Prop. 8 & DOMA Predictions.

only if a party seeks such an action. making this statement totally pointless.

again, consumation of a marriage is not required. only if a party seeks annulment on the grounds that sex was expected, will the state annul such a marriage. making this yet another pointless statement.

your statement......

remains refuted.

 

Well straight couples who can't have sex at all are permitted to marry, as are heterosexuals who knowingly cannot procreate and for whom sex is purely recreational.

How does the annulment/consummation question work in these instances?

Answer that question and you've pretty much answered the other.

 

Actually, as I have pointed out many times, states recognize many acts as sexual in nature. Any one of them could be considered consummation.

 

Dixion's logic is circular and flawed. Dixion refuses to admit to the flawed argument and will only continue to repeat himself.

 

Yep. His argument will go something like: ...blah, blah, "procreation"....blah, "the mother is certain".... blah...etc.

 

Has no effect upon my point.

 

My argument is the one that has been successful in courts for 40 years since the first gay couple got the hair brained idea that they wanted the government to marry them.

 

It's failed in six states and counting.

Sorry but flawed logic is flawed, doesn't matter how many times you repeat it.

 

Well, my aunt could have balls and she would be my uncle, but she doesnt.

 

Just 4 I believe. Other 2 created gay marriage by legislation.

 

Same way it always works.

 

Consummation of the marriage, according to Dr Lushington in D v A (1845) 163 ER 1039, requires "ordinary and complete" rather than "partial and imperfect" sexual intercourse, including erection and penetration

http://www.lawteacher.net/family-law-resources/Non-Consummation-Marriage.php#ixzz28cK8a4Hy

 

I read of this 90 year old couple that just tied the knot not long ago. I wonder if the groom had to tie a metal rod to his penis in order to be able and penetrate, for fear that the government would come over and nullify their marriage.

 

His concern would be his wife nullifying the marriage through the governments courts.

 

... Ok and? It might be a legal protection but not a legal requirement for enjoying all the same rights of marriage, and having them just as protected. Most jurisdictions don't have such an applicable law anyway, and many of those that do only apply it when sex was reasonably expected.

 

A fairly good assessment of the current issues before the Supreme Court. DOMA Section 3 is unquestionably unconstitutional based upon conservative interpretations (not progressive interpretations) of the Constitution and will be struck down by a unanimous decision. It clearly violates the 10th and 14th Amendments to the US Constitution. The federal government has no historical authority to define marriage and it unquestionably violates the equal protection clause in treating legally married couples differently under US laws. The First Court of Appeals cited over 1,100 violations of the equal protection clause for legally married same-sex (gender) couples under federal laws alone and the US Supreme Court cannot logically dismiss this denial of equal protection.

The Supreme Court is usually conservative if it does address Constitutional issues so if Prop 8 is even heard the Court would probably limit it's decision to Prop 8 alone which only addresses same-sex (gender) marriage in California.

The future issue would be DOMA Section 2 that allows states to deny recognition of same-sex (gender) marriages from other states. This is a Constitutional issue related to the Full Faith and Credit clause of the Constitution that hasn't been argued yet. We do have historical precedent that the Full Faith and Credit clause was, to a large degree, related to marriage so that a legally married couple in one state would have their marriage recognized by all of the States. It's similiar to citizenship where the state issues the birth certificate establishing natural born citizenship and all other states must recognize that record of birth issued by the state.

This, as noted, hasn't been addressed yet but once DOMA Section 3 is declared unconstitutional then DOMA Section 2 will be addressed and it will also be struck down by the Courts as Congress cannot override the US Constitution's requirement of Full Faith and Credit between the states for records, such as birth certificates and marriage certificates. Once again this is based upon a "conservative" interpretaion of the US Constitution and the decision will be unanimous.

In effect, based upon both DOMA Section 2 and DOMA Section 3 being struck down it will lead to all prohibitions against same-sex (gender) marriage being struck down. These prohibitions against same-sex (gender) marriage are based upon a house of cards and the removal of one card ultimately leads to a collapse of the entire house of cards.

 

totally destroys it

 

The state recognizes many forms of sexual activity. Not all of which require penetration. So again, your argument...invalid.

 

Completely invalidates your point.

 

The states are free to continue to define marriage any way they like. Federal government simply defines who is and is not entitled to FEDERAL tax breaks and governmental entitlements. Every single one of them enacted through legislation with the intent to extend those entitlements to those who were married, as it was defined at the time. Marriage limited to a man and a woman. I suspect the next time congress decides to create new tax breaks and entitlements for married couples, they will intend them to go to married couples as they are defined at that time.

 

True, the states have the sole authority to define marriage and not the federal government. That was a key issue in the First Court of Appeals overturning of DOMA Section 3. The federal government can base benefits upon the legal institution of marriage but cannot define what marriage is as that is under the sole authority of the states. If a couple is legally married under state law then federal benefits for those that are married cannot be denied to that couple. DOMA Section 3 is clearly unconstitutional based upon a conservative interpretation of the US Constitution which recognizes the authority of the State in establishing the definition of marriage. Progressive interpretations are more restrictive of "States Rights" than "conservative" interpretations but the "progressives" will agree with the "conservatives" on this issue which is why the Supreme Court will rule unanimously that DOMA Section 3 is unconstitutional.

At the same time all laws, including state marriage laws, must meet the conditions of the US Constitution which includes both the equal protection clause and the full faith and credit clause. A state must accept the marriage of a couple performed in another state and ensure that their marriage laws don't deny any individual equal protection under the law.

California Prop 8 failed because it addressed a situation where same-sex couples were legally entitled to marry and then that was revoked. The crux of the Prop 8 decision was that it served no State's Interest to revoke the right of marriage, previously granted, for same-sex couples. This is a situation unique to California (so far) and the Court ruled that the new prohibition was exclusively about discrimination which served no purpose of government.

Because couples can be married in any state and those marriages must be accepted by all other states under the Full Faith and Credit clause it requires all States to recognize same-sex marriages performed in other States. There is no ligitimate interest of government which would justify denial of this recognition. It would be discriminatory, for example, for a state with an income tax to prohibit legally married same-sex couples (performed in another state) from filing a joint tax return when the federal government is going to have to allow it. If the state must recognize same-sex marriages from other states then it is discriminatory for the state to deny same-sex couples the right to marry in their state.

Once agian this are all "conservative" interpretations of the US Constitution and not "progressive" interpretations. It doesn't attempt to read into the Constitution that which isn't in the Constitution (i.e. a progressive interpretation) but instead it's applying exactly what is written in the Constitution. It is a literal interpretation of what the Constitution states and that is a "conservative" interpretation.

 

Like I said, DOMA doesnt define marriage. It merely defines who is and is not entilted to FEDERAL benefits.

 

DOMA Section 3 most certainly does define "marriage" related to federal laws.

The States, not the Federal government, have sole authority in detemining what the "word marriage means" which was the decision of the Boston District Court and the First District Court of Appeals (in a unanimous decision from the most conservative Court of Appeals in the United States). People need to try actually reading the Court decision on DOMA Section 3.

http://legalpad.typepad.com/files/doma-ruling.pdf

We must also understand the background for DOMA which was an attempt by Congress to prevent same-sex (gender) marriages being legalized in Hawaii at the time. The attempt by Congress was to infringe upon the authority of the States in a Constitutional responsibility of the States. It was direct interventionism into the authority of the States under the 10th Amendment and it attempted to impose invidious discrimination on the Individuals that would be affected by the law.

The States determine the meaning of "marriage" and not the federal government under the 10th Amendment, period. At the sametime all States must also comply with the equal protection clause and the full faith and credit clause of the US Constitution in all of their laws.

 

Same thing I said stated differently.

Nonsense. Hawaii, even after the enactment of DOMA, is free to define marriage as they choose to.

 

There are over 1,100 federal laws that use the term "marriage" as a foundation for protections and benefits and this is based upon the individual State's definition of the legal institution of marriage. The federal government cannot change the definition established under the laws of the State. As the First District Court of Appeals established there is no reason for the federal government to even attempt to change the definition and to do so caused denial of equal protection under the law for those that were excluded.

For example, there is literally no difference between a same-sex (gender) couple and an opposite-sex (gender) couple when it comes to bankruptcy or filing federal income taxes. Both have merged incomes and shared financial assets and liabilities. There is no difference related to Social Security and spousal benefits where one person pays the FICA taxes and the other does not or pays a lower amount. There is no difference for the spouse or child in same-sex (gender) and opposite-sex (gender) marriages when it comes to inheritence which is addressed under the tax laws.

Literally no difference exists in any of these cases or in any case under federal law.

I was merely pointing out the motivation for DOMA at the time. The Congress wanted to remove any potential federal protections or benefit for legally married same-sex (gender) couples if Hawaii was to pass a law allowing same-sex (gender) marriage.