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Let’s suppose that an amendment is passed for a state constitution that outlaws SSM in that given state. It seems to me that a law suit against that state could make its way to the Supreme Court. At which point the state constitution could be in violation of say… the 14th Amendment. Is that how it works? Can the Supreme Court strike down parts of a state’s constitution?

Mad Viking wrote:Let’s suppose that an amendment is passed for a state constitution that outlaws SSM in that given state. It seems to me that a law suit against that state could make its way to the Supreme Court. At which point the state constitution could be in violation of say… the 14th Amendment. Is that how it works? Can the Supreme Court strike down parts of a state’s constitution?

The Supreme Court could, but they've probably got the votes to uphold it. It'd be close. If Califorina's prop fails, and it is looking more and more like it will, then the next step will probably be a domino effect in some other liberal states to allow gay marriage. Cali will become even more of a symbol social conservatives rail against.

I personally hope the Federal government honors the 10th amendment and leaves it as a state issue. The only proviso I think they should consider is how the 'full faith and credit' clause apply to this as civil unions and different marriage laws pop up nationwide.

The Nehor wrote:I personally hope the Federal government honors the 10th amendment and leaves it as a state issue. The only proviso I think they should consider is how the 'full faith and credit' clause apply to this as civil unions and different marriage laws pop up nationwide.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The 14th Amendment specifies a power denied to the states. If in fact denying SSM is in violation of the 14th Amendment, then the 10th supports that.

I don't think the 14th amendment can be used in this case. I kind of hate the 14th amendment. Not because of what it was designed to do but because it was written so clumsily. The first section is badly written and this doesn't help with interpreting it. I think this leads to it being used for things it was never meant to and not covering what was intended. I sometimes wonder if it were written better that perhaps 'separate but equal' would have never happened or at least not survived as long.

The Nehor wrote:I don't think the 14th amendment can be used in this case.

Why not?

The Nehor wrote:I kind of hate the 14th amendment. Not because of what it was designed to do but because it was written so clumsily.

How so?

The Nehor wrote:The first section is badly written and this doesn't help with interpreting it. I think this leads to it being used for things it was never meant to and not covering what was intended.

Such as?

The Nehor wrote:I sometimes wonder if it were written better that perhaps 'separate but equal' would have never happened or at least not survived as long.

That is what the author of the wikipedia article regarding the 14th Amendment seemed to think too.

Mad Viking wrote:

The Nehor wrote:I don't think the 14th amendment can be used in this case.

Why not?

The Nehor wrote:I kind of hate the 14th amendment. Not because of what it was designed to do but because it was written so clumsily.

How so?

The Nehor wrote:The first section is badly written and this doesn't help with interpreting it. I think this leads to it being used for things it was never meant to and not covering what was intended.

Such as?

The Nehor wrote:I sometimes wonder if it were written better that perhaps 'separate but equal' would have never happened or at least not survived as long.

That is what the author of the wikipedia article regarding the 14th Amendment seemed to think too.

I'm not surprised it's in wikipedia. I learned it in a freshman level government course. At least one person who writes for wikipedia must have taken one of those. Section 1 is the difficult part:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Up until this point the Federal Constitution covered the Federal government. The Federal government could not interfere with the people's right to bear arms, sponsor religion, etc. The States could and did. The Fourteenth Amendment was designed to guarantee certain rights and supersede most of the restrictions on the Federal Government created by the Tenth Amendment. Whether this is a good thing or not is up for debate but the amendment is not clear on how to do this. It abridges the rights of the state to create or enforce certain kinds of law. How? It also ensures equal protection under the law. How is this defined or enforced? Out of this came 'separate but equal' and this amendment sealed the doom of federalism as the National Government was now empowered to do what it wanted and state governments have a hard time performing their original job as a counterbalance.

Back to the original topic though I am worried that this is going to turn into a fiasco and end up as federal legislation or decided in federal courts. I really wish the Civil War hadn't obliterated State's Rights.

REPOST

The Nehor wrote:I don't think the 14th amendment can be used in this case.

Why not?

The Supreme Court established that marriage is a fundamental right. The 14th Amendment states:

...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States... nor deny to any person within its jurisdiction the equal protection of the laws

It seems very applicable.

Mad Viking wrote:REPOST

The Nehor wrote:I don't think the 14th amendment can be used in this case.

Why not?

The Supreme Court established that marriage is a fundamental right. The 14th Amendment states:

...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States... nor deny to any person within its jurisdiction the equal protection of the laws

It seems very applicable.

Yeah, marriage is a fundamental right but marriage in the United States and the Western world has always meant a man and a woman joining in a legal relationship. I don't think the federal government can or should attempt to redefine it's meaning. Most people would object if there was anyone attempting to marry an 8 year old or a dolphin or a rock or a corpse in order to create a legal marriage. As a society we need to decide IF we want to expand the definition and I think it will and should be decided in individual states. Eventually if the definition shifts everything will fall into place. Either that or a huge battle for a federal constitutional amendment (which I personally do not want).

I don't think the fourteenth amendment applies here because homosexual marriage has never been defined as a universal right. The argument of
'separate but equal' falls flat for me as they are different things.

To create an analogy I'd compare it to a government permit. Heterosexual Marriage is a permit from the government creating a legal bond between a male and a female and giving them certain rights and obligations. Some of these relate to their children. Homosexual marriage would be an addition and is NOT allowable by the same permit. Could we decide to expand the definition? Yes. Can we demand that the permit be extended on the basis that someone thinks it's not fair that the permit isn't flexible enough to meet their needs? No. They can fight to change it and many are doing so. Others don't want it to change. So far I think only a few states have a majority that want to make that extension. I don't. I do think it will inevitably happen when my generation and the ones behind begin to take power.

The Nehor wrote:…marriage in the United States and the Western world has always meant a man and a woman joining in a legal relationship.

Times, they are a changin’.

The Nehor wrote:I don't think the federal government can or should attempt to redefine it's meaning.

But they can. If the Supreme Court decides that the restriction on the participants’ gender is arbitrary, then statues prohibiting marriage based on such are unconstitutional.

The Nehor wrote:Most people would object if there was anyone attempting to marry an 8 year old or a dolphin or a rock or a corpse in order to create a legal marriage.

The basis for excluding such unions is purely legalistic. Those second parties cannot enter legal contracts for various reasons. Hence, they are excluded from the process.

The Nehor wrote:As a society we need to decide IF we want to expand the definition and I think it will and should be decided in individual states.

Allowing same sex marriages is not an expansion of the definition. Rather, it is a streamlining. Currently each state has a set of requirements that must be met for individuals to enter into a marriage. Some of the requirements are arbitrary, and some are in place to protect the participants. If the requirement that the participants be of the opposite sex is determined to be arbitrary (as was the case with race) then that requirement for marriage is simply removed (or not allowed to be employed). From a religious stand point this is an expansion, but religious based legislation is arbitrary.

The Nehor wrote:Eventually if the definition shifts everything will fall into place.

I don’t know what that means.

The Nehor wrote:Either that or a huge battle for a federal constitutional amendment (which I personally do not want).

I am skeptical that such an amendment would pass.

The Nehor wrote:I don't think the fourteenth amendment applies here because homosexual marriage has never been defined as a universal right.

The question has never been asked before (to my knowledge).

The Nehor wrote:The argument of 'separate but equal' falls flat for me as they are different things.

What are different things? Race and sexual orientation? Well, yes and no. Yes, because one has to do with who your ancestors were and the other has to do with who you like to do it with. No, because they are a facet of one’s identity completely out of our control.

The Nehor wrote:Some of these relate to their children.

Are the rights (relating to their children) of married parents different than that of unmarried parents?

The Nehor wrote:Homosexual marriage would be an addition and is NOT allowable by the same permit.

Under the current restrictions on who can get married, yes. But that is the question at hand.

The Nehor wrote:Can we demand that the permit be extended on the basis that someone thinks it's not fair that the permit isn't flexible enough to meet their needs? No.

I really don’t understand this statement. There are folks that think the restrictions on who can get married are unfair and they are demanding that those restrictions be removed. I am not sure why you say “No” here.

The Nehor wrote:I do think it will inevitably happen when my generation and the ones behind begin to take power.

Since I cannot see any legal reason to deny gay couples the right to marry, I would agree.