ABA Journal


U.S. Supreme Court

You won’t see these words in Kennedy’s DOMA decision

Jun 27, 2013, 10:50 am CDT


Have to love empirical legal scholarship.

By Pushkin on 2013 06 27, 12:33 pm CDT

Though "argle-bargle" is a pretty good and concise summary of Justice Scalia's views on the topic. He could have saved some text in his dissent and reached his point earlier.

By NoleLaw on 2013 06 27, 12:51 pm CDT

I'm going to argle-bargle later, with mouthwash, after I brush my teeth.

By Existential Yam on 2013 06 27, 1:50 pm CDT

I'm reasonably certain I didn't see the word antidisestablishmentarianism either, nor hexadecimal, spatula, or flyswatter.

By OKBankLaw on 2013 06 27, 1:53 pm CDT

Nor did we see meaning reference or discussion of the "full faith and credit" clause as that issue was not before the court in these cases, but I predict that this clause will form the basis for court cases requiring non - recognition states to recognize the validity of gay marraiges of couples in a recognition state who later relocate to a non-recognition state. The "full faith and credit" argument will be cojoined with an equal protection argument, inasmuch as all of the non-recognition states recognize and honor the marraiges and divorces of heterosexual people relocating to their state so long as the marraige/divorce complied with the jurisdiction of residence/domicile at that time, even if the laws of the two states are in conflict and the relocated state would not sanction a marraige ( e.g. first cousin, 14 yr. old,etc.) or the divorce ( e.g. no fault ).

By J.E. Fink on 2013 06 27, 5:02 pm CDT

Perhaps an easier solution to equal protection would be to eliminate all perks the marrieds have that the same sex couples do not have .

By Docile Jim Brady – Columbus OH 43209 on 2013 06 27, 10:35 pm CDT

J.E. Fink, you hit that nail on the head. Here's one scenario. Same-sex couple marries legally in NY and then comes to Tennesse, because one spouse is transferred there by, say, IBM. They establish residence and file a joint income tax return. The DOMA case decided yesterday ostensibly allows them to do so, but because they aren't considered married under Tennessee law, and the IRS looks to state kaw, they cannot file jointly. At that point, they should think about suing to invalidate section 2 of DOMA, which provides that states not recognizing same-sex marriages as valid do not have to honor same-sex marriages contracted in states that do. That provision sounds like a violation of the Full Faith and Credit Clause, IMHO. Coupled with the fact that there is an equal protection argument involved as well, BINGO!

By get a grip on 2013 06 28, 2:10 am CDT

I couldn't agree more with J.E. Fink (#s 5 and 7). Ever since people in Massachusetts started marrying folks of the same sex some years ago, I've been wondering why the Full Faith & Credit Clause doesn't flatly forestall a lot of the national debate about honoring or not honoring other states' marriages. (And I wondered how DOMA could survive federalism principles, too; to my knowledge the feds never even tried disregarding common-law marriages whenever some states recognized them.)

I'm looking forward to a pithy, punchy case that applies the Full Faith & Credit clause to a case of a state dishonoring a validly contracted same-sex marriage, reaching a slam-dunk conclusion in a few pages. I think it would be satisfying for the judge just to write it, and I'd be delighted to read it.

By Avon on 2013 06 29, 2:30 am CDT

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