WTF? Only in 3 states according to Windsor.
No, it's not "3 states according to WIndsor".
Windor recognized the 12 States that had SSCM which where achieved judicially and legislatively as well as the 3 states that passed it at the ballot box.
New York, in common with, as of this writing, 11 other States
and the District of Columbia, decided that same-sex couples
should have the right to marry and so live with pride in themselves
and their union and in a status of equality with all other married
persons. After a statewide deliberative process that enabled its
citizens to discuss and weigh arguments for and against same-sex
marriage, New York acted to enlarge the definition of marriage to
correct what its citizens and elected representatives perceived to
be an injustice that they had not earlier known or understood.
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Here's the $20,000 question. Why did they say 12 states "decided that same-sex couples should have the right to marry.."?
Because that was not a question addressed by Windsor, i.e. whether states can discriminate and treat same-sex couples differently. The question in Windsor was if the state says yes, can the Federal government discriminate against legally married couples by the state.
This is born out by the Chief Justice of the United States Supreme Court, who one could assume knows a little bit more about the Windsor decision than you:
"But while I disagree with the result to which the majority’s
analysis leads it in this case, I think it more important to
point out that its analysis leads no further. The Court does
not have before it, and the logic of its opinion does not
decide, the distinct question whether the States, in the
exercise of their “historic and essential authority to define
the marital relation,” ante, at 18, may continue to utilize
the traditional definition of marriage.
In your words.. and perhaps Theirs, if you dare?
Not my words. The words of the Chief Justice noting that the case was not about State law but about federal law and not my words that the SCOTUS in the Windsor decision that 12 States and DC SSCM was valid and that those states achieved it thorugh judicial action, legislative action, and at the ballot.
For instance, properly shouldn't they have said that only 3 states "decided that same-sex couples should have the right to marry" according to how laws are properly enacted in each respective state?
Nope, because as they noted at the time of the writing of the decision 12 States and DC had valid SSCM and later that same day the number became 13 as the Prop 8 decision was issued and the District Court Judge's decision was left in place making California the 13th State.
Or, they should have said "gay marriage is allowed in all 50 states".
Nope, not the question before the court in Windsor. The question before the court was that if a State allows SSCM, can the Federal government refuse to recognize it. The answer was "No". The question as to whether States can say "No" will be a different case.
Why do you think they defined how a state arrives at legalizing gay marriage as "after weighing the issue and allow the public to weigh in" "in consensus" that's "the unquestioned authority" of each state, did you think they allowed that in states where that didn't happen and instead an activist judge dictated to that state against it's own sovereignty that "gay marriage is legal there" and then said that was only the case with "11 states"?
The word "consensus" appears in only one place in the decision and it doesn't say what you imply.
In acting first to recognize and then to allow same-sex marriages, New York
was responding “to the initiative of those who [sought] a voice in shaping
the destiny of their own times.” Bond v. United States, 564 U. S. ___, ___
(2011) (slip op., at 9). These actions were without doubt a proper exercise
of its sovereign authority within our federal system, all in the way that the
Framers of the Constitution intended. The dynamics of state government in the
federal system are to allow the formation of consensus respecting the way the
members of a discrete community treat each other in their daily contact and
constant interaction with each other.
The States’ interest in defining and regulating the marital relation, subject to
constitutional guarantees, stems from the understanding that marriage is
more than a routine classification for purposes of certain statutory benefits.
Private, consensual sexual intimacy between two adult persons of the same
sex may not be punished by the State, and it can form “but one element in
a personal bond that is more enduring.” Lawrence v. Texas, 539 U. S. 558,
567 (2003). By its recognition of the validity of same-sex marriages
performed in other jurisdictions and then by authorizing same-sex unions
and same-sex marriages, New York sought to give further protection and
dignity to that bond. For same-sex couples who wished to be married, the
State acted to give their lawful conduct a lawful status. This status is a
far-reaching legal acknowledgment of the intimate relationship between
two people, a relationship deemed by the State worthy of dignity in the
community equal with all other marriages. It reflects both the community’s
considered perspective on the historical roots of the institution of marriage
and its evolving under standing of the meaning of equality.
The use of "consensus" is clearly describing New York that had reached consensus as demonstrated by the legislature passing the legislation and it being signed by the Governor. As a matter of fact the court goes on to say that the States ability to define and regulate marriage is limited by Constitutional guarantees and they then use the Loving decision as an example of when Constitutional guarantees superseded State laws.
ie: Was the Court saying "the way gay marriage is made legal in each state is by the way all laws are made in that state" or was it saying "one by one an activist appeals judge needs only to override the Will of the Governed and their constitutionally-protected right to define marriage for itself, since the founding of the nation, "in the way the Framers of the Constitution intended"?
The were saying that there are Constitutional limits on the laws and States can enact to define and regulate Civil Marriage and that when the States exceed those limits (as they did prior to the Loving decision) it doesn't matter if the law was passed by the legislature or voted on by the citizens, it will be invalid. That's what the "Constitution guarantee" limit means.
The people of Alabama voted to ban interracial marriage and enacted a State Constitutional Amendment for that ban. They exceeded their authority to deny citizens equal treatment under the law under the 14th Amendment and the ban was made void by the Loving decision in 1967 and then it took 33 years for the people of the State to remove the language from their State Constitution, funny thing though is that even though the language remained that provision was no longer valid.
The really sad thing is that 40% of the people in 2000 voted to keep the language.
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