The Supreme Court on Tuesday will hear arguments in what could be the consolidated cases that lead to the recognition of a right to same-sex marriage under the Fourteenth Amendment to the United States Constitution. I will be interviewed on the case on CNN around 9 am on Tuesday morning.
It was only two years ago that the Supreme Court struck down the denial of federal benefits to same-sex couples in United States v. Windsor. However, as in past cases, the Court struggled mightily to avoid recognizing a constitutional right to same-sex marriage.
It was only in 1986 in Bowers v Hardwick that Justice Lewis Powell told his clerk “I don’t believe I ever met a homosexual.” The clerk was Carter Cabell Chinnis, Jr., who was gay but Powell did not know it. In that disgraceful decision (which Powell added his vote as the fifth vote for the majority in upholding laws criminalizing homosexual relations), Chief Justice Warren Burger wrote “Condemnation of [homosexual] practices is firmly rooted in Judeao-Christian moral and ethical standards.”
Justice Anthony Kennedy may now be ready to cast the fifth vote to finally establish a constitutional right for same-sex marriage. The Court will hear two questions in Obergefell vs. Hodges (as well as three related cases from Kentucky, Michigan and Tennessee): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? and 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
Oral argument will last 90 minutes on the first question and 60 minutes on the second question.
A decision is expected in June.
Article VI of the Constitution makes federal law “the supreme law of the land,” notwithstanding the contrary law any state might have.
Congress has not, to my knowledge, created a Federal Law that legalizes homosexual marriage.
Your quote is moot.
Nick,
Thanks for your usual “nice” comments alerting all the readers that this is one of your “toxic” threads.
TinEar,
The same arguments were used to prevent blacks and whites from marrying in Loving’s time. It failed then and hopefully, it will fail now.
raff, The same arguments could not be made in regards to black/white marriages vs gay marriages. From a philosophical stance maybe, but from a legal point of view, such parallels are moot. The fact is that the Loving decision ONLY applied to one man/one woman marriages for the simple reason that gay marriage and even homosexual acts were illegal at the time. So to come back to that decision and use it as a basis for gay marriage is absurd. One cannot just at some decades later come back and at your pleasure insert GAY into the Loving ruling to make your case. In fact, one can just as easily insert PLURAL marriage into the decision to make the case for polygamy. Your argument is simply dishonest and requires changing the meaning and definition of the word marriage to make your case.
If you wish to say that times change and we should now allow gay marriage, that is a valid point, BUT the courts are NOT the place to make the change. The only way to see if times and people have truly changed their mind, is through the legislature.
If you think the courts are the proper place to make unelected changes in law, then one must ask why the 19th amendment was needed at all. The SCOTUS simply should have ruled that women as citizens had the right to vote, and that all state laws against it were unconstitutional. When the Brown vs Topeka was decided, Warren had enough smarts to make sure that it was a UNANIMOUS ruling so that there could be NO question about the validity of it since it threw out so many laws and was a social revolution.
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/preemption.htm
“The supremacy Clause and Federal Preemption.
Article VI of the Constitution makes federal law “the supreme law of the land,” notwithstanding the contrary law any state might have. In the important 1958 case of Cooper v Aaron, in which the Court considered the efforts of state authorities to block integration of Little Rock’s Central High School, the Court unanimously declared, “No state legislator or executive or judicial official can war against the Constitution without violating his undertaking to support it….If the legislatures of the several states may at will, annul the judgments of the courts of the United States and destroy the rights acquired under those judgments, the Constitution itself becomes a mockery.” Federal law, not state law, is “the supreme law of the land.” Despite the efforts of some states, even today, to “nullify” federal laws they disapprove of, few things in constitutional law are any clearer than the fact that any such efforts are grossly unconstitutional. What remains a much more difficult question under Article VI is when a state law or action, which is at least arguably consistent with federal law, in fact creates sufficient conflict so as to justify finding it “preempted.”
Preemption
The preemption doctrine derives from the Supremacy Clause of the Constitution which states that the “Constitution and the laws of the United States…shall be the supreme law of the land…anything in the constitutions or laws of any State to the contrary notwithstanding.” This means of course, that any federal law–even a regulation of a federal agency–trumps any conflicting state law.
Preemption can be either express or implied. When Congress chooses to expressly preempt state law, the only question for courts becomes determining whether the challenged state law is one that the federal law is intended to preempt. Implied preemption presents more difficult issues, at least when the state law in question does not directly conflict with federal law. The Court then looks beyond the express language of federal statutes to determine whether Congress has “occupied the field” in which the state is attempting to regulate, or whether a state law directly conflicts with federal law, or whether enforcement of the state law might frustrate federal purposes.
Federal “occupation of the field” occurs, according to the Court in Pennsylvania v Nelson (1956), when there is “no room” left for state regulation. Courts are to look to the pervasiveness of the federal scheme of regulation, the federal interest at stake, and the danger of frustration of federal goals in making the determination as to whether a challenged state law can stand.”
I ann, the fact is that there is no Federal law concerning gay marriage for or against. So the pre-emption idea is void as far as gay marriage is concerned. The overturning of state anti-miscegenation laws was applied ONLY to one man/one woman marriages since the state had to show a compelling state interest in keeping such a law. Thus those laws broke the 14th amendment requiring equal treatment for all US citizens.
There is no discrimination in states with no gay marriage since millions of gays have legally married persons of the opposite sex. Now if the states required a straight or gayness test before granting a marriage license, then that would be discrimination, and the state would have to provide some legitimate basis or rational one for making such a test as furthering a state interest. It will be interesting to see how the SCOTUS rules since they can sweep away traditional marriage in all states, or limit it to the states which have provided it.
Loving v. Virginia concerned a white man who wanted to marry a black woman. Marriage between whites and blacks was illegal in VA at the time. In CA, white men could legally marry Asian women, but white women were prohibited from marrying Asian men. There was never any prohibition in CA of white and blacks marrying. But the varied state laws prohibiting inter-racial marriages all involved a marriage between a man and a woman. Clarence Thomas is married to a white woman. I would like to be in the court to watch his face when the argument is made that his marriage is the same as two men living together as husband and wife.
Why should a gay couple legally married in one state not have their marriages recognized as legal in another state?
Because the States are sovereign separate entities. Each State can devise the laws that they wish. What may be legal in one State is illegal in another. This is common, historical, current practice and a part of the Constitution.
If people don’t like the drinking, driving, taxation, gun,marriage laws in one State….MOVE to another then.
Federal benefits and laws, taxes social security, are another issue that would or should apply to everyone no matter where they live. So. If you are legally married homosexuals in one State but move to another where SSM is not recognized, you would still have the Federal benefits apply.
Squeeky, As you can hopefully clearly see, this thread will be a challenge to your new diet. Remember your tools for ignoring. Maybe the beast way to avoid being sucked into a toxic pool is to not comment on threads like this, which I don’t think is something you would do. The next best thing is to simply not read the comments of offenders. I don’t plan on commenting on this thread, but I’ll check in if you need help.
Ima use “unto” all day today, I just know it.
This country has a secular government Fran. No Theocracy …yet.
…and for this cause, God has given them over to their sins. This is an abomination unto the Lord.
As for polygamy, why not legalize it as long as the spouses all must share the husbands’ or wives’ social security if the widows and widowers would claim their spouces SS? Also the spouses must be of legal age and not have been coerced. As far a as incest goes, it’s a health risk to the offspring and should remain illegal.
Why should a gay couple legally married in one state not have their marriages recognized as legal in another state? These gay couples either already have children or will have children. Infertile couples adopt children regularly, should their marriages also be legalized only state by state? Marriage isn’t contingent on whether the couple can produce biological children. I’ve read that the Supreme Court will take into consideration the fact that these same sex couples with children are families who need the legal rights of a legal marriage on a federal level. Even if the couple does not plan on having children, why should their marriages and the legal benefits and protections marriage gives them be denied a legal marriage in every state. Due to the military or a job transfer, couples will not always live in the same state forever.
Once again, I find it impossible to find any legal reason to have gay marriage in our current laws. The Loving decision applied ONLY to heterosexual marriage when it defined marriage as a right. It did not apply to gay marriage for the simple reason it had never even been thought of and all the more since gay sex was still criminal. So to now say and use that decision as a basis for gay marriage requires either a loss of memory or of rational thought. The Loving decision did not apply to polygamy either, even though polygamy is ALSO marriage in many societies and in fact was once legal in the territory of the USA.
The slippery slope if they do rule in favor of gay marriage is that polygamy will also have to become legal as well since virtually ALL of the arguments for gay marriage apply with equal force for polygamy. The polygamists have an even stronger case than gays because polygamy has been and is a tradition in many religions such as Islam and some Mormons. So the term marriage in the Loving decision MUST also apply to polygamy if they rule that gay marriage is also a right. If one can simply take the term marriage out of context and time, then polygamy will have to become the law of the land as well.
The states have the right to create the legal contract of marriage and can define it as they choose within certain parameters. So New York has the right to legislate for gay marriage, and the SCOTUS has ruled that for Federal statutes that the state has the right and the Federal government must treat that kind of marriage as the same for others. That is a rational position in my view. As for other states being forced to recognized gay marriage, I think that they can get around that by saying that if one wishes a divorce from say Texas which does not allow gay marriage, then the couple can go to a state which does recognize the legality of such marriages. It is similar to the pot laws. Just because CO allows for the legal possession of pot, does not mean that Texas must allow a traveler driving though Texas to have legal possession of the drug.
This country is headed for a disaster of biblical proportions.
Fire and brimstone coming down from the skies! Rivers and seas boiling!
Forty years of darkness! Earthquakes, volcanoes…
The dead rising from the grave!
Human sacrifice, dogs and cats living together… mass hysteria!
I hear the “gay marriage will lead to sibling marriages” claim a lot. Is the current illegality of incestuous marriage really all that is holding back those floodgates? The media must not be doing their jobs, since I haven’t seen the protests from all the sibling couples who currently have to live in sin because they can’t get married.
All of the slippery slope arguments being used by hopeful pedophiles today, were used by the miscegenists prior to the Loving v Virgina decision back in 1967. None of the horrors they predicted back then have come to pass, and the same will be true today. Sorry pedophiles and folks who want to marry their siblings, you’ll have to press your case on your own.
The strong Judaeo-Christain moralists can always exercise their right to not marry gays in their churches. As far as the business end of couples living together and sharing the same advantages vis a vis taxes and other civil rights, why not? If we are so concerned with morality in our economic and civil areas then why aren’t we arresting and jailing the thousands of ‘wheelers and dealers’ who constantly pervert the laws of this supposed Judaeo-Christain country.
TinEar: You’re absolutely right. Permitting a man and a woman to get married is a gateway to gay marriage, polygamy, and incest. We should abolish marriage altogether.
Will it then be okay for me to marry my same-sex twin brothers? We could have homosexual marriage, polygamy and incest all in one lovely ceremony. Liberals rejoice! But who will bake the cake?
https://www.youtube.com/watch?v=MV1cm-MOffY
On April 28, 2015, Mary Bonauto will argue before the U.S. Supreme Court for the freedom to marry for all same-sex couples nationwide. In 2001 Mary and Gay & Lesbian Advocates & Defenders (GLAD) filed the case that first brought marriage equality to the U.S. – with the landmark 2003 Goodridge v. Department of Public Health decision in Massachusetts.
This is the story of that historic victory, and how far we’ve come on marriage equality to get us where we are today. Featuring two of the couples who fought to marry in Goodridge, Chief Justice Margaret H. Marshall, Evan Wolfson, Mary Bonauto and more.
Reblogged this on rennydiokno.com.