All Congress has the power to do is decide the form that proof of marriage should take. They - and the other states - don’t have the power to decide that some California marriages don’t count.

They don’t have the power to decide within California that they don’t count; they do have the power to decide that they won’t count in other States outside of California. The FF&C clause is quite explicit on that account. Contracts are artifacts of State law, hence the Federal ability to determine how they are applied outside of the State in question.

What FFaC permits is for Congress to define the effect of the contract, but not the validity.

Except that it does allow it to define validity; as contracts are artifacts of State law, their application (i.e., validity) outside of their originating jurisdiction is entirely at the pleasure of Congress; the provisions of Article IV allow for a rule of thumb that contracts shall be honoured outside their originating jurisdictions except where Congress says otherwise, as it has with the DOMA.

A FFaC compliant DoMA can’t dissolve the contract. The marriage contract must continue to exist. From there, the rest of the Constitution can deal with it.

What FFaC permits is for Congress to define the effect of the contract, but not the validity. That the states are trying to define two different classes of the same contract is where the other problems are.

*snort* Whatever. The Federal DOMA was passed under Article IV, which allows it to regulate in what manner intrastate contracts may be applied in interstate matters: […] Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. See also story, end of. Because the statute applies generally to marriage contracts throughout the United States, it is a thoroughly unpleasant but totally legal law.

You elided the part that actually makes it unconstitutional: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

All Congress has the power to do is decide the form that proof of marriage should take. They - and the other states - don’t have the power to decide that some California marriages don’t count.

Only in the eyes of the most constitutionally ignorant neo-conservative.

*snort* Whatever. The Federal DOMA was passed under Article IV, which allows it to regulate in what manner intrastate contracts may be applied in interstate matters: [...] Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. See also story, end of. Because the statute applies generally to marriage contracts throughout the United States, it is a thoroughly unpleasant but totally legal law.

It falls somewhere pretty close to thinking that saying the United States is a “Christian Nation” somehow means it’s okay to pass laws favoring Christianity at the expense of other laws doesn’t violate the 1st Amendment.

This doesn’t even make sense grammatically, but I think I get what you’re saying. You’re attributing ideals and motives to me which I don’t possess.

The DOMA is fully legal and Constitutional. That does not mean it is moral or ethical; the CoTUS and law are not morality writ large. Please don’t lump me in with Dominionists because I happen to understand the difference between what is real and what I would wish to be real.

I am suggesting that the court system use its judgment better.

Which, again, is a dancing-around-it way of saying that the courts should reject their duty in favor of pandering to the popular will. What else do you mean by “use its judgment”? (I’m still trying to figure out where you got the idea that courts actually go out of their way to tweak people.)

Yes, the people of California could amend the Constitution. That would suck. However, it would be the legally appropriate response. Asking courts to engage in judicial activism in order to reach legally indefensible, intellectually dishonest but “popular” decisions is laughably inappropriate.

There must be a lot of those, then. DOMA has been challenged in several state courts and has always been upheld; several DOMA cases have come to the Supreme Court’s attention and have always been declined for review.

You can’t have it both ways. If the courts are the ones who get to decide that the laws aren’t constitutional (and they are, both according to me and according to your own comments above), then when they uphold them, that means they ARE constitutional. There are lots of interesting legal theories about why DOMA doesn’t pass muster; those theories have the same force as all the legal theories about why Roe v. Wade was wrongly decided: zip.

Wouldn’t work - the Federal DOMA would prevent it. Unfortunately, the DOMA is a fully Constitutional piece of legislation.

Only in the eyes of the most constitutionally ignorant neo-conservative. It falls somewhere pretty close to thinking that saying the United States is a “Christian Nation” somehow means it’s okay to pass laws favoring Christianity at the expense of other laws doesn’t violate the 1st Amendment.

When the court is significantly out of step with the country on its underlying basis of beliefs, on which said court bases its opinions, problems come up. Lest you think I am arguing this on a conservative basis, i generally see this as a fairly even handed issue, and first became aware of it in a criminal justice/liberal sense.

An easy example might be this: What is “cruel?” What is “unusual?” Those are NOT words with an objectively obvious meaning; they vary by society, by decade; they vary by location. It is simple to imagine a court which could produce a very problematic ruling in that area. Similarly, what is an “unreasonable” search? How far can cops go in making Terry stops; how difficult is it to search people based on minimal premises? Do you get to pull someone over for little reason, and search their car?

There is usually a large gray area. And people will always get pissed off–liberals by conservative judges, conservatives by liberal judges. But i do believe that there are situations (and gay marriage is not one of them, btw) where courts diverge so strongly from the underlying moral and ethical wishes of their population, that it is improper.

At this point I’m amazed that some couple from Massachusetts hasn’t, in fact, moved to some other state and then sued for recognition as being married under the “full faith and credit” clause in the Constitution. I figured they’d win and then we’d see a Constitutional amendment banning recognition of same-sex couples as being married quickly be presented in Congress. See who wants to vote up or down on that one ….

And now that I think of it, the “full faith and credit” clause applies to the states but not to the Federal government. So that couple could move to Utah and sue the State of Utah to recognize them as married, but that clause doesn’t seem to permit them to successfully sue, say, the IRS to so recognize them.

Wouldn’t work - the Federal DOMA would prevent it. Unfortunately, the DOMA is a fully Constitutional piece of legislation.

At this point I’m amazed that some couple from Massachusetts hasn’t, in fact, moved to some other state and then sued for recognition as being married under the “full faith and credit” clause in the Constitution. I figured they’d win and then we’d see a Constitutional amendment banning recognition of same-sex couples as being married quickly be presented in Congress. See who wants to vote up or down on that one ….

And now that I think of it, the “full faith and credit” clause applies to the states but not to the Federal government. So that couple could move to Utah and sue the State of Utah to recognize them as married, but that clause doesn’t seem to permit them to successfully sue, say, the IRS to so recognize them.

Mythago, in saying “alienated” I was alluding to the point that Sailorman made about the courts working from sets of facts that the general population finds alien or just wrong. Read his comment (way back at #4). Your understanding of what I have said, and your “summing up” of it, are laughably wrong. I am not suggesting that the court system must refrain from using its judgment and instead slavishly follow popular opinion; I am suggesting that the court system use its judgment better. “Stop passing set-fire-to-$50T bills” is not telling Congress to stop using its power, it’s telling Congress to use its power with greater wisdom.

I’ve tried to avoid tying this to the direct case of the California situation because I wanted to argue conceptually, but what the hell. In California, the court has overridden the compromise that the populace and the legislature had come to. (And yes, FCH, they have the power to do that. That isn’t at issue.) In doing so, they have made it likely, although by no means certain, that the populace will push back and override their override - with the result that California will bar gay marriage AND civil unions. (Civil unions, the court just smashed. Gay marriage, the amendment will prohibit.)

If the no-gay-marriage amendment passes, activists and the legislators can, of course, go back and re-institute civil unions *again*, through the same process - but it took years and many many person-hours the first time. What a huge pain in the ass for the activists in California who, I suspect, might have agendas other than “redo what I just spent the last decade doing”. And, if the right-wing elements in California are sufficiently energized by this whole brouhaha, even that recreation may not be possible. It was pretty difficult to do the first time around.

Courts should not slavishly follow the popular will, but they should be cognizant of the fact that the populace does have a will, and does not have to just sit quietly and say “yes, sir” when the court makes a ruling. In the case of CA, the court’s action is likely to lead to a huge net decrease in the civil rights enjoyed by gay Californians. By insisting on a (maybe or probably) unattainable perfect, they have dashed the good out of the hands of millions of people.

It is not a jackbooted threat to notice that that type of boneheaded stupidity is not likely to boost the public’s trust in its judicial institution.

I mean, you might be able to make the case that, say, Roe v. Wade was judicial activism (I believe that it was an important step and a good decision, but I always think the legal justification was kind of convoluted), but saying that marriage is included under the equal protection clause is pretty-damned-obvious in the wording of the constitution.

Don’t like it? Amend the constitution, and go down in history as the people who decided that “equal protection” in the constitution was a bad idea.

The mistaken belief is that the Judiciary lacks the authority to completely strike down a law that was passed by the Legislative branch. Without the authority to do so, there is no effective ‘check’ against the power of the Legislative branch to pass such a law. But it is precisely the authority of the Legislative branch to pass laws which creates for the Judiciary, in our system of checks and balances, the very need to be able to strike down those laws.

It took federal troops to enforce Brown vs. Board of Education.

The decision in Worcester v. State of Georgia was basically ignored.

And, of course, the most infamous case of “judicial activism” in United States history is the decision in Dred Scott vs Sandford.

it shouldn’t go out of its way to be alienated from the population it serves

Out of its way? Are you really meaning to imply that the courts are intentionally making unpopular decisions just to piss people off?

Again, you’re suggesting that courts engage in judicial activism if obeying their Constitutional mandate doesn’t mesh with popular approval. Therefore, to avoid being replaced with some other system, the courts should err on the side of pleasing the greatest number of people.

To sum up: we must destroy the judicial branch in order to save it.

That’s because, strictly speaking, the U.S. is not a “democracy” as much as it a “constitutional republic,” precisely because constitutional guarantees trump democratic majorities.

This is a Right wing trope that I wish liberals would be less eager to parrot. You might as well say the U.S. is not “free” because there are laws against murder.

That’s not to disagree with the ruling. But there’s a right way and a wrong way to defend an independent judiciary.