Wouldn’t it be nice if the Court actually USED the Constitution they are there to interpret? The gay marriage issue is simply not that hard.
Here’s the deal. The Constitution created a government of limited, enumerated powers. If a particular power was NOT granted TO the feds, it is RESERVED to the States and to the People. That’s the 10th Amendment, part of the Bill of Rights, and something without which the Constitution NEVER would have been ratified and the US not come into existence.
Is “Marriage” mentioned in the Constitution? No.
So does the Federal Government have ANY say in it? No.
So the correct action by SCOTUS is pretty easy to grasp: Dismiss the CA Prop 8 case and vacate the ruling of the 9th Circuit and any other Federal Court on gay marriage & overturn DOMA by declaring the issue a 10th Amendment issue over which neither SCOTUS nor any other branch of the federal government have jurisdiction, declare that Full Faith and Credit does NOT apply to marriage – as marriage is beyond the scope of the federal government, and then note that it’d be fine if Congress wanted to re-write the tax code to eliminate ANY reference, penalty or benefit based on the marital status of someone, something NOT the business of the federal government.
This just is NOT that difficult.
People will raise the issue of Full Faith & Credit, insisting that, if one state recognizes gay marriage via their legislative branch, all others will have to do so, as well. Wrong again: ”
Although the Court was engaged in statutory interpretation in Mills, the Court eventually characterized Mills as a constitutional decision, in the 1887 case of Chicago & Alton v. Wiggins. During the following decades and centuries, the Supreme Court has recognized a “public policy exception” to both the Full Faith and Credit Clause and the accompanying federal statute. In 1939, the Court in Pacific Employers Insurance v. Industrial Accident wrote:
[T]here are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. See Wisconsin v. Pelican Insurance Co., 127 U.S. 265; Huntington v. Attrill, 146 U.S. 657; Finney v. Guy, 189 U.S. 335; see also Clarke v. Clarke, 178 U.S. 186; Olmsted v. Olmsted, 216 U.S. 386; Hood v. McGehee, 237 U.S. 611; cf. Gasquet v. Fenner, 247 U.S. 16. And in the case of statutes…the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.
The Supreme Court continues to apply its public policy exception differently for state judgments as compared to state laws. In the 2003 case of Franchise Tax Board v. Hyatt, the Court reiterated that, “[o]ur precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments.”
And to make this even more current – One state need not recognize a concealed carry license from another state, seemingly on its face a violation of FF&C; and I don’t see many advocates of gay marriage complaining about that.