Law and Marriage

Townhall.com ^ | July 13, 2010 | Cal Thomas

[OldDeckHand]

"Then why does the federal government ban bigamy?"

There is no federal criminal statute for bigamy. Yes, there are federal rules (administrative laws) that prohibit the federal government from recognizing plural marriages for the purposes of immigration. As I spelled out just above, since immigration is an activity that is left solely to the discretion of the federal government, there is no 10th Amendment issue at stake.

The last of the federal anti-polygamy statutes that applied to the states was repealed in the 1970s. It was called the Edmunds-Tucker Act. It's no longer "good law".

"If you had read Reynolds all the way through, they address your argument."

Yes, you keep saying that. I have read Reynolds now, twice. It doesn't say what you're asserting. Perhaps you'd like to share with us the passage of the opinion that you believe may be relevant. However, repeating "Just read the case", isn't going to cut it.

Furthermore, the concepts of "legal holding" and "obiter dicta" may be unfamiliar to you. In short, the legal holding in a Court opinion is the part of the opinion that addresses the legal questions set-forth in the case, and is the only part of the ruling that is binding on all lower Courts. I have previously indicated to you what the questions were in the Reynolds case. They weren't as you assert.

[OldDeckHand]

"So DOMA is legitimate as applies to immigration law because that is a federal power per the constitution."

DOMA isn't relative to US immigration laws.

More to the point, for a federal statute to succumb to a 10th Amendment attack, it must meet the minimal requirements set-forth in US v. Bongiorno. As such, any immigration statute wouldn't meet those tests, to include any immigration statutes that address marriage.

[Valpal1]

Alright, then does the Federal Government have the power to define marriage for the purpose of qualifying for various federal intitlement programs as well as tax filings?

Or do gay married couples from MA get to file as married, while gay couples from other states that don’t recognize their unions do not?

And doesn’t that just mean that basically, MA gets to force their definition on everyone else?

[OldDeckHand]

'Alright, then does the Federal Government have the power to define marriage for the purpose of qualifying for various federal intitlement programs as well as tax filings?"

Well, if you believe Tauro, probably not.

"Or do gay married couples from MA get to file as married, while gay couples from other states that don’t recognize their unions do not?"

That is exactly how it would work in theory. You see, the federal government would be required to accept any marriage certificate issued by any state. There is some debate if other states would be forced to recognize marriage certificates issued by other states.

This part of DOMA has yet to be litigated. I would opine that if other states aren't required to recognize the gun licenses issued by other states (or any number of other types of licenses), then why would a marriage license be any different? I don't think it should.

Just like VA will - with limitations - accept and recognize a FL concealed carry license, VA could also accept and recognize Florida-issued marriage licenses.

In that regard, homosexual marriages would "only be forced" on the residents of the states that recognize homosexual marriage.