Is DOMA Unconstitutional? Part 2

This is a long rambling and contradictory post, but I will try to cover some of what you said here briefly.
First of all, you cannot discriminate in private employment based on race. If you do, you can be sued. The Catholic Church example you give does not apply, as churches are exempt from employment discrimination laws. In fact there was a recent US Supreme Court case involving this (which the Obama administration was on the loosing side on this one of course):
http://www.washingtonpost.com/natio...ols-in-limbo/2012/01/20/gIQA7u4vCQ_story.html
I think the basic disagreement we have is that you are applying 14th Amendment cases regarding race to issues regarding sexual preference.

I'm claiming DOMA is not unconstitutional. I said it would take a US Supreme Court ruling to strike down same sex marriages in states where there are currently being allowed. You are right about the full faith and credit clause. If I get married in California, then Wyoming must recognize my marriage as valid. Not so in the case of same sex couples as per DOMA. Once a gay couples challenge of this reaches the Supreme Court, I do believe that same sex marriages will be invalidated.
You are right that the courts can interpret laws in just about any way imaginable. That is why we need to be more careful when puting judges on the bench who legislate from the bench. Judges have made terrible mistakes in interpreting laws. Plessy vs Fergeson is an excellent example of this. The 14th Amendment was in fact written to end any discrimination based on race. The fact that it took over 100 years before it overturned mixed race marriages is a reflection on how long it takes for the courts and society in general to assimulate the races. There is no reason to believe that the US Supreme Court will at anytime apply the 14th Amendment in cases involving marriage with regard to sexual orientation, since the 14th doesn't mention sex or sexual preferences.

The laws of the United States do in fact have a definition of marriage and it goes as follows:

Did I answer all your questions? Let me know if I left something out.

 

There is an established precedent that the Equal Protection clause applies to other things such as gender (Mississippi University for Women v. Hogan), and while Lawrence v. Texas which struck down sodomy laws invoked due process as opposed to equal protection, it also arguably had the effect all but actually establishing a 'suspect class', a class by which any laws concerning the limitation of a particular group's rights must undergo markedly higher levels of judicial scrutiny. Scalia even stated of Lawrence that it potentially sets the stage for striking down bans on SSM.

You said you believed this is what will happen in the near future; with no real basis on which to think this would ever be the case, other than DOMA itself which is what is suspect here. Even if a case like Proposition 8 reached the US Supreme Court they would not be given a chance to strike down SSM laws - merely to decide whether or not prohibiting same-sex marriage is unconstitutional, which, if they did find would have the same effect nationally as Lawrence v. Texas did in terms of its application.

There is no rational or reasonable basis on which to think same-sex marriage itself is what is unconstitutional here :/

There's nothing to think same-sex marriage unconstitutional so I very much doubt it. DOMA after all does not define marriage for the states, it only defines it for the federal government concerning federal rights and responsibilities.

If full faith and credit did apply to SSM, since the constitution trumps DOMA, I'm guessing that DOMA Section 2 would be thrown out and the decision would be similar to the Mexico Supreme Court's decision regarding the requirement of nation-wide recognition of same-sex marriages lawfully conducted in Mexico City. Now all Mexican states have to recognise (but not perform) them.

Something tells me they would for the time being simply decline to rule on that though since the ramifications are too far reaching for the current social and political climate.

Revisionist history if I ever saw it. The original intention of the 14th Amendment was not to allow interracial marriage, since an Amendment to the Constitution requires three-fourths of the states to pass them, and the vast majority at the time of passing the 14th had anti-miscegenation laws. Plessy v. Ferguson upheld the opinion at the time that since the laws applied to and punished all those who broke them equally, no such violation of the equal protection clause existed. Which is in my opinion similar to people arguing that gays aren't being unfairly discriminated against by bans on same-sex marriage because no one can marry a member of their own sex, gay or straight.

Wrong.

http://en.m.wikipedia.org/wiki/Mississippi_University_for_Women_v._Hogan

"Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) was a case decided 5-4 by the Supreme Court of the United States. The court held that the single-sex admissions policy of the Mississippi University for Women violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution."

http://en.m.wikipedia.org/wiki/Equal_Protection_Clause

"While the courts have applied rational-basis scrutiny to classifications based on sexual orientation, it has been argued that discrimination based on sex should be interpreted to include discrimination based on sexual orientation, in which case intermediate scrutiny could apply to gay rights cases."

DOMA Section 3 only applies to the federal government concerning the allocation of federal benefits.

 

You are mistaken. Not all employers are "covered employers" and even those who are may discriminate on any criteria (including race, religion, or sex) if the criteria is central to the employers business. Therefore you can discriminate in private employment based on race (or religion, or sex). Ebony and Playboy Magazine do so often.

I think our basic disagreement is your confusing discrimination by individuals with discrimination by the law itself. I think this confusion is why you feel holding up examples of individuals or organization practicing sexual discrimination justifies a law that practices sexual discrimination.

I believe DOMA discriminates against same sex couples on the basis of their sex. I think the 14th amendment should prevent state or federal laws from discriminating against them based on sex. I have no problem with you or Playboy practicing the same discrimination in who you choose to marry or put in a centerfold, I just feel the law of the land should meet a higher standard than Playboy.

 

http://www.politicalforum.com/gay-lesbian-rights/225753-doma-unconstitutional-52.html

This is abuse of authority. The thread was closed. You liberals love to push things and the gay agenda is one of the issues that you try and shove down peoples throats.

You have dropped way down; way down. Had to get the last word in. Your type is the issue.

 

The thread was closed because it went over 500 posts.... It happens, if someone wishes to talk about the subject further a new thread is opened with the same title. Of course you want to censor anything you don't agree with - like everyone on the far left and far right. It is actually YOUR type that has the issue.

ROFL - you need to see someone about your gay conspiracy theories.

 

He posted after the (*)(*)(*)(*)ing thing was closed. Cheap shot and reported.

 

What's the big (*)(*)(*)(*)ing deal pal? Reply to him here if you're that bothered :/

 

I did I told him he took a cheap shot.

 

Let me simply say that I disagree with you. You are right, that the 14th amendments has been used in cases regarding sex. This is a mistake I believe on the part of liberal justices. Even the case that you cite, is a man sueing to get into an all girl school. I found a site that had the dissenting opinions (it was a 5-4 decision) and I agree with those. The main point here is that the supreme court has not ruled on same sex marriages. It is only a matter of time when they do. When they do, hopefully they will decide not to impose a redefined definition of marriage. Once this happens, same sex marriages will be invalidated, because someone married in a same sex marriage state will not be recognized in the other 49 states.

 

That's not a substantiated reply though is it? This is part II so by all means continue as if it were the same topic.

For all we know he simply made a mistake and didn't realise the thread was closed.

 

I am a moderator. I know vBulletin. He knew and the post before his said it was closed.

 

Well you can disagree freely but in terms of the judicial structure the US Supreme Court is the highest authority on constitutional matters - and a precedent affirming gender as a suspect class has been established, which means the 14th Amendment's equal protection clause can apply to things other than race. No rulings have since overturned this precedent so it remains binding.

What you fail to understand is that neither the DOMA case nor the Prop 8 case present an opportunity to rule on the constitutionality of laws establishing same sex marriage - merely the laws and amendments against it. No case has ever been brought forward challenging the constitutionality of SSM itself.

If DOMA and Proposition 8 were upheld by the Supreme Court it would have ZERO effect on the same-sex marriage laws in the 6 states that currently allow it. It is NOT an "all or nothing" scenario - indeed the risk posed to anti-SSM laws and amendments in the cases sitting in the Circuit courts is a significant threat whilst presenting no risk to current SSM laws in the aforementioned states.

 

I think DOMA and prop 8 could decide whether state can have same sex marriages or not. But here is when it definitely comes into play. When Jack and Joe get married in Hawaii, then come home to California and expect California to recognize their marriage. Or, when married couples in those states start trying to file taxes as married couples. That could do it too.

 

How many times do we need to go over this?

This is what the federal Defense of Marriage Act says:

Section 1: This Act may be cited as the "Defense of Marriage Act". (in other words, Section 1 just establishes the title of the Act)

Section 2: No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such
relationship.

This takes care of your Jack & Joe example (though I'll pause to note here that they can't actually get legally married in Hawaii, since that state only has civil unions at this time, and those only just started in January 2012). The point is, Section 2 effectively exempts states from having to give "full faith & credt" to same-sex couples' marriages created in other states. It doesn't matter where Jack & Joe get married - if they travel or relocate to a state that doesn't recognize same-sex marriages from other states, they're out of luck.

As for taxes, legally married same sex couples are supposed to file their federal taxes as "single". How they file their state taxes depends on whether the state recognizes their marriage.

If you know of a case pending that targets Section 2 of DOMA, then provide us with the details. I'm not aware of any. The cases making their way through the court system right now target Section 3 (edit: Just to be clear, Prop 8 isn't a direct challenge to the federal DOMA - it's a challenge to a state action):

Section 3: In determining the meaning of any Act of Congress, or of any
ruling, regulation, or interpretation of the various administrative
bureaus and agencies of the United States, the word `marriage' means
only a legal union between one man and one woman as husband and wife,
and the word `spouse' refers only to a person of the opposite sex who is
a husband or a wife.

If Section 3 is overturned, that will only affect recognition at the federal level. States would still be able to refuse recognition of same-sex couples marriages, so long as Section 2 stands.

There is NOTHING in the federal DOMA that dictates a definition of marriage to the states. Section 3 only deals with federal law. Section 2 is merely an exemption for states that don't wish to recognize same-sex couples' marriages. It doesn't touch the definition of marriage in states that do wish to recognize it.

These cases are brought by plaintiff's who wish to challenge the law's constitutionality.The court is limited to examining very specific questions of law raised in those challenges. The court does NOT decide issues that aren't part of the law being challenged.

There is nothing in the cases challenging DOMA that would lead the court to force states to use the federal definition, since DOMA itself doesn't do that, and striking down any portion of DOMA wouldn't accomplish that.

As for the Prop 8 case, that also is not about deciding whether the states can have same-sex marriages. It's a challenge brought by plaintiff's seeking to overturn a voter referendum that amended California's constitution. As such, it's about deciding whether or not the voters' actions in passing Prop 8 violated the plaintiff's equal protection and due process rights. There is nothing about this case that asks whether states are allowed to have same-sex marriages; it's instead about asking whether or not states are allowed to ban recognition of same-sex marriages.

For the courts to dictate to the states via either one of these cases that they must ban the recognition of same-sex marriages in compliance with the federal definition would indeed be "activist judging" and "legislating from the bench", since such an action is not within the scope of these cases.

 

As Perriquine has just so eloquently explained, as well as what I have repeatedly tried to spell out - NO!!! There is nothing in the cases which challenge Prop 8 and DOMA that present the question of whether or not same-sex marriages are constitutional. It's pretty obvious it is constitutional based on the fact that states retain the right to define marriage.

DOMA Section 2 is not what is under judicial scrutiny, although it could well be if full faith and credit is interpreted to include SSM... It's not beyond imagination.

 

Yes, I do conceed that his explaination is well thought out and understandable. I still believe however, that one of these arguments will reach the supreme court, and the homosexual community with their zealotry will shoot themselves in the foot and push for recognition in all 50 states via the 14th Amendment and it will utterly backfire on them. I think that the court can and will overturn same sex marriages because there is no right to REDEFINE marriage (not "define", as you put it). Because of the full faith and credit laws, the history of marriage (The Utah example especially) states will be forced to nullify the same sex marriages.

I think the whole issue could be settle today if they would stop insisting on calling it marriage, instead called it civil unions. The reason that they insist upon it as I have said is because they wish to erode the first amendment rights of religion, destroy the family structure, and close down churches that fail to comply with their demands.

 

Hate to break it to ya but marriage in this country stopped being a religious institution once the government took control of it.

As for the family structure heterosexuals are destroying that all by themselves.

No one (I am sure someone is, there is always an extreme on every point) is saying that churches be forced to wed same sex couples, this is a government protection/benefit issue.

And alot of gay people go to church, some very regularly, why would they want to close the church down?

 

The states can define/"re"define marriage in any way which does not conflict with the Constitution, as set out by the 10th Amendment.

It is for that reason that you can't 'universally' sue for the right to marry a member of the same sex. You can only bring cases against specific pieces of state legislation... If however a law/amendment banning SSM were to be ruled Unconstitutional by the Supreme Court (such as Prop 8 ), all bans in all states would be struck down. If it is upheld... well, nothing happens - SSM isn't ruled unconstitutional. That's not the question being presented to the court.

Note aswell that full faith and credit does not mean that states have to reach an absolute consensus on who to award marriage licenses to - the age limitation for example varies considerably from state to state.

 

It is true that there is nothing in the U.S. Constitution that explicitly gives states the power to "redefine" marriage. There doesn't need to be - marriage is not a power reserved to the federal government. The 10th Amendment:

States have the power to define (or "redefine") marriage as a legal institution.

I swear, it's like talking to a brick wall with you. Your "full faith & credit" argument was thoroughly debunked, yet you keep repeating it as if that will somehow make it true. It won't.

DOMA exempted the states from the application of the "full faith & credit" clause with regard to same-sex couples' marriages. Even if it hadn't, there is nothing about "full faith & credit" that would require states to adopt a uniform definition of legal marriage. If "full faith & credit" were still to apply, it would only potentially require states to recognize each others legal same-sex marriages; it wouldn't require any state to provide for creating legal marriages between same-sex couples within its own jurisdiction.

A successful legal challenge overturning DOMA's negation of "full faith & credit" wouldn't force states to end legal recognition for same-sex couples' marriages.

Presuming that you're correct about Utah having to outlaw polygamy as a condition of statehood, you're still misinterpreting the reason why. It wasn't because states are required to have a uniform definition of marriage. That's not what full faith & credit requires. The problem would have been the potential for full faith & credit to require that other states recognize polygamous marriages created in Utah as legal marriages.

The fact that one of these cases might reach the Supreme Court doesn't mean that court can use them to outlaw marriage between persons of the same sex in all 50 states. There's simply no legal challenge headed for the court with that kind of scope; no law even in existence that would create that kind of scope for a legal challenge.

That's a load of BS. You really need to start getting your news from multiple sources with differing viewpoints instead of listening only to those that reinforce your unfounded fears.

For starters, calling it civil unions won't pacify the religious people fighting this. The bulk of those organizations are against same-sex couples' relationships having ANY legal status because they think it would promote sin. They will fight civil unions just as hard (and already have).

It is never amusing when a straight person pretends to know what gay people want. My husband and I merely want our marriage to have equal legal status. Civil unions don't provide that. For one, they aren't federally recognized. In addition, you can't make two situations legal equals by creating a separate, parallel law. The moment you do, you set up the group using the less recognizable term as targets for discrimination based on that difference. You also create the danger that as the laws evolve, the two laws will not remain equivalent. Furthermore, it's completely inefficient to have the government run two legal institutions that supposedly have the same legal effect. It's plain idiotic.

As for eroding First Amendment rights, what's really happening right now is an effort by some groups to expand those rights using opposition to gay issues as leverage for doing so, and then claiming victimhood when they meet with resistance. I am very much opposed to the effort of dominionists to install their religion in the laws and public policies of this country, thereby creating a de facto state religion. The reach of the church should extend no further than its adherents. Leave the rest of us alone already.

As for the family structure, you're darn right I want to get rid of the notion that a family can only mean a man, a woman and their biological children - because that leaves out a whole lot of other configurations that are familial. Does that mean I want to destroy the ability of opposite-sex couples to create traditional families, or to eliminate support for those kinds of families? Not in the least - I just don't think it's anyone's place to dictate to anyone else what their family has to look like or how it has to be structured.

As for closing down churches that don't comply with our demands, that's utterly ridiculous. For one, we aren't making any demands of churches, and I would fight for the right of churches to refuse the demands of anyone who does.

That said, if a church operates a business venture in which they charge fees to the general public, then I frankly don't think that venture should enjoy a tax-exempt status to begin with, and I would most definitely oppose letting them keep any special tax breaks on that business venture if they discriminate against certain segments of the public in violation of state or federal laws. Which is exactly what happened in the New Jersey case that anti-gay propagandists love to cite as an example of "gay marriage" robbing them of their religious "rights". But the facts matter: New Jersey only has civil unions for same-sex couples. The business entity in question wasn't asked to perform any religious rites for the couple that sued them. Instead, it's a case of that entity trying to claim a non-existent exemption from the state's anti-discrimination laws for a piece of property they rented out to the general public for a fee.

Or we could talk about the Catholic Church's whining about having to close adoption services in states that have legal same-sex marriages. In reality, they weren't forced to close at all - they chose to. They could have continued to provide private adoption services. What it's really about is them having to choose between a lucrative income stream from sucking at the government teat versus having to comply with anti-discrimination laws in their dealings with the public.

So it's not religious freedom at stake here. It's power and money and wanting to retain both while discriminating against a public they're leaching off from. Disgusting.

 

??? Actually, its an example of the full faith and credit clause in use. You guys dismiss any court precedent I present, so lets try a brief by the Obama administration, before they decided they were opposed to DOMA for the next election.

 

Here's what it says:

Just because the sentence containing the words "full faith and credit" gives Congress that power, that doesn't make Congress' negating exercise of that power "full faith and credit in use". It's Congress power in use, not full faith and credit. It's a 'no faith and no credit' situation they created in DOMA - the precise opposite of giving something 'full faith & credit'. To call it 'full faith and credit' quite requires standing the meaning of those words on their head. Up is down. Left is Right. Black is White. "Full faith & credit" means "no faith and no credit".

I'm not disputing that the clause in question seems to give Congress that power. I am saying that characterizing 'no effect' as 'full effect' is BS.

Can you name for us another instance where Congress has done that - passed a law that dictates something is to be given no effect under "full faith and credit"? I'm not saying they haven't - merely that nothing comes immediately to mind.

Funny, I don't see you disputing PatriotNews' claim that "full faith and credit" magically requires the states to comply with a common definition of marrriage. As usual, the context matters. You take a swipe at me over someting minor while ignoring the context of the larger picture and what I was responding to.

 

I dont know where you get these silly ideas, but DOMA does no such thing

 

I can't see how DOMA (as it is presently defined) will stand for much longer.

 

Avoidance. I'll take that as a 'no', then.

 

My answer was implied. NO, And neither does DOMA. Should have been obvious.