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ruggerson Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-13-09 03:25 PM
Original message
"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival"
Edited on Sat Jun-13-09 03:26 PM by ruggerson
from Loving Vs. Virgina USSC 1967


"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."


Nowhere in Loving does it exempt homosexuals from this basic tenet.

Now let's look at the14th amendment


"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

It's not a stretch by any means whatsoever to make the argument that DOMA is blatantly unconstitutional prima facie.

That reason alone could have provided Obama's DOJ with the leeway not to defend the case at hand, or at the very least to defend it only on very narrow, technical grounds.
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AntiFascist Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-13-09 03:31 PM
Response to Original message
1. K&R...

unfortunately even the CA Supreme Court (with the notable exception of Justice Moreno) finds it difficult to define "inalienable rights" and feels that attempts to argue on these grounds are quaint and outdated.
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msongs Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-13-09 03:32 PM
Response to Original message
2. it does not appear to be "vital personal rights" of free women however nt
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Day And Night Donating Member (7 posts) Send PM | Profile | Ignore Sat Jun-13-09 03:39 PM
Response to Original message
3. A nation of theives and hypocrites
A portion of mankind take pride in their vices and pursue their purpose; many more waver between doing what is right and complying with what is wrong. They didn't want blacks to have rights, then it extended to women, now it's extended to homosexuals, and it will be extended to stoners.
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sandnsea Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-13-09 03:55 PM
Response to Original message
4. Here, GLAD Challenges DOMA 3
http://www.glad.org/doma/lawsuit / This is a terrific law suit. Three surviving spouses have been denied federal benefits. This is pertinent and well directed.

And guess what. The DoJ will have to argue against it.



As to Smelt, they filed on everything under the sun so it either the law has to be argued or the standing. There isn't any way to defend it on any narrower grounds than they did.

"The amended complaint alleged that to the extent that California Family Code sections 300,6 301,7 and 308.58 preclude them from obtaining a marriage license, those sections violate: equal protection; due process; "the Right to Life, Liberty and the Pursuit of Happiness"; "the right to be free from an undue invasion of the Right to Privacy; ... the Ninth Amendment Right of Reservation of all Rights not Enumerated to the People, and the Right to Travel, and The Right of Free Speech." The complaint also asserted that section 308.5 violates the Full Faith and Credit Clause of the United States Constitution.9
4
Additionally, the complaint raised federal constitutional challenges to DOMA. Specifically, it alleged that Section 2 of DOMA (28 U.S.C. 1738C)10 violates the United States Constitution's Due Process Cause (Fifth Amendment), equal protection rights (Fifth Amendment), the Right to Privacy, and the Full Faith and Credit Clause. Finally, it alleged that Section 3 of DOMA (1 U.S.C. 7)11 violates the "liberty interests protected by the Due Process Clause"; discriminates "on the basis of gender" and "sexual orientation" in violation of equal protection; and violates "the privacy interests protected by the Right to Privacy."
http://altlaw.org/v1/cases/1139664
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NorthernSpy Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-13-09 05:35 PM
Response to Original message
5. But nowhere does Loving suggest that marriage must mean anything other...
... than what it historically has meant in our society: the exclusive union of a man and a woman as husband and wife. It just says that access to that institution can't be arbitrarily denied. But ones right to participate in an institution does not necessarily imply the right to have the basic form of that institution altered to suit one -- which is what Utahans had to accept regarding traditional marriage versus polygamy when Utah was in the process of becoming a state.

I'm sorry, Ruggerson, but the court is not going to accept your reasoning. The DOJ has (incidentally) done SSM a huge favor by moving to dismiss Smelt now.

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ruggerson Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-13-09 06:36 PM
Response to Reply #5
9. Not true
Marriage has evolved, even since the founding of our nation when women were essentially still chattel.

You are arguing a Burger court era argument - that "traditional societial" mores (aka rightwing religious one) need to be taken into account when interpreting the Constitution. Bowers vs Hardwick was decided on your premise and was already overturned by Lawrence V Texas years later.

And it's not a leap from Lawrence's reasoning (coupled with the accepted notion in Loving that marriage is a fundamental right) to categorically rule against both parts of DOMA, the federal recognition clause and the full faith and credit clause.

Putting aside the Smelt case, the case that GLAD is handling in Mass shoots directly at the Federal benefits clause of DOMA. How can you have one set of married citizens (gay couples) being treated differently under the law than another (straight couples). In states where gays can legally marry, the straight couples are recognized by the Federal Gov't and the gay couples aren't. That's six states and growing.

If you don't see an open and shut 14th amendment case there, there's not much more I can do to explain it to you.

And according to the excuses here, the DOJ will be obliged to fight that case as well. Which is absolute bunk. They don't have to actively or energetically defend any of this.
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marshall Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-13-09 06:18 PM
Response to Original message
6. DOJ lawyers would say homosexuals ARE free to marry
To members of the opposite gender though, not to each other.

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ruggerson Donating Member (1000+ posts) Send PM | Profile | Ignore Sat Jun-13-09 06:25 PM
Response to Reply #6
7. And that's a classic religious rightwing argument
they've been saying that for years.

Along with "God created Adam and Eve, not Adam and STeve."

It's a Phyllis Schlafly, Gary Bauer, Beverly LaHaye, Ralph Reed argument.

Bigots carry it on their sings when they demonstrate against gay people.

It has no business being in a DOJ brief. It's religious rightwing activism at its worst.
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Name removed Donating Member (0 posts) Send PM | Profile | Ignore Sat Jun-13-09 06:27 PM
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8. Deleted message
Message removed by moderator. Click here to review the message board rules.
 
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