Response to backscatter712 (Reply #15)
Fri May 11, 2012, 08:32 PM
happyslug (14,768 posts)
25. But discrimination against Homosexuals is LEGAL at the federal level
And given that the state had by referendum has adopted one man one woman definition of marriage, there is no state claim.
The Federal Civil Rights act does NOT include homosexuals among its protected classes of people, thus no federal Civil rights claim. The Referendum cuts out a Claim based on any STATE Civil Rights Act. Thus no violation of any Civil Rights law. The problem is not one of standing but the lack of any Civil Rights Law that is applicable to this case.
The US Supreme Court has ruled it is NOT a violation of the FEDERAL Constitution for a state to prohibit Gay Marriage. The states that have adopted Gay Marriage did so based on their own state Constitution.
Now California is on its own path in this fight between states and federal constitutions. In a case out of Colorado the Supreme Court ruled it was a violation of the Federal Constitution for a state to adopt a provision that in effect prohibiting Homosexuals from petitioning the Legislature to permit gay marriage (Which Colorado had done).
The Federal Trial judge in the Federal Case against the California Referendum took that decision to rule that the ban on Homosexual Marriage in California violated the Federal Constitution but on the thin line HOW the ban was achieved (Voters Referendum) makes any modification of such a ban by the state legislature impossible and thus violating the Federal Constitutional right to petition the legislature to address grievances. That case is on appeal, even through the State of California, through its elected offices, decided NOT to appeal. I suspect the Referendum will be upheld on appeal for that would follow previous US Supreme Court decisions as to Homosexual Rights.
I mention the California Situation due to its uniqueness but it was the result of California Ruling under State Constitutional law that the ban on homosexual marriage was unconstitutional, then the decision was reversed by a voter referendum. The same California Supreme Court then ruled that based on the referendum, gay marriages was no longer permitted under the STATE Constitution.
That is when it was taken to a Federal court, where the Judge said the referendum was in violation of the federal Constitutional Right to be able to petition the state legislature to address grievances (in this case to petition the California legislature to permit gay marriage).
A key to the Judge's decision was gay marriages had been legal. Thus the referendum changed the law. In the case of North Carolina gay marriages has NEVER been legal, thus the North Carolina Referendum changed no existing law. North Carolina can NOT rely on the Federal Court ruling in California for that simple reason (And that the Fifth Circuit Court of Appeals is much more conservative then the Ninth Circuit).
In simple terms there is NO CIVIL RIGHTS CLAIM under the facts of this arrest. The North Carolina Referendum made it impossible to make a State Civil Rights Case out of it, and the US Congress has NEVER Expanded the Federal Civil Rights Act to include Homosexual. Thus unless you can produce a decent argument under the Federal Due Process Clause (Such as the right to petition the legislature) there is no Federal cause of action. Thus any case filed will be dismissed for failing to state a cause of action.
This ban in North Carolina
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Replies to this discussion thread
|Faygo Kid||May 2012||OP|
|Faygo Kid||May 2012||#2|
But discrimination against Homosexuals is LEGAL at the federal level
|Renaissance Man||May 2012||#5|
|Suji to Seoul||May 2012||#12|
|Great Caesars Ghost||May 2012||#22|
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