What’s Wrong with the World

The men signed of the cross of Christ go gaily in the dark.

About

What’s Wrong with the World is dedicated to the defense of what remains of Christendom, the civilization made by the men of the Cross of Christ. Athwart two hostile Powers we stand: the Jihad and Liberalism...read more

More Rule of Law Distortions

by Tony M.

Lydia made an important point about “rule of law” regarding how state officials and judges are treating same sex “marriage” in the aftermath of Windsor. They are basically treating the SC decision as a license to do whatever they want to upset traditional marriage laws, when the SC itself didn’t say that was the import of Windsor, in fact refused to say that. They appear to simply not care about following the law.

Here is another way that Windsor was basically an(other) axe to the concept of rule of law. The administration under Obama is going about seeing what Windsor implies for other purposes than just estate tax rules. One of the big areas is employee benefits, including health care and retirement benefits. Interestingly, the retirement benefits rules actually pose a richer area for dilemmas to develop, because of a general federal / state doctrine of law: when Congress writes a comprehensive law (usually under the Commerce Clause) to absorb a whole subject matter, that law overrides state law on the same subject rather than just implementing additional rules thereon. The Employees Retirement Income Security Act (ERISA) enacted in 1974 to put retirement law under a national footing did that.

Because of Windsor, the feds are giving effect to SSM for the purposes of federal pension law. ERISA is a comprehensive federal law that encompasses a number of married persons provisions. For instance, it requires that a pension plan that offers pensions to employees must include in the contract that the pension will also pay to the spouse of an employee. When the pension plan offers optional forms of benefits, the spouse must sign off on any form of benefit that would reduce her benefit.

Now enter the IRS and Dept of Labor (DOL), which jointly oversee pension law. They have decided to say that for federal purposes, a couple is married or not married based on the rules of the state of celebration of the event (or no such act, if none takes place), not the rules of the state of residence. Thus, if an SS couple in Texas “marries” in Massachusetts, it is irrelevant for federal purposes that Texas won’t recognize the marriage as valid. For federal pension law, they are married and must be granted spousal pension benefits and spousal consent rights.

OK, if you are a government agency forced to implement Windsor, that maybe is not a terrible way to proceed. It probably is less complex than a state-of-residence rule, for then the couple could go from being married, to being not married, to being married again when they move to different states. Kind of hard on the pension plan administrators, not to mention the couple.

But there is this little problem: what to do about retroactive application? If Windsor rightly struck down a 2009 IRS determination precluding a marital deduction as invalid, then presumably a person married in a ceremony in Canada in 2003 can argue for benefits applicable back to 2003. However, plans, plan administrators, and plan sponsors (the employers) have run for 11 years past 2003 thinking that their plans correctly – according to EXPLICIT federal law at the time – refused to acknowledge such couples as married. If they now have to go back 11 years (or more, maybe 18 years?) and reverse engineer their plans and benefits and consent forms etc., there is a huge backlog of impossible requirements to meet and really no new money with which to do it. Just for example, plans are required to value future obligations every year, and they fall out of qualified status if they don’t fund the plan accordingly, and then there are penalties and interest. If the plan has to reverse engineer 11 years of corrective valuations and finds that it was not operating properly as fully paid up, there are 11 years of filings and penalties to be sorted out, and other benefit errors that arise from qualified status errors or unfunded status. Such a holding would deny equitable knowledge of accepted liabilities for reasonable actions taken, both by employers who thought they had fully met qualification rules, and by other employers who decided to become plan sponsors of new plans during that time thinking that they knew what their plan language meant and what liabilities that implied. If, alternatively, the IRS and DOL decide that the rule is to be applied only prospectively, into the future, this is far more equitable but fails to account for the essence of the DOMA ruling – which is itself of retroactive effect. Neither approach is logically coherent for a fully consistent rule of law.

On the same coin, there is an even more complex problem: in detailing the taxation on such benefits, an allocation of an employee’s basis in the pension contract (between him and spouse) may depend on his marital status during his entire working career, if he lived in a community property state. Now, federal tax law theory says that state law controls the underlying property (and transaction) rights, federal law merely determines the taxation due to such property and transactions. State law says what it is and who owns it, federal laws applies taxes on that. The determination and allocation of community property is normally under state law, right? So now we have to ask: for federal purposes, will a SS couple residing in Texas who were “married” in 2006 in MA be recognized as having Texas community property for federal purposes, or will the federal tax law follow state law on the matter and deny an application of the community property status in determining taxes?

I suspect that there is no real solution to these and other conundrums, not one that is logical and coherent through and through, though the government agencies will attempt one anyway because they have to do something. And the reason is that the ENTIRE STRUCTURE of our social system relies on coherence of marital relationships, and this overturning of society’s own understanding of itself denies a basis for coherence. You cannot carry out “rule of law” when the rational underpinnings of law – which St. Thomas says is “is nothing else than an ordinance of reason for the common good” – are uprooted and denied.

I strongly suspect that Justice Kennedy will use this very incoherence to further strike down the rest of DOMA, and just say that all states must allow gays to marry. In a certain twisted way, he would even be right, once you accept his premise of striking down Article 3 of DOMA. That is, if I recall correctly, he originally argued down the federal claim that DOMA had a legitimate purpose in coherence and consistency over top of state law discrepancies as being groundless, and when push comes to shove and the attempt to enact federal policy that accommodates such discrepancies CAN’T WORK he will then go further and overturn ALL STATE LAW restrictions on the same subject. I am also pretty sure that he was perfectly capable of foreseeing this result from the start, so it will not be in the least bit innocent of him to suggest with a shrug of the shoulders “well, if that’s what coherence requires” of the second hatchet-blow to marriage. Such an extension of the anti-marriage ruling won’t actually solve all of the ills created (doesn’t solve retroactive application), but it will simplify some of them. It would take wisdom greater than Solomon to square the circle and get a coherent body of laws on marriage while trying to enforce a rule that gays can marry.

I think I am going to recommend to one of our state legislators that he put in a state law implementing a brand new category to be called xxxxxx (does anyone know the Hebrew word for marriage?), and define it in such a way that it can only be (a) between a man and woman, (b) for life, etc. Then, reserve JUST ONE of the panoply of marriage benefits to this new state category; a little, tiny, itty bitty prerogative, take it out of marriage law and put it in xxxxxx law. Then we can see whether the liberals get up in arms about “privileges of marriage” or some such nonsense, when it isn’t even called marriage.

Comments (16)

And the reason is that the ENTIRE STRUCTURE of our social system relies on coherence of marital relationships

If that's true, then why did the stupid Republicans pass DOMA in the first place? Why did all the conservatives just go along with it?

Maybe conservatives should just institute gay marriage. They've already substantially lost the culture, and the law isn't far behind. Why take it to the bitter end of the seemingly imminent Supreme Court ruling? Laws can be overturned or revised when the fervor passes, but the example of Roe shows that Supreme Court decisions are nearly impossible to dislodge.

If that's true [that the entire structure of our social system relies on coherence of marital relationships], then why did the stupid Republicans pass DOMA in the first place? Why did all the conservatives just go along with it?

That question makes no sense to me whatsoever as a response to what Tony wrote.

If that's true, then why did the stupid Republicans pass DOMA in the first place? Why did all the conservatives just go along with it?

Correction: If that's true, why have RINOs gone along with no-fault divorce, cohabitation, and other body-blows to marriage to begin with?

Well, the answer is probably that RINOs are (a) dumb, and (b) more interested in satisfying their lusts and pleasures of the moment than seeing to the common good, and (c) taken in by liberal discussion points about divorce being "better than 2 people living together who can't stand each other".

They've already substantially lost the culture, and the law isn't far behind. Why take it to the bitter end of the seemingly imminent Supreme Court ruling? Laws can be overturned or revised when the fervor passes, but the example of Roe shows that Supreme Court decisions are nearly impossible to dislodge.

So, you're saying "about 53% of the population doesn't agree with you, so you should throw in the towel already and give in 100%"? That sounds suspiciously like Santa Anna telling the Alamo "you can't win, why don't you give in already?" when in fact the holdouts achieved the more important part of their strategy by continuing to hold out anyway. Santa Anna may have been attempting to persuade them that their most important goal was "win right here at the Alamo" but they kept their minds and hearts intact and remembered their true goal was to buy time for the rest of the Texan army - which they succeeded in magnificently.

In any case, about 53% of the population thought Obamacare was a good idea, but now that's not true anymore, about 54% think it't a bad idea. People who are convinced of X can be unconvinced of it as well. Maybe Dems should just throw in the towel and admit they were wrong on Obamacare after all.

It isn't just that 53% of the population disagrees with you. It's that the 47% of the population that agrees with you is, how to put it politely, declining. At the Alamo they bought time because they had a Texan army to buy time for. Please show me your Texan army. I say that seriously, if you think there will be some grand turnaround, then you at least must have a plausible mechanism by which this is to happen. If it is "People will see the devastation and naturally turn against it" then you've fallen for the reactionary kool-aid. They haven't done so on anything else, and even Obamacare has a majority opposing repeal.

But even more so, about 55% of the Supreme Court, give or take, disagrees with you. So even if you had your Texan army to buy time for, they have a nuclear missile and don't care. If you get that Supreme Court decision then this thing is effectively over. You might protest it's over anyway, and maybe that's true, but if you wanted to delay something I'd say delay the SC getting involved.

That question makes no sense to me whatsoever as a response to what Tony wrote.

Do you know what DOMA says?

Matt, I didn't use the Alamo example because I have another army tucked up somewhere, I used it to illustrate that we might have other goals in mind than simply "success here in this specific venture right in front of us." If 55%, or 99%, of the people were convinced that the sum of the angles of a triangle equal 150 degrees, I would not teach that to my kid "just because", I would teach him the truth. Truth is a goal worth fighting for even when you are losing, even when are virtually assured of losing in the current situation. See here for example:

http://www.whatswrongwiththeworld.net/2014/03/the_glory_of_lost_causes_gaily.html

There are worse things than losing those battles. Like, for example, GIVING UP on those battles. Sometimes that's worse.

You seem to think that it was the Republicans who passed DOMA, but it was approved not just by Republicans but by Dems and signed by a Dem president. IN the Senate, 85% approved it including most Dems. In the House, 118 Dems approved it versus 65 against. If the Republicans had not voted, the Dems still would have carried the bill. And Clinton signed it.

And you seem to think that passing DOMA is, in some twisted way in your mind, equivalent to NOT working to maintain social coherence with regard to marriage. Well, since article 2 says no state or territory is required to give effect to OTHER state actions destroying traditional marriage, and article 3 says for federal purposes marriage shall remain what society always meant by marriage, I just don't agree with you. I don't know how you manage to twist either of those into some weird sense of "not supporting social coherence of marriage as traditionally known", but whatever you did, it's wrong.

Here is another nice little paradox for the rule of law and the pro-gay-"marriage" people. Penny and Patti get "married" in MA where it is legal. Eventually, they get tired of each other, and Patti decides the union just doesn't "do it" for her anymore. She moves to Virginia, establishes residence, and applies for an annulment. Since Virginia doesn't accept the validity of other states' gay 'marriage', Virginia immediately approves the annulment. And sends Penny a letter politely informing her of the annulment. (Let's suppose, just for fun, that MA refuses to grant the validity of the annulment.)

Do the other states (including where Penny still lives) accept that the marriage is still valid, or do they accept that the marriage is null? WHICH STATE do they give effect to the state's determinations? What about the IRS, which state do they believe when Penny files her taxes saying "married" and Patti files her taxes saying "not married"? The so-called "state of celebration" rule doesn't resolve the issue, because one state celebrated a marriage and another celebrated an annulment. For those few gay "marriage" advocates who actually care about the rule of law, usually the last legal determination overcomes the earlier ones, all other things being moot or non-determinative.

The people at the Alamo weren't fighting for truth, they were fighting to win, or at least to make the loss less catastrophic. They didn't fight "just because", and if there had been no hope of Texas winning the war it would have been completely sensible of them to give up. There is currently no hope of winning this war, but you might be able to make the terms of surrender a little more favorable. Or just keep doing what you're doing, and we'll just wait for the Supreme Court Smackdown to come. It is indeed a lost cause, but then one could fairly describe all of conservatism as a collection of lost causes. Whether to recognize civil marriages of homosexuals need not be a matter of truth either, but arguing that might be a lost cause in and of itself.

As for DOMA, let's not play these games. The Democrats voted for the patriot act and Iraq 2 as well, but we all know that if not for the Republicans neither of those things would have even been proposed, much less passed. For relevance, you provided it in your next comment. If not for DOMA, Virginia would recognize a gay marriage from another state and annul or refuse to annul from there. DOMA enshrined the incoherence that you are arguing against.

The people at the Alamo weren't fighting for truth,

Oh, brother. Matt, are you bothering to READ what I write? The principle evoked was not "fighting for truth", it was "fighting for other goals than the immediate one in front of you". Jeepers.

There is currently no hope of winning this war, but you might be able to make the terms of surrender a little more favorable.

Hahahahahaaaaa. That's pretty funny. OK, I will admit that I cannot imagine one single "a little bit more favorable" that is within reach that might be won by being, shall we say, more accommodating to the gay lobby. Please,tell me what you think would be a worthwhile position to angle for that is better than just the total defeat in the works. That is obtainable. My guess is that it looks "better" to you but not to me, (but hey, I was wrong once many years ago, maybe I am wrong again). Why do I think that? Well, maybe it was this:

Whether to recognize civil marriages of homosexuals need not be a matter of truth either, but arguing that might be a lost cause in and of itself.

"need not be a matter of truth"? See, it's phrases like that that convince me that certain liberals JUST DON'T GET IT. They claim to be tolerant and open minded, but they just cannot wrap their minds around the implications of there being a REAL, honest-to-God objective moral reality, an objective moral code, and as a consequence, sometimes objective efforts to be made whether you think you are going to achieve the intermediate goals or not, that the very act of making the effort is what is required for achieving final goals even if the intermediate goals fail.

We are not all utilitarians, you know.

If not for DOMA, Virginia would recognize a gay marriage from another state and annul or refuse to annul from there.

That is contested (and so far, untested) theory. Another equally viable logical possibility is that VA, while recognizing the "marriage" as valid while the partners did not live in VA, would grant the annulment as soon as one becomes a resident of VA - but only at the request of one of the parties, not on its own cognizance. These possibilities went untested, but none of them needed to have been tested had some state and federal judges not tried to unravel the already existing, completely coherent traditional understanding of marriage. It wasn't DOMA that created the threat to coherence, not at all. It was the prior attacks on traditional moral order leading to the Supreme Court's Lawrence decision (and all its predecessors that also worked to destroy marriage). Pretending that DOMA is the source of the disharmony is a particularly benighted way of looking at the whole reality. Your account is like your watching a man on a boat be beaten to a pulp, whipped, and then thrown overboard to die, while you come along and try to save him by stretching out an oar with which you accidentally bump his head, and YOU get charged with assault.

Actually, my understanding is that Virginia does _not_ recognize homosexual "marriages" from another state. At least this used to be the case. Why in the world would DOMA change that one way or another?

I don't know the details, but my suspicion is that these are waters that were never tested. Nobody that wasn't purely insane would have suggested, in 1950 or 1980, that gays could marry each other. So until the 1990s there was never any reason for a state to say "we won't give you a marriage license", so there was never any reason for another state to say "we won't recognize the 'marriage' celebrated in that other state between gays." Along came Hawaii judges and the SC and Lawrence, and people saw the writing on the wall, and decided to get out in front of the curve a little bit. People argued that a state could decide by law (instead of judicial fiat) to allow gays to marry, and 85% of Congress (and between 90% and 98% of the people) thought that it would unconscionable that the constitution's "full faith and credit" clause be interpreted to mean that all other 49 states would be forced to give credit to some state deciding to allow gays to 'marry', something wholly contrary to the culture of all those states. So they passed DOMA. Before DOMA, no state actually allowed gays to marry - the judicial ruling in Hawaii didn't get settled until after Hawaii passed a constitutional amendment permitting the state to outlaw the practice, taking away the ground for the judge's early decision. So the event never came up to be tested before DOMA.

The question is whether, without DOMA, would a state be forced and required to give credit to 'marriages' performed in other states between gays. One legal theory is that the full faith and credit clause would demand it. Another theory is that the full faith and credit clause DOES demand it, and that DOMA is null for that very reason. A third theory is that the full faith and credit clause would not extend that far. A fourth theory would be that the full faith and credit clause should be used backwards on any state stupid enough to try gay 'marriage'. It is hard to know just how far the courts and judges would take it, but in general you are BOUND to be able to find a judge who is willing to overturn 5000 years of tradition and culture just for the hell of it, because he is ornery, stupid, evil, insane, or liberal. Oops, there I go again with redundancy.

Until the cursed decisions in the past month or so, VA definitely would not recognize gay 'marriages' from other states. But it is not an easy question as to whether VA would have done that had DOMA not been available, or what the rationale given would have been. These are "would have beens" that are unknowable to some extent.

It wasn't DOMA that created the threat to coherence, not at all.

Section 2 of DOMA suspends the full faith and credit clause for gay marriages. If not for this, Virginia would be obliged to recognize a gay marriage from another state and treat it as valid for all purposes. You seem to be saying that section 2 doesn't actually do anything.

I've seen this argument made before, that federalism on this won't work because the country has to have one coherent marriage law. If so, then section 2 of DOMA was a stupid idea, period. Granted, that doesn't apply to the defunct section 3.

Please,tell me what you think would be a worthwhile position to angle for that is better than just the total defeat in the works.

My only idea was to avoid a Supreme Court decision. Have we learned nothing from Roe? Laws can be overturned or revised comparatively easily, once the fervor passes. Ironically, this puts me on the side of "fighting for other goals than the immediate one in front of you", whereas the rest of conservatives have no goals, no ideas, and no hope of being anything other than losers. The plan is to apparently just wait for a miracle or something.

See, it's phrases like that that convince me that certain liberals JUST DON'T GET IT.

Maybe they don't, but I'm not a liberal. I might be soon though, since conservatives seem determined to channel that old Bob Hope joke about successful membership drives. I think it is possible to separate civil law from capital-T Truth though.

Oh, good grief. So because DOMA gives, inter alia, an _interpretation_ of the Full Faith and Credit clause (the word "suspension" is question-begging as to whether FFAC should be taken to require states to recognize homosexual "marriages"), then DOMA is somehow a bad thing, because it would be better to have a form of national coherence in marriage law that _did_ require all states to recognize the insanity put in place by other states whereby people are able to "marry" members of the same sex.

Note that by that argument for the badness of DOMA, there is no reason to restrict such a plea for forcing states to recognize other states' insanity to homosexual "marriages." Such a notion of Full Faith and Credit, combined with the idea that coerced uniformity in insanity is better than a patchwork whereby some states remain sane, could easily be applied to "marriages" with dogs or to the "personhood" of dolphins.

Matt, if you're not a liberal, I don't know what you are, but frankly, if this attempt to twist Tony's words into requiring a condemnation of DOMA on the grounds of national consistency is what you've been hinting at throughout this thread, I see no reason to take your ideas on this subject seriously.

My only idea was to avoid a Supreme Court decision.

My only idea was to fall on my own sword so my enemy didn't have a chance to kill me.

Matt, you seem to think that (a) there was some reason (or some way pre-DOMA) this wasn't going to make its way to the SC regardless, and (b) that whatever circumstance held that would have been a circumstance that wouldn't have just plain had gay 'marriage' all over the country anyway. Well, that's pretty unlikely. The reality is that liberals have been using the courts to force undemocratic change on society for quite a while, and they ALREADY HAD one success, in Hawaii courts, before DOMA. They were fairly certain to get more in states like MA and VT and WA with or without DOMA. And they were darn certain that they were going to push full faith and credit clause in the federal courts no matter what, so it's not like there was ever any plausible way to avoid this battle. Except by, you know, by everybody regaining sanity, including all the judges.

I've seen this argument made before, that federalism on this won't work because the country has to have one coherent marriage law. If so, then section 2 of DOMA was a stupid idea, period.

You're still not making sense to me. Under federalism, each state gets to set its own rules within its own confines. But the only federalism THIS country has ever had was that combined with the full faith and credit (FFC) clause, so on this subject there was never any prospect of any so called "federalism" approach that made any sense. So, maybe DOMA was never likely to work in protect sane states from the insane ones, given FFC, but

IT'S NOT LIKE THE SANE STATES OR PRO-MARRIAGE CAMP CREATED THIS PROBLEM !!

DOMA was an attempt to throw up a wall against the barbarians, even if it wasn't a smart way to do it. DOMA is not responsible for the barbarians attacking. At the time, one of the arguments against it was that what we really needed was a constitutional amendment, rather than just a law. Obviously, in retrospect, a constitutional amendment would have been better - had it been feasible.

Section 2 of DOMA suspends the full faith and credit clause for gay marriages. If not for this, Virginia would be obliged to recognize a gay marriage from another state and treat it as valid for all purposes. You seem to be saying that section 2 doesn't actually do anything.

Again, DOMA was an attempt to prevent insane people from spreading their insanity. It isn't responsible for the insanity. On one reading, DOMA contradicted the FFC, on another reading it was unnecessary, the third reading is that passing DOMA presents a middle position between these two positions, that DOMA might possibly work to help stem the tide. You cannot make an argument that "it didn't help" into "it couldn't possibly have worked under any of the three possible readings and actually made things worse."

Oh, and just for fun, in the Penny and Patti example above, where Patti asks the state for an annulment: annulment is also possible on a non-consummatum basis, independently of the "does not recognize gay marriage" basis. So it would be great to see the state rule the marriage void on the non-consummatum basis and let the other party flounder with it.

Post a comment


Bold Italic Underline Quote

Note: In order to limit duplicate comments, please submit a comment only once. A comment may take a few minutes to appear beneath the article.

Although this site does not actively hold comments for moderation, some comments are automatically held by the blog system. For best results, limit the number of links (including links in your signature line to your own website) to under 3 per comment as all comments with a large number of links will be automatically held. If your comment is held for any reason, please be patient and an author or administrator will approve it. Do not resubmit the same comment as subsequent submissions of the same comment will be held as well.