If getting married after a divorce is sinful...

[beechy]

Did we cover this already?
I couldn't tell since the argument was still the same and the same empty hypothetical was being voiced as if they were relevant.
However, I do like "if's", such as:
"IF" a large meteor strikes the Earth, all of it is irrelevant.
"IF" SCOTUS rules in favor of the status quo, it would be yet another nail in that coffin.

As it is, my State learned a lesson from Hawaii when back in 1993, when the gay proponents attempted to FORCE the government and its citizens to officially recognize and promote same-gender marriage.
But since the issue was forced and the people rejected that ideology, the Rule by Consent principal and the Due Process clause found in the 14th Amendment was exercised and the issue was rendered moot by a State Constitution definition.
This was later reinforced by DOMA to prevent other states that may hold a Liberal ideology or had a lack of defense against such.

My State did likewise (Hawaii), just as many other States have done.

Again and what my State is TODAY:

"To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose."

Yeah, I think I remember covering all this before... come to think about it.

Of course everything is an "if" ... the matter hasn't been decided yet. If it had been, we wouldn't be having this debate. But that doesn't mean that state constitutions are immune from the Supremacy Clause.

 

[Brennin]

U.S. Constitution Article III Section 2

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.


In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.


The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

 

[beechy]

U.S. Constitution Article III Section 2

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.


In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.


The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Yes, but see, e.g., Klein v. United States, 80 U.S. 128 ("It is the intention of the Constitution that each of the great co-ordinate departments of the government -- the Legislative, the Executive, and the Judicial -- shall be, in its sphere, independent of the others"). Again, this is a hotly debated area. Do you really want to go into this here?

 

[ChristianCenturion]

Of course everything is an "if" ... the matter hasn't been decided yet. If it had been, we wouldn't be having this debate. But that doesn't mean that state constitutions are immune from the Supremacy Clause.

The matter hasn't been decided yet?
Are you saying that you know for sure that the SCOTUS WILL hear a case on this?
Or are you saying that even IF the SCOTUS will hear a case on this, rule in favor of the States, then the matter will be decided THEN?
I'm not sure that anything is really being said there, beechy.

 

[Brennin]

Are you suggesting that the President can and should legally ignore federal common law? Article II, Section 3 of the U.S. Constitution says that the President " . . . shall take Care that the Laws be faithfully executed . . ."

SCOTUS does not make laws. Also, I refer you to Jefferson

Jefferson on Judicial Review

Excerpt:



"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

 

[Brennin]

Yes, but see, e.g., Klein v. United States, 80 U.S. 128 ("It is the intention of the Constitution that each of the great co-ordinate departments of the government -- the Legislative, the Executive, and the Judicial -- shall be, in its sphere, independent of the others"). Again, this is a hotly debated area. Do you really want to go into this here?

Supreme Court rulings cannot contravene the clear language of the Constitution. BTW, the only reason it is debated at all is because liberals do not like the implications of the correct interpretation of the Constitution.

 

[beechy]

The matter hasn't been decided yet?
Are you saying that you know for sure that the SCOTUS WILL hear a case on this?
Or are you saying that even IF the SCOTUS will hear a case on this, rule in favor of the States, then the matter will be decided THEN?
I'm not sure that anything is really being said there, beechy.

I'm saying that United States Supreme Court decisions are binding on all lower courts. So if SCOTUS rules that same-sex marriage bans violate the U.S. Constitution, then any state constitutions which contain such bans will be unconstitutional under the US Constitution per the SCOTUS ruling. Then if a lawsuit is brought in a state whose constitution contains such a ban, the state court will be bound by SCOTUS' ruling, and strike down the challenged provision accordingly. My point is simply that a state constitution is not the bottom line in this country, as you seem to suggest.

 

[beechy]

SCOTUS does not make laws. Also, I refer you to Jefferson

Jefferson on Judicial Review

Excerpt:



"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

Yes, well, Marbury v. Madison has been the rule since 1803, and Jefferson's commentary on judicial review has not.

 

[SimplyMe]

Not if the President refuses to enforce such a ruling, which is his prerogative as chief executive. Another alternative would be for Congress to remove the SCOTUS's appellate jurisdiction in all cases involving state marriage laws.

Except that the President isn't the one who enforces state laws, which is what almost all marriages are governed by. While we could debate the ethics of a President or Congress doing this, in this point it is moot. Instead the President would need to force the various governors, as well as the Mayor of Washington, D.C., to not enforce the ruling.

As for Congress, if it would be so easy, why haven't they ever removed the jurisdiction of the Supreme Court on abortion?

 

[beechy]

Supreme Court rulings cannot contravene the clear language of the Constitution. BTW, the only reason it is debated at all is because liberals do not like the implications of the correct interpretation of the Constitution.

No, this is a hotly debated topic because the Constitution also envisions a separation of powers between the various branches. It's a tricky area of checks and balances.

 

[ChristianCenturion]

I'm saying that United States Supreme Court decisions are binding on all lower courts. So if SCOTUS rules that same-sex marriage bans violate the U.S. Constitution, then any state constitutions which contain such bans will be unconstitutional per the SCOTUS ruling. Then if a lawsuit is brought in a state whose constitution contains such a ban, the state court will be bound by SCOTUS' ruling, and strike down the challenged provision accordingly. My point is simply that a state constitution is not the bottom line in this country, as you seem to suggest.

Umm... the bottom line is that what I posted IS from my State's constitution. People are free to make all the empty "if"s, speculations and/or assertions as they please, but it doesn't change that bottom line.
BTW - what I posted was the CRITERIA, not a lengthy list of all those other models that may or may not be "banned".

And FYI, I still believe people can have a marriage ceremony, call it marriage and it not be against the law in my state even though my state may not recognize it.
Don't quote me on that last part though - it is merely a "speculation" on my part.

 

[Brennin]

Except that the President isn't the one who enforces state laws, which is what almost all marriages are governed by. While we could debate the ethics of a President or Congress doing this, in this point it is moot. Instead the President would need to force the various governors, as well as the Mayor of Washington, D.C., to not enforce the ruling.

Without the might of the federal government to back their ruling governors would be free to disregard it. That is my point.

As for Congress, if it would be so easy, why haven't they ever removed the jurisdiction of the Supreme Court on abortion?

The fact that they have not yet exercised their Constitutional authority does not mean they cannot exercise it.

 

[beechy]

Umm... the bottom line is that what I posted IS from my State's constitution. People are free to make all the empty "if"s, speculations and/or assertions as they please, but it doesn't change that bottom line.
BTW - what I posted was the CRITERIA, not a lengthy list of all those other models that may or may not be "banned".

Umm ... the bottom line is that what your state constitution says, like what your state courts may say, is only binding if and until SCOTUS declares it unconstitutional. My point is simply that a state constitution is no different than a state supreme court ruling in this respect. You brought up your state constitution when I referred to the constitutionality of same-sex marriage bans. But when I said constitutional, I was referring to the U.S. Constitution because it trumps any conflicting state documents. The question we are faced with today is: Do state laws or constitutions which ban same-sex marriage conflict with the U.S. Constitution?

And FYI, I still believe people can have a marriage ceremony, call it marriage and it not be against the law in my state even though my state may not recognize it.
Don't quote me on that last part though - it is merely a "speculation" on my part.

The question is not whether it is against the law for people to privately consider themselves married. The question is whether it is ok for the state not to recognize a marriage between two people based solely on the gender of the parties.

 

[Brennin]

No, this is a hotly debated topic because the Constitution also envisions a separation of powers between the various branches. It's a tricky area of checks and balances.

There is nothing ambiguous about the language of Article III Section 2. Apparently, the authors believed such authority wielded by Congress is consistent with our republican government.

 

[SimplyMe]

Without the might of the federal government to back their ruling governors would be free to disregard it. That is my point.

But governors are free to disregard Supreme Court rulings now. Granted, they might not like the response they get from the Federal Government -- it's been fought out before (see George Wallace at the U. of Alabama). In fact, you can disregard any law you choose. Whether the president chooses to enforce a law or not does not change the fact that it is the law.

The fact that they have not yet exercised their Constitutional authority does not mean they cannot exercise it.

Yet you seem to be presenting this as if it is something likely to happen, yet it would seem that they would have done it about abortion or segregation in the 1950s. If anything, it would be more likely that they'd try to pass a Constitutional Amendment at that point, though I doubt it would work any better than the attempts in Massachusetts.

 

[ChristianCenturion]

Umm ... the bottom line is that what your state constitution says, like what your state courts may say, is only binding if and until SCOTUS declares it unconstitutional. My point is simply that a state constitution is no different than a state supreme court ruling in this respect. You brought up your state constitution when I referred to the constitutionality of same-sex marriage bans. But when I said constitutional, I was referring to the U.S. Constitution because it trumps any conflicting state documents. The question we are faced with today is: Do state laws or constitutions which ban same-sex marriage conflict with the U.S. Constitution?

To date, apparently they do not conflict with the U.S. Constitution.
But I wouldn't fret too much over the "IF's". After all, "IF" the SCOTUS ruled against the states and citizens, I'm sure the people would find another way to cast off the shackles of any dictatorship/oligarchy mandate. We are kinda persistent like that.

The question is not whether it is against the law for people to privately consider themselves married. The question is whether it is ok for the state not to recognize a marriage between two people based solely on the gender of the parties.

Apparently it is when the State's constitution spells out the qualifications and includes gender and/or number of people involved.
See also polygamy, incest, arranged marriage, various cohabitation laws, etc.

 

[beechy]

There is nothing ambiguous about the language of Article III Section 2. Apparently, the authors believed such authority wielded by Congress is consistent with our republican government.

The section cannot be read in a vacuum, but must be considered in light of the entire Constitution, and all that it implies. I challenge you to find a provision of law which is so "unambiguous" in its application that there has been no case law to interpret it. This provision is no exception. It has been the subject of countless scholarly studies over the years, by a varied cast of prominent legal theorists. (See, e.g., Warren, Legislative and Judicial Attacks on the Supreme Court of the United States--A History of the Twenty-Fifth Section of the Judiciary Act, 47 Am. L. Rev. 1, 161 (1913); Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv, L. Rev. 1362 (1953)).

 

[beechy]

To date, apparently they do not conflict with the U.S. Constitution.

To date some states think it does, some states think it doesn't. And the Supreme Court of the United States has yet to give us an answer.

But I wouldn't fret too much over the "IF's". After all, "IF" the SCOTUS ruled against the states and citizens, I'm sure the people would find another way to cast off the shackles of any dictatorship/oligarchy mandate. We are kinda persistent like that.

Ok.

Apparently it is when the State's constitution spells out the qualifications and includes gender and/or number of people involved.
See also polygamy, incest, arranged marriage, various cohabitation laws, etc.

Polygamy, incest, etc. etc. do not pose the same legal question as is being presented before the courts today with respect to equal protection/due process challenges of same-sex marriage bans. Again, whatever the status quo is in terms of a particular state's law, the question is whether it is permissible under the U.S. Constitution.

 

[ChristianCenturion]

Polygamy, incest, etc. etc. do not pose the same legal question as is being presented before the courts today with respect to equal protection/due process challenges of same-sex marriage bans. Again, whatever the status quo is in terms of a particular state's law, the question is whether it is permissible under the U.S. Constitution.

According to what I infer from you it does.
If you can take a racial precedent such as Loving and "declare" that it opens the door for same gender marriage, then you will have to provide the required "evidence" that supports this later claim that the "others" mentioned are "not" the same legal question.
The Flip-Flop needs to stop.

 

[beechy]

According to what I infer from you it does.
If you can take a racial precedent such as Loving and "declare" that it opens the door for same gender marriage, then you will have to provide the required "evidence" that supports this later claim that the "others" mentioned are "not" the same legal question.
The Flip-Flop needs to stop.

First, the only thing I've cited Loving for in this thread is the proposition that marriage has been deemed a fundamental privacy right under the 14th Amendment. A complete legal argument regarding the unconstitutionality of same-sex marriage bans -- which I have not attempted to make here -- would require far more than a single cite to a single case. That said, I'll try to respond to your request in a general way, as best as I can in this limited forum.

The argument is that same-sex marriage prohibitions discriminate against gay people and create an impermissible gender classification. That is, with respect to gender: Jane and Susan can't get married solely because of Susan's gender. Put another way, but for Susan's gender (i.e., if Susan was Stanley), Jane and Susan could get married. It is impermissible (so the argument goes) to make such a classification without a compelling government reason for doing so. With respect to sexual orientation, the argument is that homosexuality means an individual is born with an inherent attraction to members of the same-sex. Such individuals will never want to make a life-long marriage commitment to someone of the opposite sex. For the law to say that homosexuals can only marry members of the opposite gender is effectively saying that homosexuals can't marry. Again, the argument is that it is improper and unconstitutional to make this discriminatory classification as to homosexuals when it interferes with a fundamental right. These perspectives form the basis for an equal protection claim.

Of course, this gets into muddy philosophical areas for many people. There are those who believe homosexuality is a conscious choice, not an inherency. There are those who don't think marriage, at its core, needs to involve fidelity. So, again, it comes down to how the courts are going to define marriage and how they're going to frame the state's interest in the marriage relationship.

Polygamy would not involve a challenge to an ostensibly impermissible gender/orientation classification, so I don't see how equal protection could provide a basis for a polygamist's constitutional claim.

Consanguinous marriages (i.e., between members of the same family) might provide a stronger case. I, for one, don't care if you want to marry your sister. I speculate that courts might seek to uphold such bans based on the theory that it is in the best interest of families to remove sexual temptation between parents and minor children, or as a general public policy to prevent biological problems that may arise when children are born of such marriages (a concern, of course, that they'd have to back up with evidence and distinguished from marriages between people who carry the same recessive genes for devestating genetic disease, etc.) ... but it would depend on how such a challenge would be framed (i.e., on equal protection grounds, due process grounds, etc.). And again, if a group of siblings or other closely related blood relatives desiring to marry one another brought a suit challenging the constitutionality of such bans I really wouldn't have a problem with the ban being lifted (even if I wouldn't go there myself).

In any case, I'm not arguing that the same-sex marriage debate doesn't force us all to take a good look at the institution of marriage and to think about what it means. But I am arguing that maybe the institution needn't -- indeed shouldn't -- be about gender. It will be interesting to see how this all plays out, eh?