Will this go to the SCOTUS? I can’t see any federal issues present. Yet.
But does that mean other states, under the “full faith and credit” clause of the Constitution, must recognize as married gay couples who got married in CA? If they refuse, that would present a federal issue, and then what?
How, if at all, will this affect this year’s elections? (I should think, not at all, but then I remember 2004.)
Does anyone have any arguments against recognition of gay marriage that are not ultimately rooted in religious revelation?
It’s founded on “the Equal Protection Clause” – the Federal one? Or California’s? If the Federal, that gives rise to an obvious Federal question.
Under the written text of the Constitution as I can read it, yeas, you’re right. However, people have advanced arguments for the constitutionality of DOMA. Since I regard the fate of Mary Jane (Mrs. Peter) Parker as of far more cosmic significance than the underlying “logic” of arguments for DOMA’s constitutionality, pray forgive my not attempting to explain it.
Karl Rove is not dead nor doth he sleep. Therefore it will be made an issue in the election, probably in a “dirty tricks” sort of way.
Yeah. The “stare decisis” one – it’s not historically something that has been done. AFAICT, that’s it.
IIRC several states passed laws or amendments under their own “Defense Of Marriage” acts that said that “non-traditional” marriages performed in other states would not be recognized in their state. I can see this resulting in a situation which winds up in front of the SC - maybe some kind of child custody dispute where a gay couple moves to a state that doesn’t recognize their union.
Sure. Gays are Teh Icky.
Honestly, all of the arguments I’ve heard against gay marriage come down to particular Biblical beliefs/interpretations and/or “it’s gross”.
Nitpick. Stare decisis is “the decision stands,” not “we can’t/won’t do it because we never have.” It is a principle that indicates that there must be an overwhelming affirmative need to override a previous court decision before a decision can be reversed.
Until there has been a decision regarding a point of law, stare decisis cannot be employed. Tradition, legislation, being grumpy or euphoric over the current condition of one’s hemorrhoids or sex life may affect the decision, but not stare decisis.
Not until we get to debate about 2. Then the USSC may be asked to rule on DOMA.
McCain, or more likely his supporters, may use it to rally voters as to the importance of having him appoint federal & SC judges. He’s already come out against amending the Constitution.
I’ve heard a few but even I’m not that convinced. They are what I call “round-about” arguments. IIRC, a recent study of some northern European countries that allow gay marriage show that they are showing declines in straight marriage & rises in out-of-wedlock births. Thus, the argument is that redefining marriage depreciates it in public view & leads to an overall decline in stable families. To which I go :dubious:
The worst argument is- Islamic cultures already view us as decadent. Gay marriage would just give them more cause to oppose us. To which I go :dubious: :rolleyes: :dubious: :rolleyes:
A concern I have- making darn sure that religious persons, organizations & businesses have their rights respected in not forcing them to accept behavior they object to.
Whenever anyone starts a debate on gay marriage, I always ask “Why is the government in the ‘Marriage Business’ in the first place?”
As far as I’m concerned, Marriage is a religious function, and any legal issues should be taken care of with a “civil union” type of contract.
No federal question has been raised in this case, as has been noted. However, SCOTUS has already ruled that same-sex marriage bans do not violate the US Constitution.
Marriage is also a legal status, and third parties can be required to recognize this status. You can hold whatever religious marriage ceremony you want, and call it whatever you want, but if (for example) you’re seriously injured and a hospital needs a decision regarding your care, the marital status requires them to recognize your spouse as the primary decision-maker. If the hospital refuses, your spouse has legal standing (the courts must also recognize the marital status) to get the necessary injunctions.
Sure, you can designate your spouse as the decision-maker - feel free to write up a 200 page contract that spells it out in no uncertain terms, but what obligation does this impose on third parties? What if your estranged father or some other relative who despises your beloved contract-wife tries to impose his will and make medical decisions on your behalf? The status means the right (as well as a number of other important rights) is hers by default.
In Anglo-American law – and most other legal systems, I’m sure – there is an ancient presumption that marriage is not simply a contract between two people; rather, it is something in which the state has an interest, to the point that the state is the third party to the contract. You need to get a license to get married; not to enter into purely commercial contracts. In times past, you could not simply dissolve a marriage by mutual agreement of the parties, as with any commercial contract; you had to allege and prove grounds for divorce, to the satisfaction of the law’s standards for such. The thinking behind all this was that the marital relationship is one of the foundations of social order. It is the means by which reproduction and nurturing of and provision for children are organized. You could make a case that that is archaic thinking, but it’s definitely there and runs all through family law, even today.
This is why I personally would like to see state partnership contracts (with all of the standard spousal rights). These mutual support / responsibility / etc. contracts would be available to any two people. Hell, figure out how to run the process and you can add in more than 2 for all I care. The only issue there is tax / pension / health care / social security - in other words, financial and accounting nightmares.
Marriage would be a non-governmental situation, typically done to celebrate the state partnership contract.
I say this as married hetero who is fairly religious. My minister should not be acting as an agent of the state. This is not for Constitutional reasons, but because I don’t trust the state.
The Full Faith and Credit clause of the Constitution says:
This has generally been interpreted to mean that 1. A state has to abide by laws and decisions passed in other states unless doing so would be against that state’s public policy. and 2. It’s generally up to Congress to decide what’s subject to this recognition.
Since DOMA explicitly says that same sex marriages aren’t subject to the full faith and credit clause, it’s unlikely that would be successfully found to be unconstitutional.
This looks like exactly the same decision, for exactly the same reasons, as in Massachusetts (and it’s exactly as proper, of course). The only new topics I see to discuss are the likelihood of it being overridden by the amendment drive (I’d like to bet it fails, especially given the Governator’s lack of support, but I’ve heard too much about how easy it is to get on the CA ballot), and how much influence it will have on the nationwide trend toward confirming equal protection.
Well, maybe something more about the duration of backlashes, too. The more precedent there is, the shallower and shorter the backlash, one might think. Enough time has passed for that to be past its peak, hasn’t it?
This looks like exactly the same decision, for exactly the same reasons, as in Massachusetts (and it’s exactly as proper, of course). The only new topics I see to discuss are the likelihood of it being overridden by the amendment drive (I’d like to bet it fails, especially given the Governator’s lack of support, but I’ve heard too much about how easy it is to get on the CA ballot), and how much influence it will have on the nationwide trend toward confirming equal protection. That also puts longer-term political pressure on Congress and the SC to act in accordance with it.
Well, maybe something more about the duration of backlashes, too. The more precedent there is, the shallower and shorter the backlash, one might think. Enough time has passed for that to be past its peak, hasn’t it?
I’m quite aware of the contents of the FF&C Clause, though thanks for laying them out for reference here. My observations would be:
“…unless doing so would be against that state’s public policy” has the distinct character of Carrie Nation’s sister Emma’s secondary shadow. In other words, it’s found nowhere in the Constitution’s text but is a convenient way for a state to refuse to do its constitutional duty. I find it less implied by the trext than the “Right to Privacy,” which one can infer from the Fourth and Fifth Amendments. (Or, in other words, people advocating the “public policy exception” are simply saying, “I’ll be a Textualist or Originalist until it’s inconvenient.”’
The power granted Congress is to provide a uniform means of proving claims of such public acts etc., and the effect of such proof. [o]It does not empower Congress to say, ‘You can completely ignore the public acts of another state if you so choose.’"
And for that reason, totally divorced from the gay marriage question, I find the Federal DOMA constitutionally execrable. By its precedent, a complaisant Congress can decide that you must stop at every state line and qualify for a license to drive in that state, that a corporation created under Delaware law is nonexistent elsewhere and its stockholders and executives subject to be deprived of their personal effects and real property for debts and tortious acts of the corporation, that Missouri can harbor fugitives from Kansas justice with impunity, etc. It says comity between the states is totally voluntary.
The people bitching about bad precedents don’t look at the most obvious one.
The full faith and credit clause has never applied to marriage, that is why until the late 60s some states didn’t recognize marriages between mixed races, so you could be married in some states and not in others and those states no recognizing mixed race marriage were not bound to do so and didn’t, till the SCOTUS overulled that in the late 60s.
So what you’ll have is a hodgepodge of laws, kind of like the drinking laws were back in the 70s, or divorce laws were in the 40s. I remember all kinds of movie stars would go to Reno to get a divorce but the movie star wives wouldn’t and California was a lot tougher on men than women so some of the old contract players had to have their studios bail them out and pay off the wives to sign a waiver recognizing the Nevada divorces, because most states (but not all) in the 30s and 40s didn’t recognize a Nevada divorce.