STATEMENT O FACTS
Parties involved
The parties involved are Terry who is the appellant and the Carlos partner, Ben Carlos brother whom they had not gotten in contact for 20 years and the Virginian law court
Sequence of events
Carlos and Terry initially married in Vermont where unisex marriage is allowed. The couple lives together for 5 years but onwards; when they were travelling through Virginia, Carlos is involved in a serious accident which then the doctors have to seek consent from the closest relation to carry out assisted suicide. Terry is denied the right to make since he was legally married to Carlos. The law in Virginia does not recognize such marriage and hence they only identify Ben the brother to Carlos whom they have been separated for 20 years. Terry demands that Virginian courts to exercise Full faith and credit clause.
What I am required to do
Considering Terry’s loss for the bid, he demands that I should offer help by researching on the Virginian law and Identify cases or issues relating to the case and analyze the constitutional issues behind the case. Besides I am supposed to write a post-interview memo outlining the issues and a letter of acceptance for the case and establish the secondary sources that would be helpful in making preparation for the case. Moreover I am required to make an internal memorandum of law giving outline on the opposition’s case and in the end making a daft to appeal on the case.
ISSUE
Is the Virginian law valid as not to apply the full faith and credit clause; in deciding the case of Terry against the State in regard to allegations of violating the Virginian Domestic Relations Marriage Statute? Vermont law gives the citizens constitutional rights to marry any member of the same sex or opposite sex. Virginian law on the other hand does not legalize such marriages. The court is to decide whether to exercise full faith and credit clause of the constitution or not to.
No, it’s not valid in the sense that though the constitution allows different State’ Courts to make their own decisions, the same constitution calls for other States to exercise full faith and credit clause in deciding other cases that may be illegal in their own State but legal in other States. As with the case of disparity in the way Domestic Relations Marriage Statute operates in Vermont and Virginia
RULE(S)
Under the Full Faith and Credit clause, the constitutional amendment was made under article IV in section 1 which makes provisions that one state’s Acts shall be accepted as valid in other states. The clause states that:
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 be general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.
The Defense of Marriage Act in Virginian is found in the U.S constitution (DOMA, 28 U.S.C & 1738c) which was enacted by the congress in 1996. The act states that:
No State, territory, or possession of the United States or the 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 marriage under the laws of such other State, territory, possession or tribe, or a right or claim arising from such relationship.
The Virginia marriage Amendment contained in the constitution article 1 & section 15-A states that:
Only a union between one man and one woman may be a marriage valid in or recognized by the common wealth and its political subdivisions
ANALYSIS
RICHARD JOHN BAKER AND ANOTHER V. GERALD R. NELSON NO.43009
Issues
The main dispute in this case is whether same sex marriage is permitted by the statutes of the State and if not does the constitutions compel such authorization. The two appellants, who are both male adults, submitted their application to defendant Gerald R. Nelson; Hennepin County clerk to district Court for marriage license issuance in respect to Minn.st.517.08. The defendant was in defiant to issue the license on the foundations that same sex marriage was not allowed.
Court’s Ruling
At the trial court, it was affirmed that the defendant was not allowed to give a marriage license to appellants and that the license was not to be issued to them. This was on the basis that there was no express statutory prevention against same sex marriages and hence the legislature had the authority to issue or not to issue. In connection to Minn. St. c.517 the term’s marriage is applied to mean union of persons of the opposite sex. Hence it was described that the term was of contemporary importance as for the current statute to emphasize on heterosexual marriage as bride and groom.
It was then held that according to Minn. St. c. 517 such marriage could not be allowed. However the appellants disputed that it was unconstitutional to interpret the clause in that manner alleging that they were being denied their fundamental right as provided by the ninth Amendment to the constitution of the United States. This they claimed that was applicable to the states by fourteenth amendment. The court dismissed the additional contentions by the complainants on the ground that the statute went against the first and the eighth amendment of the constitution of the United States.
The other reason given by the court was that marriage was a union for procreation as mentioned in the holy bible’s book of Genesis. Hence marriage was significant for the existence and survival of a generation. Besides, amendment is not permission to restructuring of the legislation by the judicial. And collective fortification of the fourteenth amendment is not affronted the clarification of the State concerning individuals permitted to marry. Hence the court had a jurisdiction to interpret such condition that same sex marriage is not allowed.
The Virginian Law says that one of the basic civil rights of rights of man is the right to marry and hence to rebuff such a right was not supported on the foundation of racial grouping connected to equality principle as contained in the main part of the fourteenth amendment. The laws further indicate that there is a clear cut difference between restriction to marriage based on race and fundamental distinction in sex. The court then held that Minn. St. c. 517 does not affront the 1st, 8th nor 9th amendments of the United States constitution. Marrying must be based on the Individuals’ freedom hence they must be respected. As such the State must respect and give full faith and credit to other States jurisdiction. Terry must be allowed to refer the case to Vermont or be recognized as the sole married partner to have the authority to make decisions on behalf of his partner (U.S department of Justice, 2011).
LOVING ET UX. V. VIRGINIA
Issues
The main dispute in this case is whether same sex marriage is permitted by the statutes of the State and if not does the constitutions compel such authorization. The two appellants, who are both male adults, submitted their application to defendant Gerald R. Nelson; Hennepin County clerk to district Court for marriage license issuance in respect to Minn.st.517.08. The defendant was in defiant to issue the license on the foundations that same sex marriage was not allowed.
Court’s Ruling
At the trial court, it was affirmed that the defendant was not allowed to give a marriage license to appellants and that the license was not to be issued to them. This was on the basis that there was no express statutory prevention against same sex marriages and hence the legislature had the authority to issue or not to issue. In connection to Minn. St. c.517 the term’s marriage is applied to mean union of persons of the opposite sex. Hence it was described that the term was of contemporary importance as for the current statute to emphasize on heterosexual marriage as bride and groom.
It was then held that according to Minn. St. c. 517 such marriage could not be allowed. However the appellants disputed that it was unconstitutional to interpret the clause in that manner alleging that they were being denied their fundamental right as provided by the ninth Amendment to the constitution of the United States. This they claimed that was applicable to the states by fourteenth amendment. The court dismissed the additional contentions by the complainants on the ground that the statute went against the first and the eighth amendment of the constitution of the United States.
The other reason given by the court was that marriage was a union for procreation as mentioned in the holy bible’s book of Genesis. Hence marriage was significant for the existence and survival of a generation. Besides, amendment is not permission to restructuring of the legislation by the judicial. And collective fortification of the fourteenth amendment is not affronted the clarification of the State concerning individuals permitted to marry. Hence the court had a jurisdiction to interpret such condition that same sex marriage is not allowed.
The Virginian Law says that one of the basic civil rights of rights of man is the right to marry and hence to rebuff such a right was not supported on the foundation of racial grouping connected to equality principle as contained in the main part of the fourteenth amendment. The laws further indicate that there is a clear cut difference between restriction to marriage based on race and fundamental distinction in sex. The court then held that Minn. St. c. 517 does not affront the 1st, 8th nor 9th amendments of the United States constitution. Marrying must be based on the Individuals’ freedom hence they must be respected. As such the State must respect and give full faith and credit to other States jurisdiction. Terry must be allowed to refer the case to Vermont or be recognized as the sole married partner to have the authority to make decisions on behalf of his partner (U.S department of Justice, 2011).
LOVING ET UX. V. VIRGINIA
Issues
Janet miller and Lisa miller lived together in Virginia in 1990s. Later, they travelled to Vermont in 2000 where they got into a civil union in accordance to the law of the State. Lisa, while residing in Virginia was inseminated with sperms of an anonymous donor where she gave birth to IMJ in 2002. The parties then moved back to Vermont. In 2003 the relationship ended and Lisa moved back with IMJ to Virginia while Janet stayed behind in Vermont. Lisa did file for dissolution of the Union and demanded for physical custody and responsibilities of the child. In 2004 the Vermont court issued a temporary order of parental rights and responsibilities to Lisa. However Janet was given minor rights to the child concerning visitations. When the marriage affirmation Act became law in July 2004 Lisa made an application to the court to ascertain the parentage and declaratory relief with an aim to be declared the sole parent of IMJ.
The Vermont court later issued an order to the Virginia court on the claim that it had full jurisdiction over the child and the contacts. This was after the court learnt of Lisa’s court file for sole custody of the child. Janet later entered a file of petition against Lisa’s Virginia petition in July 2004. This was in regard to the jurisdiction of over IMJ custody or visitation.
The court’s ruling and reasoning
Vermont Court held Lisa in contempt of denying the terms on visitation declared in the order of 17th June, 2004. The trail court passed out a ruling in connection with Vermont ruling that the court did the right thing to dissolve the Civil Union and there determination of parental rights and responsibilities. The court claimed that Vermont court did the right thing to the duo.
The case analysis
The parental Kidnapping prevention Act (PKPA) has full faith and credit placed on child’s determination of custody where each shall be applied accordingly. In this case, the Act stipulates that a sister State shall enforce the custody of a child determination in line with the consistency of the provisions of the Act. For this to happen the State must have jurisdiction under its own law and meet five stipulations put down in code § 1738A(c) (2). The child in the case lacks a home State hence for the best interests of the child the child has to assume authority. Contrary PKPA contains all preempts all the confusion in relation to full faith and credit applicability especially on child custody.
Lisa’s arguments are based on the inability of Vermont to issue a parent child contact to Janet since there was no determination if Janet was the parent. She stressed on the issue of civil union dissolution and that IMJ was her biological child while he was adoptive to Janet. The court argued that Lisa made no citation of authority that may have convinced the court that another State’s court failed to interpret their own laws particularly with child’s custody. Therefore Vermont court rejected Lisa’s contentions. However Virginia could deny the kind of relationship that was between Lisa and Janet since the State does not accord of it. Such marriages are prohibited in Virginian State. It is for this reason therefore that Virginian would not extend full faith and credit to Vermont court order.
It was ruled out that PKPA was not realized in exercising the trial court’s authority to provide full faith and credit to the orders of custody and visitation. By Lisa’s filing of a complaint to Vermont she was subject to the authority of Vermont together with the child hence PKPA prevents her hearing in the court of common wealth. Therefore the case was vacated from Virginia to the trials court with intentions of exercising full faith and credit to the Vermont’s orders of custody of the child and the visitation. In connection with the case study therefore court should rule in favor of Terry in the sense that Virginia to take back the case to Vermont as to provide Full faith and credit in this jurisdiction.
FILING AN APPELLATE BRIEF IN VIRGINIA
In case the defendant or the claimant is not satisfied by the ruling from the lower tribunal courts he or she may decide to launch an appeal to the Supreme Courts. There petition being presented for an appeal must be done within four months after the final ruling by the tribunal court. For a criminal appeal it must be made within 30 days after judgment order. The petition for an appeal must be incorporated into one document. The petition should not exceed 50 pages and must state the subsequent information; the type and nature of proceeding and its subsequent ruling at the lower tribunal, a statement showing all the facts, error assignments depended upon and the way they were decided and lastly the facts depended upon, law discussion and the relief pledged for.
The respondent is then required to file an original file and 9 copies of a reaction with Supreme Court’s clerk in thirty days after the petition. The petition is then filed in the Circuit court clerk’s court where the decree order is being petitioned. The clerk then notes the date of filing the appeal and attaches the original petition. Afterwards the clerk retains a copy and then transmits the other eight copies plus the costs for the appeal to the clerk of the Supreme Court. The petitioner then designates the pleadings, orders and shows to help the Supreme Court make decisions on issues a rising from the appeal.
CONCLUSION
The probability of an appeal going through wholly depends on the arguments presented and the application of the rules in the arguments. If the juries feel the arguments are fully supported by evidence in clarity. A judgment earlier issued by the lower tribunal can easily be retained or revised to suit either parties depending on the constitutional arguments and presentation.
References
Lexsee, (1967) Loving Et Ux. V. Virginia No. 395 Supreme Court of the United States 388 U.S.
1; 87 S. Ct. 1817; 18 L. Ed. 2d 1010; 1967 U.S. LexisNexis
Lexsee, (1971) Richard John Baker and another V. Gerald R. Nelson No. 43009 Supreme Court
Of Minnesota 291 Minn. 310; 191 N.W.2d 185; LexisNexis
Lexsee (2006) Janet Miller-Jenkins V. Lisa Miller-Jenkins Record No. 2654-04-4 Court Of
Appeals Of Virginia 49 Va. App. 88; 637 S.E.2d 330; 2006 Va. App. Lexis 539, LexisNexis
Lexsee (2009) Tanya Lynn Prashad V. Roberto-Luis Manuel Copeland and Philip Byron Spivey
Record No. 2609-08-4 Court Of Appeals of Virginia 55 Va. App. 247; 685 S.E.2d 199; 2009 Va. App. LexisNexis
U.S department of Justice, (2011), In the United States Court of Appeals for the First Circuit,
Washington DC, Civil Division U.S Department of Justice
