Bill:

Your memory serves you well.

One should note that this Congressional "resolution of the problem" may have a
lot more to do with and effect in politics than to do with and effect in law.

USA Constitution Article IV, section 1 says in whole:

"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."

The Act of Congress which attempts to assign zero effect seems identical to or
perilously close to preemption.   Since federal preemption of State laws
generally is not favored.  Outright disfavor is the rule when the State law is
clearly within the purview of a State's authority and the preemption is not
clearly based on any of the narrow or broad federal authorities.  The USA
Supreme Court, I strongly suspect, will declare this Act of Congress
unconstitutional when the Court gets a chance to do so.

This preemptive effort seems a particularly unlikely winner in front of any
version of the USA Supreme Court.  Much less the first court in 60 years to
declare unconstitutional an Act of Congress based on the Commerce Clause.  Not
to mention this is the same court which has shown renewed interest in the
practice of federalism as expressed in the 11th Amendment (State's sovereign
immunity in federal courts).

I suspect that this Congressional "resolution of the problem" was motivated and
implemented the same way as the Congressional "resolution of the problem" of
smut on the internet:  i.e., knowingly unconstitutional enactments for public
consumption and certain judicial repeal.  The only difference in practice is how
swiftly a plaintiff with standing to sue can be found.  (Senator Exon from
Nebraska championed that folly.  The local Nebraska political climate drifts
between libertarian and populist, and Senator Exon chose a well earned and now
well enjoyed retirement over an attempt at re-election.  Exon's son lost a
re-election bid to the Omaha City Council on another free speech versus smut
issue.  Knowing both of them, I can say with certainty it was personal
conviction, not political gamesmanship, that impelled them towards to voter
rejection.)

If my memory serves, then in Hawaii the State Supreme Court, relying on the
--State-- Constitution's privacy provision and --State-- Constitution's equal
protection clauses, ruled unconstitutional a long standing, but unchallenged,
existing statute barring same sex marriages.  In recognition of the surprise
this ruling would produce and with respect for the separation of powers,
especially the power of the People who placed the privacy provision in the State
Constitution, the Hawaii Supreme Court allowed the Legislature a reasonable (and
defined?) time period to "resolve the problem."  The Legislature worked as one
might suspect when forced to address a real issue of import rather than work on
manufactured political photo opportunities:  they fought like jackals until they
were exhausted, and then referred the issue to the People for a vote to amend
the Constitution so as to not require same sex marriages to comply with the
privacy and equal protection provisions.  I can not recall if that vote has
happened, but I think it has, and I think the vote was a vote to not require
same sex marriages, instead of a vote to Constitutionally prohibit same sex
marriages.  (But, on that item I am least confident.)  Thus, Hawaii returns to
the status quo and extinguishing standing to sue to challenge the federal law
denying a marriage in all States when one is married by one State.

Generally, as one moves from east to west in the USA and moves to a later date
of admission to the Union, a State's Constitution is more likely to contain a
privacy clause (there is none in the USA Constitution) and that privacy clause
is more likely to be a strong privacy right rather than a weak privacy right
(ala the implied USA right to a "reasonable expectation of privacy).  If memory
serves, Alaska's Supreme Court has ruled that the Alaska Constitution's privacy
clause did not prohibit a legislative bar to same sex marriages.  That leaves
Arizona and California as the most likely State Constitution breeding grounds
for a plaintiff with standing to sue to challenge the constitutionality of
Congress' determination of "the Effect thereof" as zero.

History is sometimes useful in an effort to understand today.

At the start of the USA Civil War where was one-fourth of the USA Army?
Who was/is Chair of the USA Senate's Judiciary Committee?
What religion needed a divine revelation in order for a Territory to join the
Union as a State?

The USA Army was enroute to the Utah Territory to put down widespread
lawlessness in the form of polygamy.

Utah's Senator Orin Hatch (now running for President) was and is the Chair of
Senate's Judiciary Committee.

Mormons received a revelation that polygamy was no longer necessary since they
had reach the safety of Zion.  (Polite folks, like those in Omaha, merely left
the Mormons encamped at the outskirts of town to die of starvation and freezing
weather in the coldest winter of record.   Many folks between New York and Utah
were not polite because of the polygamy issue.)

Utah comes the closest of any USA State to having a State Church.  While in Salt
Lake City the ratio of Mormons to gentiles is less than 50-50, in most of the
less urban areas the ratio is between 90-10 and 99-1.  At the time of admission
to the Union there were far fewer gentiles in Utah.  When I lived in SLC during
the 1960s the SLC ratio was 70-30.  Due to the Full Faith and Credit Clause's
application to marriage law and due to the State Church role the Mormon Church
played in Utah, Utah was not going to be admitted unless the Mormon Church
changed its doctrine.

As everyone knows, God works in mysterious ways, and today Utah is a State.  Not
so oddly, Utah takes special interest in the Full Faith and Credit Clause.
Given the political and the religious predilections prevalent in Utah, how do
you think a western State like Utah views the question of gay marriages?

Again let's turn to history.

Why does anyone live in Nevada?
Why do so many folks live in California?

Yep, Full Faith and Credit Clause (No, not gambling IOUs).

Nevada residents realized they lived someplace with lots of sand and not much
else.  So, what ya going to sell?  Divorces and Gambling.  Divorces to bring 'em
in and gambling to clean 'em out.

Just as with marriages, if you are divorced in one State, then you are divorced
in all States.  Unless, of course, you make the mistake of going "home".  Home,
you know, that State you came from to get a divorce in Nevada because your State
of origin did not offer the service of divorce.  In which case, upon your return
"home" some folks were prone to say nasty words like "fraud on the court" and
(purely as a legalism of course) assert insufficiently minimal "substantial
minimal contacts" for the Nevada to establish jurisdiction over the marriage to
divorce it.  Hence, if you really wanted to get divorced in Nevada you had to
stay for a while (and what else is there to do but gamble away your small nest
egg), and then -not- go "home."   Well, for most sane folks who found themselves
in Nevada, divorced, and broke, asked themselves the question:  What now?  Since
they were sane, staying in Nevada was not the correct answer.  (Remember this is
prior to a completed interstate road system and prior to ubiquitous and cheap
airfares.)  Since they could not "go home", they went to LA.

It took awhile, but slowly the other States came to realize that to serve their
"voting with their feet" customers better, the State's politicians were going to
have to swallow real hard and say "divorce is a family value".  The alternative
was to face a continuing and growing hemorrhage of productive citizens.  (If you
check, you will find that most State legislators are grandparents, and this too
may have clouded their judgment.)  Hence, the wave of no fault divorce laws so
you could stay at "home" and move back in with your parents.

Which brings us back to gay marriages.  The fight to the death approach on both
sides is based on an understanding of history.  Once one State recognizes as
lawful gay marriages it is an inevitable economic domino effect that all States
will perform lawful gay marriages.

If memory serves, the Hawaii amendment did not deny the legislature the future
choice of gay marriages.  It put that day off.

So, when the recession comes (you remember recessions), do you think the tourism
industry dependent Hawaiian economy will keep putting that day off?  Do you
think Hawaiian members of the Congress and Senate will not be able to get a
little more out of the federal appropriations process by just hinting they might
not see all the evils others are prone to see?

You know, I never could understand why my Mother told me never to bring up
politics or religion.  Without both of 'em, how are you gonna have any fun?

Michael
[log in to unmask]

P.S.:  can you tell I just finished grading midterms and that UNO is on a new
weird tradition of a two day "fall break"?










"William McDevitt, MIS Department" <[log in to unmask]> on 10/14/99
08:28:26 PM

Please respond to "Academy of Legal Studies in Business (ALSB) Talk"
      <[log in to unmask]>








 To:      [log in to unmask]

 cc:      (bcc: Michael O'Hara/CBA/UNO/UNEBR)



 Subject: Re: Query









Anne:

         If my memory serves me correctly, I believe that although the
state law was passed, Congress passed a law exempting state marriage laws
from the "full faith and credit" clause of the Constitution so that
same-sex marriages in Hawaii need not be recognized in other states.  My
memory is fuzzy on this, and there may have been appeals.

                                 Bill

At 07:06 PM 10/14/1999 -0400, you wrote:
>Please email reply to:  [log in to unmask]
>
>Can some of the clever ALSB members give me some information?
>
>I thought Hawaii had just or was just about to recognise same sex
>marriages, and my understanding of the USA federal system was that if the
>marriage is recognised in one state then it has the same status in any
>other state? Can anyone give me more info on this?
>
>The position is Australia is that only the Federal government can make laws
>for marriage, divorce and matrimonial causes.Section 46 of the Marriage Act
>1961 tells us that   "Marriage, according to law in Australia, is the union
>of a man  and a woman to the exclusion of all others, voluntarily entered
>into for life."; or words to that effect." This definition is taken from a
>common law decision in the UK in the nineteenth century.
>
>
>I tripped across this in the course of doing some work on de facto
>relationships and I would really like to know more about the USA position.
>References to any useful web sites on family law would also be much
>appreciated.
>
>Thanks,
>AM
>
>
>Anne Maureen Scarff
>School of Economics and Finance
>University of Western Sydney Nepean
>Post Office Box 10, Kingswood 2747
>Australia
>Phone 61 2 9852 5630
>Fax 61 2 9852 5644
>"Caution: Cape does not enable user to fly."
>-Batman Costume warning label