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Wed Nov 28, 2012, 04:39 PM

Why is Gay marriage an issue for the Supreme court?????

I raise a devil's advocate question in light of this headline:

Marriage Cases Thrust Supreme Court Into Gay-Rights Fight

The U.S. Supreme Court is raising the stakes in the same-sex marriage debate as it considers taking up the issue for the first time, testing momentum built by advocates through electoral wins in four states this month.
http://www.bloomberg.com/news/2012-11-28/marriage-cases-thrust-supreme-court-into-gay-rights-fight.html

Where in the Constitution does it say that marriage is a function of the Federal Government?
So how can DOMA, an act of Congress, be legal?
Congress has no power to define or legislate marriage.

The 10th Amendment says..
whatever is not explicitly delegated to the Federal Government is not under Federal purview;
it belongs to the states or the people individually.

Thoughts?

14 replies, 847 views

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Response to dixiegrrrrl (Original post)

Wed Nov 28, 2012, 04:43 PM

1. You need to look 9 Amendments higher.

The people challenging "gay marriage" are doing so based on religious grounds, asserting that the government is violating their first amendment religious rights.

The fact that this argument is 100% backwards, in that they want the government to force their religion on everyone, seems to have eluded them.

In addition, DOMA still exists and is federal law. Since there's lots of federal programs that involve spouses, DOMA prevents homosexuals from using those programs.

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Response to jeff47 (Reply #1)

Wed Nov 28, 2012, 04:51 PM

3. "DOMA is Federal Law"

Exactly my point...
the Constitution, the paper the teabaggers are claiming we "are taking away" them
does not give power to the Federal gov't to regulate marriage.
DOMA regulates marriage at the Federal level.
It is not a legal act.

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Response to dixiegrrrrl (Reply #3)

Wed Nov 28, 2012, 04:54 PM

5. DOMA regulates federal programs that use terms like "spouse". It does not regulate marriage.

Additionally, if it's an "illegal act", the way you get rid of it is through the courts or another act of Congress. And the House isn't gonna repeal DOMA any time soon.

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Response to dixiegrrrrl (Original post)

Wed Nov 28, 2012, 04:51 PM

2. Because states are trying to ban it, and do they have the authority to ban any marriage

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Response to dixiegrrrrl (Original post)

Wed Nov 28, 2012, 04:53 PM

4. If Congress doesn't have a right to do it but did it anyway, what else but the court?

What are people who know that DOMA is unconstitutional supposed to do except take it to court?

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Response to dixiegrrrrl (Original post)

Wed Nov 28, 2012, 04:56 PM

6. Full faith and credit clause.

 

Article IV, Section 1 of the constitution reads as follows (emphasis mine):

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.


Since marriage, in the civil sense, is a judicial proceeding, a couple married in one state must be recognized as married in all states.

The precedent for this is Loving v. VA.

For DOMA to be upheld and for any state to have a right to ignore a couple's marriage in another state, Loving v. VA must be overturned, meaning miscegeny laws would come back into effect.

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Response to dixiegrrrrl (Original post)

Wed Nov 28, 2012, 04:58 PM

7. 10 appeals concerning DOMA, a Federal Act,

among which are concerns about Federal marriage benefits. 2 Federal Appeals Courts have said the Act is unconstitutional.

As there are so many cases 'below,' Supremes will likely slice and dice, hear some and not others.

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Response to dixiegrrrrl (Original post)

Wed Nov 28, 2012, 05:01 PM

8. sorry, this is an exceedingly lame devil's advocate argument

By the lights of your argument the states can do anything they feel like. The Supreme Court interprets the Constitution and there is precedent regarding marriage, thus making it a Constitutional issue. It's an equal rights issue. The 14th Amendment is the one germane- not the 10th. If we followed your argument, states could ban interracial marriage or marriage between Christians and Muslims or, or, or.

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Response to dixiegrrrrl (Original post)

Wed Nov 28, 2012, 05:06 PM

9. Because we have a Constitution, and even state laws have to follow it

California's law banning same-sex marriage can be challenged on the basis of equal protection guaranteed in the Constitution. Ditto for the federal DOMA law: for states that have passed laws permitting same-sex marriage, the federal government, because of this law, must discriminate against such married couples on a number of levels, including federal taxes.

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Response to dixiegrrrrl (Original post)

Wed Nov 28, 2012, 05:22 PM

10. Florida has banned Gay Marriage

I live in Florida. My daughter's future sister-in-law also lives in Florida. My daughter and her fiance both live in NY. After they marry, if they should come to visit either of us in Florida, their marriage will not be recognized. If something should happen to either of them, their spouse will have NO SAY in any Medical decisions. They need to make LEGAL arrangements just to visit relatives in states where their marriage won't be recognized, whereas MY NY marriage (straight) and her sister-in-law's NY marriage (straight) are recognized, but not ALL NY marriag Can you say this is NOT right? Pissed me off to no end. Hey, Florida,. how about not recognizing ALL NYS marriages??????

I have had this conversation with my daughter, my future daughter-in-law, AND her sister-in-law. As BLOOD RELATIVES, if the need should ever arrive before these discriminatory laws are changed, we have agreed we will both fight the STATE OF FLORIDA, if we have to. Take that, bigots. BLOOD RELATIVES will fight you for our gay relatives rights.

Add one more reason why I HATE the State of Florida.

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Response to dixiegrrrrl (Original post)

Wed Nov 28, 2012, 05:34 PM

11. There are a number of issues intertwined here...

 

DOMA is arguably unconstitutional. The Full Faith and Credit Clause of the U.S. Constitution requires states to recognize legal actions/statuses (e.g. marriages/divorces) performed according to the relevant state law. Congress and the President cannot pass a law that says that no state shall be required to recognize a same-sex marriage performing in another state. Back from my Con Law days in law school I would say DOMA is unconstitutional on its face. The Constitution's full faith and credit clause would need to be amended.

The other issues are whether or not a state may deny same-gender couples a fundamental right (i.e. marriage) and the other is discrimination in the form of federal entitlement and other legal benefits.

As other posters have shown, although marriage is a matter of state law, it is recognized as a basic civil right. As such any action by the state to deny this right is subject to strict scrutiny. In Loving v. Virginia, the Supreme Court ruled that state laws prohibiting the marriage of persons from different races was unconstitutional. The Virginia statute was found to be unconstitutional on both an Equal Protection and Due Process (14th Amendment) basis. The same legal issue exists here. Does the state have the sufficient basis for such discrimination. In order for this prohibition to be legal the state must have (a) a compelling governmental interest, (b) the law must be narrowly tailored to achieve that governmental interest and (c) it must use the least restrictive means to achieve the objective.

One never knows how the Roberts could will rule but it seems states will have a difficult time fulfilling one or more of the requirements. Do states have a compelling interest in preventing same-sex couples from marriage? They will discuss the potential impact on minor children and the preservation of "traditional" marriage - both of which are easily debunked by empirical studies on the subject. They will say it will cost them alot of money to issue the licenses and deal with divorces and property settlement. If we are talking about an extreme minority of the population that self-identify as homosexual and only a minority of them will marry, then this argument fails as well.

Further I think there are strong arguments to be made under Equal Protection and Due Process theories. Sodomy laws were struck down under Due Process (basically persons have an inherent right to privacy and these laws unlawfully impinged on that right). O'Connor concurred but argued the law should apply on an Equal Protection basis - i.e. the state can prohibit sodomy but it has to apply equally to heterosexual and homosexual conduct.

If the states argue that "traditional marriage" is essential to civil society, that families are the core of our moral fiber, that marriage is the basis for pro-creation, etc. they will have a very tough time. Opponents can quote the statistics of heterosexual divorce and the fact that many, many heterosexual couples choose not to have children. So those arguments fall apart.

It will be interesting. I think Roberts' joining the majority in the ACA decision is a fluke. I think he, as a Catholic, will side with his other conservative brothers to deny same-gender couples the right to marry.

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Response to Swede Atlanta (Reply #11)

Wed Nov 28, 2012, 05:46 PM

12. I would change your last sentance to read...

"as a Catholic, will side with his other Catholic Justices to deny.." There is a Catholic majority on the Supreme court. 5.

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Response to Swede Atlanta (Reply #11)

Wed Nov 28, 2012, 05:49 PM

13. I was hoping for, and got, an well thought out, intelligent and articulate reply.

Plus you added some of the logical points which I will hope will be considered.

I hope the Court will see that, as I said, DOMA is indeed unconstitutional.

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Response to dixiegrrrrl (Original post)

Wed Nov 28, 2012, 05:53 PM

14. Article 4, Section 1

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.

Congress can by law proscribe what acts must be honored.

That said - I fully believe that DOMA violates the equal protection clause, so I expect it to be overturned.

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