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 »

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 »

While online this blogger came across an interesting article regarding same sex marriage in the United States of America and the campaign to equalize marital rights for same sex couples. It would appear that Ms. Barbara Bush (no, not the former First Lady, but her granddaughter) has come out in favor of marriage equality. To quote directly from an article written by Candace Chellew-Hodge posted on the website religiondispatches.org:

First, it was Arizona Senator John McCain’s daughter Meghan who came out as a young Republican in full support of marriage equality for gays and lesbians. Now, the youngest daughter of former President George W. Bush is—like her mother Laura before her—publicly proclaiming her support for marriage equality. In a video released this week by the Human Rights Campaign, Barbara Bush, proclaims herself “a New Yorker for marriage equality.”

It is interesting to note that the issue of marriage equality does not seem to conjure up the same sort of reaction from members of different generations. Where at one time, the issue of same sex marriage and LGBT rights were once quite controversial, especially within the Republican Party, now it would appear that more cooler heads are prevailing on the subject as even religious people who have personal issues with the practice understand that personal liberty and the right to be with people that one loves are fundamental to both the human experience and the American Dream. However, not everyone feels the same way as a further quote from the aforementioned website points out:

Over at Focus on the Family’s Citizen Link, blogger Jenny Tyree isn’t surprised at Ms. Bush and Ms. McCain’s support for marriage equality. “It’s rather easy for 20-somethings—or millennials—to jump on the very tidy-looking ‘rights’ bandwagon that proponents of same-sex marriage have made marriage to be,’ she writes, rightly observing that the majority of people aged 18-29 support marriage equality.

Those reading this posting are well advised to go to religiondispatches.org to read the story in its entirety. That said, first, it should be noted that this blogger, a twenty-something, albeit a late twenty-something, himself, hates the use of the term “Millennials” when describing the generation of Americans coming of age in the new millennium. The reason for the dislike of this label stems more from the fact that it makes such people sound like flowers which bloom on a yearly basis rather than a smart savvy generation who can clearly articulate their opinions on a wide array of issues, but this is a digression.

Of interest to those seeking information regarding United States Immigration law is the fact that under the current legal framework of the so-called Defense of Marriage Act (DOMA) the Federal government refuses to recognize the validity of same sex marriage notwithstanding the fact that 5 Sovereign US States currently recognize and solemnize such unions. There are many who would argue that this legislation is unconstitutional on its face as it completely abrogates the States’ prerogatives with regard to marriages conducted within their jurisdiction. Furthermore, it is this blogger’s opinion that this current practice violates the Full Faith and Credit Clause of the US Constitution as well as depriving individuals of their right to equal protection under the US Constitution and the rights conferred under the theory of “substantive due process.” In an immigration context, there have been moves in the US Congress to deal with the issue of same sex bi-national couples. Most notable have been Representative Jerrold Nadler’s attempts to gain passage of the Uniting American Families Act (UAFA) which would create a US Visa category for “permanent partners” of United States Citizens and Lawful Permanent Residents. As of the time of this writing, this legislation has yet to be passed.

Under the government’s view of the law, bi-national same sex couples are not allowed to obtain US family visa benefits equal to those of their different-sex counterparts as doing so would be a violation of DOMA. Hopefully, with the support of a new generation of Americans these issues will be rectified and same sex couples will be afforded the same Constitutional liberties and immigration benefits as their different-sex counterparts.

Fore related information please see: Permanent Partner Visas.

Tags: Barbara Bush, Defense of Marriage Act, DOMA, gay marriage, Gay Rights News, Laura Bush, LGBT Rights, Meghan McCain, permanent partner, Same Sex Bi-National Couples, Same Sex Marriage, uafa, UAFA News, Uniting American Families Act, US Immigration Rights Same Sex Bi-national Couples
Posted in lgbt immigration, same sex visa | No Comments »