Gay marriage, what do you think?

[Coito ergo sum]

Why the fuck can't the judges just read the consitutional amendments?

Exactly!

Did the people that passed those amendments intend to give gay's the right to marry? No, the people that passed those amendments thought homosexuality was a criminal offense. When they wanted to give Blacks the right to vote, they passed a constitutional amendment requiring it. Gays need to take the same path.

Actually, no. Marriage is not a constitutional issue per se. There does not need to be an amendment to allow gay marriage. All that needs to be done is statutes concerning marriage need to be amended. that just takes a majority vote of the legislature of a given state. After that, other states ought to respect those marriages under the full faith and credit clause. But, that's where DOMA comes in, where the federal government enacted a statute saying that FF&C doesn't apply to gay marriages. DOMA will likely be found unconstitutional.

[Sean Hayden]

[quote="Coito ergo sum"][/quote]

Thanks for the info Coito.

I'm just stating the obvious.

[Tyrannical]

Why the fuck can't the judges just read the consitutional amendments?

Exactly!

Did the people that passed those amendments intend to give gay's the right to marry? No, the people that passed those amendments thought homosexuality was a criminal offense. When they wanted to give Blacks the right to vote, they passed a constitutional amendment requiring it. Gays need to take the same path.

Actually, no. Marriage is not a constitutional issue per se. There does not need to be an amendment to allow gay marriage. All that needs to be done is statutes concerning marriage need to be amended. that just takes a majority vote of the legislature of a given state. After that, other states ought to respect those marriages under the full faith and credit clause. But, that's where DOMA comes in, where the federal government enacted a statute saying that FF&C doesn't apply to gay marriages. DOMA will likely be found unconstitutional.

I was referring to the equal protection clause applying to homosexuals. But technically it is a State's Rights issue, unless we criminalize homosexuality at the federal level again.

[Coito ergo sum]

Thanks for the info Coito.

I'm just stating the obvious.

Well, it's not all that obvious. I agree, it should be legalized, but to state "from the beginning" is a bit glib. I mean, in the 1970s and 80s, homosexuality was listed as mental illness in the Diagnostic and Statistical Manual of the American Psychiatric Association, and the same was true in most of the western world. In the 1960s and earlier, homosexual behavior was a crime (and in some places still was as late as the 1980s). I think in the 1952 the famed Alan Turing was prosecuted in the UK for his homosexuality. Not long before that, gays were jailed or hanged.

We have come a long way.

[Coito ergo sum]

I was referring to the equal protection clause applying to homosexuals. But technically it is a State's Rights issue, unless we criminalize homosexuality at the federal level again.

State's Rights don't trump the Equal Protection Clause -- the EP Clause applies to the States, and prohibits them from denying any citizen equal protection of the laws. A historical practice that is nonetheless a denial of equal protection would still be unconstitutional. The question is not 'what did people intend in 1868?" -- the question is "does denial of two men and/or two women the right to marry each other deny them equal protection of the laws?"

If they are found to be treated "equally" then there is no violation.
And, even if treated differently, if there is a legitimate state interest to which the distinction is reasonably related, then there is no violation.

I think the main argument the SCOTUS will be looking at is whether there is a legitimate state interest in limiting marriage to just men and women. They will want to know what the State is articulating as that legitimate interest and whether the distinction is reasonably related to it.

Original intent really doesn't come into play here.

[Tyrannical]

I was referring to the equal protection clause applying to homosexuals. But technically it is a State's Rights issue, unless we criminalize homosexuality at the federal level again.

State's Rights don't trump the Equal Protection Clause -- the EP Clause applies to the States, and prohibits them from denying any citizen equal protection of the laws. A historical practice that is nonetheless a denial of equal protection would still be unconstitutional. The question is not 'what did people intend in 1868?" -- the question is "does denial of two men and/or two women the right to marry each other deny them equal protection of the laws?"

If they are found to be treated "equally" then there is no violation.
And, even if treated differently, if there is a legitimate state interest to which the distinction is reasonably related, then there is no violation.

I think the main argument the SCOTUS will be looking at is whether there is a legitimate state interest in limiting marriage to just men and women. They will want to know what the State is articulating as that legitimate interest and whether the distinction is reasonably related to it.

Original intent really doesn't come into play here.

The equal protection clause did not apply to the criminally inclined and mentally ill, which is what homosexuality was considered at the time.

[Sean Hayden]

Coito

Presumably gays never wanted to be treated like that and had their supporters. I don't think it's glib to note that there should have never been a problem. Obviously for many, there hasn't ever been one.

[Coito ergo sum]

Equal protection absolutely did apply to them. Where did you get that? The State can't deny convicted criminals equal protection of the laws.

[Coito ergo sum]

Coito

Presumably gays never wanted to be treated like that and had their supporters. I don't think it's glib to note that there should have never been a problem. Obviously for many, there hasn't ever been one.

The whole notion - concept - of homosexuality has evolved in recent times. Not too many decades, homosexuals were not really considered a "sexual orientation" -- they were considered defective perverts who liked to bugger.

[Sean Hayden]

I understand.

But many people are better than their upbringing. For those people, and others, equality seems obvious.

[Svartalf]

Why the fuck can't the judges just read the consitutional amendments?

Exactly!

Did the people that passed those amendments intend to give gay's the right to marry? No, the people that passed those amendments thought homosexuality was a criminal offense. When they wanted to give Blacks the right to vote, they passed a constitutional amendment requiring it. Gays need to take the same path.

Actually, no. Marriage is not a constitutional issue per se. There does not need to be an amendment to allow gay marriage. All that needs to be done is statutes concerning marriage need to be amended. that just takes a majority vote of the legislature of a given state. After that, other states ought to respect those marriages under the full faith and credit clause. But, that's where DOMA comes in, where the federal government enacted a statute saying that FF&C doesn't apply to gay marriages. DOMA will likely be found unconstitutional.

Given that several states have legislated via constitutional amendment, do federal statutes trump that?

[Svartalf]

Why the fuck can't the judges just read the consitutional amendments?

Exactly!

Did the people that passed those amendments intend to give gay's the right to marry? No, the people that passed those amendments thought homosexuality was a criminal offense. When they wanted to give Blacks the right to vote, they passed a constitutional amendment requiring it. Gays need to take the same path.

Actually, no. Marriage is not a constitutional issue per se. There does not need to be an amendment to allow gay marriage. All that needs to be done is statutes concerning marriage need to be amended. that just takes a majority vote of the legislature of a given state. After that, other states ought to respect those marriages under the full faith and credit clause. But, that's where DOMA comes in, where the federal government enacted a statute saying that FF&C doesn't apply to gay marriages. DOMA will likely be found unconstitutional.

I was referring to the equal protection clause applying to homosexuals. But technically it is a State's Rights issue, unless we criminalize homosexuality at the federal level again.

Given the equal protection clause, states' rights are de jure trumped off and gay marriage ought to be allowed everywhere equally to the recognition of hetero marriage... plural marriage might need special regs to organize it, though by right, there's no reason to discriminate against married people and force them to di ssolve their current union in order to marry again.

[Coito ergo sum]

Given that several states have legislated via constitutional amendment, do federal statutes trump that?

No, a federal statute would not trump a State constitution, except on an issue where the State constitution is treading on an area where the federal government has plenary authority (like interstate commerce or bankruptcy or naturalization, etc).

If the State constitution operates in an area where both the states and the federal government may exert authority concurrently, then the only federal limitation on state power would be the US Constitution provisions like the Equal Protection and Due Process clauses, etc.

[Coito ergo sum]

Why the fuck can't the judges just read the consitutional amendments?

Exactly!

Did the people that passed those amendments intend to give gay's the right to marry? No, the people that passed those amendments thought homosexuality was a criminal offense. When they wanted to give Blacks the right to vote, they passed a constitutional amendment requiring it. Gays need to take the same path.

Actually, no. Marriage is not a constitutional issue per se. There does not need to be an amendment to allow gay marriage. All that needs to be done is statutes concerning marriage need to be amended. that just takes a majority vote of the legislature of a given state. After that, other states ought to respect those marriages under the full faith and credit clause. But, that's where DOMA comes in, where the federal government enacted a statute saying that FF&C doesn't apply to gay marriages. DOMA will likely be found unconstitutional.

I was referring to the equal protection clause applying to homosexuals. But technically it is a State's Rights issue, unless we criminalize homosexuality at the federal level again.

Given the equal protection clause, states' rights are de jure trumped off and gay marriage ought to be allowed everywhere equally to the recognition of hetero marriage... plural marriage might need special regs to organize it, though by right, there's no reason to discriminate against married people and force them to di ssolve their current union in order to marry again.

Regarding Tyrannical's comment, the EP clause applies to all citizens, including but not limited to homosexuals.

There are plenty of reasons that can be advanced to limit marriage to one person. Not the least of which is divorce, distribution of marital assets, child custody and visitation, claiming of children as dependents, entitlement to spousal benefits, dependent benefits in the military, and all sorts of things. Unlimited plural marriage would create a legal nightmare.

One wrinkle, to me, is whether A can marry B, and then B marry C, even if A and C loathe each other and want nothing to do with each other.

Look at a plural marriage --

A marries B, and they have a child. A and B then agree to marry C and A and C have a child. They all live together as a family for 10 years. Then B divorces A and C divorces B. A earns $100,000 per year, B $50,000 per year, and C was a stay at home parent for both children for the entire 10 years. Assuming they can't agree on anything amicably, who gets custody of the kids? Does C get custody of both as a stay at home parent? Or does C only get custody of the one child who C is biologically connected to? Does the child of A and B have any right to association with C, since that child (although not biologically C's) has a 10 year relationship with C? What about alimony/spousal support? Does A have to pay C and B both? Does B have to pay C too?

alternative complication -- Same as above, except that C divorces B because C has begun to hate B, but C stays married to A. A also stays married to B. Does B have to pay spousal support to C? Can C still live in the same house as his/her spouse A? Should the court order C to leave the house? Why not B? Don't they all have rights in the home? Can C compel a sale of the home, like in a regular divorce case, even though A and B still want to live there and A and C are still married?

[Svartalf]

Which is why I say it has to be seriously regulated before it can be allowed, but by the EP clause, there's no reason a married person can't marry a second partner... Now, the complications in case of divorce, and whether the consent of all parties is needed (Can B marry C if A loathes C?) can't be handled without specific statutes to help judges direct their rulings.