Commentary on the passage of Prop 8 in California

[sgrizzle]

One argument I can see is that everything to date has been "legal right now" or "illegal right now"

There are a lot of adjustment to be made to medical benefits, inheritance law, marriage license forms, etc. We allow people years to adjust to no-smoking rules and immigration reform but I haven't seen a proposal that allows for any kind of phase-in or transition period to allow for people to address all of these situations. The company I work for is making changes to their medical and life insurance plans but they change their plans on an annual basis, not based on a judge's calendar or election calendar.

[Neptune]

quote:Originally posted by tulsa1603

The thing that gets me:

Prop 8 is not likely to stand long, and even if it does, I still think it's unlikely that Prop 8 will have much of a serious effect.  It only adds:

quote:"Only marriage between a man and a woman is valid or recognized in California." wiki

Also, you can read up on California's Domestic Partnership structure here:  wiki

As Schwarzenegger said

quote:"It's unfortunate, obviously, but it's not the end," he said about the same-sex marriage ban. "I think that we will again maybe undo that, if the court is willing to do that, and then move forward from there and again lead in that area."  Boston Globe

If I were a moralistic moron I might get a woody.  If I were a part of the homosexual community, I'd be putting my thumb on my politicians, but not worrying much.  This is no where near "over."  

[guido911]

quote:Originally posted by Neptune

quote:Originally posted by tulsa1603

The thing that gets me:

Prop 8 is not likely to stand long...

I thought this was a constitutional amendment whose language was patterned after the Calif. Supreme Court's opinion that triggered this proposition. Also, do you really believe this U.S. Supreme Court is going to strike this down?

[guido911]

Geez Conan, how do you define "judicial activism"? You make it sound as if every decision by the Supremes is judicial activism rather than just simple judicial review

[Neptune]

quote:Originally posted by guido911

Also, do you really believe this U.S. Supreme Court is going to strike this down?

Possibly.  There are too many factors.  I'm not sure that Prop 8 will actually make it to the US Supreme Court, or what shape Prop 8 would be in if it managed to get there.  It's far more complicated than that.

And again, if Prop 8 does manage to make it through all processes intact, the effects will be marginalized.  It's more of a "moral victory" of sorts, possibly even Pyrrhic.  "Whatever you do, just don't call it marriage."  That's the sum of this law.  The more I think about it, the more tragically comical it gets.

[nathanm]

quote:Originally posted by guido911


I thought this was a constitutional amendment whose language was patterned after the Calif. Supreme Court's opinion that triggered this proposition. Also, do you really believe this U.S. Supreme Court is going to strike this down?

It's more likely to be struck down by the California Supreme Court as too radical an amendment to not go through the legislature.

I strongly doubt the federal Supremes would find in the logical way if it were brought before them. One person should be able to marry any one other person. Period. Anything else is discriminatory. Either that or the government needs to get out of the marriage business.

They would somehow figure out a way that it's not a violation of equal protection to deny some people the right to marry some other people.

Personally, I think the Prop 8 language is at least less offensive than similar language used in most other states that also takes away rights from unmarried people of any orientation, but that's probably because it actually affects me directly.

[guido911]

My personal feeling is that a "right to marry" is by no means a federal issue. This in my opinion falls under the police power of the states. However, for some insight into the federal court's  thoughts on the issue, I recommend reading Loving v. U.S. (interracial marriage) or even Skinner v. Oklahoma.

[RecycleMichael]

Gay marriage?

Haven't they suffered enough?

[we vs us]

quote:Originally posted by guido911

My personal feeling is that a "right to marry" is by no means a federal issue. This in my opinion falls under the police power of the states. However, for some insight into the federal court's  thoughts on the issue, I recommend reading Loving v. U.S. (interracial marriage) or even Skinner v. Oklahoma.

It's a federal issue when taxes, estates, and property law come in to play.  As tulsa1803 said above, he and his partner can exchange vows in a church any old time, but he can never have spousal rights.  That's why it's a federal issue, at least to start.  

If the states are the primary arbiter, you'll get a patchwork of incompatible laws which create confusion and in the end don't address the fundamental financial inequality . . . which is what this is at heart all about.

[cannon_fodder]

quote:Originally posted by guido911

My personal feeling is that a "right to marry" is by no means a federal issue. This in my opinion falls under the police power of the states. However, for some insight into the federal court's  thoughts on the issue, I recommend reading Loving v. U.S. (interracial marriage) or even Skinner v. Oklahoma.

The Federal issue with marriage is that each state is required to recognize the legal decisions of other states.  Hence, my Iowa marriage is legal in Oklahoma.  Which raises interesting points on the issue at hand, when Oklahoma doesn't want to recognize that there marriage between them there homosexuals.

[we vs us]

quote:Originally posted by cannon_fodder

quote:Originally posted by guido911

My personal feeling is that a "right to marry" is by no means a federal issue. This in my opinion falls under the police power of the states. However, for some insight into the federal court's  thoughts on the issue, I recommend reading Loving v. U.S. (interracial marriage) or even Skinner v. Oklahoma.

The Federal issue with marriage is that each state is required to recognize the legal decisions of other states.  Hence, my Iowa marriage is legal in Oklahoma.  Which raises interesting points on the issue at hand, when Oklahoma doesn't want to recognize that there marriage between them there homosexuals.

Also this ^^^^^^^^^

[pmcalk]

quote:Originally posted by guido911

My personal feeling is that a "right to marry" is by no means a federal issue. This in my opinion falls under the police power of the states. However, for some insight into the federal court's  thoughts on the issue, I recommend reading Loving v. U.S. (interracial marriage) or even Skinner v. Oklahoma.

If it is not a federal issue, then how can federal law prohibit polygamy?  Why wouldn't states be able to determine that?

In my opinion, the government was wrong to ever assert itself into the definition of "marriage."  For the government, "marriage" should be viewed as nothing more than a contract between consenting adults.  Really, that is what a marriage is--a contract that defines certain rights between adults.  Apart from assuring that the contract was enter into fairly, the government shouldn't have any more to say.

The problem, though, is that the public cannot seem to separate the contractual aspect of marriage from the biblical aspect.  Whether the union of two people is recognized in the eyes of God is up to each person's religion, not the government.

I don't know if would possible, but the solution I see is that the government stops recognizing any "marriages" regardless of the sexes involved.  Instead, the government should recognize only "civil unions," provided they were entered into by consenting adults.  Have a civil ceremony to validate the contract which would be sufficient to ensure the contractual rights of the parties involved.  If a couple wants to "marry", they have to find a church that will do so.  Leave marriage to the church/synagogue/mosque.

[guido911]

quote:Originally posted by we vs us

quote:Originally posted by cannon_fodder

quote:Originally posted by guido911

My personal feeling is that a "right to marry" is by no means a federal issue. This in my opinion falls under the police power of the states. However, for some insight into the federal court's  thoughts on the issue, I recommend reading Loving v. U.S. (interracial marriage) or even Skinner v. Oklahoma.

The Federal issue with marriage is that each state is required to recognize the legal decisions of other states.  Hence, my Iowa marriage is legal in Oklahoma.  Which raises interesting points on the issue at hand, when Oklahoma doesn't want to recognize that there marriage between them there homosexuals.

Also this ^^^^^^^^^

CF, in Baker v. Nelson, the Supremes held in a same sex marriage case out of Minnesota that such did not present a substantial federal question. My thought is that the "full faith and credit" clause, whereby states have to essentially respect records and judicial decisions of their sister states, would be the only way the federal courts would intervene. However, if this clause would prohibit states from not recognizing same sex marriage, it would seem that the Supremes had the opportunity to determine so in Baker. After all, this was the Warren court. Still, we have seen federal law expanding into the issue of family rights, most recently in this state with the homosexual adoption case (Crutcher, I think?).
Of course, we have not talked about DOMA, which has been in effect for over 11 years and I do think has been found unconstitutional.

I know it appears that I am not taking a firm position on this issue, primarily because I do not care. Same sex couples that marry will not impact my marriage in the least. My point is that it it would be delusional to think that the Supremes would absolutely get involved in this matter.  The people of California spoke out and voted to prohibit same sex marriage in their state in direct response to their Supreme Court's ruling. The fact that this is California, hardly a right wing, religious nutjob state, does say something I suppose.

[cannon_fodder]

The Minnesota Court in Baker affirmed (in 1971) that a state is not required by the constitution to issue a same-sex marriage license.  The Supreme Court denied cert. because there was a lack of a significant Federal question.  Thus, unless changed by the Supreme Court a state refusal to issue gay marriage licenses is not a Federal Question.

HOWEVER, one could argue that in light of recent Federal Attempts to do the same and the passage of a multitude of laws expressly authorizing such, it has become a Federal Question.  Consider that in 1971 no state issued gay marriage licenses (civil unions, call them what you will) - thus the merits of the claim as a full faith and credit issue was not relevant.  Currently, that issue has come to fruition.  

Where a conflict exists among state laws, and that conflict equates to an uncertain enforcement of a fundamental contract and the possible degradation of citizen rights while moving between states - it has become a Federal Question on the basis of the full faith and credit clause.

At least... in my 5 minute analysis.

[we vs us]

lol@lawyer shoptalk.  

You guys are such eggheads.