T Nation

Marriage Protection Act

Some very good debate in the House of Representatives today. On the Marriage protection act. Lets discuss. For those that dont know THIS IS NOT A MARRIAGE AMMENDMENT, but a bill which would let the indidividual states decide marriage as they see fit.

[quote]biltritewave wrote:
For those that dont know THIS IS NOT A MARRIAGE AMMENDMENT, but a bill which would let the indidividual states decide marriage as they see fit. [/quote]

Why do we need anything at all? If I remember my civics lessons, any authority that isn’t expressly defined in the constitution is left to the individual states. Unless you’re John Ashcroft, of course. Am I missing something?

It would seem like the best course for congress and the president to take on this matter would be to just stfu.

[quote]tme wrote:
Why do we need anything at all? If I remember my civics lessons, any authority that isn’t expressly defined in the constitution is left to the individual states. Unless you’re John Ashcroft, of course. Am I missing something?
[/quote]

Under the Full Faith and Credit clause of the Constitution, if one state makes something legal then it, in effect, becomes legal in all 50 states.

If a gay couple gets married in Mass, then under the full faith and credit clause, their marraige is to be recognized in all 50 states.

But I could be wrong.

Ok, so I went and read up a little on this “Marriage Protection Act”. What they are doing is saying that no one is allowed to challenge the constitutionality of the 1996 Defense of Marriage Act.

I don’t know, just can’t see this one flying, even with a conservative SC. Maybe BB can comment, but it seems like a pretty clear violation of separation of powers, telling the federal courts what laws can be challenged and what can’t.

The problem with leaving it to the sattes to decide - which, by the way, is the position I support - is that the Full Faith and Credit Clause of the Constitution may demand that one state’s position on gay marriage must be rspected by all states.

So if Massachusetts legislates full-blown gay marriage, the FF&C Clause may require that all states recognize the marriage - and it therefore is not a state-by-state issue anymore. I say ‘may require’ because we’ll have to see what courts think about this unchartered territory. Other states don’t want to have gay marriage policy dictated to them by other states.

The Defense of Marriage Act has recently been challenged in court as to its constitutionality.

Congress has to address the issue, now or later.

[quote]thunderbolt23 wrote:
The problem with leaving it to the sattes to decide - which, by the way, is the position I support - is that the Full Faith and Credit Clause of the Constitution may demand that one state’s position on gay marriage must be rspected by all states.

So if Massachusetts legislates full-blown gay marriage, the FF&C Clause may require that all states recognize the marriage - and it therefore is not a state-by-state issue anymore. I say ‘may require’ because we’ll have to see what courts think about this unchartered territory. Other states don’t want to have gay marriage policy dictated to them by other states.

The Defense of Marriage Act has recently been challenged in court as to its constitutionality.

Congress has to address the issue, now or later.
[/quote]

I agree with all of this, the issue is with this “Marriage Protection Act” is congress stripping the courts of the power to review or hear challenges. That’s more than a little scary, really. If this flew, what would be next? Can congress arbitrarily limit the power of the judicial branch?

  1. congress has authority to limit the courts in almost any way its sees fit. Its one of the checks and balances put in place by the founding fathers.
  2. its meant to keep gay marriage a state issue, but as people have said, it would make it so that the Defense of Marriage Act, which clinton signed, would be the rule of the land, instead of letting, the decisions of a few judges in a particular state decide for the country as is the case now. Under DOMA each state decides for itself and cannot force it on other states. If nothing is done, a ruling by the four judges in massachusetts will effectively become the law of the land.

The speeches on the floor today were very well done i thought. Especially Tom Delay’s. He made some excellent points. Whoever the first dem speaker was also pretty good and relied heavily on the effects this would have on our court system. I dont necessarily disagree with that argument, but something has to be done.

I think this whole thing is silly. Marry whomever you want. Hell, decriminalise polygamy. Bestiality? Who cares! I don’t care if you want to marry three pigs, your dinette set, and a doorknob; just shut the hell up about it already.

As far as making it illegal to challenge the constitutionality of a law, I think that is in and of itself unconstitutional.

[quote]

As far as making it illegal to challenge the constitutionality of a law, I think that is in and of itself unconstitutional. [/quote]

actually its not, judicial review is a court invented procedure. There is little to no pretext for it in the constitution. I dont think its a bad thing, but there also needs to be checks on the judiciary just as any other branch.

As far as constitutionality goes, let’s start in the beginning. The federal courts are courts of limited jurisdiction (as opposed to the state courts, which have general jurisdiction). The federal courts can only hear cases that fall either in their subject matter jurisdiction or in their diversity jurisdiction.

The Constitution allocated Congress the power to define the jurisdiction of the lower federal courts, so it can pass bills like this that strip the federal courts of their jurisdiction to hear challenges to certain things.

The US Supreme Court (USSC) is a little bit different. Its original jurisdiction is defined in the Constitution. Congress cannot monkey with that. However, its appellate jurisdiction is a bit of a different animal. Congress definitely has power with regard to the USSC appellate jurisdiction. In the slightly weird unanimous opinion of Marbury v. Madison (the case many people cite as establishing the principle of judicial review), Chief Justice John Marshall held that Congress could diminish the USSC appellate jurisdiction, but could not add to it. One can debate whether this makes any sense, but that is currently the understanding (it would make more sense if Congress could add or subtract from the appellate jurisdiction).

So, bottom line: Congress would not “make it illegal” to challenge the constitutionality of the Defense of Marriage Act. De facto, you would not be able to file a case in federal court challenging the constitutionality of that act because those courts would not have jurisdiction to hear those cases.

However, state courts would not have their jurisdiction thus limited. State courts have jurisdiction to rule on constitutionality of federal laws – however, they are subject to USSC appellate jurisdiction (generally, but not in this case if the Marriage Protection Act were to pass), and their decisions are not binding on other state courts. So, you could challenge the constitutionality of the DOMA in the Massachusetts state court, and that court could rule it unconstitutional, but that ruling would not be binding precedent for the Vermont courts, the New York courts, the Montana courts, etc. Basically, the ruling of a state court would only affect the interpretation of the law in that state.

That’s the constitutional situation, in a nutshell.

This is a tough one. Knowing where gay marriage will lead, I staunchly oppose it being sanctioned by the US government (as opposed to them getting together and havng all the private ceremonies they want, the little darlings). The simple fact is that marriage and the resulting mom/dad/kiddos family is the bedrock institution of society. Many of the problems in our society can be traced to kids growing up in “non-traditional” homes (up to this point primarily single parent or live-in relationships). Marriage is supposed to be built on comnmitment and sacrifice, and oh sure, I’ve heard from those with experience it can be fun too (I’m single). But it’s about selflessness and putting the interests the other person and the children first. What I seem to get from this whole gay marriage thing it that it’s all about what “I want”. I want MY equal rights, I want MY right to adopt children. It’s very selfish, and this is damaging and not conducive to a stable relationship, especially a marriage. I’ve read of at least two newly married gay couples who are divorcing already. Unfortunately, straight marriage is becoming a pathetic shadow of itself in modern, self-centered society too. Further, in other countries where gay marriage is legal, it has become a criminal offense to make statements “offensive” to gays. In Sweden, a church pastor was put in jail for speaking against homosexuality. The judge’s reasoning was as follows: “religious freedom does not include the right to make statements offensive to others.” Excuse me? There exists a right not to be offended now? Never mind the double standard, just consider the abject idiocy of that statement, from a JUDGE! So that’s the other problem I have with it. It leads to tyranny. So, should the states have the choice? Maybe. I suppose in order to be consistent with my views I’d have to say yes, but I do not like the idea as I know it will be damaging to society as a whole. Thank you, I’m Dr. Laura.

I think it is inevitable. I know there is a lot of talk about how it will ruin everything… but I honestly can’t see how it can really make a difference.

Whether or not they are “married” these couples are already finding ways to circumvent any limitations to adopting or whatnot.

If people pay taxes (are productive) and obey the laws, I can’t say I really care what they do.

Some people smoke, some don’t. Some are fat some aren’t. Some ride motorcycles some don’t. Some drink and some don’t. Some people are gay and some aren’t. Some people eat animal products and some don’t. Some people are obsessed with the issue of gay rights, and some aren’t.

Personally, I have more important issues to concern myself with.

bandgeek,

Very nicely stated!

Unfortunately, I think you’re probably right.

This seems a bit short-sighted. After all, it took a few years after the start of the welfare programs in this country to all but ruin the Black family. Now, after three generations, many are trapped in a cycle of poverty, government dependence, addiction and crime, and know nothing else.

I agree. Problem is, in this case they are trying to create new laws that will ultimately oppress those who disagree with them. If you (not you personally of course) get your kicks plunging your penis into the equivalent of a bucket of excrement and can still live with yourself, go and have a grand old time. Just leave me and the rest of society out of it, please, and don’t force me by law to recognize, celebrate, condone, or otherwise agree with it.

Again, though, what you have is individuals (animal rights activists, helmet law proponents, fat police, smoking police, and gay activists), who seek to undermine the freedom of others to make choices for themselves. Reread that moronic statement from the judge in Sweden. I don’t know who you are referring to in your last statement, but being able to articulate a position on an issue hardly constitutes obsession.

bandgeek:

Don’t you know that whenever anyone speaks out in opposition to gay marriage they are obsessed, or homophobic (translation, homorepugnant). The name calling is supposed to isolate you and silence you.

Marriage is between one man and one woman. Not between two men, or two women. Not between groups of people. Not between an animal and a person. And not between a lampshade and a person. (I can see read it now: "If he really loves that lampshade why can’t he have the same rights as others?)

Marriage has been an institution set up for one man and one woman for thousands of years. To change it means that you change the very fabric of society. Once that occurs it is a slippery slope indeed.

[quote]ZEB wrote:

Marriage has been an institution set up for one man and one woman for thousands of years. To change it means that you change the very fabric of society. Once that occurs it is a slippery slope indeed.

[/quote]

Here’s the question - does the government have the power and/or the right to tell people who they can and can’t marry?

As for the comment by the Swedish judge - this ain’t Sweden. The First Amendment protects offensive comments.

[quote]ZEB wrote:
Marriage has been an institution set up for one man and one woman for thousands of years. To change it means that you change the very fabric of society. Once that occurs it is a slippery slope indeed. [/quote]

You’re right in the sense that you change the very fabric of society. We have hundreds of thousands of laws and court decisions relating to marriage, both in the family sense and in the property sense – who gets custody of the kids, who inherits what property, who gets what in a divorce. But when you have two men who are married… who’s the wife?

This is a very large and difficult question, and we’ll have to figure out what to do about it. But let’s not lose sight of the “slippery slope” point.

What’s at the bottom of that slope?

I don’t think there’s anything at the bottom of that slope. Homosexuality was illegal in most states for decades. So was oral and anal sex. And guess what? People still did it. Do you honestly think anyone is basing their sexual behavior on the LAW? Grow the fuck up. People base their sexual behavior on whatever turns them on. Always did. Always will.

Refusing to allow gay marriage is really just plain stupid. They’re still going to have sex. They’re still going to have their parades, too. That’s not going to change. And as long as you go around yelling about how marriage is special and they can’t have it, they’ll be whining and bitching about wanting to get married. Just shut up and let them get married. Let them do whatever they want.

Eventually, there will be absolutely nothing they can use to claim we discriminate against them, and they will finally have to admit that maybe we aren’t homophobic – they’re just really fucking annoying.

[quote]MikeTheBear wrote:

As for the comment by the Swedish judge - this ain’t Sweden. The First Amendment protects offensive comments.
[/quote]

Don’t think your freedom of speech is sacred even here. Between Campaign Finance Reform and stuff like sexual harassment law and hate crime law, freedom of speech is under assault in this country. Apparently, virtual kiddie porn deserves more respect than political speech according to a majority of the current USSC.

Mike,

It is society (as in we the people) who have the right to prevent gay marriage. Currently the majority of Americans are against gay marriage. If the government carrys forth their desire, no problem!

CDarklock,

We are all well aware that homosexual acts are nothing new. However, when you sanction them with marriage vows you devlaue marriage!

I am not concerned about homosexuals having sex. This is America they can do what they want. It is the institution of marriage that must be preserved as is.

This is not “against” homosexuality as much as it is “for” the institution of marriage!

Again, though, what you have is individuals (animal rights activists, helmet law proponents, fat police, smoking police, and gay activists), who seek to undermine the freedom of others to make choices for themselves. Reread that moronic statement from the judge in Sweden. I don’t know who you are referring to in your last statement, but being able to articulate a position on an issue hardly constitutes obsession.

First, don’t worry, I wasn’t trying to imply obsession or anything like that. I just think the world has bigger problems for me to think about.

The moronic statement from the judge in sweden has nothing to do with whether or not gay people should be allowed to get married. If Sweden chooses to enact laws that prohibit certain types of statements, then the judge may be saying something appropriate over there.

However, the US has a different concept concerning free speech. However, as has been argued before, not all speech is protected. You don’t need the right to yell fire in a theatre if there isn’t a fire. There may be some other things you don’t need the right to do. It is for society to decide.

I know some people are very afraid of such changes, just like I’m very leery of the “with us or against us” attitude that sprang up after 9/11. I don’t like it when people start to think criticism is not appropriate. Other changes to what is protected by free speech may happen. However, I’m not as concerned by that as you can still say things that need to be said, it just has to be stated in a less derogatory way.

So, to make a long story short, I can’t see gay rights leading to any real erosion of my rights. And no, I’m not gay, so there isn’t any twist to my statement.

In response to another post…

As for whether or not anything will happen to marriage or the “fabric of society”, I am very doubtful. This is fear mongering. Change is always resisted. The year 2000 was going to be the end of the world if you recall. Oops, big-time fear mongering.

People who aren’t gay will still meet attractive significant others, fall in love and have a family. If they don’t, or if they suffer huge divorce rates (as they do now), then something else is attacking the fabric of society. Perhaps it is the fact that people have more freedom – women can survive without sticking with a loser they marry straight out of high school.

Perhaps the double income family that turns both man and wife into working drones barely able to get by with no time for themselves is attacking the fabric of society. If marriage is showing signs of failing as an institution it isn’t because gay couples want the right to the benefits of that institution also.

Now, I will admit that many people will find the idea offensive, immoral or sacrilegious.

I don’t really care if some people find some things offensive. I find it offensive when people hork up a fat lugey and spit it out in public. I find it offensive when fat people wear spandex. Too bad for me. I will admit I find it revulsive if I see two men kissing (damned TV shows). Two women on the other hand… but that is a different topic.

As for immoral or sacrilegious, I’m not worried. I don’t see there being any victim – other than perhaps the revulsion of those that are disgusted by the thought. Hey, dogshit is revulsive, but I still have to see it.

If you are using religious reasons to oppose this, but not willing to say so, then you are just imposing your religion on someone else. Hey, if their religion allows gay marriage, don’t they have a right to practice that religion? Isn’t freedom of religion one of the biggies?

Anyway, in general, I think people need to worry less about what other people are doing. In this subject matter we are trying to tell other people how to behave. You can’t do X. You can’t do Y. Why? Because a lot of us don’t like it if you do that. There has to be a better reason.

Can you really define a better reason without resorting to fear mongering? I don’t like it either, but I have to support it.