Judge calls Texas' gay-marriage ban into question

[BasicGreatGuy]

I don't agree with gold that much when it comes to the interpretation of the Constitution. She is correct on the point she has been debating, in regards to the FF Clause.

 

[goldcatt]

Holy shit, rgs, goldcatt, this is the first time I've ever seen two people on opposite sides say 'the constitution does not comply with my personal beliefs but we should follow it anyway'.

No seriously it's usually 'follow the Constitution when it's convenient for me, ignore it when it isn't'.

actually, MOST(not all) conservatives will argue on the side of the constitution
although you might not agree with their interpretation, it is still on the side of the constitution

I spend too much time listening to the ones that don't then.

Relative objectivity is rare on political boards, but it does happen. You're just hanging with the wrong crowd.

 

[goldcatt]

I don't agree with gold that much when it comes to the interpretation of the Constitution. She is correct on the point she has been debating, in regards to the FF Clause.

Thank you, kind sir.
It gets complicated, FF&C is a beast. But I stand by my arguments.

 

[lawbuff]

It gets complicated, FF&C is a beast. But I stand by my arguments.

If FFC would not even be considered as a cause of action to challenge same sex marriage bans, why do you think Congress took the time to enact it?

 

[lawbuff]

You're partially right, my friend.
Same sex marriages are not valid in most states, and FF&C does not apply. HOWEVER, there are states where a same sex marriage is, for all purposes under the law, a "properly solemnized marriage" the same as any other.
The question being debated in interested circles now is whether FF&C, which has never been used to recognize foreign marriages of any kind, should be applied to force states that do not currently allow same sex marriage to recognize those marriages if valid in the State where they were performed.
I've explained in some depth why I feel it does not, cannot and should not apply - even though I actually support allowing same sex marriages. The FF&C clause cannot reasonably be construed to grant the Federal government the power to force a State into a contractual relationship with any of its individual residents against its will. Period.
Until and unless the legal underpinnings of civil marriage change (unlikely) or sexual orientation becomes a protected or suspect class receiving higher scrutiny in equal protection cases (far more likely, but will not happen soon), the judge in the OP is dead wrong.

You did mention before though the P/I clause was more appropriate in your opinion. The Baker decision stated MN's ban did NOT violate the 14th AM, since no exact clause/protection was discussed we have to assume it includes all 3:

1. Due Process

2. Equal Protection

3. P & I.

Agree or not?

 

[goldcatt]

You're partially right, my friend.
Same sex marriages are not valid in most states, and FF&C does not apply. HOWEVER, there are states where a same sex marriage is, for all purposes under the law, a "properly solemnized marriage" the same as any other.
The question being debated in interested circles now is whether FF&C, which has never been used to recognize foreign marriages of any kind, should be applied to force states that do not currently allow same sex marriage to recognize those marriages if valid in the State where they were performed.
I've explained in some depth why I feel it does not, cannot and should not apply - even though I actually support allowing same sex marriages. The FF&C clause cannot reasonably be construed to grant the Federal government the power to force a State into a contractual relationship with any of its individual residents against its will. Period.
Until and unless the legal underpinnings of civil marriage change (unlikely) or sexual orientation becomes a protected or suspect class receiving higher scrutiny in equal protection cases (far more likely, but will not happen soon), the judge in the OP is dead wrong.

You did mention before though the P/I clause was more appropriate in your opinion. The Baker decision stated MN's ban did NOT violate the 14th AM, since no exact clause/protection was discussed we have to assume it includes all 3:

1. Due Process

2. Equal Protection

3. P & I.

Agree or not?

Disagree.
The 14th is not implicated. While marriage in general is a fundamental right, sexual orientation does not receive elevated protection and the States have an equally compelling right to regulate it as a party to the contract. Until and unless sexual orientation becomes a protected or suspect class it's a wash.
P&I has the strongest argument of any, but in order to use it you would have to justify why marital status is a right or privilege of State residency irrespective of State law and policy. That's a tough sell.

 

[lawbuff]

Disagree.
The 14th is not implicated. While marriage in general is a fundamental right, sexual orientation does not receive elevated protection and the States have an equally compelling right to regulate it as a party to the contract. Until and unless sexual orientation becomes a protected or suspect class it's a wash.
P&I has the strongest argument of any, but in order to use it you would have to justify why marital status is a right or privilege of State residency irrespective of State law and policy. That's a tough sell.

Sure the 14th is implicated. If it were not the SC would not have ruled on the merits of Baker!

You say that Article 4's P & I clause would be a strong argument.

How does the 14th's vary from Article 4's?

As far as I am aware, even the federal public accomodation laws do not define sexual orientation as a protected class, just race, religion, color, etc.

 

[goldcatt]

Disagree.
The 14th is not implicated. While marriage in general is a fundamental right, sexual orientation does not receive elevated protection and the States have an equally compelling right to regulate it as a party to the contract. Until and unless sexual orientation becomes a protected or suspect class it's a wash.
P&I has the strongest argument of any, but in order to use it you would have to justify why marital status is a right or privilege of State residency irrespective of State law and policy. That's a tough sell.

Sure the 14th is implicated. If it were not the SC would not have ruled on the merits of Baker!

You say that Article 4's P & I clause would be a strong argument.

How does the 14th's vary from Article 4's?

As far as I am aware, even the federal public accomodation laws do not define sexual orientation as a protected class, just race, religion, color, etc.

The SC did not rule on the merits of Baker, my friend. They issued a bench ruling dismissing the case for lack of jurisdiction, with an instruction to the lower courts to treat the jurisdictional ruling as precedent. I think we've had this argument before, have we not?

Article 4's P&I clause applies to privileges and immunities of the various States, the 14th's to the privileges and immunities of US citizenship. They are two different animals.

 

[lawbuff]

The SC did not rule on the merits of Baker, my friend. They issued a bench ruling dismissing the case for lack of jurisdiction, with an instruction to the lower courts to treat the jurisdictional ruling as precedent. I think we've had this argument before, have we not?

NO, they did NOT dismiss it for lack of jurisdiction, you misread it.

It WAS a "decision on the merits". That is what a Summary decision is.

Article 4's P&I clause applies to privileges and immunities of the various States, the 14th's to the privileges and immunities of US citizenship. They are two different animals.

Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

You mean to say, this is a constitutionally fundamentally different argument from the 14th as far as same sex marriages is concerned? Citizen (4)=Citizenship(14).

 

[goldcatt]

The SC did not rule on the merits of Baker, my friend. They issued a bench ruling dismissing the case for lack of jurisdiction, with an instruction to the lower courts to treat the jurisdictional ruling as precedent. I think we've had this argument before, have we not?

NO, they did NOT dismiss it for lack of jurisdiction, you misread it.

It WAS a "decision on the merits". That is what a Summary decision is.

Article 4's P&I clause applies to privileges and immunities of the various States, the 14th's to the privileges and immunities of US citizenship. They are two different animals.

Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

You mean to say, this is a constitutionally fundamentally different argument from the 14th as far as same sex marriages is concerned? Citizen (4)=Citizenship(14).

Sorry, but I didn't misread it. The case was thrown out for lack of subject matter jurisdiction. Marriage is a matter for the States, not the Federal government. The instruction to treat the summary dismissal as a decision on the merits does not mean it is precedent for the subject of same sex marriage, much as it has been used for that in the 3 years since Lawrence.

And yes, there is a very different argument on the 4th P&I of the individual States as opposed to the 14th P&I of Federal citizenship. The Federal government and the States control different areas of influence, do they not? Incidents of State residency are not the same as indcidents of national citizenship. marriage is not a Federal issue, therefore, the Federal P&I argument is pitifully weak. It IS a State issue, so the Article 4 P&I clause could apply if an argument could be made to remove the State as a contractual party to marriage in the eyes of the law.

 

[lawbuff]

Sorry, but I didn't misread it. The case was thrown out for lack of subject matter jurisdiction. Marriage is a matter for the States, not the Federal government. The instruction to treat the summary dismissal as a decision on the merits does not mean it is precedent for the subject of same sex marriage, much as it has been used for that in the 3 years since Lawrence.

Sorry, you still misread it. It was a direct Article 3 controversy, how could it be dismissed for lack of subejct matter jurisdiction???

..That dismissal by the Supreme Court of the United States constituted a decision on the merits, and established Baker v. Nelson as the controlling precedent as a matter of federal constitutional law on the issue of same-sex marriage...

Baker v. Nelson - Wikipedia, the free encyclopedia

The CA controversy, even before prop 8, that went to the CA SC cited Baker as "controlling precedent" as far as the federal cosntitution is concerned, that is why it was decided on state constitutional grounds.

The MA case where they legalized same sex marriages also cited Baker, ergo, it was a state constitutional matter.

If marriage is a matter for the states, antimiscegenation laws would still be on the books in many states. If the SC had not decided Loving, would the P&I clause be a valid argument here also? Do you think Loving was a correct decision?