Bush Calls for Gay Marriage Ban

Remove all ads!

Not necessarily. Here -

Congressional Testimony

It's long but gives examples. You could also look at wikipedia at the article on the full faith and credit clause I suspect.

On the other hand, you have cases like Loving v Virginia and Scalia's dissent in Lawrence that make some conservatives (on this issue) afraid that the full faith and credit clause would be applied to gay marriage.

Personally, I don't think it would be applied to marriage - at least at any time in the foreseeable future.

 

Sorry, I have not read the links. But regarding marriage benefits: Suppose they get married in a state where it is legal. Then they need benefits through the company they work for. Now, the company they work for is in the same state that has same sex marriages, although they have outlets in another state. Which state laws do the benefits fall under? Walmart challenged the state of Texas, saying that they are not under Texas law, but Arkansas law, so in most instances they could disregard Texas law (they were taking out life insurance on elderly employees in Texas without their knowledge and then waiting for them to die so that Walmart's lawyers could collect the insurance later on, even it they were no longer working for Walmart, but had passed on). I'm not sure how this was ever resolved, if ever. But it was a case in the news a while back. Last I heard it was mired in litigation.

 

Laches, while that testimony is informative, and does clearly cite examples where marriages in one state have not been upheld in another state, Professor R. Lea Brilmayer sadly does not offer a one size fits all conclusion. He basically says it's up to the individual states, and to keep doing what we're doing. His conclusion:

His arguement is against a constitutional amendment to define marriage, but not specifically about what to do about when a person gets married in one state and moves to another, other than to say, it's up to the state.

With something as important as marriage, it is reasonable for people to expect some level of stability in their rights as a married couple, and I still think some type of federal judgement is sorely needed here. While the testimony given makes a very good arguement, I'm sure an equally good arguement could be made in the opposite direction.

 

Well, understand what Brilmayer was up to (Brilmayer is a she by the way.) She is a conflict of laws professor and she was there to testify regarding whether the full faith and credit clause is likely to be used to to force states to recognize gay marriages that took place in other states. She concludes that a consitutional amendment is unnecessary because the full faith and credit clause won't, in her opinion, be used to force any state to recognize a marriage contrary to its laws/public policies.

Her conclusion is merely saying that an Amendment isn't necessary in her opinion to allow states to continue to not recognize gay marriage.

She is just saying the way the law is in her opinion. She isn't saying what we ought to do socially or the way the law ought to be (her bit about federalism is to support her contentions with respect to the way the law is.)

 

The Massachusetts court has passed a verdict in direct contradiction with the Massachusetts constitution. Here's something I wrote about that farce two years ago: clicky.

 

Having read through your critique, with all due respect, it can be boiled down to: "I disagree, I don't want gays to be allowed to get married."

I'm not sure how to put this so as to not ruffle any feathers but I'm going to try. I used to clerk for Blane Michael on the 4th Circuit and now primarily do a good bit of appellate work (though I am getting to branch out) and this is just my opinion based on my experiences. DMC may have a different view.

Your critique isn't really a legal analysis in the United States. Perhaps in your country with your legal traditions the type of arguments you make are the type of things that you would expect to see in a legal analysis but it isn't really what you see in the US in brief writing or even some of the more lenient law reviews out there.

Now, this is a message board and not an appellate court so it isn't fair to ask that everything be cited, Shepardized, etc. To the extent that you want to just give policy arguments as to why there shouldn't be same sex marriage - fine. But, to the extent that you want to claim that you have proven that the NJ Supreme Court is wrong with respect to what its Constitution says, i.e. it is a farce, (if such a thing is even philosophically possible) I wanted to point out that you have a lot of work to do.

 

I'm not writing a US-style or US Appeals style analysis or claim or I would have framed it in the right way, following the appropriate procedural rules after actually researching them first. The whole process would take much more time than I can afford and would basically be pointless since I wouldn't do anything with it, anyway. I'm writing in such a way that non-lawyers could figure something out and to show that what the text of the Massachusetts constitution says and what the court said was in blatant contradiction and what kind of idiocies the judges came up with and basically, that's my point -- to cut it into pieces and tell the world how idiotic and self-contradicting the pieces are. As for what you mean by analysis, here with have strictly scientific analyses, opinions for private, commercial and sometimes judicial use, court writings which are reasonably formal and preferably organised, and finally appeals, cassations, claim of inconsistence of a verdict with the law, constitutional claim, verdict/procedure invalidity claims. That stuff is way more formal than what you write in a newspaper when commenting on something.

[ June 07, 2006, 00:06: Message edited by: chevalier ]

 

I don't even see why it’s an issue of anybody's what two consenting adults do with their lives as long as it harms nobody else.

 

I gathered that is what you were trying to do. But, you haven't shown that the Mass constitution contradicts what the Goodridge court decided. Instead, you've said you disagree and gave policy reasons and interpretations that called for numerous assumptions for why you disagree. I've got no problem with that.

To show the contradictions you claim would require a great deal more work than a message board will allow because you'd need to review 100+ years of jurisprudence. The Court did that. The plaintiff's brief was over 100 pages and fairly well written. There were numerous amicus briefs submitted.

I'm not saying you're wrong about the substance of what you've written (although, I think that too) I'm just saying that your claims with respect to what you've accomplished are too strong and since you have a certain claim to authority as an attorney-to-be (or whatever you folks are called over there) I'm just saying I disagree with your interpretation.

 

Just stopping by to say that I agree with just about everything DR said about Bush in his first post, horrid president, good thing I don't vote.

 

I feel that GW is trying to protect the sanctity of marriage. It is the last thing that the Hetrosexual world has. If you would see the Hetro's marching down the street promoting their beliefs, they would be called Bigots. We as Americans have given enough rights up. Where does it end?

 

You mean, what small amount of sanctity IS left.

 

If we actually have the time to read something that long

Yes, us Americans have so few rights.

So does that mean you think marriage should be protected or that homosexuals should be allowed to marry?

 

I urge everyone in this debate (especially those against gay marriage) to listen to the following, excellent post by blogger Andrew Sullivan. And yes, I did say "listen" - he's recorded a point-by-point response to President Bush's recent radio address addressing this subject. Sullivan is a prominant conservative (libertarian) blogger who also is an author and writes for TIME. He also happens to be gay - a viewpoint sorely missing in this thread (and in the debate in general, for that matter).

linky

I heartily a agree with his point of view, though as a straight man I can't identify completely, of course.

 

The point I agree with the most: When the country is so divided on this issue, why try to force the entire nation to agree with one thing when only a part (not the majority) believes it?

Also: Bush never actually spoke with gay people about how they felt about the amendment... He speaks about how everyone has a say, and yet when they are being discriminated against and their rights are being oppressed, he wont listen to them.

And how about the fact that this affects gay people the most? Its not helping heterosexuals, it just hurting homosexuals. Think about it... we are passing a federal bill that will hurt a minority.

 

Yeah, really, I agree. The last place that conservatives should go with this is the Constitution, as Sullivan points out. But it should not be surprising from George II, because he really has little regard for the document anyway. Most conservatives I know have too much consideration for the document to be used in this manner, which is simply to stop a handful of states from allowing gay marriage.

And we all know that this is really about pandering to the so called "religious" base anyway...

 

As Sullivan put it, overkill... only 5 states allow gay marriage, do we need a federal bill to ban those 5 states? According to Bush we do...

 

Technically, only one state (Massachesetts) allows gay marriage. The other four states don't have a policy stating they won't acknowledge same sex marriages from other states. For example, New York will acknowledge a gay married couple moving there from Massachusetts. However, it is another matter for someone who wants to marry a same sex partner to actually do so in New York.

The other question I have for the lawyers on the board would be is using Article IV as a legal challenge even necessary here?

How about the 9th Amendment?

Or Section 1 of the 14th Amendment? (I've bolded the relevant section.)

 

I'm going to go from memory and generalize to a point that would likely make dmc cringe.

If I recall correctly, the 9th Amendment has never been used as the basis of finding a law unconstitutional. The Supreme Court has said in the past that the 9th Amendment does not create any federally enforceable rights and Laurence Tribe has explained it as a guide to interpreting the Constitution as opposed to actually investing anyone with any particular right.

So, the 9th Amendment is not likely (very unlikely ) to ever be used to strike down any law related to same-sex marriage.

The Equal Protection challenges are the most common challenge to a law banning same-sex marriage (along with Due Process challenges.) So, you're looking at one of the most likely places a succesful challenge would look.

The Supreme Court's jurisprudence related to the 14th Amendment has specified three levels of scrutiny for governmental actions (such as but not limited to the passage or enforcement of a law.) At the top end there is what the Court calls strict scrutiny, then there is heightened scrutiny, and then there is rational basis review (there may be other names for calling these types of review.)

Strict scrutiny is applied to actions that involve racial classifications or impact a fundamental right. Heightened scrutiny is applied to gender classifications. Rational basis review is for everything else. The significance is that it is more difficult for an action (or law) to pass constitutional muster if it is analyzed under strict scrutiny than if it is analyzed under another standard, etc.

In many cases courts have indicated that laws that make a distinction based on sexual orientation are reviewed using the rational basis tests. Most recently, the Supreme Court reviewed Lawrence under these relaxed standards (and struck down the relevant statute.) In dicta in Lawrence the Court's majority specifically stated that its ruling would not apply to same-sex marriage with Justice O'Connor stating that preserving the traditional institution of marriage is a legitimate state interest (which would be sufficient to satisfy one prong of the rational basis test.) If the courts review same-sex marriage under the rational basis standards the Court is unlikely to hold a same-sex marriage ban unconstitutional in the foreseeable future.

One might argue that since marriage is a fundamental right, same-sex marriage laws warrant review under strict scrutiny. There is not much indication that federal courts are inclined to do this though.

Now, state courts might say that under their state constitutions their versions of the equal protection clause or due process clause prohibit same-sex marriage bans (which is what Mass did) but it isn't likely in the near future that the Supreme Court of the US would do the same in my opinion.

Good thinking though.