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Fri May 11, 2012, 07:32 AM

If marriage is a civil right, how can our President leave it to the individual states?

Should this civil right not be enforced by the Federal govt. like other civil rights?

Claiming something should be left to the states to determine... isn't that what Republicans say for issues like abortion, etc.?

31 replies, 3063 views

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Reply If marriage is a civil right, how can our President leave it to the individual states? (Original post)
Bonobo May 2012 OP
xchrom May 2012 #1
vaberella May 2012 #2
HockeyMom May 2012 #5
vaberella May 2012 #8
mmonk May 2012 #3
unblock May 2012 #4
HockeyMom May 2012 #12
cali May 2012 #6
pnwmom May 2012 #7
pinboy3niner May 2012 #10
Pab Sungenis May 2012 #11
Skinner May 2012 #17
Pab Sungenis May 2012 #18
hack89 May 2012 #20
Skinner May 2012 #24
Pab Sungenis May 2012 #26
Skinner May 2012 #28
LiberalFighter May 2012 #22
SoCalDem May 2012 #30
Zorra May 2012 #9
EFerrari May 2012 #27
Zorra May 2012 #29
Ship of Fools May 2012 #13
The Velveteen Ocelot May 2012 #14
SidDithers May 2012 #15
Skinner May 2012 #16
Bonobo May 2012 #19
Skinner May 2012 #23
loyalsister May 2012 #21
Zorra May 2012 #25
mrmpa May 2012 #31

Response to Bonobo (Original post)

Fri May 11, 2012, 07:35 AM

1. du rec. nt

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Response to Bonobo (Original post)

Fri May 11, 2012, 07:48 AM

2. I think I get it.

Taking in consideration the government we have. And I am saying the Congress. I don't see them as pushing any form or even agreeing to allow a bill that allows marriage equality. I think with a progressive thinking congress we can get a repeal of DOMA. But even they may not be willing to force states to make the change.

I think even if the President pushed it would be shot down and destroyed before ever making it. The attention on DOMA is getting more air and I get the feeling Obama will get something from that next term. But a forced action by the federal government I think may not happen. Won't he need congressional approval to even do that?

If we leave it up the states. That allows the chance for at least some states to take a step forward in the right direction sooner, rather than later. Since Congress may not be able to help.

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Response to vaberella (Reply #2)

Fri May 11, 2012, 08:01 AM

5. Great if you spend the rest of your life in that state that recognizes you marriage

People travel from state to state and their marriages won't be recognized in these others states. It is the same thing which happened with the bans on interracial marriage, and why it went to the SC.

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Response to HockeyMom (Reply #5)

Fri May 11, 2012, 08:04 AM

8. I know.

That's what sucks. But look at this Congress or even the Congress before. I'm not seeing a chance for a full support or push of a federal law that makes all states to have gay marriage legal and this marriage recognized in all aspects of married life--like shared bank account, taxes, passport wise and having same sex couples have the same access to immigration laws for their SO's that heteros have. I sooner see us in a war.

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Response to Bonobo (Original post)

Fri May 11, 2012, 07:54 AM

3. Bipartisanship?

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Response to Bonobo (Original post)

Fri May 11, 2012, 07:56 AM

4. when ANYONE says "leave it to the states" they almost always mean "we'd lose at the federal level."

file it under "half-a-loaf".

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Response to unblock (Reply #4)

Fri May 11, 2012, 08:36 AM

12. Stare Decisis

What went before. The issue is not recognizing gay marriage, per se, but precedence, Loving v. Virginia. Then there is the Full Faith and Credit Act.

It can be decided purely on other constitutional issues.

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Response to Bonobo (Original post)

Fri May 11, 2012, 08:01 AM

6. that's true, but saying that it should be enforced through the courts

would have lost him the election- period.

look, you have to see this as a tipping point. Already in the Senate, they're moving on ENDA and DOMA. Since the President announced his support for marriage equality, Senator Reid and Senator Reed have announced their support.

The President, if re-elected will almost surely have the opportunity to appoint one or more Justice to the SC- and maybe one who will tip the balance on the court. He will certainly have the opportunity to name scores to the Federal Bench.

The old axiom, that politics is the art of the possible holds true here, just as it did for Abraham Lincoln in 1860 when he supported the stop of the spread of slavery but not outright abolition.



And no, the standard republican position on abortion is that it should be outlawed on the federal level.

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Response to Bonobo (Original post)

Fri May 11, 2012, 08:03 AM

7. It's the Constitution that did that, not the President. n/t

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Response to pnwmom (Reply #7)

Fri May 11, 2012, 08:16 AM

10. Exactly. Historically, it's been viewed as a power reserved to the states.

Because it's not enumerated as a U.S. government power in the Constitution, it would take eiher an amendment or a radical Supreme Court decision to grant authority to the federal government.

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Response to pinboy3niner (Reply #10)

Fri May 11, 2012, 08:26 AM

11. That decision already happened: Loving v. Virginia.

 

It affirmed a fundamental right to marriage, which under the 14th Amendment cannot be denied except under strict scrutiny. Thus the Federal Government has an interest in marriage. This is why DOMA was seen as necessary.

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Response to Pab Sungenis (Reply #11)

Fri May 11, 2012, 09:32 AM

17. You misunderstand his point.

Because it's not enumerated as a U.S. government power in the Constitution, it would take eiher an amendment or a radical Supreme Court decision to grant authority to the federal government.

The "radical Supreme Court decision" is a reference to granting authority for marriage to the Federal Government -- ie: Congress and the president. That would be radical. Loving v. Virginia did not do that.

Loving v. Virginia found that prohibitions against interracial marriage are unconstitutional. And rightly so. Some day, the US Supreme Court will make the same decision regarding same-sex marriage.

But SCOTUS will not hand complete authority for marriage over to the federal government. To do so would be radical.

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Response to Skinner (Reply #17)

Fri May 11, 2012, 09:36 AM

18. They don't need to.

 

Loving established the Federal interest, which is all that is needed to prove these state initiatives Unconstitutional at the Federal level under the 14th.

No legislation and no Amendment needed.

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Response to Pab Sungenis (Reply #18)

Fri May 11, 2012, 09:48 AM

20. I agree.

the equal protection argument is a compelling one.

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Response to Pab Sungenis (Reply #18)

Fri May 11, 2012, 10:04 AM

24. I don't understand your point.

Are you saying that Congress has the authority to legalize gay marriage?

Or are you saying that the Supreme Court has the authority to legalize gay marriage?

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Response to Skinner (Reply #24)

Fri May 11, 2012, 10:30 AM

26. Congress has nothing to do with it.

 

The Supreme Court has the precedent they need. Now we just need to actually get some pro-gay Justices back on the bench.

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Response to Pab Sungenis (Reply #26)

Fri May 11, 2012, 10:55 AM

28. Ok, then. I agree.

I think president Obama agrees as well.

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Response to Pab Sungenis (Reply #11)

Fri May 11, 2012, 09:54 AM

22. Religion should be taken out of marriage.

It is the government that has made marriage a factor of life and it is the government that should determine the implementation. The government should take religion out of the business of marriage by requiring all ceremonies to be performed by a approved government official. Anyone that wishes to receive the benefits and rights of marriage recognized by the government would need to have a civil marriage and only a civil marriage would be recognized. A religious marriage would not be. Religious ceremonies can still be performed but would not be recognized by the government.

It is the government that decides the age that couples need to be. It is the government that decides what medical tests they need. It is the government that documents the event. It is the government that documents when they are divorced or anything that is the result of the marriage.

The only thing that religion should be allowed to do is within their own walls that pertains to the practice of religion. They don't get to violate building codes when they build a church or a school for their kids. They don't get to avoid paying any fees for the use of any government facility.

Marriages was not something that was considered necessary during the first 100 years or so in the US. Many would just live together until one tired of the other. Usually it was the man that left. That was one of the factors that resulted in marriage being implemented by the government. They were considering the impact on the community supporting abandoned women and children.

Probably as late as the early 1900's marriages weren't always recorded by the government in the US.

Just as the states has an interest in marriages the federal government does too and probably more so.

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Response to LiberalFighter (Reply #22)

Fri May 11, 2012, 11:27 AM

30. AMEN !



I have always thought that in modern society, it makes sense to have a "choose a partner" option:

This could be for purposes of sharing a life or property or both.

What happens between these two people behind closed doors, is their own business (with the exception of obvious taboos like incest or abduction of minors)
It should be a civil procedure.

Anyone who WANTS a sacramental/religious "blessing ceremony" should do so at will.

People forget that since marriage is a legal contract, and judges/justices of the peace were once scarce, it made sense to cede over the duty of performing marriages to the ministers/priests etc. They kept good records, and were usually present in all/most small communities.

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Response to Bonobo (Original post)

Fri May 11, 2012, 08:06 AM

9. Maybe this is what he has to do...

I have something to say to you all here, words that should not ever have been necessary for a Commander-in-Chief of the United States to speak. Unfortunately, circumstances have compelled me to come before you, the people of this nation, in the name of human decency, justice, and equality.

Before I begin, I would like to reiterate a statement made by the late Dr. Martin Luther King, Jr., a statement I hold dear to my heart, and I say it here, as it were my own:

"I say to you today my friends, even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: - 'We hold these truths to be self-evident, that all men are created equal.'"

"With this idea in my heart and mind, I, Barack Obama, in accordance with my duty as President of the United States of America, on this fourth day of July, in the year of 2012, proclaim that all persons whose equal human rights are not recognized within any State or designated part of a State, shall be then, thenceforward, be legally entitled, in the name of human decency, and protected by dictates and force of law, allowed to employ and enjoy their fully deserved human rights; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, in any efforts they may make in the exercise of their actual freedom.

Now, therefore I, Barack Obama, President of the United States, by virtue of the power in me vested as Commander-in-Chief, and for the purpose aforesaid, I do order and declare that all persons whose Constitutional rights and protections have been previously denied them in and by any state, are now entitled to full equal rights, and any abridgment of such rights by any state, whether or not said state has legislated to deny any of its citizens their justly deserved equal rights, is committing a crime against the People of the United States of America, in the entirety of that body.

I hereby declare that any and all state enacted legislation that now, or in the future, restricts or may restrict the equal rights of any citizen and or group of citizens solely based on their sexual or gender orientation, is now and forever moot, and hereby illegal, under auspices of the Constitution of the United States.

And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, even upon military necessity, I invoke the considerate judgment of mankind.

In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed to an Executive Presidential Order, declaring that every single citizen of the United States shall forthwith enjoy the same unequivocal human rights that any and all United States citizens are legally entitled to, under the protection of the Federal Government as authorized by the Constitution of the United States.

Thank you all for your kind attention. I hope you all have a wonderful day. I plan to."

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Response to Zorra (Reply #9)

Fri May 11, 2012, 10:38 AM

27. So we would have marriage equality but also military dictatorship?

There has to be a better solution.

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Response to EFerrari (Reply #27)

Fri May 11, 2012, 11:12 AM

29. Thanks. Yes, there is, however

it is after the homophobic bigot states rebel, and refuse to recognize LGBT rights after they are ordered to do so, that Obama gets to do the Abe Lincoln thing. Sometimes your so-called "military dictatorships" can be good things under just circumstances.

Emancipation Proclamation

The Emancipation Proclamation is an executive order issued by United States President Abraham Lincoln on January 1, 1863, during the American Civil War using his war powers. It proclaimed the freedom of slaves in the ten states then in rebellion, thus applying to 3.1 million of the 4 million slaves in the U.S. at that time. The Proclamation immediately freed 50,000 slaves, with nearly all the rest (of the 3.1 million) freed as Union armies advanced. The Proclamation did not compensate the owners, did not itself outlaw slavery, and did not make the ex-slaves (called freedmen) citizens.

On September 22, 1862, Lincoln issued a preliminary proclamation that he would order the emancipation of all slaves in any state of the Confederate States of America that did not return to Union control by January 1, 1863. None returned, and the order, signed and issued January 1, 1863, took effect except in locations where the Union had already mostly regained control. The Proclamation made abolition a central goal of the war (in addition to reunion), outraged white Southerners who envisioned a race war, angered some Northern Democrats who thought it was unconstitutional, energized anti-slavery forces, and weakened forces in Europe that wanted to intervene to help the Confederacy.

Slavery was made illegal everywhere in the U.S. by the Thirteenth Amendment, which took effect in December 1865.

Lincoln issued the Proclamation under his authority as "Commander in Chief of the Army and Navy" under Article II, section 2 of the United States Constitution. As such, he had the martial power to suspend civil law in those states which were in rebellion. He did not have Commander-in-Chief authority over the four slave-holding states that had not declared a secession: Missouri, Kentucky, Maryland and Delaware. The Emancipation Proclamation was never challenged in court. To ensure the abolition of slavery everywhere in the U.S., Lincoln pushed for passage of the Thirteenth Amendment. Congress passed it by the necessary 2/3 vote in February 1865 and it was ratified by the states by December 1865.

http://www.democraticunderground.com/?com=post&forum=1002&pid=674650

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Response to Bonobo (Original post)

Fri May 11, 2012, 08:45 AM

13. my two cents

Isn't this a tried/true tactic? Obama's *transformative* presidency in action...

With social media so active and all the good people coming out and working their
butts off, the conversation comes front and center. He sits, waits, grabs the coattails
of consensus, then voila ... I hope the naysayers hang on a little longer. Seems to me
that anything that happens overnight gets blasted the next election cycle. Didn't it take
years for black American's rights to get through? The female vote?

Sly as a fox, this one is.

Obama 2012: Wouldn't kick him outta bed!



Just one woman's opinion

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Response to Bonobo (Original post)

Fri May 11, 2012, 08:58 AM

14. Because, as the law now stands, it IS

a state matter - because there is no general federal legislation regulating marriage. Also, there is no federal statute (like the 1964 Civil Rights Act) or federal court decision specifically making LGBT a protected class. Since it is a state law matter there are now six states that provide for marriage equality. If the matter were turned over to this Congress to consider, you can bet same-sex marriage would be outlawed by federal statute in all states.

What needs to happen - and Ted Olson is going to be doing this, soon - is a court challenge of the anti-marriage laws in one of the states (I think Prop 8 in CA). In Loving v. Virginia the Supreme Court held laws against interracial marriage violated the equal protection and due process clauses of the Fourteenth Amendment, and they will argue that the same principle should apply to same-gender marriage. I don't know whether this will fly with the current Supreme Court, but it seems to me that there is no other way to reach the desired result.

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Response to Bonobo (Original post)

Fri May 11, 2012, 09:03 AM

15. Barney Frank...

Frank disputed the contention that Obama was hedging when he said states have a right to decide the issue. “That’s just a statement of fact,” Frank said. “That’s like saying today is Wednesday. I mean that’s just a statement of the American Constitution.”


http://tpmdc.talkingpointsmemo.com/2012/05/barney-frank-obama-gay-marriage.php

Sid

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Response to Bonobo (Original post)

Fri May 11, 2012, 09:18 AM

16. Here is why: Because marriage has always been a state issue.

If he said marriage should be defined by an act of the US Congress, he would be taking a very radical position. I'm not a constitutional scholar, but I think it might even be unconstitutional for Congress to do so.

The US Supreme Court does have the power to strike down state laws that they judge to violate the US Constitution. Some day, they will.

The Obama administration has already made clear that they consider the Defense of Marriage Act to be unconstitutional and have stopped defending it in court.

So, (I think) the Obama administration position is this:

- The US Congress does not have the authority to overturn state laws about marriage.
- The US Supreme Court does have the authority to overturn laws they judge to be unconstitutional.
- Prohibiting gay marriage is unconstitutional.

And FWIW, I think we have a better chance of legalizing same-sex marriage nationwide in the Supreme Court than in the US Congress. That is how interracial marriage was legalized nationwide. The most we can reasonably get from Congress is the repeal of DOMA -- I highly doubt we could get national legislation legalizing gay marriage everywhere.

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Response to Skinner (Reply #16)

Fri May 11, 2012, 09:46 AM

19. I would think that the protection of civil rights would trump any claim that states have

over what constitutes marriage.

As you say, perhaps if the Supreme Court was made up of a sufficient number of decent people, it would be a different story.

I hope that day comes.

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Response to Bonobo (Reply #19)

Fri May 11, 2012, 10:00 AM

23. Some day, the protection of civil rights WILL trump any claim that states have.

But that day will be decided by the Supreme Court, not by the President or the US Congress.

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Response to Bonobo (Original post)

Fri May 11, 2012, 09:49 AM

21. Some federal laws are more about what states can't do

rather than what they must do. Under the SCOTUS decision states can not forbid the practice of abortion, but the state is not required to ensure that there are providers readily available. The same goes for voting. There are rights that can not be denied, but there is not a slate of requirements under federal law.

As far as marriage, the license is issued under state laws and it is regulated by states. The federal government does not make requirements on age, etc. Details regarding marriage equality are not requirements but Obama's support of marriage equality suggests that he believes it is unfair to treat people differently based on the couple's gender.
Are all states required to issue marriage licenses?

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Response to Bonobo (Original post)

Fri May 11, 2012, 10:15 AM

25. A minority, especially one like our LGBT minority

that has experienced centuries of institutionalized bigotry towards it, should not be subject to the whims of a majority culture that has already been persecuting LGBT persons for centuries. We're sitting ducks for the bigots that infest most states.

President Obama has unquestionably, hands down, been the most LGBT friendly President in history by a country mile. And this was only one term. Given this trajectory, it seems probable that we may finally be recognized as first class citizens with legally protected equal rights by the end of his second term.

Two of the fascist justices on the SCOTUS are in their mid-70's. Scalia is 76, and Kennedy is 75. With any luck, one or both will be forced to leave the bench due to "personal reasons" during Obama's 2nd term. (If I were a praying woman, I'd be on me knees nightly asking for these "personal reasons" to occur). If just one of them goes, we get a SCOTUS majority, 5-4. If both of them go, we hit the jackpot, a 6 liberals to 3 conservatives bench. Justice Ginsburg is 79. I suspect she may retire soon, paving the way for Obama to appoint her replacement. Justice Breyer is 73, and may wish to retire by the end of Obama's second term.

Theoretically, we could have a 6-3 bench at the end of Obama's 2nd term. As a bonus, 5 of these liberal justices could be under 60 yrs old when Obama's 2nd term ends if he wisely appoints younger talent. And Justice Sotomayor would be 61. This would give us a SCOTUS majority for many years, barring tragedy.

The point is, the importance of obtaining a liberal majority in the SCOTUS sometime during Obama's 2nd term, with regard to our situation, cannot be overstated.

With a SCOTUS majority and a Democratic President, the odds of our winning the rights lottery during Obama's 2nd term are extremely good. Another Dem President and a SCOTUS majority in 2016 puts a lock on our rights forever.

So, these scenarios are one way we can overcome the states rights problem we now face. But we must re-elect Obama, despite the misgivings some of us have had, and then hope that nature acts in our interests, in a kind, but effective, way, with regard to fascist SCOTUS justices leaving the bench.

So the moral of this tale is, if Obama is not re-elected, then...we all have a very serious problem to deal with. If he is re-elected, every citizen of the US could be impervious to state legislated legalized bigotry forever.

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Response to Bonobo (Original post)

Fri May 11, 2012, 11:28 AM

31. I think the issue is two fold..........

States individually mandate marriage laws. Civil rights is a federal law. It's going to take a federal court case e.g. a Brown v. Board of Education to overturn state laws that outlaw gay marriages. Until we get this issue in front of federal courts for review there will be no peace to this issue. IMO

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