very large practical implications especially for same sex bi-national couples as the Federal government, pursuant to DOMA, cannot grant American family visa benefits to the same sex partner of a US Citizen (notwithstanding the fact that the couple may have solemnized a legally binding marriage within one of the sovereign American States that allows same sex marriages). Hopefully this injustice will be dealt with soon as it is unfortunate that the rights of the States and the people are being disregarded as a result of DOMA’s continued enforcement.

In recent months, efforts have been made to pass legislation such as the Uniting American Families Act (UAFA). Bills such as this would mitigate some of the discrimination which is routinely deployed against same sex bi-national families as the language of the proposed bill (and that of those similar to it) would allow for the “permanent partners” of American Citizens and lawful permanent residents to apply for US visa benefits in much the same manner as foreign fiancees and spouses of US Citizens and lawful permanent residents. This legislation, and that like it, is a good step in the right direction, but it does not address the myriad legal rights and privileges routinely deprived to same sex couples under the current Federal regime.

For related information please see: Same Sex Partner Visa.

Tags: Civil Union, Full Faith and Credit, Full Faith and Credit Clause, Gay Rights, gay visa, Horizontal Full Faith and Credit, Lesbian Visa, LGBT Rights, lgbt visa, permanent partner, Same Sex Bi-National Couple, Same Sex Bi-National Couples, same sex civil union, Same Sex Marriage, Same Sex Partner, same sex visa, States' Rights, transgender visa, transsexual visa, US Constitution, Vertical Full Faith and Credit
Posted in Editorial, General Legal Information, Legal Opinion, lgbt immigration, Miscellaneous, News, Opinion, same sex visa | No Comments »

In recent postings on this blog this author has discussed the Defense of Marriage Act (DOMA) and the ongoing US Court proceedings that are aimed at overturning this legislation in order to accord same-sex bi-national couples with privileges equal to their different-sex counterparts. Recently, a Court in Massachusetts found that the provisions of DOMA run contrary to the United States Constitution. As a result, this decision could greatly modify the framework by which Immigration petitions are adjudicated. Apparently, the Court wishes to delay radical modification of US Immigration law and procedure until such time as all issues can be addressed in an appellate proceeding. It would appear that many same-sex bi-national couples are waiting with baited breathe to see the practical implications of the recent Court decision overturning certain aspects of DOMA. However, there is some delay as the Immigration Equality blog explains.  To quote directly from the Immigration Equality blog as of July 27, 2010:

Many of you have had questions about the status of the DOMA case. Just like you, we are waiting for the court to issue an order which should be happening any day now. Once the order is issued, there will be an automatic 14 day stay. We are almost certain that during that 14 day period, the government will file an appeal and we are almost certain that the stay will remain in effect during the course of the appeal. But we will keep you updated as soon as we learn of any further developments.

Those reading this post are probably curious about the practical ramifications of the “stay” of this decision. The “stay” means that the current mechanism for adjudicating US Immigration petitions will remain in place, at least for now. Therefore, those Americans and Lawful Permanent Residents with a same sex loved one living abroad will still be unable to petition and apply for same sex family visa benefits pursuant to the provisions of DOMA. Many feel, and this author concurs, that the American appellate courts, including the United States Supreme Court, are likely to find DOMA unconstitutional pursuant to American legal doctrines such as “Full Faith and Credit” and “States’ Rights“. However, as the issue remains unresolved it is unwise for anyone to make any irrevocable decisions regarding US LGBT Immigration until a final judgment is handed down without reservation.

It should be noted that judicial intervention is not the only method available for those wishing to see same sex visa benefits accorded in the same manner for those in a same sex marriage or relationship as those in a different sex marriage or relationship. The Uniting American Families Act (UAFA) would provide a statutory framework whereby same sex “permanent partners” could be granted the same Immigration benefits as those in a different-sex marriage or relationship. Although UAFA-like legislation has seen unfailing support from legislators such as Jerry Nadler, many feel that the issue of LGBT Immigration rights will ultimately be adjudicated by the US Courts.

Tags: Defense of Marriage Act, DOMA, Federalism, Full Faith and Credit, Gay K1 visa, gay us visa, lgbt immigration, LGBT K1 visa, LGBT US Visa, Same Sex K1 visa, Same Sex Marriage, same sex visa, States' Rights, uafa, Uniting American Families Act, US Constitution, US Court DOMA, US LGBT Immigration
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