I’d appreciate it, Bricker if you’d not make unsubstantiated claims, although I have to admit that it prompted me to look into the matter. Information from Pew Research Center and CivicMind.com: Assuming the information there is accurate and complete, only New Jersey and Wisconsin have had a court case that was decided against SSM (a case in Indiana was dismissed and is on appeal). On the other hand, California, Massachusettes, New York, Oregon, and Washington have had court cases that allow SSM. It seems as though Connecticut, Maryland, and Nebraska have court cases pending. However, that’s a count of 5 court case for, 2 against, with 3 pending.
Now, I know that those sites are not quite complete, as I was living in Hawaii when the state Supreme Court decided that anti-SSM laws were unconstitutional. So, in a quest to relieve myself of ignorance, I checked Wikipedia to find that, according to their timeline, Minnesota and Arizona are the only two states that have had court cases against SSM. On the other hand, Hawaii, Alaska, Vermont, Massachusettes, New York, Oregon, and Washington have had court cases in favor of SSM, while Colorado’s and Rhode Island’s DA’s indicate that state laws did not explicitly prohibit it.
The point to this follow-up being: there are not “plenty of state court decisions upholding anti-SSM laws” and that when it has gone to court, at least prior to amendment of the state’s constitution, most of the court cases have favored SSM. Two of the four rulings I came across that supported anti-SSM (the ones on Wikipedia) are from the '70s.
If anyone has better resources than those I’ve discovered, I’d like the cites.
The same place that the “loophole” making the prohibition on ex post facto laws only apply to criminal statutes is found – the well-understood meaning of a legal term of art at the time of the founding. See, e.g., Calder v. Bull (ex post facto), Pacific Employers Ins. Co. v. Industrial Accident Com’n (FFC).
For that matter, no strict constructionist would claim that the first amendment protects a speaker from slanderous speech, even though that isn’t explicitly in the text. Why? Because that is the well-understood meaning of the text at the time it was written.
After reading thru this and the many other threads on SSM, it seems we simply ought to admit that the GLBT community in the US are second class citizens. They don’t have the same rights and responsibilities as the rest of the population. What rights and responsibilities they do have only come when the majority feels comfortable enough bestowing them. The majority can do whatever they damn well wants and all those words about “unalienable rights” and “equality before the law” are so much pretty words mouthed by the general population to make them feel good about themselves.
(Other than, “You should convince the legislature to grant you equal rights, because it’s inappropriate to expect a court to defend a Constitutional guarantee of them; that might invoke the dreaded substantive due process [shudder].”)
Yes, I would like a serious response. I’ll admit to using hyperbole in my phrasing, but I from everything I’ve read, my statement does outline the situation aptly.
Yes, I’m actually quite grateful that you didn’t just blow me off. Thank you. I assume these cases are prior to any amendments?
I’d like to see a list of pro-SSM decisions to compare these with. (Please note, I’m not asking you to do the legwork, just thinking out loud.) Where did you find them?
Actually, folks, I do have something to point out that’s relevant to this debate. Some 40 years ago we did have a situation in America where a couple could be legally married in one state, but not in other states. Specifically, in Hawaii interracial marriages have not only always been legal, but accepted. Meanwhile some states had laws against interracial marriages well into the 1960s and I think 1970s. I remember reading many months ago in USA Today that at one point 95% of the country opposed interracial marriage. Now, I don’t know the history of anti-miscengenation laws or how rigourously enforced they were; I don’t know how a couple who were Hawaiian/German would have been received if they decided to vacation in a state which had such a law and presented themselves as a married couple. I do know that this would not be the first time that marriages would be legal in one state but not in others and the country survived. I also know that very few people are arguing in favor of anti-miscegenation laws these days and those who are are not well thought of.
Well, while i don’t know how those laws defined interracial marriage, i do know that “interracial” has had different meanings at different times and, more importantly, in different places in the United States.
Historian Neil Foley, in a great book called The White Scourge: Blacks, Mexicans, and Poor Whites in Texas Cotton Culture, spends a bit of time talking about the issue of “whiteness.” He says that, during the nineteenth century, a person of Spanish/Mexican descent in the southwest states like Texas was subjected to racism as a non-white. But if that same person travelled east to other parts of the South (Georgia, Carolinas, etc.) they were treated as white by virtue of the fact that they were NOT black.
That is, standards of whiteness in Texas counted both blacks and Hispanics as non-white, while in the deep south it was more of a binary opposition between black and white; Hispanics were generally treated as being of European descent, hence white. He has quotations from letters and diaries of white people who talk about Hispanics as white, and as not-black.
I guess it’s possible that the anti-miscegenation laws you mention were enforced mainly along the black-white schema that Foley lays out for the South. It could be that a Hawaiian-German couple would not register on their scale of what qualifies as “interracial.” But that part is purely speculation on my part.
Do you have a response to my last reply to you? Or are you willing to admit your posts regarding strict constructionism are a caricature having no basis in reality?
Whether or not there is in fact a “constitutional guarantee” of anything at all is precisely what is at issue here. You’re begging the question, in the classical sense.
Answer me this: is there any limit on your chosen view? Do courts need to ever defer to the legislature when the legislature’s choices depart from the court’s view of social justice?
Adams v. Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982)
Baker v. Nelson, 191 NW2d 185 (Minn. 1971)
Jones v. Hallahan, 501 SW2d 588 (Ky. 1973)
Singer v. Hara, 522 P.2d 1187 (Wash. App. 1974)
Pennsylvania: De Santo v. Barnsly, 476 A.2d 952 (Pa. Super. Ct. 1984)
In re Estate of Cooper, 564 N.Y.S.2d 684 (N.Y. Fam. Ct. 1990)
Dean v. District of Columbia, 653 A.2d 307 (DC 1995)
To that I can add Maryland: Jennings v. Jennings, 315 A.2d 816, 820 n.7 (Md. Ct. App. 1974), “marriage is between only one man and one woman.”
Now, lest any reader say, “Oh, three of those are from the seventies, so they don’t count!” I’ll point out first that they are all good law: that is, they have never been overturned by subsequent decisions. Therefore, they remain the laws of their respective states, and are specifically relevant to rebut the assertion above made by Digital Stimulus that:
But perhaps you’d like more recent cases anyway.
New York: Storrs v. Holcomb, 645 N.Y.S.2d 286 (N.Y. App. Div. 1996), New York does not recognize or authorize same-sex marriage.
Illinois: In re Estate of Hall, 707 N.E.2d 201, 206 (Ill. App. 1998) no same sex marriage will be recognized; petitoner claiming existing same-sex marriage was not in a marriage recognized by law.
Georgia: Burns v. Burns, 560 S.E.2d 47 (Ga. App. 2002), state will only recognize marriage between one man and one woman.
Kansas: In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002), a post-op male-to-female transgendered person may not marry a male, because this person is still a male in the eyes of the law, and marriage in Kansas is recognized only between a man and a woman.
Connecticut: Rosengarten v. Downes, 806 A.2d 1066 (Conn. 2002) Marriage in this state is only between one man and one woman; state will not recognize Vermont civil union in any way.
Florida: Frandsen v. County of Brevard, 828 So. 2d 386 (Fla. 2002) State constitution will not be construed to recognize SSM; sex classifications not subject to strict scrutint under Fla constitution.
Arizona: Standhardt v. Superior Court ex rel County of Maricopa, 77 P.3d 451 (Ariz. App. 2003), no state constitution right to same-sex marriage.
New Jersey: Lewis v. Harris, 2003 WL 23191114 (N.J. Sup. Ct. 2003) (unpublished)(New Jersey is not requried to allow same-sex marriage).
Indiana: Morrison v. Sadler, 2003 WL 23119998 (Ind. Super. Ct. 2003), Indiana’s DOMA law is found valid, marriage may only be between one man and one woman.
In fact, technically speaking, I can cite Vermont in favor of my side: the Vermont court ruled that the state had to offer similar benefits, but was NOT required to offer marriage. This is why we have civil unions in Vermont rather than same-sex marriage. See Baker v. State, 744 A.2d 864 (Vt. 1999).
Now, how did you go so wrong?
Let’s look at that claim. With respect to Hawaii, Alaska, and Massachusetts, it’s true. In Hawaii and Alaska, the effects of the ruling were reversed by passage of a state constitutuional amendment, so they fit your claim perfectly. In Massachusetts, of course, the court’s decision has yet to be altered, so it, too, fits.
As I noted above, Vermont fits the spirit of the claim, altough it does explicitly deny SSM rights in the state.
New York, Oregon, and Washington have “had cases” in favor of SSM, it’s true, but those cases are not complete or have been overruled. The BINDING CASE LAW in each state remains opposed to SSM. In New York, for example, the binding case law is Storrs v. Holcomb, 645 N.Y.S.2d 286 (N.Y. 1996). Now, it’s true that in February of this year, a State Supreme Court judge named Doris Ling-Cohan ruled that New York City could not deny same-sex marriage licenses. But in New York, the “Supreme Court,” is the trial court; its decisions are binding only on the case it has before and do not create precedent. Judge Ling-Cohen’s decision has been stayed pending appeal, and has no effect at this time.
In Oregon, the only court to address the issue found that the legislature had to fashion a solution, dismissed the case before him, and ordered the legislature to consider the issue in their next session. This order was ultimately mooted by the passage of Ballot Measure 36, the constitutional amendment holding that marriage in Oregon is to be between one man and one woman. This case does NOT qualify as a favorable court decision overturned by constitutional amendment.
Now, I’ve spent a lot of time here finding case cites and Shepardizing them, time for which I can bill no one, proving a point I already knew.
I now say again, a b: There are plenty of state court decisions upholding anti-SSM laws, before any constitutional amendments came into play.
It’s the hyperbole I object to, and it’s hyperbole that was the bulk of your post. There are religious factions who accept and promote polygamy as part of their beliefs. Yet we don’t say members of those factions are “second class citizens” because polygamous marriages are not recognized by the state, or that the majority is just mouthing platitudes because it is denying them that right.
I don’t think it makes sense to compare other states to MA. MA is the ONLY state where SSM is legal. For example, there was a ruling in CA just a few weeks ago that SSM is guaranteed by the state constitution. But that doesn’t make SSM legal in CA. The ruling was stayed, and it’ll eventually make it to the state SC (I assume) where the matter will be settled.
I see your point. I think it makes sense for each state to consider this issue and spell it out explicitly in the law. 50 years ago the idea of SSM would have been unthinkable to the vast majority of Americans. That has changed quite a bit, and will continue to change, I’m sure. It’s possible that the people in some states are ready to accepty SSM, although I suspect it might be just a handful. At any rate, times have changed and laws need to be more explicit on this hot button issue.
Because I don’t have access to law databases? As I qualified quite clearly each and every time, I can only work with the knowledge I have and to which I have access. Surely you’ll agree that I should not simply accept unsubstantiated claims.
Thank you for your efforts. I’m sure they’re appreciated by more people than just me.
I think the rigor you are demanding in this thread is more suited to a GD thread. Had this been in GD, I would have provided acitation to my argument from the beginning. Here in this forum, I was relying on the fact that I’ve been a poster here for five years, and, while my expertise is admittedly in criminal law and not family law, I am a freakin’ lawyer and can be assumed to have at least passing familiarity with…well… the law.
However, in the end, you’re right: no matter what forum we’re in, a gratuitous assertion may be equally gratuitously denied. So you were well within bounds to ask for cites, and the irritation I felt is more my irrationality than anything else…
A just question. Basically she gets the let’s-be-friends speech, Eve. Sexually I would find it a dealbreaker. This might well entail some banging of my head on the nearest brick wall and screaming “Oh, thank you God! Thank you so very much, I really needed that!”
(I’m extrapolating back to my frustrated twenties here, you understand. These days I’m reasonably happily married with two wonderful sons.)
Non-sexually, I’d hope our mutual attraction was deep-rooted enough to endure as a lifelong friendship, and I’d be cheering for her if she found someone with fewer visceral issues than me. Do you call that a reward? A better outcome than me ending up in bed with someone who for the purposes of who I have sex with I consider to be a man?
I hope this comes across as honest and thoughtful. It’s certainly posted without a shred of sarcasm - and with my thanks for someone hereabouts who’s able to conduct herself with a spot of civility.
Harking back to the rape question, I should reiterate that my initial reaction was to consider it harsh to jail someone under those circumstances. However…
Let’s leave aside the Republicophobe and the anti-Semite, and instead picture me as a slim, smooth-faced man who looks a lot like a boyish lesbian in a dim light. (Fat, bearded Mal pauses for sober reflection.) Assume that one way or another I manage to hook up with a for-real lesbian. We do the nasty with the lights off, and after she has had as much of my tongue, fingers and dildo as she likes, the lights come on and she sees a naked man heading for the shower. Is she entitle to scream “Rape!” even though I’ve done nothing to her that another woman couldn’t?