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"I find your lack of full faith and credit disturbing"

Former Representative Gerry Studds (D-MA), the first openly-gay member of Congress who "came out" when he was censured for taking a 17-year-old male page abroad, plying him with alcohol, and sodomizing him, may have died last weekend, but he left us one final "gift" with his passing. From beyond the grave, he managed to bring up the issue of gay marriage yet again, with all the thorny legal and ethical and Constitutional questions that come with it.

Studds, after serving in Congress for 24 years, retired in 1997 and started collecting a pension. Then, in 2004, barely a week after gay marriage was legalized in his home state of Massachusetts, he married his longtime companion, Dean Hara. And then, this past weekend, he passed away.

That left a rather thorny question: as the spouse of a former member of Congress, could Hara collect Studds' pension?

The answer was quite simple in coming: no.

There are exactly two circumstances under which a spouse can not collect on a government pension: if either is convicted of espionage or treason, or the spouse is the same sex as the deceased. (The latter clause is due to the Federal Defense Of Marriage Act, signed into law by President Bill Clinton on September 21, 1996.)

In the case of Studds' spouse, it was a simple decision: there was a clear conflict between federal and state law, and under the Constitution's Supremacy Clause, the federal law clearly takes precedence.

But it brought to light that sooner or later, there will be a similar case. For example, here is a very plausible scenario:

Roy Scherer is works for the state of New Hampshire, but lives in Massachusetts. He marries his longtime love, Arthur Kelm. At the age of 65, Scherer retires and chooses to take a lesser pension in exchange for "survivor's benefits" for Kelm. The state of New Hampshire, which refuses to recognize Scherer and Kelm's marriage, refuses. And Scherer takes the state to court.

The state says it's simple: the benefits are strictly for legally married couples, and New Hampshire law specifies that marriage is strictly between a man and a woman. State law says that it won't recognize that marriage, and will not give any recognition, benefit, or approval to a gay marriage.

Scherer's lawyer has his own argument: the two men were legally married in Massachusetts, and under the Full Faith and Credit clause of the United States Constitution, New Hampshire has to recognize the validity of that marriage -- despite existing laws.

At that point, the actions of four-sevenths of Massachusetts' highest court are on the verge of making policy for all 50 states, and trumping the voters of many of those states who specifically passed laws outlawing gay marriage. The alternative could undermine the Full Faith and Credit clause, which is how one can legally drive in a different state, get married (or divorced) in Las Vegas, or a host of different things.

The issue of gay marriage is a tough one, and happens to be one I support. But I want it done right, by and with the approval of the people. The way Massachusetts did it -- through the decision of four of the seven judges on their Supreme Judicial Court because the cowards in the legislature repeatedly refused to act on it and repeatedly killed moves to get it on a statewide ballot -- is simply postponing and worsening the inevitable public debate and decision on the matter.

Thank you, former Congressman Studds, for showing just what a mess it can be. It is only fitting and just that your last "public service" should be such a divisive and messy one.


Comments (46)

<a href="http://www.flc.org... (Below threshold)
BarneyG2000:

http://www.flc.org/hfl/marriage/mar-flf04.htm
Although the Bible identifies many of the blessings and benefits associated with a vibrant and committed marriage, recent research has revealed a few more.

· Married people are much happier and likely to be less unhappy than any other group of people (Waite, 2000). Dr. Linda Waite also found that the incidence of mental illness is lower in married people as compared with unmarried or divorced people.

· Married people live up to eight years longer than divorced or never-married people.

· Married people suffer from long-term illnesses much less than those who are unmarried (Murphy et al., 1997).

· Married men are more financially successful. They earn 10-40% more than unmarried men (Waite & Gallagher, 2000).

· Married people save more. Couples in their 50's and 60's had net worth per person almost double that of divorcees, widows or other unmarried people (Smith, 1995).

· Married people are less likely to engage in unhealthy behaviors such as drug and alcohol abuse.

· People who are married have twice the amount of sex as single people and report greater levels of satisfaction in the area of sexual intimacy.

The benefits of marriage aren't just for the married spouses, either. In addition, the children of married parents (gay adoption, my note) are less likely to...
· engage in criminal behavior
· live at the poverty level
· abuse drugs and alcohol
· experience emotional and psychological problems
· become pregnant out of wedlock
· experience academic failure

By all means, let's prevent a large segment of the population from receiving the same benefits as non-homosexual couples.

Why do you hate Americans?

Sorry Jay but I have to dis... (Below threshold)
jhow66:

Sorry Jay but I have to disagree with you on gay marraige. How many of the "gay" parades like they have in S. F. could you stand. Eeeeu. But again that's what makes the USA the great nation it is-to each his own. Hey! I beat "pucker puss" (lee lee) in making the 1st post.

Barney...yawn...but<p... (Below threshold)
VagaBond:

Barney...yawn...but

Marriage is defined by: The legal union of a man and woman as husband and wife.

Have you stopped beating your gay lover?

Damn!! Old "'google beat me... (Below threshold)
jhow66:

Damn!! Old "'google beat me. Uhhh why would he hate Americans just because he believes in gay marriage? You believe in being a liberal--to you hate Americans? Uhhhh?

"Although the Bible identif... (Below threshold)
Sue:

"Although the Bible identifies many of the blessings and benefits associated with a vibrant and committed marriage, recent research has revealed a few more."

And the bible says that marriage is between a man and a woman. No where in the bible is same sex marriage spoken of or approved of. Indeed homosexuality is considered a sin, and something to flee from and repent of.

There is no proof that same sex marriage will have the same benefits of traditional marriage.

You are grasping at straws when you quote the bible in an argument for same sex marriage.

This matter should be left ... (Below threshold)
Scott in CA:

This matter should be left to the states. Period.

Here in California, we have a Domestic Partner law. DP couples have the same "spousal" rights as married couples. It does not affect federal law.

This DP law, by the way, also applies to hetersexual couples as long as one of them is 62 or older. This enables older people to have "spousal" benefits here without putting their federal survivor's benefits in peril.

The Legislature passed the law. It has since been upgraded twice. It was signed by two governors, including Arnold.

This is how it's supposed to work. Leave the courts out of it.

I don't personally have a p... (Below threshold)
P. Bunyan:

I don't personally have a problem with gay marriage, but I thinl since the vast majority of Americans who've had the chance to vote on the issue oppose it, perhaps a compromise can be reached. For example, allowing gays to enter into something pretty much exactly like marrage from a legal standpoint, but call it something else.

The reason I say this is because I think the reason most people who voted for gay marrage bans did not do so for "biblical" reasons, but instead did so because they feel it somehow cheapens or discredits the institution. I believe that the institution has already been seriously cheapened and dicreditied by the left and the "secular values" (as opposed to moral values) they been pushing on this nation since the 60's and allowing gays to marry will not significantly add to the damage the left and their culture of litigation have already done.

One exception I have is that of gay couples raising children. I believe a lot more research needs to be done to determine whether or not it is detrimental to the child. If reputable, unbiased researchers can demonstrate that being raised by gays does not have any negative, un-intended consequences on the children, than I'd be fine with that too.

Yeah, but why is it so impo... (Below threshold)
VagaBond:

Yeah, but why is it so important to call it marriage? the legality is that marriage is legally defined as a legal union between man and woman.

gays can commit to each other for life and call it anything they want, except marriage, and be just as legal. Someone metnioned the Califonrnia law for Domestic Partners.

On a side note... One thin... (Below threshold)
P. Bunyan:

On a side note... One thing I am very much opposed to is new "rights" being created by judicial diktat, as is the case with gay marriage in Mass. and Roe v. Wade. That is sooooo horribly wrong. fascist, and evil.

Even if it were something I supported, like say for example the Supreme Court ruling that income tax was unconstitutional, I would still say it is worng.

But I want it done right... (Below threshold)
Brian:

But I want it done right, by and with the approval of the people. The way Massachusetts did it... is simply postponing and worsening the inevitable public debate and decision on the matter.

Couldn't you say the same thing about desegregation?

One thing I am very much... (Below threshold)
Brian:

One thing I am very much opposed to is new "rights" being created by judicial diktat, as is the case with gay marriage in Mass. and Roe v. Wade. That is sooooo horribly wrong. fascist, and evil.

But it happens to be the very design of our legal system. Why do you hate America?

"But it happens to be t... (Below threshold)
P. Bunyan:

"But it happens to be the very design of our legal system."

That's clearly untrue. James Madison believed the judicial system, as he and the founders designed it, would be the least dangerous branch of the government.

The left, by appointing so many judicial fascists to the bench (or blocking the appointment of non-fascist judges) in the last 50 years has caused the problems we have today.

The way the founders designed the system the judiciary role was simply to administer the law. The left has changed that so now the judges can create laws and change existing laws if they do not comform to the left's worldview.

I do not hate America. I hate what the modern left wing has done to America.

Very classy post. ... (Below threshold)
jp2:

Very classy post.

Brian you ought to remember... (Below threshold)
cubanbob:

Brian you ought to remember it was the the courts that ruled that segregation was legal in the first place. Plessy vs Ferguson among others.

P. Bunyan,Fascist ... (Below threshold)
John:

P. Bunyan,

Fascist Judges are right wing judges. Please refer to left leaning judges as socialist judges, communist judges, or if you prefer goddless-commie-pinko-fag judges.

Thanks. It's important to keep all of this straight for everyone. Accuracy counts.

John

PS: Please stop hating America. She loves you. Why won't you return her calls?

How about those of us who b... (Below threshold)
ClashCityRocker:

How about those of us who believe that the "Bible" is not the supreme word on everything. To many of us, the "Bible" and I mean the "Old Testiment" is a product of a long oral history of the only true religion. Point being the religous right (Christians) has hijacked the Republican party to the point that if you don't believe their version of the truth you are some how morally corrupt. If you don't believe in same sex marriage, don't marry someone of the same sex.
Whatever happened to Republicans believing in a small government that stayed out of your personal business. Bring back Goldwater!

Clash City Rocker has voice... (Below threshold)
Lee:

Clash City Rocker has voiced what a large number of disenfranchised Republicans are feeling these days -- that the Evangelical Right has driven their ideology too far and deep into the Republican platform.. Is anyone listening?

Clinton on the "Ideological Right":

Clinton said the growing strength in recent decades of the "ideological, right-wing" elements of the Republican Party had been realized in
President George W. Bush's administration and the Republican-led Congress.

"This is the first time when on a consistent basis the most conservative and ideological wing of the Republican Party had both the executive and the legislative branch," Clinton said.

"They believe the country is best served by the maximum concentration of wealth and power in the hands of the right people -- right in both senses," he said.

"They favor unilateralism whenever possible and cooperation when it's unavoidable," he added.

He said the philosophy did not serve the country well.

"If you've got an ideology, you've already got your mind made up. You know all the answers and that makes evidence irrelevant and arguments a waste of time," he said.

Wow, he nailed that one.

Right, but that clarifies m... (Below threshold)
Brian:

Right, but that clarifies my point. Which court was "wrong, fascist, and evil"? The ones who legalized segregation, or the ones who struck it down? If the answer is "the one I disagree with", then that's just a hateful argument, not a legal one.

Lee....If that ideology is ... (Below threshold)
VagaBond:

Lee....If that ideology is based on facts, who cares what others think?

James Madison believed t... (Below threshold)
Brian:

James Madison believed the judicial system... would be the least dangerous branch of the government.

Least dangerous because they couldn't initiate action, they could only react to it. That doesn't mean he thought they would roll over for the legislative or executive branches whenever they disagreed.

The way the founders designed the system the judiciary role was simply to administer the law.

"Interpret" the law. But OK...

The left has changed that so now the judges can create laws and change existing laws if they do not comform to the left's worldview.

Judges have always created laws by their precedents. To claim that this is a "change" perpetrated by "the left" is highly disingenuous, and denies a basic tenet of our judicial system.

Even if it were something I supported, like say for example the Supreme Court ruling that income tax was unconstitutional, I would still say it is worng.

You can certainly disagree with a decision. But that's entirely different from believing it was "wrong" for a court to reach it.

Judges have always creat... (Below threshold)
VagaBond:

Judges have always created laws by their precedents. To claim that this is a "change" perpetrated by "the left" is highly disingenuous, and denies a basic tenet of our judicial system.


Brian, now I am not the brightest bulb in the box, but I think it's the Legislative branch of the government creates laws. Judges rule on how they interpert those laws.

Brian, them "creating" laws... (Below threshold)

Brian, them "creating" laws by their precedents is a misnomer, they alter the interpretations of the laws CREATED by the legislature, to be EXECUTED by the Executive Branch. The Ultimate check on the Judicial System is that they MUST work within the bounds of the US Constitution. The problem is that many judges often interpret the Constitution to their own mindset instead of interpreting the laws to the constitutional mindset.

And the bible says that ... (Below threshold)
Brian:

And the bible says that marriage is between a man and a woman. No where in the bible is same sex marriage spoken of or approved of.

Or disapproved of.

Indeed homosexuality is considered a sin, and something to flee from and repent of.

And the Bible says don't eat rabbit, lobster, shrimp, and pork. It forbids women from wearing red dresses, and declares abomination for all who wear clothing made of mixed fabrics. It bars from ministry anyone with any physical defect. It argues for a return to slavery, and that women are forbidden to speak in church.

I'm not going to get in a Bible debate here, and anyone can use Google as well as I can. But you are grasping at straws when you quote the bible in an argument against same sex marriage.

And the bible says th... (Below threshold)
VagaBond:

And the bible says that marriage is between a man and a woman. No where in the bible is same sex marriage spoken of or approved of.

Or disapproved of.

Brian....you so funny....marriages to camels and a Wine tax on water turned to wine is not in there either.

Yes, yes, I said above that... (Below threshold)
Brian:

Yes, yes, I said above that judges "interpret" the law. I was responding to P. Bunyan's "create" terminology. I can certainly buy the description that judges "create" law by changing the interpretation of existing law.

The Ultimate check on the Judicial System is that they MUST work within the bounds of the US Constitution.

I would guess that every SCOTUS judge ever appointed would claim that they do.

The problem is that many judges often interpret the Constitution to their own mindset instead of interpreting the laws to the constitutional mindset.

I think the problem is something else. I think the problem is that people who disagree with judges' opinions accuse them of interpreting the Constitution to their own mindset, and therefore become "activist judges". But people who agree with judges' decisions praise them as being truly wise.

Checks have to end somewhere. There needs to be a final arbiter. We don't have an Ultra Supreme Court. You either believe in the integrity of the system, or you don't. But to praise it when it agrees with you and call it "fascist" when it doesn't is mindless.

marriages to camels and ... (Below threshold)
Brian:

marriages to camels and a Wine tax on water turned to wine is not in there either.

Yes, exactly! That's why it's grasping at straws to cite the Bible to prove a point either way. Glad we agree.

"And the bible says that... (Below threshold)
914:

"And the bible says that marriage is between a Man and a Woman. Nowhere in the bible is same sex spoken of or approved of."

Or disproved of.

Right! This kind of behavior brought about the destruction of Sodom and Gamorrah..The wages of sin are death.

Right! This kind of beha... (Below threshold)
ClashCityRocker:

Right! This kind of behavior brought about the destruction of Sodom and Gamorrah..The wages of sin are death.

If you believe that fine, but that doesn't mean I have to, and it doesn't make it fact.

I love how all these Nuevo-Christians believe
blind faith absolves them of all responsibilty, think for yourselves, form an opinion not that of the RR (religious right), stand up and state a point formed from free thought.

The Full Faith and Credit C... (Below threshold)
kevino:

The Full Faith and Credit Clause reads:

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.

OK, that appears to me that the Federal government, through the legislature, has the right to restrict the legal covenants that one state must recognize by another state.

The Defense of Marriage Act, signed by President Clinton, says:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Not much of a legal case: the Full Faith and Credit Clause does not require a state to recognize a same-sex marriage by another state.

Period.

GBarney wrote:By ... (Below threshold)
Half Canadian:

GBarney wrote:
By all means, let's prevent a large segment of the population from receiving the same benefits as non-homosexual couples.

Uh, sense when is less than 5% of the population considered "a large segment"?

Try again.

Yes, exactly! That's why... (Below threshold)
VagaBond:

Yes, exactly! That's why it's grasping at straws to cite the Bible to prove a point either way. Glad we agree.

Actually it is possible to quote the Bible to prove a point. The problem is there are way too many unmarried marriage counselers out there.

Still it doesn't dilute the fact that a legal marriage is between a man and a woman. And you don't need the Bible to state that. That's the law.

There would be no reason for states to ban same sex marriages if judges made their decisions on existing law. The term "same sex marriage" is an oxymoron. Like almost perfect. ot this.

Uh, sense when is less t... (Below threshold)
Brian:

Uh, sense when is less than 5% of the population considered "a large segment"?

Jews and African-Americans are also not a "large segment". What's your point?

ClashCityRocker... (Below threshold)
914:

ClashCityRocker

"If you believe that fine,but it doesnt mean I have to..And it doesnt make it fact."

Its historical fact, not My belief..

I care not what you believe or dont believe, the sun will still rise tomorrow regardless rather you think it will or not.

There are absolutes.

914 - Its hi... (Below threshold)
ClashCityRocker:

914 -

Its historical fact, not My belief..
There inlays the rub.

You may believe and have faith that it is historical fact, I on the other hand believe it to be a story and a morality play, and until someone can show me the cities and the salt statue I will continue to believe that is all it is.

Jews and African-America... (Below threshold)
VagaBond:

Jews and African-Americans are also not a "large segment". What's your point?

Well, Brian, what percentage do you designate for a large segment? I think that's the point.

ClashCityDo you ev... (Below threshold)
914:

ClashCity

Do you even believe the Roman empire existed? or Babylon, Greece? Where did our civilization start? surely there must be a starting point in history!!

One thing to look forward t... (Below threshold)
JM:

One thing to look forward to if Islam is able to take control of the world is the Libs will no longer be an issue for conservatives, they won't be around anymore. :-) Having spent years living in hardcore Muslim countries I'm not so opposed to a house cleaning of the US based on the direction I've seen it heading in since the 60s. If you really look at what is happening in the West you'll see that the Democrats and Repubs are leading us down the same road to total control. My position in life allows me to observe activities and know when its going to hit the fan. I smile as I think about the look on the Liberals faces when they think their ultimate Socialist government is finally in place and they realize they are nothing more than slaves. While everyone is worried about the upcoming elections there are forces at work most can't fathom or imagine. Ladies and Gentleman, welcome to the NWO.

914-Yes I believe ... (Below threshold)
ClashCityRocker:

914-

Yes I believe the Roman Empire exisited, I also believe that the Bible as written was a commitment to paper of what had been passed down over hundreds of generations of oral history, and we have all played telephone, stories get changed, facts get exaggerated, meanings are changed, etc. I take the Bible for a guide to live morally, not as fact or absolute truth.

Well, Brian, what percen... (Below threshold)
Brian:

Well, Brian, what percentage do you designate for a large segment? I think that's the point.

My point was that's not a relevant point. We don't decide what rights people have based on how many of them they are.

Kevino, you're overlooking ... (Below threshold)

Kevino, you're overlooking the Supremacy Clause -- the Constitution is the highest law in the land. When a law and the Constitution conflict, the law loses. If -- IF -- a court rules that the DOMA conflicts with the Full Faith And Credit clause, and that is the most likely tactic to be used, the Supremacy Clause will oblige the court to rule against the DOMA.

J.

My point was that's not ... (Below threshold)
VagaBond:

My point was that's not a relevant point. We don't decide what rights people have based on how many of them they are.

Right Brian. We base it on a majority. We vote in the people we feel best reflect outr views. We don't expect a judge to hijack the issue, but it sometimes it happens.

No, we absolutely do not ba... (Below threshold)
Brian:

No, we absolutely do not base it on a majority. The majority of the population, or even a majority of legislators, cannot strip voting rights from gays. (Short of a Constitutional amendment, obviously.)

What a bait and switch Bria... (Below threshold)
Zelsdorf Ragshaft III:

What a bait and switch Brian. We are not talking about voting. Believe it or not homosexual behavior is optional. All sex is optional. After all, it takes two people to have a successful sex act. Society has the right and obligation to decide what behavior is authorized by its citizens. Brian ourside of entertainment for yourself, what purpose does homosexual activity fill. Nothing in nature. Sodomy serves no biological purpose. Kind of like yourself. You serve no useful purpose.

Zeldorf, can't you ever jus... (Below threshold)
Brian:

Zeldorf, can't you ever just contribute to a conversation without going on a rant of insults and name-calling? There are like three of you here where that's all you do. The rest of us at least try to exchange information and ideas.

Anyway, the conversation turned to whether the majority gets to decide the rights of the few, and I used voting as an EXAMPLE of where that is not true. Get it? It's an EXAMPLE. EX--AM--PLE.

But I enjoyed your manifesto on sex.

Brian, that is a fairly big... (Below threshold)

Brian, that is a fairly big assumption. Even if the decision is wrong (at least according to the morals that I hold), if it is legal, then it must be upheld. I bring as an example the Dred Scott decision. The Supreme Court at the time ruled in favor of Dred Scott's "Owner". Now we would think they were wrong, but it was definitely legal at the time. It took the legislature to AMEND the Constitution to free Dred Scott, not some activist judges who think slavery is wrong.

not some activist judges... (Below threshold)
Brian:

not some activist judges who think slavery is wrong.

They are not allowed to think it is "wrong". They are only allowed to think whether it is contrary to the Constitution.

Our system allows both paths. The legislature freed Dred Scott, and the Supremes struck down segregation. I'm sure George Wallace would think them "activist judges" back then, but no one does now.




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