Question No.1
1ST ISSUE: WHETHER S 16 OF DEFENSE OF MARRIAGE ACT IS VALID
The provision is invalid on the grounds of unconstitutionality. Article IV, s 1 of the US Constitution provides “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” The Court, in Mills v. Duryee, 11 U.S. 481 (1813) explained that the Full Faith and Credit Clause means that not only are records of public acts, records and judicial proceedings in one state admitted in another, but their effects as well. Section 16 should, therefore, be declared invalid for being contrary to the Constitution. In another case, Milwaukee County v. M.E. White Co. 296 U.S. 268 (1935), the Court held that the effect of the full faith and credit clause is to unify the states and make each of them an integral part of the whole by preventing them from acting like ‘independent foreign sovereignties’ free to discard or ignore obligations created in other states. Before parties can contract marriage, a state must issue them marriage licenses. The grant of these licenses form part of the records of that state (Hogan 90) and when a state does not honor a marriage between a man and another man, which is valid in another state, this means that that state has not given full faith and credit to the records and laws, if applicable, of another state.
The guarantees provided by the Fifth Amendment may have also been breached by s 16. In United States v. Windsor, 570 U.S. ___ (2013) (Docket No. 12-307), where the Supreme Court rendered s 3 of the Defense of Marriage Act as unconstitutional because it defined marriage as necessarily between a man and a woman, the Court relied on the due process and equal protection clauses of the Fifth Amendment. It stated that s 3 violated those clauses because it forced states to deal with homosexual marriages differently from heterosexual marriages. In that case, the surviving spouse of a same-sex married inherited property from the dead spouse and wanted to claim them as a surviving spouse and not as a single person because of the big discrepancy in the taxes to be paid. Section 3 of the DOMA prevented her from being classified as a surviving spouse. The Court ruled that the provision, in effect, violated the due process and equal protection clauses because homosexual marriages are discriminated. Similarly, s 16 has that same kind of discriminatory effect, because while heterosexual marriages valid in another state are given validity in other states, homosexual marriages are not accorded that same respect.
As to whether Joseph and John can bring the case to the federal court at that point, however, is another matter. In federal courts, legal standing or locus standii means that parties must have ‘enough direct stake in an action or law’ to be able to challenge it (LLI 2014). Similarly, in Baker v. Carr, 369 U.S. 186 (1962), the Court held that the plaintiff must have a personal stake in the controversy to ensure that the adversarial nature of an action, which engenders the sharpness in the presentation of issues, is reinforced. When the case was filed, John and Joseph were not yet married and had no legal standing, therefore, to file the case. Although this deficiency may have been cured by their subsequent marriage in Texas, this does not change the fact that John still has no personal stake in bringing the case to the court, especially that Joseph has already passed away. In the Windsor case, for example, the plaintiff had a personal stake in the resolution of the validity of s 3 because her claim for tax benefits was directly obstructed by the provision. This cannot be said in the present case.
Yes, John can intervene. Joseph should file a declaratory judgment for the judicial determination of his right to have access to Joseph in the hospital where he is being confined. A declaratory judgment is a binding declaration from the court that delineates the rights of parties without necessarily ordering the enforcement of such rights (LLI 2014). The purpose of such a declaratory judgment is to give John access to Joseph, who is being prevented by the hospital and Joseph’s family as well as to give him the right to intervene in the decision relative to end-of-life matters.
In Re Quinlan 70 N.J. 10 (1976), the Court granted the family’s request to pull the plug after testimony was given of the patient’s earlier wishes not to be sustained artificially to prolong her life. The Court, in a declaratory relief, ordered that a concurrence between the guardian and her family, on one hand, and the attending physicians, on the other, of the absence of reasonable possibility of the patient’s recovery to a ‘cognitive, sapient state’ should pave the way to elevate the case to the Ethics Committee. The Court said that the Committee’s agreement of the findings gave the family the right to unplug the patient from the mechanical respiratory system. A similar path is contemplated in the present case. Upon declaration of John’s legal right as a spouse he is automatically endowed with the right to intervene and can then decide on behalf of Joseph. A positive declaratory judgment necessarily entails a finding that John’s marriage to Joseph, which is validly contracted in Texas, is also valid in the State of No Opportunity, therefore, John needs to cite the full faith and credit clause.
Since an action for declaratory may take some time for resolution, Joseph should also pray for an injunctive relief to prevent the hospital and Joseph’s family from keeping him away from Joseph. An injunction is a court order that either compels a party to take an action or prevent that party from taking an action, to protect the plaintiff from irreparable damages if such party has not been forced or prevented from taking a course of action (Neubauer & Reinhold 45). In this case, the actions of the hospital and Joseph’s family are preventing John from spending what may be the last time he may be spending with his spouse. Missing this time with Joseph can be emotionally devastating for John and can result in emotionally irreparable damage.
3RD ISSUE: WHETHER JOHN CAN BRING AN ACTION FOR ANOTHER COUPLE
No, John cannot bring an action on behalf of another couple because he has no standing to do so. Legal standing or locus standii is a legal requirement that a party must have an interest that is both tangible and protected by law before he/she/it can bring an action in a court of law. The standing-to-sue doctrine is gauged by determining whether the party bringing an action to court is able to establish enough economic interest in the controversy or whether his own fundamental rights are being violated. Thus, advisory matters and hypothetical questions are not issues that can be brought in court.
The legal standing doctrine was clarified in the case of Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), where standing, in relation to federal cases, was defined as direct. In that case, the Secretaries of Interior and Commerce jointly issued a joint regulation amending the geographic scope of their authority to oversee the application of the Endangered Species Act of 1973. The Defenders of Wildlife and other environmental organizations went to court for declaratory judgment with injunction to protest the new amended regulation, which withdrew jurisdiction from areas abroad. Justice Scalia, who wrote the majority opinion, stated that the respondents have the burden of showing that they have standing to bring the case, and such standing can be shown by proving that they have suffered injury in fact resulting from a “concrete and particularized, actual or imminent invasion of a legally-protected interest.” It was not enough to provide proof that the respondents have special interest in the subject; the respondent must provide proof that they have suffered direct injury as a result of the new regulation. Failing to do this, the Court held that the respondents did not have standing to bring the action to court. Applying that dictum to the present case, it can also be said that John cannot bring an action on behalf of other gay couples because he has no direct interest in the action, and, therefore, no legal standii in court.
Question No. 2
In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the issue was the right of candidates for judicial positions in Minnesota to express their views on disputed legal and political issues. Nonetheless, the case evidences that selecting judges through elections is an inherently politicized process that leads to the politicization of the judiciary. Although doing so may impact on the politicization of the judiciary, the SC had no other option, but to declare the Announce Clause unconstitutional. This was because it deprived the judicial candidates of their constitutional right, but did not clearly establish that it was narrowly tailored to serve a compelling state interest. However, it is not the freedom per se to express themselves that make the members of the judiciary at risk for politicization, but in selecting them through popular election that makes their politicization inevitable. In 2004 alone, there were 38 states subjecting judges to retention, election or retention election (Rosinek 20). It is not surprising, therefore, that the judiciary is perceived to be increasingly politicized. This is because these processes compel judicial candidates to adopt popular views of legal or judicial issues to ensure their victory, while the electorate, on the other hand, vote for them not so much on the basis of competence, but on their political stand. It is, thus, the popular election process that undermines the judiciary - the branch of the government that was deliberately structured by the framers to be the weakest to shield it from politicization and partiality (Chandonnet 577).
Works Cited
Baker v. Carr, 369 U.S. 186 (1962).
Chandonnet, Brendan. The Increasing Politicization of the American Judiciary: Republican Party of Minnesota v. White and its Effects on Future Judicial Selection in State Courts. William & Mary Bill of Rights Journal, 12(2): 557.
Hogan, Sean. The Judicial Branch of State Government: People, Process, and Politics. Santa Barbara, CA: ABC-CLIO, 2006.
In Re Quinlan 70 N.J. 10 (1976).
LLI. Declaratory Judgment, 2014. 2 April 2014. Web.
LII. Standing. Legal Information Institute, 2014. 2 April 2014. Web.
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
Mills v. Duryee, 11 U.S. 481 (1813).
Milwaukee County v. M.E. White Co. 296 U.S. 268 (1935).
Republican Party of Minnesota v. White, 536 U.S. 765 (2002).
Rosinek, Jeffrey. Some Thoughts on the Problems of Judicial Elections. Court Review, Summer 2004.
