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Passive Observers, Passive Displays, And The Establishment Clause, Mark Strasser
Passive Observers, Passive Displays, And The Establishment Clause, Mark Strasser
Mark Strasser
A number of factors are thought relevant when deciding whether a particular state practice implicating religion violates constitutional guarantees: the age of the individuals who will be exposed to the practice, whether the practice at issue requires participation, whether the state is seen as endorsing religion, and whether the practice is coercive or proselytizing. What the current jurisprudence does not make clear, however, is whether the passive nature of a practice is an additional factor to be considered or whether, instead, describing a practice as “passive” is simply to use a conclusory term indicating that the practice does not violate …
Life After Doma, Mark Strasser
Life After Doma, Mark Strasser
Mark Strasser
During the 2008 presidential campaign, President Obama expressed his support for the repeal of one or both provisions of the Federal Defense of Marriage Act (DOMA) and, further, each of these provisions seems constitutionally vulnerable. Given the distinct possibility that DOMA’s days are numbered, the legal ramifications of its repeal or invalidation should be explored. This essay addresses what DOMA does, and what would happen were it no longer to exist. While the fears that allegedly prompted its passage in the first place would not be realized, the repeal or invalidation of one provision of DOMA will nonetheless have important …
Interstate Marriage Recognition And The Right To Travel, Mark Strasser
Interstate Marriage Recognition And The Right To Travel, Mark Strasser
Mark Strasser
Historically, states were forced decide whether to recognize a marriage, valid where celebrated, that could not have been celebrated locally. As a general rule, non-incestuous, non-polygamous marriages that were valid in the domicile at the time of celebration were treated as valid everywhere, although courts split with respect to how to apply the rule to interracial marriages. Yet, these marriage recognition practices occurred in a context where it was believed that the United States Constitution imposed no limitations on the ability of states to refuse to recognize a marriage validly celebrated elsewhere. This article examines interstate marriage recognition practices, and …