Gay Marriage - Yes or No?

[KingofCretins]

50 version would include gay marriage, sure -- it's been enacted by legislation, i.e. by popular sovereignty, in at least a small handful by now. I think it's the most legally and culturally appropriate way to deal with the law surrounding marriage in this country at this point. The only thorny constitutional law question that would leave us is the provision of DOMA that grants states a "full, faith and credit" waiver to not recognize one as married under the law of State A based on their marriage in State B, which was not actually one of the provisions struck down in the recent Supreme Court case.

I think about the worst case scenario for the civil society is a singular nationwide instantaneous rule determined by the Supreme Court -- no matter what that rule is, in fact. The Supreme Court has tried to refrain from doing that again, because the last time it created what amounts to a permanent social schism that transcends all social norms of etiquette. But they are going to have this subject matter thrown at them again and again in the hopes of getting them to simply push the "i win" button.

[sybil]

Yes.Slavery shouldn't instantly be banished, despite "social etiquette."

I have no idea which ruling so offended you--perhaps the judicial branch deciding the executive branch leadership? Or is it Roe V Wade? Or the decision that money is free speech? Or is that the Supremes are, pretty much, living in abstractions where no homo sapiens exist, but sure live the consequnces? And, I apologize this is all off topic on the fact gay people are actually people, despite the "ravings" of a Judeo/Christian society.

HUGS!
sybil

[KingofCretins]

"Roe" was the one that created a permanent social schism, yes, and that isn't even me, even justices from that court have said so; my remark about the schism transcending the norms of social etiquette you have misunderstood -- just that that schism is deep enough that differences on that subject are deep enough that they effect people's ability to be civil toward one another.

That is why whenever possible, the Supreme Court has eschewed mandating a single constitutional outcome to questions of social policy -- even when handed the opportunity. They have declined at least twice to do it on this subject, instead using very narrow grounds to reach their rulings. I also think the Court wants to let the proper process, the political process, change the institution if it going to -- see how many more states legalize by statute. The more the political process dictates the result, the less anxiety and tension from dissenting interests, which is good for the body politic.

The slavery analogy is misplaced, not only as to subject matter but process -- slavery was made illegal in he US by that same lofty amendment process, not by judicial act. For that matter, even a judicial action on this subject could be undone by the amendment process, such as an amendment defining marriage heteronormatively. That is why you may consider that the difficulty of changing the trumps-all, supreme law of the land is not a bug, it is a feature.

[sybil]

I don't think involuntary servitude is legal, but the access to abortion is so restricted or even unavailable, the "right" on the books means little. This has been the experience of many "minorities" in this country, with great hardships entrenching generations by reasons of gender identification, race, and religion. The crime of involuntary servitude has criminal remedies, but not that of a pregnancy an individual female does not wish to carry...quite the reverse as "the lawful men" decide a foetus has more standing--until actual cutting of the cord and some means in the "breath of life" as an individual than a woman having her own person controlled by perncious denial of access in delay, refusal and ultimately complete denial. Even when her own health is at risk.

I am not sure "civil" means "compromise." A person is pregnant or not, a consenting adult/ human being has the right to form a household legally recognized in this country as marriage, and the "exceptions" driven by "cultural bias" are incomprehensible to me. I am on the record that I have nothing against multiple persons in a marriage, as long as all parties are consenting adults, (not brain washed children in the virtue of strict servitude--and I am not sure if that includes priests to the church or nuns to Jesus, by examples, that seem to cause no "problem" "legally") and the "religious law" has no problem with females having more than one partner as that family deigns fit to them.

I actually do like learning all the "legal beagle" stuff--you have a knack at explanation and the nature of a narrow interpretation that has such horrifically wide ramifications, e.g. that "money" is free speech on all that political process that is supposed to "save us." Eventually.

"We have met the enemy and they are us"--POGO

HUGS!
sybil

[KingofCretins]

I don't think involuntary servitude is legal, but the access to abortion is so restricted or even unavailable, the "right" on the books means little.

There have been 53,000,000 million performed in the US since Roe, equivalent to fully 1/6th of the population of the US. I'm not sure that can be reconciled with "restricted or even unavailable". In fact, you may be curious to know that even under the 14th amendment "penumbral" rubric of Roe/Casey jurisprudence, this right alone enjoys its own special test for violation -- namely, whether or not a state action creates an "undue burden", something that the courts have interpreted as having it been so much as breathed on.

But my point in the comparison at all was this -- slavery was formally banned in the US by the 13th Amendment, which was first passed by 2/3rds of both houses of Congress and then ratified by 3/4ths of the states. The Civil Rights Act was passed by act of Congress, i.e. the representatives of the people and of the several states, and upheld by the courts. Neither the end of slavery nor the CRA are subject to deep and abiding hostilities among the population because, ultimately, they were the product of a political process which gave every voice its say (whether you happen to care for what any voice might have said, that's the cost of doing business in an Enlightenment-era society).

Gay marriage, as it were, is on a rather bifurcated path through the machine of law in this country -- on one hand, the political process, which is yielding a smorgasboard of results, as some states have formally approved it by legislation/referendum, other states have reiterated their bans. On the other hand, the judicial process, which has tended to categorically favor gay marriage, but which courts have been straining hard to limit their rulings to avoid a Roe like categorical judicial mandate.

I think the United States as a civil society is better served by the political process than the judicial process on essential matters of social policy; I think the entrenched and hostile schism in the post-Roe society is a solid argument why.

I actually do like learning all the "legal beagle" stuff--you have a knack at explanation and the nature of a narrow interpretation that has such horrifically wide ramifications, e.g. that "money" is free speech on all that political process that is supposed to "save us." Eventually.

"We have met the enemy and they are us"--POGO

HUGS!
sybil

Well, my chosen role in this discussion has been to articulate the appellate process and the various legal considerations. Neither in the issue of gay marriage nor abortion am I trying to make a normative argument; you don't have to be on either side of the abortion issue to personally observe the schism of which I speak or to understand its causes, the difference between court-made law and legislature-made law in terms of the general public's acceptance of it. I honestly think that even in states like Maryland where gay marriage was legalized through the legislature, it would become a more contentious issue if the bill they passed was made moot by a Supreme Court ruling.

[MikeB]

The discussion of abortion should be done here: http://www.buffyforums.net/forums/sh...18513-Abortion.



* My only concern with the idea of gay marriage has always been in regards to whether gays should be able to adopt. And from what studies I know of, there's no significant psychological difference regarding children adopted by straight couples and those adopted by gay couples.


* There's no reasonable reason why gays shouldn't be allowed to marry. Other couples who can't conceive children are allowed to marry.


* Legally, marriage essentially is the forming of a corporation between two people. There are some legal benefits and some tax benefits. And gay couples should be able to enjoy these benefits.

[KingofCretins]

"Yes".

As I have tried to be the forum's chaperone through American constitutional law on this subject from a few years back, figured I would post that which most probably now know; in a 5-4 ruling, the Supreme Court has found that the 14th Amendment includes in it a prohibition of states from denying marriage licenses to same-sex couples. This ruling nullified and supersedes any prior state law or court holding advancing or rejecting the same and applies to all fifty states and the territories.

Joining in the decision by Anthony Kennedy were Justices Ginsberg, Breyer, Sotomayor, and Kagan. Dissenting were Roberts (C.J), Scalia, Thomas, and Alito.

The full opinion is here

Highlights from the majority holding by Kennedy --

As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. ... Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.

In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

From the dissent by Roberts --

Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. ... Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

From the dissent by Scalia --

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. ... It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.

[MikeB]

* If I remember correctly, Chief Justice John Roberts also essentially said that because past civilizations -- including the Aztecs (who did human sacrifice) -- defined marriage between a man and a woman, so should the United States. Edit: Here's the quote:

“The court invalidates the marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs,” he wrote. “Just who do we think we are?” http://www.nytimes.com/2015/06/27/us...iage.html?_r=0

End of Edit

Chief Justice John Roberts has done some good things including keeping the Affordable Care Act intact. But he is simply terrible on other things such as his opposition to gay marriage and especially the Citizens United thing.

I hope that 8 more years of a Democratic President of the United States will finally shift the court from 'conservative' to more moderate or even liberal. Rid of Citizens United, 'corporations are people' outside of the 'legal entity' thing, etc.