Baker v. Nelson: The case y'all don't want to talk about

[Seawytch]

It's always struck me as interesting how gay marriage proponents are quick to bring up Loving v. Virginia as if that's all they need to make their point about gay marriage being a civil right.

The main reason Loving doesn't pertain is because race and sexual orientation are not the same, not philosophically, biologically, or in this case, jurisprudentially, as the court has never found sexual orientation to require as high a level of review as race. Furthermore, anti-miscegenation laws were criminal statutes that carried jail time, fines, and other penalties. With same-sex marriage, it's just not of the law in most states. You're not going to be locked up because you have a legal same-sex marriage in another state.

But, the biggest thing that stands out is there is actual Supreme Court precedence on the exact question of gay marriage: Baker v. Nelson.

Basically, it was a case in 1972 (five years after Loving v. Virginia) where a couple went to court in Minnesota to say that for the state to recognize straight marriage but not gay marriage was in violation of the 9th and 14th amendment. Minnesota found no right to same-sex marriage and because of the circuit it was in, it was up for mandatory review by the Supreme Court. The Supreme Court dismissed the case, "for want of a substantial federal question", and thus is binding precedence.

Now, of course, some people who think they're clever will say that it's only binding on cases that are exactly the same as the case they dismissed. It's not as strict as that -- precedence rarely is -- but isn't it funny that gay marriage proponents will reach back to Loving as being directly on the nose and completely bypass Baker, a case in which the Supreme Court, and most likely the exact same Court that struck down anti-miscegenation laws, also dismissed the claim that same-sex marriage is a constitutional right?

race and sexual orientation aren't the same in whose mind? yours?

loving says marriage is a fundamental right and can't be denied to anyone based on discriminatory reasons.

*shrug*

Loving held that anti-miscegenation laws ran afoul of the 14th amendment. Dictum within the ruling isn't the holding. Stop being lazy because you're afraid of being wrong.

*shrug*

And gay marriage will someday get the same decision with the 14th as justification.

 

[legaleagle_45]

Really?

why?

Because that is federal law. Sorry.

It is??

Which one?

They are probably relying upon the full faith and credit clause of the US Constitution. If so, that is relatively easy to avoid.

 

[Qball]

It is unlikely that the two cases before the court are going to challenge any state's laws except CA. In CA a right already granted was taken away. The DOMA case will apply only to Federal Benefits. It will be after section 3 of DOMA is struck down that cases challenging state's anti gay marriage laws will be brought forward.

This is another point people miss. In CA, as in any other state and the federal government, the constitution bestows rights, not the court. The court can't grant rights; they're supposed to interpret the constitution to protect them. The fact that this line is so prevalent really just proves that they went to the state Supreme Court to have them create a right out of whole cloth, not uphold the constitution as it is.

The people have the final say in CA to amend their constitution. Because the court ruled one way, the people voted another way, and the court didn't want to stay their ruling until the issue was resolved at the ballot box, people think this mess is somehow the fault of Proposition 8.

 

[bendog]

It's always struck me as interesting how gay marriage proponents are quick to bring up Loving v. Virginia as if that's all they need to make their point about gay marriage being a civil right.

The main reason Loving doesn't pertain is because race and sexual orientation are not the same, not philosophically, biologically, or in this case, jurisprudentially, as the court has never found sexual orientation to require as high a level of review as race. Furthermore, anti-miscegenation laws were criminal statutes that carried jail time, fines, and other penalties. With same-sex marriage, it's just not of the law in most states. You're not going to be locked up because you have a legal same-sex marriage in another state.

But, the biggest thing that stands out is there is actual Supreme Court precedence on the exact question of gay marriage: Baker v. Nelson.

Basically, it was a case in 1972 (five years after Loving v. Virginia) where a couple went to court in Minnesota to say that for the state to recognize straight marriage but not gay marriage was in violation of the 9th and 14th amendment. Minnesota found no right to same-sex marriage and because of the circuit it was in, it was up for mandatory review by the Supreme Court. The Supreme Court dismissed the case, "for want of a substantial federal question", and thus is binding precedence.

Now, of course, some people who think they're clever will say that it's only binding on cases that are exactly the same as the case they dismissed. It's not as strict as that -- precedence rarely is -- but isn't it funny that gay marriage proponents will reach back to Loving as being directly on the nose and completely bypass Baker, a case in which the Supreme Court, and most likely the exact same Court that struck down anti-miscegenation laws, also dismissed the claim that same-sex marriage is a constitutional right?

race and sexual orientation aren't the same in whose mind? yours?

loving says marriage is a fundamental right and can't be denied to anyone based on discriminatory reasons.

*shrug*

Loving held that anti-miscegenation laws ran afoul of the 14th amendment. Dictum within the ruling isn't the holding. Stop being lazy because you're afraid of being wrong.

*shrug*

There's no dicta about it

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.
FindLaw | Cases and Codes

 

[konradv]

Really?

why?

Because that is federal law. Sorry.

So I guess that should apply to concealed carry laws as well right? Its just the same as a marriage liscense, right?

No, unless you can cite the law in question. Marriages are generally held to be reciprocal under the "Full Faith and Credit" clause of the Constitution.

 

[Seawytch]

It is unlikely that the two cases before the court are going to challenge any state's laws except CA. In CA a right already granted was taken away. The DOMA case will apply only to Federal Benefits. It will be after section 3 of DOMA is struck down that cases challenging state's anti gay marriage laws will be brought forward.

This is another point people miss. In CA, as in any other state and the federal government, the constitution bestows rights, not the court. The court can't grant rights; they're supposed to interpret the constitution to protect them. The fact that this line is so prevalent really just proves that they went to the state Supreme Court to have them create a right out of whole cloth, not uphold the constitution as it is.

The people have the final say in CA to amend their constitution. Because the court ruled one way, the people voted another way, and the court didn't want to stay their ruling until the issue was resolved at the ballot box, people think this mess is somehow the fault of Proposition 8.

The legislature passed the bill legalizing marriage, not the court.

 

[bendog]

Because that is federal law. Sorry.

It is??

Which one?

They are probably relying upon the full faith and credit clause of the US Constitution. If so, that is relatively easy to avoid.

yeah, but the heart of the doma provision not requiring any state to recognize another state's marriage is a direct result of full faith and credit. Or fear of it.

The whole idea of civil unions or gay marriage is to innundate conservative states with civil unions having property division and child care issues that are .... messy. Nevada divorces and then no fault states did much the same for straights. We're already seeing cases with radically different outcomes because of race. And that's the heart of the estate tax question currently up for the scrotus.

 

[WorldWatcher]

Basically, it was a case in 1972 (five years after Loving v. Virginia) where a couple went to court in Minnesota to say that for the state to recognize straight marriage but not gay marriage was in violation of the 9th and 14th amendment. Minnesota found no right to same-sex marriage and because of the circuit it was in, it was up for mandatory review by the Supreme Court. The Supreme Court dismissed the case, "for want of a substantial federal question", and thus is binding precedence.

Now, of course, some people who think they're clever will say that it's only binding on cases that are exactly the same as the case they dismissed. It's not as strict as that -- precedence rarely is -- but isn't it funny that gay marriage proponents will reach back to Loving as being directly on the nose and completely bypass Baker, a case in which the Supreme Court, and most likely the exact same Court that struck down anti-miscegenation laws, also dismissed the claim that same-sex marriage is a constitutional right?

1. The cases don't have to be exactly the same, but the cases today are much different then the situation in 1972. In 1972 there were no States that had valid Civil Marriages for persons of the same gender - hence no federal question. In addition there was no DOMA in 1972 since it wasn't passed until 1996. There are now 10 legal entities that do recognize Same-sex Civil Marriage and in the past the federal government recognized as valid all legal Civil Marriages entered into under State law. DOMA (section 3) of course was an attempt by Congress to usurp that State power to define Civil Marriage and have them recognized equally by the federal government.

2. Neither of the two cases to be heard this week are directly related to Baker in that the Prop 8 case is about a state invidiously removing a right once exercised by the people. The DOMA case has to do with federal law interfering with how a State is able to deal with it's own citizens.

3. As to the Baker case being precedent in these cases at least 4 Supreme Court Justices disagree with you, if they didn't then they wouldn't have voted to hear the cases and the cases would then not be on the docket.



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[legaleagle_45]

The flaw in your thinking is that even at a low level of scrutiny one cannot find any good reason against marriage equality for same sex couples.

I think it survives rational basis scrutiny, but dies at any other level. The primary reason for that belief is that the law does not have to impact the class perfectly to survive rationale basis scrutiny.. it does not have to be "narrowly drawn" or even "closely limited" to the legitimate state interest involved. Thus a rationale related to child bearing would survive even though many married couples do not have children and in fact many can not have children.

But if heightened scrutiny is employed, the law fails as there must be a good fit between the state interest and the breadth of the law.

 

[OriginalShroom]

Because that is federal law. Sorry.

So I guess that should apply to concealed carry laws as well right? Its just the same as a marriage liscense, right?

No, unless you can cite the law in question. Marriages are generally held to be reciprocal under the "Full Faith and Credit" clause of the Constitution.

As you said, "generally accepted", but not at all times and there is no Federal law, as claimed, that requires them to be.

 

[Seawytch]

So I guess that should apply to concealed carry laws as well right? Its just the same as a marriage liscense, right?

No, unless you can cite the law in question. Marriages are generally held to be reciprocal under the "Full Faith and Credit" clause of the Constitution.

As you said, "generally accepted", but not at all times and there is no Federal law, as claimed, that requires them to be.

Cite a single case where a marriage license issued by one state was not recognized by another. (Except MINE, of course.)

 

[bendog]

So I guess that should apply to concealed carry laws as well right? Its just the same as a marriage liscense, right?

No, unless you can cite the law in question. Marriages are generally held to be reciprocal under the "Full Faith and Credit" clause of the Constitution.

As you said, "generally accepted", but not at all times and there is no Federal law, as claimed, that requires them to be.

The constitution is "federal law" and full faith and credit is there. But, I agree with Legal Eagle, that as a matter of law, states can avoid it. Practically speaking, it would be difficult to avoid it if say .... 3-5% of all divorce actions had same sex marriages (or unions).

 

[WorldWatcher]

This is another point people miss. In CA, as in any other state and the federal government, the constitution bestows rights, not the court.

No, not all rights held by the people need to be enumerated by the government for them to exist.


>>>>

 

[legaleagle_45]

Marriages are generally held to be reciprocal under the "Full Faith and Credit" clause of the Constitution.

With the primary exception being those marriages which are morally offensive to the other state. Usually this will involve marriages between closely related persons which one state allows but another state forbids.. such as first cousins. Which is why I do not think full faith and credit will apply in this situation.

 

[Qball]

race and sexual orientation aren't the same in whose mind? yours?

loving says marriage is a fundamental right and can't be denied to anyone based on discriminatory reasons.

*shrug*

Loving held that anti-miscegenation laws ran afoul of the 14th amendment. Dictum within the ruling isn't the holding. Stop being lazy because you're afraid of being wrong.

*shrug*

There's no dicta about it

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.
FindLaw | Cases and Codes

Yes, that would be dicta. It's not the holding of the ruling. The rationale can be applied to other cases that are similar, but some people think because of that one line, that it's a clear right for same-sex marriage. And why is the "one of the basic civil rights of man" line so important, but the one right after it explaining about the "unsupportable basis as the racial classifications embodied in these statutes...." is never mentioned? Perhaps because supporters know the court is defending interracial marriage as a thing, and not some vague, general notion of being able to marry whomever you want.

 

[OriginalShroom]

No, unless you can cite the law in question. Marriages are generally held to be reciprocal under the "Full Faith and Credit" clause of the Constitution.

As you said, "generally accepted", but not at all times and there is no Federal law, as claimed, that requires them to be.

Cite a single case where a marriage license issued by one state was not recognized by another. (Except MINE, of course.)

Florida doesn't accept any "marriages" that are not between one man and one woman.

 

[Qball]

It is unlikely that the two cases before the court are going to challenge any state's laws except CA. In CA a right already granted was taken away. The DOMA case will apply only to Federal Benefits. It will be after section 3 of DOMA is struck down that cases challenging state's anti gay marriage laws will be brought forward.

This is another point people miss. In CA, as in any other state and the federal government, the constitution bestows rights, not the court. The court can't grant rights; they're supposed to interpret the constitution to protect them. The fact that this line is so prevalent really just proves that they went to the state Supreme Court to have them create a right out of whole cloth, not uphold the constitution as it is.

The people have the final say in CA to amend their constitution. Because the court ruled one way, the people voted another way, and the court didn't want to stay their ruling until the issue was resolved at the ballot box, people think this mess is somehow the fault of Proposition 8.

The legislature passed the bill legalizing marriage, not the court.

Huh? The legislature can't pass a bill in direct contradiction with a law passed by the initiative and referendum process, and it was the court that legalized SSM, not the legislature.

 

[WorldWatcher]

Because that is federal law. Sorry.

So I guess that should apply to concealed carry laws as well right? Its just the same as a marriage liscense, right?

No, unless you can cite the law in question. Marriages are generally held to be reciprocal under the "Full Faith and Credit" clause of the Constitution.

I've heard arguments about that either way.


You may find that State recognize Civil Marriages, not because of the Federal Constitution Full Faith & Credit Clause, but because their own State law mandates that they will honor Civil Marriages from other States.

In addition, the Congress is fully empowered under Article IV Section 1 to determine the effect of public acts between the States, that they did under DOMA Section 2. So until Congress either repeals DOMA Section 2 or the SCOTUS strikes it down - then Full Faith & Credit is not an issue from a practical sense.


>>>>

 

[OriginalShroom]

This is another point people miss. In CA, as in any other state and the federal government, the constitution bestows rights, not the court.

No, not all rights held by the people need to be enumerated by the government for them to exist.


>>>>

And according to many on the left, even those which are enumerated can be taken away if the public doesn't like them.

 

[WorldWatcher]

It is??

Which one?

They are probably relying upon the full faith and credit clause of the US Constitution. If so, that is relatively easy to avoid.

yeah, but the heart of the doma provision not requiring any state to recognize another state's marriage is a direct result of full faith and credit. Or fear of it.

The whole idea of civil unions or gay marriage is to innundate conservative states with civil unions having property division and child care issues that are .... messy. Nevada divorces and then no fault states did much the same for straights. We're already seeing cases with radically different outcomes because of race. And that's the heart of the estate tax question currently up for the scrotus.

Section 2 (the Full Faith & Credit provision) is not part of the case before the SCOTUS.

Only Section 3 is before the courts where the federal government is refusing to recognize legal Civil Marriages.


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