Prop. 8 & DOMA Predictions.

The SCOTUS is considering taking up challenges to both the Prop. 8 case and possibly multiple cases challenging the constitutionality of section 3 of DOMA.

http://www.boston.com/lifestyle/blogs/bostonspirit/2012/09/supreme_court_gay_marriage_mas.html

I predict they will refuse to hear Prop 8 meaning that same-sex marriage will once again become legal in California but have no further ramifications beyond that state (except as possible precedent in newer challenges in other states).

DOMA section 3 is a no-brainer for me. It essentially singles out couples who are legally married in their own states and treats them as if they are not.

What I don't expect to hear is any kind of ruling which "imposes" same-sex marriages on states that have voted against it.

The most interesting prospect for me is, if DOMA fails, whether couples can go out of state to marry and then sue their own state to be treated as married for Federal benefits even as they are denied state benefits.

I try my best to keep up but I'm not an American attorney. I'd be interested to hear the opinion of any attorneys on here or anyone else who is following the legalities of these cases closely.

I also think you can expect some big surprise votes coming out against DOMA, it seems to lack rationality to any degree.

 

they will go wee wee all over the Constitution once again, spit on the will of the people and use FDR's "Constitution" rather than the one crafted by the founders

 

You mean they'll uphold doma?

 

Look I'm really not sure where you're going with the FDR bit. My thing is that so long as those opposed don't have to celebrate or participate in their own communities, it's not a big horking deal. If the law says Catholics don't have to rent cathederals for gay weddings, that those involved in wedding functions have a right of conscious to say that they don't want to be involved, it's not a thing. My only issue is whether or not giving marriage to gays is going to mean a loss of religious freedom. You can marry, just don't make orthodox catholics and jews and muslims and whoever else violate what they believe in.

 

Nobody has to do this, you can't even force a religious organization to perform a "wedding" for two straight people if it has a reason not to want to.

No we're really focusing on the civil right of marriage and the access to that governmental contract.

Again we're talking about the "civil" right of marriage. Some churches already perform same-sex weddings but they're not recognized in law (except in the places where they are) as legal marriages and that is the bone of contention.

All that aside, I really didn't intend this to turn into another generic "gay marriage" thread. I'm interested to hear from American lawyers and legal scholars what they believe will be the course of action for the cases I've highlighted in the upcoming SCOTUS term?

 

Well considering that they didn't announce their intention to hear the case this past week, I'm beginning to optimistically think they will refuse the appeal.

However, still early to say if they will or not. If they do...I'm inclined to believe that Prop 8 will again be ruled unconstitutional.

 

Well legally, under the constitution, a state must recognize any legal contracts from other states. So that is all that really matters in deciding the constitutionality of DOMA. it violates the constitutional rights of gays by allowing states to deny them marriage benefits, even when they have legal license.

 

I really don't think it's that simple. Sure, state "A" must recognize that state "B" performed some license called a "marriage", but just because state "A" and state "B" have something that they call "marriage", this doesn't mean that the two things are completely interchangeable.

I think it can be challenged, but not under the full faith and credit...

 

Perhaps under the 14th amendment.

After all states transfer and recognize marriages of opposite sex couples that are acquired in other states. Why would it be any different for same sex couples?

 

The 14th is far more likely. If the 14th succeeds, then the issue of full faith and credit could come up... because both state A and state B recognize something called "marriage" between two men, and the same thing is transfered for opposite sex couples, then it must also be transfered for the two men as well. If we get to that point, I doubt the transferability will even be a big issue. It's winning on the basis of the 14th amendment that's the question.

 

Currently I'm interested in whether or not the supreme court is even going to take on Prop 8's appeal or not.

To me this is the most important case in the gay rights movement to date. If prop 8 is ruled unconstitutional...well that sets precedent to allow the challenge of similar state constitutional bans on gay marriage.

 

Marriage licenses are the same as drivers' licenses. One state can not give someone a ticket for driving without a license if the driver does not match the requirements for a license in their state, and a marriage from one state is legal in all others.

 

And yet one state does not have to recognize the business license of another state. A doctor that has the legal right to practice in one state doesn't necessarily have the right to do so in other states unless he satisfies the other state's criteria. This is just scratching the surface of things that DON'T transfer over state borders. The fact that states willingly transfer certain documents doesn't mean that they MUST do so. Full faith and credit only requires that they recognize the document as authentic, what happens after that point is largely up to the state and case law, and depends on its applications.

Here's a quick read from wiki, showing some supreme court interpretations of the Full Faith and Credit Clause:

http://en.wikipedia.org/wiki/Full_F...tation_after_ratification_of_the_Constitution

Not a supreme court interpretation, but a further explanation:

Also understand that much of this falls under the "interstate commerce" clause, where the federal government requires that the states do certain things in order to ease interstate commerce. Drivers licenses would be an easy example of this. You're simply assuming that the drivers license recognition across state borders is a result of FF&C, and this is not necessarily the case... only a possibility, and there are countless other examples of state records that have no effect on other states.

While it is possible that they could win based on full faith and credit, I doubt it would happen and I think it would be bad precedent... two states could have very different standards for something that happens to go by the same name, and forcing one state to recognize the document of another that is substantively different would be very bad.... but, forcing them to recognize a document that is substantively identical, and for which the transferability of substantively identical documents is already in place... there's a good chance that would be enforced.

And that question, whether the marriage license of a same-sex couple is substantively identical to the marriage license of an opposite sex couple that has transferability... this is a question much more in line with the 14th amendment.

 

yep, fact is thousands of same sex couples are legally married in this country, now\today, which makes it very very hard to take those rights away while at the same time not taking the right away from everyone

jut like Inter-racial marriage, same sex marriage one day will be legal across this nation

 

of course they will

the court has moved further to the left and further away from the Constitution. If you believe in the principals of the founding fathers then you weep with almost every recent ruling

If you believe in the principals of FDR and all big govt liberals where the role of govt is to govern (rule) and not to represent, then you like where the court is heading.

As I've note with about 99.9% of the gay posters here, they all like less liberty and more govt intrusion. This makes you easy prey for Democrat politicians

 

how one engages in sex vs the color of ones skin is not even close in comparison. Please tell whoever writes your pamphlets to stop that insulting meme

 

It's pretty similar to gender though. Who said anything about the couple having sex?

 

has anyone been denied a seat at the front of the bus because they sleep with a partner of the same sex?

Has anyone been denied a seat at the front of a bus because their skin is dark?

I can stop having sex. Unless I'm Michael Jackson I can't stop the color of my skin.

the dog don't hunt

 

Not sure about busses, but they've been put in the back seat of police vehicles for it.

I'm not sure what you're getting at.... "Supposed discrimination against homosexuals hasn't taken the exact same form as it has against blacks, therefore it doesn't exist" -- Is that what I'm hearing?

Again, I'm not sure what you're getting at here...

You can't change the race of your black partner (unless he's Michael Jackson), nor can you change the sex of them (without equally extreme procedures). The question is whether you have the right to choose your marriage partner based on the immutable characteristic of gender, just as you have the right to do so on the basis of their race.

 

The founding fathers laid down the constitution for the people of their time. Which included slavery, poll tax, only land owners being allowed to vote, women not being able to own property, and a whole sordid list of other negatives.

They intended for it to be a living document that changed with the nation.

Sorry, its the conservatives that wish to have governmental control over peoples lives. Why else would so many conservatives states be enacting or attempting to enact laws and constitutional amendments that dictate who their citizens can or can not marry?

Just admit it the right wants social control over society.

 

Have gays been forced to the back of the bus? No. But they have been denied equal employment rights. Equal housing rights. And until a supreme court ruling made sodomy laws unconstitutional gays were jailed for nothing more than consensual sex.

Funny fact..the kkk lynched gays right along side blacks.

So no, the bigotry hasn't been exactly the same..but the two civil rights movements are indeed very similar.

Oh and you can feel free to stop having sex. The rest of us free citizens of the US will uphold our right to be with the person we wish and demand the equal rights that come with being a citizen of this nation.

 

nobody is telling you to stop having sex. If I want to stop having gay or heterosexual sex tomorrow then i can. What I can't stop doing is being the color that I am unless I'm Michael Jackson. That is why trying to invoke race or gender as being similar to how one has sex is offensive and downright wrong.

 

Maybe you're failing to grasp one of the real issues here.

Consensual adults having sex is none of your business.

You can also choose to stay out of other peoples bedrooms and allow them to live the life they choose.

Why is that hard to grasp?

 

The question is not your ability to change the color of your skin or your own gender... It's whether you have the right to choose your marriage partner regardless of their race and gender. You're building a strawman.

 

not at all

gender is gender

the color of ones skin is obvious as well

what you can't tell is what someone does in their bedroom thus trying to link sexual activity being similar to race or gender is disingenuous