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A constitutional right to 'equal
justice under the law'...
A Federal Law saying that states do
not have to recognize the same-sex
marriages of other states...
From a law review article written in 2000:
"Congress adopted the Defense of Marriage Act (DOMA) in 1996.
.... DOMA affirms state authority to decide whether to recognize
the validity of a marriage that was valid in another state. This
provision simply confirms traditional legal rules. The Full Faith
and Credit Clause of the Constitution always has been interpreted
to allow states to decide whether to recognize the validity of
marriages that were legal where contracted. The 1971 Restatement
(Second) of Conflict of Laws says: 'A marriage which satisfies the
requirements of the state where the marriage was contracted will
everywhere be recognized as valid unless it violates the strong
public policy of another state which had the most significant
relationship to the spouses and the marriage at the time of the
marriage.'
[Restatements are not the law, but they carry a lot of weight
with courts when an issue isn't well settled. -- Rico]
"The issue arises in many contexts. For example, if second
cousins get married in Italy, where their marriage is legitimate,
should the marriage be valid in Connecticut, which prohibits
marriages between second cousins? Connecticut said no. Several
states, such as California, adopted rules stating that any
marriage valid in the place contracted is valid in their state.
Other states take a more restrictive approach and refuse to
recognize marriages that violate a strong public policy of the
state.
"States have always been free to decide whether a marriage
valid in the state in which it was contracted violates a 'strong
public policy' of another state. So what does this provision of
DOMA accomplish? If same-sex marriages were legal in Hawaii and a
couple married there, New York or Alabama has always been free to
decide whether that marriage violated a 'strong public policy' of
that state. Substantively, the federal DOMA law does nothing. It
simply affirmed the status quo. Nonetheless, symbolically, it
sends a strong message. Congress singles out gay marriages,
distinguishes them from teen marriages or cousin marriages, and
affirmed that states have authority to condemn them as
illegitimate. While the provision effectuates no concrete
practical change in the law, it does send a powerful message that
Congress regards same-sex marriage as uniquely illegitimate. The
central purpose of the Full Faith and Credit Clause of the
constitution is to encourage states to respect the rules and
judgements of sister states. Section 1 of DOMA represents the
first time in U.S. history that Congress spoke out in support of
state disregard of another state's laws.
"The second part of DOMA is even more serious. It provides
that for purposes of federal benefits, including taxes, Social
Security, and other federal benefits, the terms 'marriage' and
'spouse' include only the union of a man and a woman. Thus, even
if an individual state decides to legalize gay marriage, these
couples, legally married in their state, will not be entitled to
benefits available to married people under federal law. In 1999,
the Vermont Supreme Court held that under the state constitution,
the state must allow gay couples access to the material benefits
comparable to those provided to heterosexual couples; the court
declined to grant gay couples the right to marry. The Vermont
legislature approved a bill to enable gay couples to form 'civil
unions' that would entitle them to the rights and benefits
available under state law to married couples. Beginning on July 1,
2000 gay couples in Vermont affirmed their commitment to a civil
union. Still, many of the most important material benefits of
marriage--federal taxes and pensions--are a matter of federal law.
DOMA prevents Vermont from granting gay couples these federal
benefits.
"This second DOMA provision is unprecedented. There is no
general federal law of marriage. In a vast range of contexts, the
federal government relies on states to define who is, and who is
not, married. Section 2 of DOMA creates practical problems for
states. For example, under Vermont's Civil Union law, a couple
seeking to separate is subject to the same law applicable to
married people who divorce. When married people divorce, the
impact of federal tax laws is a major factor in determining the
financial terms of settlement. State family courts and family law
practitioners are familiar with these rules and routinely use them
in reaching settlements. There is no way of knowing the federal
tax rules applicable to civil union couples who separate; the
issue is certain to be a matter of controversy and litigation.
"The problem with DOMA's federal intervention is not a
slippery slope. It seems highly unlikely that Congress is about to
impose federal rules defining the legitimacy of marriage between
minors or cousins. Rather, the problem is that Congress has
singled out gay and lesbian people and expressed its animosity
toward them by applying unique and disfavorable principles of
state and federal law to them. In Romer v. Evans, the Supreme
Court struck down a Colorado constitutional amendment that
prohibited states and localities from providing civil rights
protection to gay and lesbian people. While the meaning of Romer
is far from clear, it is possible that DOMA violates the
constitutional guarantee of equal protection by singling out gay
people for disfavorable treatment. Whether or not DOMA is
constitutional, it seems gratuitous and terribly unwise."
-- From "Access to Justice: The Social Responsibility of
Lawyers: Families and Federalism" by Sylvia Law [no kidding], in
the Washington University Journal of Law & Policy, 2000.
A Supreme Court ruling (1934, I couldn't
find the citation), that says states must
(generally) recognize the legal marriages
of other states...
"Marriages not polygamous or incestuous, or otherwise declared
void by statute, will, if valid by the law of the State where
entered into, be recognized as valid in every other jurisdiction.
"But where the parties, while retaining their domicile in one
state, pay a temporary visit to another state and there enter into
a marriage which would not be recognized by the law of the state
of their domicile if entered into therein, the latter state does
not always look to the law of the place of the marriage to
determine its validity. On the contrary, when the state of their
domicile has a strong public policy against the type of marriage
which the parties have gone to another state to contract, which
policy is evidenced by a statute declaring such marriages
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Rico X. Partay wrote:
Bottom line: It appears that your constitutioinal question is
not settled law.
Q for those still reading: Is this impacted by Lawrence v.
Texas?
The 14th Amendment argument probably is. Prior to Lawrence, The Court
could rule that the states have a legitimate interest in denying
same-sex marriage because doing so fosters morality (some states claim
that homosexuality is immoral). That line of reasoning is a dead-end
after Lawrence.
Josh Rosenbluth
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Josh Rosenbluth <joshrosenbluth@att.net> wrote in message news:<4012B662.9090306@att.net>...
Bottom line: It appears that your constitutioinal question is
not settled law.
Q for those still reading: Is this impacted by Lawrence v.
Texas?
The 14th Amendment argument probably is. Prior to Lawrence, The Court
could rule that the states have a legitimate interest in denying
same-sex marriage because doing so fosters morality (some states claim
that homosexuality is immoral). That line of reasoning is a dead-end
after Lawrence.
I disagree. The issue in Lawrence was whether there is a Due Process
right for consenting adults to engage in private, sexual acts with one
another. I highly doubt a Supreme Court majority would agree that the
recognition of that one right automatically leads to a separate
conclusion that (1) the right of States to view same-sex marriage as
immoral is abolished, or (2) citizens have a Due Process right to
define their relationship as a "marriage" when they belong to the same
sex.
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charlesbreitel@yahoo.com (cbreitel) wrote in message news:<74317df6.0402031540.557dc89d@posting.google.com>...
Josh Rosenbluth <joshrosenbluth@att.net> wrote in message news:<4012B662.9090306@att.net>...
Bottom line: It appears that your constitutioinal question is
not settled law.
Q for those still reading: Is this impacted by Lawrence v.
Texas?
I disagree. The issue in Lawrence was whether there is a Due Process
right for consenting adults to engage in private, sexual acts with one
another. I highly doubt a Supreme Court majority would agree that the
recognition of that one right automatically leads to a separate
conclusion that (1) the right of States to view same-sex marriage as
immoral is abolished, or (2) citizens have a Due Process right to
define their relationship as a "marriage" when they belong to the same
sex.
The Court ruled in Lawrence that "fostering morality" is not an
acceptable state interest in denying people their Due Process right to
form personal, sexual relationships.
Concerning your point #1, how can The Court possily rule that
"fostering morality" is not a legitimate state interest when it comes
to personal relationships, but it is in other Due Process cases? In
his dissent, Scalia certainly doesn't think The Court can walk that
tightrope:
'State laws against bigamy, same-sex marriage, adult incest,
prostitution, masturbation, adultery, fornication, bestiality, and
obscenity are likewise sustainable only in light of Bowers' validation
of laws based on moral choices. Every single one of these laws is
called into question by today's decision.'
Although Scalia is correct about all of these laws being brought into
question because morality can no longer be used to uphold them, he is
wrong to conclude they are doomed. All it means is some other reason
beyond the nebulous "fostering morality" must be used to justify the
laws.
Concerning your point #2, Loving v. Virginia established that marriage
is a fundamental Due Process right. Whether or not a prohibition
against a specific type of marriage (same-sex, bigamy, etc.) violates
Due Process is a separate question. But, Due Process review is
required in each case.
Josh Rosenbluth
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In article <d735d9de.0402040655.4eaa8818@posting.google.com>,
Josh Rosenbluth <jrosenbluth@att.com> wrote:
Concerning your point #1, how can The Court possily rule that
"fostering morality" is not a legitimate state interest when it comes
to personal relationships, but it is in other Due Process cases? In
his dissent, Scalia certainly doesn't think The Court can walk that
tightrope:
'State laws against bigamy, same-sex marriage, adult incest,
prostitution, masturbation, adultery, fornication, bestiality, and
obscenity are likewise sustainable only in light of Bowers' validation
of laws based on moral choices. Every single one of these laws is
called into question by today's decision.'
Scalia is afraid that masturbation might become legal?
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"Josh Rosenbluth" <jrosenbluth@att.com> wrote
charlesbreitel@yahoo.com (cbreitel) wrote
Concerning your point #2, Loving v. Virginia established that marriage
is a fundamental Due Process right.
Do quote where Loving v. Virginia states that marriage is a fundamental Due
Process right.
I believe yours is a gross misinterpretation of a few lines (at most) of the
majority opinion.
The majority opinion focuses on how the racial classification of Virginia's law
against miscegenation violates equal protection of the laws, pointedly stating
that the equal protection clause of the 14th amendment was put in place
precisely to prevent racial classifications. The opinion is not at all about
marriage per se.
For example, Chief Justice Warren, wrote for the majority in the last
paragraphs:
---
Marriage is one of the "basic civil rights of man," fundamental to our very
existence and survival. To deny this fundamental freedom on so unsupportable a
basis as the racial classifications embodied in these statutes, classifications
so directly subversive of the principle of equality at the heart of the
Fourteenth Amendment, is surely to deprive all the State's citizens of liberty
without due process of law. The Fourteenth Amendment requires that the freedom
of choice to marry not be restricted by invidious racial discriminations. Under
our Constitution, the freedom to marry, or not marry, a person of another race
resides with the individual and cannot be infringed by the State.
These convictions [of Virginnia's] must be reversed.
---
It's clear to me that the majority are saying this "fundamental freedom" may be
denied on more 'supportable bases,' nothing more.
Whether or not a prohibition
against a specific type of marriage (same-sex, bigamy, etc.) violates
Due Process is a separate question. But, Due Process review is
required in each case.
Due process review is fair game in any criminal lawsuit.
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"Caroline" <caroline10027remove@earthlink.net> wrote in message news:<H%7Ub.12742$uM2.7518@newsread1.news.pas.earthlink.net>...
"Josh Rosenbluth" <jrosenbluth@att.com> wrote
Do quote where Loving v. Virginia states that marriage is a fundamental Due
Process right.
I believe yours is a gross misinterpretation of a few lines (at most) of the
majority opinion.
The majority opinion focuses on how the racial classification of Virginia's law
against miscegenation violates equal protection of the laws, pointedly stating
that the equal protection clause of the 14th amendment was put in place
precisely to prevent racial classifications. The opinion is not at all about
marriage per se.
For example, Chief Justice Warren, wrote for the majority in the last
paragraphs:
---
Marriage is one of the "basic civil rights of man," fundamental to our very
existence and survival. To deny this fundamental freedom on so unsupportable a
basis as the racial classifications embodied in these statutes, classifications
so directly subversive of the principle of equality at the heart of the
Fourteenth Amendment, is surely to deprive all the State's citizens of liberty
without due process of law. The Fourteenth Amendment requires that the freedom
of choice to marry not be restricted by invidious racial discriminations. Under
our Constitution, the freedom to marry, or not marry, a person of another race
resides with the individual and cannot be infringed by the State.
These convictions [of Virginnia's] must be reversed.
---
It's clear to me that the majority are saying this "fundamental freedom" may be
denied on more 'supportable bases,' nothing more.
Your quote is from the Due Process portion (part II) of Loving, not
the Equal Protection portion (part I). Directly before your quoted
text is:
"These statutes also deprive the Lovings of liberty without due
process of law in violation of the Due Process Clause of the
Fourteenth Amendment. The freedom to marry has long been recognized as
one of the vital personal rights essential to the orderly pursuit of
happiness by free men."
That paragraph, taken together with the declaration in your quotes
that marriage is "one of the 'basic civil rights of man', fundamental
to our very existence" and that marriage is a "fundamental freedom"
establishes the fundamental Due Process right.
You are correct in your analysis about how The Court viewed, at that
time, what it took to support denying the fundamental freedom.
However, the law has since established different criteria for
abridging fundamental rights.
Josh Rosenbluth
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"Josh Rosenbluth" <jrosenbluth@att.com> wrote
"Caroline" <caroline10027remove@earthlink.net> wrote
Your quote is from the Due Process portion (part II) of Loving, not
the Equal Protection portion (part I).
This is kind of a digression, going more towards how SCOTUS opinions are
organized.
I read the last two paragraphs of the majority opinion (which I quote above) as
wrapping up all the arguments of the opinion, and so covering both equal
protection and due process.
Directly before your quoted
text is:
"These statutes also deprive the Lovings of liberty without due
process of law in violation of the Due Process Clause of the
Fourteenth Amendment. The freedom to marry has long been recognized as
one of the vital personal rights essential to the orderly pursuit of
happiness by free men."
That paragraph, taken together with the declaration in your quotes
that marriage is "one of the 'basic civil rights of man', fundamental
to our very existence" and that marriage is a "fundamental freedom"
establishes the fundamental Due Process right.
Come on, Josh. Yours (right above) is an interpretation, not settled law. You
(or some other lawyer facing a court battle over this) could make a decent
argument on this basis, but it is rebuttable. Where the chips will fall is not
clear.
If it were settled law, there's no question in my mind that gay marriage would
be a non-issue.
You are correct in your analysis about how The Court viewed, at that
time, what it took to support denying the fundamental freedom.
However, the law has since established different criteria for
abridging fundamental rights.
Sure. It's not over. :-)
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jrosenbluth@att.com (Josh Rosenbluth) wrote in message news:<d735d9de.0402040655.4eaa8818@posting.google.com>...
I disagree. The issue in Lawrence was whether there is a Due Process
right for consenting adults to engage in private, sexual acts with one
another. I highly doubt a Supreme Court majority would agree that the
recognition of that one right automatically leads to a separate
conclusion that (1) the right of States to view same-sex marriage as
immoral is abolished, or (2) citizens have a Due Process right to
define their relationship as a "marriage" when they belong to the same
sex.
The Court ruled in Lawrence that "fostering morality" is not an
acceptable state interest in denying people their Due Process right to
form personal, sexual relationships.
Concerning your point #1, how can The Court possily rule that
"fostering morality" is not a legitimate state interest when it comes
to personal relationships, but it is in other Due Process cases? In
his dissent, Scalia certainly doesn't think The Court can walk that
tightrope:
'State laws against bigamy, same-sex marriage, adult incest,
prostitution, masturbation, adultery, fornication, bestiality, and
obscenity are likewise sustainable only in light of Bowers' validation
of laws based on moral choices. Every single one of these laws is
called into question by today's decision.'
Although Scalia is correct about all of these laws being brought into
question because morality can no longer be used to uphold them, he is
wrong to conclude they are doomed. All it means is some other reason
beyond the nebulous "fostering morality" must be used to justify the
laws.
Every one of your paragraphs so far is premised on your assertion that
the Supreme Court rejected "fostering morality" as an acceptable state
interest in the Due Process context. But the 5-justice majority on the
Court NEVER said that. Justice O'Connor did, in her concurring opinion
which was joined by no one. And as for Scalia, I hardly think a
dissenting judge's angry characterization of a majority opinion is a
credible statement of the law.
"Fostering morality" may not be a sufficient state interest to justify
violating a person's right to have sexual relations with another
consenting adult of the same sex, but that is a far stretch from
saying that "fostering morality" is not a legitimate state interest at
all. The analysis of whether a particular state interest justifies the
violation of a particular right always varies on the nature of the
right itself. Nothing in the Lawrence opinion suggests that its
holding as to same-sex sexual relations applies with equal force to
the "right to same sex marriages", and I highly doubt that position
would sustain a majority on this Court. See Standhardt v. Superior
Court, 77 P.3d 451 (Ariz. Ct. App. 2003) (rejecting argument that
Lawrence requires states to recognize same-sex marriages).
Concerning your point #2, Loving v. Virginia established that marriage
is a fundamental Due Process right. Whether or not a prohibition
against a specific type of marriage (same-sex, bigamy, etc.) violates
Due Process is a separate question. But, Due Process review is
required in each case.
Sure it's required in each case, but I've never suggested that "Due
Process review is not even required to determine whether bans on
same-sex marriage are constitutional." What I do suggest is that
Lawrence does not compel a similar outcome on same-sex marriage. I
think that belief is only maintained by advocates, and not objective
legal commentators. And for the record, I thought Bowers v. Hardwick
was the worst opinion in modern Supreme Court history, I openly
criticized it in class when I was a law student, and I predicted AND
applauded the decision in Lawrence.
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cbreitel wrote:
jrosenbluth@att.com (Josh Rosenbluth) wrote in message news:<d735d9de.0402040655.4eaa8818@posting.google.com>...
I disagree. The issue in Lawrence was whether there is a Due Process
right for consenting adults to engage in private, sexual acts with one
another. I highly doubt a Supreme Court majority would agree that the
recognition of that one right automatically leads to a separate
conclusion that (1) the right of States to view same-sex marriage as
immoral is abolished, or (2) citizens have a Due Process right to
define their relationship as a "marriage" when they belong to the same
sex.
Every one of your paragraphs so far is premised on your assertion that
the Supreme Court rejected "fostering morality" as an acceptable state
interest in the Due Process context. But the 5-justice majority on the
Court NEVER said that. Justice O'Connor did, in her concurring opinion
which was joined by no one. And as for Scalia, I hardly think a
dissenting judge's angry characterization of a majority opinion is a
credible statement of the law.
Kennedy said that morality is not a sufficient state interest in a Due
Process context (by quoting Stevens' dissent in Bowers). His argument
was strictly Due Process (O'Connor also said morality is not a
sufficient state interest, but her argument was restricted to Equal
Protection).
"Fostering morality" may not be a sufficient state interest to justify
violating a person's right to have sexual relations with another
consenting adult of the same sex, but that is a far stretch from
saying that "fostering morality" is not a legitimate state interest at
all. The analysis of whether a particular state interest justifies the
violation of a particular right always varies on the nature of the
right itself
Maybe you are correct. Maybe The Court can argue that morality is not a
sufficient state interest in one Due Process case, but is in another.
However, it is totally beyond me how they can do that and Scalia's
dissent does nothing more than recognize that obvious conclusion.
Nothing in the Lawrence opinion suggests that its
holding as to same-sex sexual relations applies with equal force to
the "right to same sex marriages", and I highly doubt that position
would sustain a majority on this Court. See Standhardt v. Superior
Court, 77 P.3d 451 (Ariz. Ct. App. 2003) (rejecting argument that
Lawrence requires states to recognize same-sex marriages).
I never said that Lawrence suggests that same-sex marriages must be
legal. I only said that Lawrence suggests that morality cannot be used
as the state interest for prohibiting same-sex marriage. There maybe
other state interests that apply.
Josh Rosenbluth
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Caroline wrote:
"Josh Rosenbluth" <jrosenbluth@att.com> wrote
law
against miscegenation violates equal protection of the laws, pointedly
stating
that the equal protection clause of the 14th amendment was put in place
precisely to prevent racial classifications. The opinion is not at all about
marriage per se.
For example, Chief Justice Warren, wrote for the majority in the last
paragraphs:
---
Marriage is one of the "basic civil rights of man," fundamental to our very
existence and survival. To deny this fundamental freedom on so unsupportable
a
basis as the racial classifications embodied in these statutes,
classifications
so directly subversive of the principle of equality at the heart of the
Fourteenth Amendment, is surely to deprive all the State's citizens of
liberty
without due process of law. The Fourteenth Amendment requires that the
freedom
of choice to marry not be restricted by invidious racial discriminations.
Under
our Constitution, the freedom to marry, or not marry, a person of another
race
resides with the individual and cannot be infringed by the State.
These convictions [of Virginnia's] must be reversed.
---
It's clear to me that the majority are saying this "fundamental freedom" may
be
denied on more 'supportable bases,' nothing more.
This is kind of a digression, going more towards how SCOTUS opinions are
organized.
I read the last two paragraphs of the majority opinion (which I quote above) as
wrapping up all the arguments of the opinion, and so covering both equal
protection and due process.
Come on, Josh. Yours (right above) is an interpretation, not settled law. You
(or some other lawyer facing a court battle over this) could make a decent
argument on this basis, but it is rebuttable. Where the chips will fall is not
clear.
If it were settled law, there's no question in my mind that gay marriage would
be a non-issue.
Sure. It's not over. :-)
I concede that a Due Process right which was declared fundamental before
strict scrutiny was attached to fundamental rights, is open to review as
to whether or not strict scrutiny applies. However, The Court should
normally apply strict scrutiny. To do otherwise would require explicit
repudiation of the earlier declaration.
Josh Rosenbluth
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jrosenbluth@att.com (Josh Rosenbluth) wrote in message
That paragraph, taken together with the declaration in your quotes
that marriage is "one of the 'basic civil rights of man', fundamental
to our very existence" and that marriage is a "fundamental freedom"
establishes the fundamental Due Process right.
You are correct in your analysis about how The Court viewed, at that
time, what it took to support denying the fundamental freedom.
However, the law has since established different criteria for
abridging fundamental rights.
I'm sure Justices Breyer, Ginsburg, Stevens and maybe Souter would
agree with you, but they are not a Supreme Court majority. You're
stretching Lawrence far beyond what its author (Kennedy) intended, and
in fact the opinion itself suggests that its reasoning does NOT apply
to same-sex marriage laws. E.g., the case before it did "not involve
whether the government must give formal recognition to any
relationship that homosexual persons seek to enter." Lawrence at 2484;
see also id. at 2478 (stating liberty of persons to choose personal
relationship "whether or not entitled to formal recognition in the
law" should counsel against attempts to define meaning of relationship
or set its boundaries "absent injury to a person or abuse of an
institution the law protects").
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cbreitel wrote:
jrosenbluth@att.com (Josh Rosenbluth) wrote in message
I'm sure Justices Breyer, Ginsburg, Stevens and maybe Souter would
agree with you, but they are not a Supreme Court majority. You're
stretching Lawrence far beyond what its author (Kennedy) intended, and
in fact the opinion itself suggests that its reasoning does NOT apply
to same-sex marriage laws. E.g., the case before it did "not involve
whether the government must give formal recognition to any
relationship that homosexual persons seek to enter." Lawrence at 2484;
see also id. at 2478 (stating liberty of persons to choose personal
relationship "whether or not entitled to formal recognition in the
law" should counsel against attempts to define meaning of relationship
or set its boundaries "absent injury to a person or abuse of an
institution the law protects").
My comments above were on Loving, not Lawrence. And, I have "revised
and extended" those comments in response to Caroline.
The only thing I said that applies in Lawrence to same-sex marriage is
that the state cannot use morality as its legitimate interest in
prohibiting same-sex marriage. I have said NOTHING ELSE.
Josh Rosenbluth
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Josh Rosenbluth <joshrosenbluth@att.net> wrote in message news:<402181EB.7070805@att.net>...
The only thing I said that applies in Lawrence to same-sex marriage is
that the state cannot use morality as its legitimate interest in
prohibiting same-sex marriage. I have said NOTHING ELSE.
Great, but even that argument is unsupported by case law. It's an
argument; not a statement of the law, and I personally have no doubt
that the Supreme Court would reject it if it came before it.
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Josh Rosenbluth <joshrosenbluth@att.net> wrote in message news:<40217523.5030700@att.net>...
Maybe you are correct. Maybe The Court can argue that morality is not a
sufficient state interest in one Due Process case, but is in another.
However, it is totally beyond me how they can do that and Scalia's
dissent does nothing more than recognize that obvious conclusion.
They can do it because it was not at issue in Lawrence, which simply
and plainly did NOT find that "morality" is not even a legitimate
state interest. Anyone who thinks otherwise is so blinded by his
beliefs that he would have to conclude that Lawrence (and Loving and
progeny) paves the way for rulings that laws against gambling and
prostitution are unconstitutional.
Nothing in the Lawrence opinion suggests that its
holding as to same-sex sexual relations applies with equal force to
the "right to same sex marriages", and I highly doubt that position
would sustain a majority on this Court. See Standhardt v. Superior
Court, 77 P.3d 451 (Ariz. Ct. App. 2003) (rejecting argument that
Lawrence requires states to recognize same-sex marriages).
I never said that Lawrence suggests that same-sex marriages must be
legal. I only said that Lawrence suggests that morality cannot be used
as the state interest for prohibiting same-sex marriage. There maybe
other state interests that apply.
Other than the wacky 4-3 majority in Massachusetts (applying the
Massachusetts, not federal, constitution), no court in the nation has
ever agreed with you.
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charlesbreitel@yahoo.com (cbreitel) wrote in message news:<74317df6.0402031540.557dc89d@posting.google.com>...
citizens have a Due Process right to
define their relationship as a "marriage" when they belong to the same
sex.
As a practical matter, there are hundreds of thousands of same-sex
couples all over America who live together, love each other, plan to
stay together till death them do part, own property jointly, raise
children, have families, etc., etc.---- they do everything mixed sex
couples do. So why shouldn't they be able to marry?
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cbreitel wrote:
Josh Rosenbluth <joshrosenbluth@att.net> wrote in message news:<402181EB.7070805@att.net>...
Great, but even that argument is unsupported by case law. It's an
argument; not a statement of the law, and I personally have no doubt
that the Supreme Court would reject it if it came before it.
So they'd be holding that its interest in morality doesn't allow a state
to prohibit extra-marital sex, but it does allow a state to prohibit
marriage.
I guess it wouldn't be the silliest thing a US Supreme Court has ever
decided.
John Hogan
Biddle Law Library/AFSCME Local 590
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cbreitel wrote:
Josh Rosenbluth <joshrosenbluth@att.net> wrote in message news:<402181EB.7070805@att.net>...
Great, but even that argument is unsupported by case law. It's an
argument; not a statement of the law, and I personally have no doubt
that the Supreme Court would reject it if it came before it.
Mr. Partay started this sub-thread by asking:
"Q for those still reading: Is this [constitutional challenge to DOMA]
impacted by Lawrence v. Texas?"
So of course I am only expressing my opinion rather than stating case
law. While it is true that my argument is not supported by case law, it
is also true it is not in any way unsupported (there isn't any case law
because the ink isn't dry on Lawrence yet).
What do you think? Does Lawrence have any impact on DOMA?
Josh Rosenbluth
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cbreitel wrote:
Josh Rosenbluth <joshrosenbluth@att.net> wrote in message news:<40217523.5030700@att.net>...
They can do it because it was not at issue in Lawrence, which simply
and plainly did NOT find that "morality" is not even a legitimate
state interest.
"[T]he fact a State's governing majority has traditionally viewed a
particular practice as immoral is not a sufficient reason for upholding
a law prohibiting the practice"
Anyone who thinks otherwise is so blinded by his
beliefs that he would have to conclude that Lawrence (and Loving and
progeny) paves the way for rulings that laws against gambling and
prostitution are unconstitutional.
Not at all. Prohibitions against prostitution and gambling are
rationally related to advancing the legitimate state interest of keeping
families together.
Nothing in the Lawrence opinion suggests that its
holding as to same-sex sexual relations applies with equal force to
the "right to same sex marriages", and I highly doubt that position
would sustain a majority on this Court. See Standhardt v. Superior
Court, 77 P.3d 451 (Ariz. Ct. App. 2003) (rejecting argument that
Lawrence requires states to recognize same-sex marriages).
I never said that Lawrence suggests that same-sex marriages must be
legal. I only said that Lawrence suggests that morality cannot be used
as the state interest for prohibiting same-sex marriage. There maybe
other state interests that apply.
Other than the wacky 4-3 majority in Massachusetts (applying the
Massachusetts, not federal, constitution), no court in the nation has
ever agreed with you.
No court in the nation has disagreed with me either.
Josh Rosenbluth
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horrigan@aol.com (Timothy Horrigan) wrote in message news:<80981f23.0402050853.603325c8@posting.google.com>...
charlesbreitel@yahoo.com (cbreitel) wrote in message news:<74317df6.0402031540.557dc89d@posting.google.com>...
As a practical matter, there are hundreds of thousands of same-sex
couples all over America who live together, love each other, plan to
stay together till death them do part, own property jointly, raise
children, have families, etc., etc.---- they do everything mixed sex
couples do. So why shouldn't they be able to marry?
If they can already do all those things, why do they need a piece of
paper from the State?
When you criminalize homosexual conduct, you put a person in jeopardy
of being prosecuted and imprisoned. That threat is real, and
substantial, and creates a stunning invasion into the privacy of any
citizen's life.
There is no such threat with respect to gay marriage bans. The nature
of the invasion into privacy, which is what Griswold and Lawrence are
all about after all, is a shadow of the threat posed by gay sex crime
statutes.
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John Hogan <jhogan@law.upenn.edu> wrote in message news:<bvtsnl$at4k$1@netnews.upenn.edu>...
cbreitel wrote:
So they'd be holding that its interest in morality doesn't allow a state
to prohibit extra-marital sex, but it does allow a state to prohibit
marriage.
The Court did not strike down bans on extramarital sex, which still
exist in many states.
But yes, the right to have gay sex is not the same as the right to
have a gay marriage.
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cbreitel wrote:
horrigan@aol.com (Timothy Horrigan) wrote in message news:<80981f23.0402050853.603325c8@posting.google.com>...
If they can already do all those things, why do they need a piece of
paper from the State?
The same reasons that opposite-sex couples need that piece of paper?
Josh Rosenbluth
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Josh Rosenbluth <joshrosenbluth@att.net> wrote in message news:<4022D75B.3070809@att.net>...
cbreitel wrote:
The same reasons that opposite-sex couples need that piece of paper?
Which is to be a part of society's definition of the word, "marriage".
If, other than that, you can't show any harm whatsoever to same sex
couples that can't be remedied through changes in benefits plans,
right to privacy laws, etc., same sex couples have very little to
stand on when it comes to the balancing test between their potential
harm and the State's right to define marriage.
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cbreitel wrote:
Josh Rosenbluth <joshrosenbluth@att.net> wrote in message news:<4022D75B.3070809@att.net>...
Which is to be a part of society's definition of the word, "marriage".
If, other than that, you can't show any harm whatsoever to same sex
couples that can't be remedied through changes in benefits plans,
right to privacy laws, etc., same sex couples have very little to
stand on when it comes to the balancing test between their potential
harm and the State's right to define marriage.
You have your question back-asswards. In our system of justice we don't
ask why people should have a right. We instead ask why they shouldn't?
So, proponents of same-sex marriage don't have to show any harm from
not having marriage. The state must show why it should be allowed to
not recognize same-sex marriages. The burden that the state must meet
may be large or small depending on a few factors.
Josh Rosenbluth
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"Rico X. Partay" <billg@microsoft.com> wrote in message news:<4012b089$0$5365$a32e20b9@news.nntpservers.com>...
"Marriages not polygamous or incestuous, or otherwise declared
void by statute, will, if valid by the law of the State where
entered into, be recognized as valid in every other jurisdiction.
I found this in Loughran ...
"But where the parties, while retaining their domicile in one
state, pay a temporary visit to another state and there enter into
a marriage which would not be recognized by the law of the state
of their domicile if entered into therein, the latter state does
not always look to the law of the place of the marriage to
determine its validity. On the contrary, when the state of their
domicile has a strong public policy against the type of marriage
which the parties have gone to another state to contract, which
policy is evidenced by a statute declaring such marriages to be
void, the former state as the one most interested in the status
and welfare of the parties will ordinarily look to its own law to
determine the validity of the alleged marriage." Loughran v.
Loughran, 292 U.S. [US Supreme Court] 216 (1934).
but I did not find this paragraph in Loughran. Where did it come from?
Josh Rosenbluth
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Josh Rosenbluth <joshrosenbluth@att.net> wrote in message news:<40244DFD.9010308@att.net>...
You have your question back-asswards. In our system of justice we don't
ask why people should have a right. We instead ask why they shouldn't?
So, proponents of same-sex marriage don't have to show any harm from
not having marriage. The state must show why it should be allowed to
not recognize same-sex marriages. The burden that the state must meet
may be large or small depending on a few factors.
I don't know which legal methodology you use to arrive at these
conclusions, but I get the feeling it's not one endorsed by Scalia,
Rehnquist, Kennedy, Souter and friends. Our Constitution does not
define rights by having judges ask, "Why shouldn't this right exist?"
At the federal level, it is how the Supreme Court justices decide
whether or not constitutional rights exist that matters, and not your
personal "back-asswards" opinion. This is commonly done by looking to
the plain language of the constitutional provision, and when the plain
language does not clarify the point, a number of different
methodologies that vary according to each justice but that generally
look to the framers' intent.
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cbreitel wrote:
Josh Rosenbluth <joshrosenbluth@att.net> wrote in message news:<40244DFD.9010308@att.net>...
I don't know which legal methodology you use to arrive at these
conclusions, but I get the feeling it's not one endorsed by Scalia,
Rehnquist, Kennedy, Souter and friends. Our Constitution does not
define rights by having judges ask, "Why shouldn't this right exist?"
At the federal level, it is how the Supreme Court justices decide
whether or not constitutional rights exist that matters, and not your
personal "back-asswards" opinion. This is commonly done by looking to
the plain language of the constitutional provision, and when the plain
language does not clarify the point, a number of different
methodologies that vary according to each justice but that generally
look to the framers' intent.
I am sure the others in this group (Caroline, Mr. Nieporent) will keep
me honest. But, I believe that the current procedure is Due Process
rights are divided into two types: fundamental and all others.
Fundamental rights require state abridgment to further, in the most
narrow fashion possible, a compelling state interest. All other rights
require state abridgment to be rationally related to a legitimate state
interest.
Josh Rosenbluth
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Josh Rosenbluth <joshrosenbluth@att.net> wrote in message news:<40258D5B.9060207@att.net>...
I am sure the others in this group (Caroline, Mr. Nieporent) will keep
me honest. But, I believe that the current procedure is Due Process
rights are divided into two types: fundamental and all others.
Fundamental rights require state abridgment to further, in the most
narrow fashion possible, a compelling state interest. All other rights
require state abridgment to be rationally related to a legitimate state
interest.
Non sequitur.
You're comparing the right to receive a marriage license to the right
to have sexual relations with whom you want, arguing that the two are
equals and Lawrence paves the way for a federal court requiring all
states to recognize same-sex marriages. The two are not equals. The
right to privacy as it relates to having sexual relations is a
fundamental liberty subject to the strict scrutiny test, as affirmed
by Griswold and Lawrence. No court has ever held similarly with
respect to the right to get a marriage license, outside of
Massachusetts.
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