No Benefits for Gay Partners in Mich.

[B_Think_Kink]

Thanks for you support dear, but it's not only unfair, it's unconstitutional.

I try to support, even when I don't understand most of what is being talked about, I got the jist though. :redface:

 

[kalipygian]

The problem with Alaska's constitutional amendment was that it created a Catch-22 issue with benefits. The amendment as passed banned benefits for same sex couples yet the state's laws stated that state employees had to be married to receive employment benefits. Essentially the court vacated only a portion of the amendment but explicitly stated that the issue would have to be resolved by lower courts and, until then, the state could not deny benefits to domestic partners. The focus wasn't on marriage so much as benefits. It is still illegal for homosexual couples to marry in Alaska. Essentially the court is telling the legislature to re-write its poorly written amendment or change the laws regarding benefits being tied to marriage.

No case has been brought up on the constitutionality of the amendment in Alaska, so the supreme court has not addressed it. Also no ruling has been made on the constitutionality of discriminatory laws passed by the legislature in the early nineties.

The ruling did not relate to any legislation, it was a result of a suit brought by GLBT public employees against the state who were not allowed to marry and were seeking equal treatment, and based on another part of the constitution. I was present in the courtroom when the arguments were made, and am very active in these things. A previous case for university employees had been won ten years previously.

There have been other cases seeking the right to marry that have been lost.

Perhaps the statement of rights in the Michigan constitution is weaker than the one in our relatively new one. (I know personally two of the authors, who are still very active in progressive causes)

 

[B_jacknapier]

Anyone who thinks many countries around the world allow gay marriage simply hasn't bothered to do their research.

From wikipedia.

Massachusetts became the sixth jurisdiction in the world (after the Netherlands, Belgium, Ontario, British Columbia, and Quebec) to legalize same-sex marriage. It is the first U.S. state to make same-sex marriages legal.[1]

 

[2322]

Mostly true, jason. The House & Senate passed the DOMA, which basically states "FF&CC is null and void concerning cases involving same-sex marriage", so that law, prima facie, is unconstitutional. What I'm wondering is why such laws and amendments aren't challenged as 14th amendment cases instead of FF&C cases.

It is unconstitutional. I can find no way to defend it what-so-ever and I'm pretty good about playing Devil's advocate. Its key flaw is in how miscegenation cases have been addressed by the court. Any congressperson worth his or her PAC money can see that the law is merely made out of paper. The irony here is that the conservatives of the court may be the biggest threat to the continued existence of the law. They will look at the FF&CC as plainly as it is written:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. - Constitution of the United States of America

The article doesn't state which acts, records and proceedings shall be proved, just what manner. The article is short, plain, and direct. There is no wiggle room. For those who don't know, the Constitution is the ultimate law of the United States. No law of any municipality, county, state, territory, no executive order or act of congress (law or treaty) may contravene the US constitution. What the Supreme Court rules is the definitive decision in whether any law or treaty in the United States has standing. The only remedy against Supreme Court action is for congress and the states to amend the constitution and that is generally very difficult to do.

SCOTUS (which is shorthand for, "Supreme Court of the United States,") usually, but not always, acts in a manner consistent with previous courts. This is why, when gay marriage is discussed, you hear discussion about how the court handled miscegenation laws. States used to prohibit the marrying of people of different races but gradually that fell away until only a minority of states prohibited it. Couples of mixed race who were legally married in one state could be punished under the laws of states which did not permit interracial marriage. Miscegenation laws were finally vacated by SCOTUS in the 1967 decision in Loving v. Virginia. In that decision, the court cited the FF&CC and a section of the Fourteenth Amendment to the Constitution:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. -Constitution of the United States of America

Courts have generally held that the last part not only extends to protections, but to liberties as well. In Loving v. Virginia, SCOTUS determined precisely this:

Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose.- Loving v. Virginia

Now you know why you're hearing the somewhat strange assertion that the state must have a compelling rational reason and interest to bar gay marriage. The court didn't stop there [Please read the section below. It's very important to understand how this works]:

As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States...

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. [n. 11] We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause...

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. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.- ibid.

.

[FONT=Times New Roman,Times]Substitute, "sexual orientation," for, "racial," and perhaps you'll see why the smarter anti-gay members of congress and the president have pushed for an amendment to the constitution. It's very important to note that nowhere in the Fourteenth Amendment is there any mention of race though the court interprets race to be embodied within the amendment's scope. If the court maintains, as it has done so since Brown v. Board of Ed., that there is no such thing as, "separate but equal," as regards race, then it must say the same thing given sexual orientation because the basis for the discrimination is the same. Gay marriage advocates have time and again referred back to that last section of Loving v. Virginia to ask if that states have no interest other than bigotry in denying protections to couples of mixed race, then how can it have any interest in denying protections to couples of the same sex when there is no material difference in the reason [bigotry] for laws prohibiting gay marriage?

The Supreme Court's own previous rulings have essentially painted it into a corner. Any attempt by SCOTUS to reject gay marriage would be to fly in the face of Loving v. Virgina and Brown v. Board of Ed.[/FONT]

 

[2322]

[FONT=Times New Roman,Times] Opponents of gay marriage state that sexual preference is not tantamount to race and therefore the Fourteenth Amendment does not offer protections, however, there too SCOTUS has already stated that this is the case in the recent [/FONT]Lawrence and Garner v. Texas, when the sodomy laws of Texas were struck down:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State....

When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons...

The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent...

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.-Lawrnece and Garner v. Texas decision citing Planned Parenthood of Southeastern Pa. v. Casey

If you're still with me here, you should be able to see how close to impossible it would be for SCOTUS to not, because of many previous decisions, at the least, extend FF&CC to gay marriage/civil unions or, at the most, to extend right of marriage to people of all sexual orientations. I'm not saying it can't happen. SCOTUS has done some pretty dumb things like any other branch of government, but these nine people are scholars of law and, they're not worried about re-election or, "staying the course." Unlike any other branch of government, they have to explain why they decide what they do.

The Supremes aren't stupid, but nor are they entirely apolitical. When a hot-button issue such as gay marriage looms its ugly head, the Supremes know what's coming. Sooner or later it's going to end-up on their doorstep and then all eyes will turn to them. With major social issues, SCOTUS usually waits until it has what's considered, "a perfect case." This is when there are no extenuating circumstances, just a simple, direct, and explicit case where a question of law arises as empirically as possible. To try this case, SCOTUS would want an ordinary gay couple to marry legally in Massachusetts, gain some material, legal, and social value from that marriage, then move to a state where none of their privileges and rights are honored and specifically because of that loss, the couple suffers. There should be no extenuating circumstances, no monkey wrenches, nothing to color or cause question in any ruling SCOTUS could make in the case and that's because the Supremes know that their decision will end-up in everything from tabloids to law books to history classes to chat shows to movies and whatever decision they make must stand the extraordinary scrutiny of legal scholars now and in the future, and not only American but global society itself.

There's a tremendous weight in that. Yes the Executive branch is essentially just the President and Vice-President, but there is the cabinet, advisers, and whole agencies to administer. It's a political position. When you're a Supreme, it's fairly lonely. There are just nine of you and while you do oversee the federal appeals system directly, there's a greater sense of, "the buck stops here." You have the power to override not only lower courts, but congress, the constitutions of the various states, and the president, sometimes all four at the same time. This is one of those times when that perfect storm occurs and SCOTUS will wait until the perfect case presents itself so that even if many people are angered by the decision that awaits, they will understand why it has been made, and the decision of the court will stand the test of time.

 

[DC_DEEP]

Long and difficult, jason but EXCEPTIONALLY well-presented and documented.

I would LOVE to be in on some of the "vested interest" discussion on Capitol Hill, and I would love to contribute to an amicus curiae brief on the same topic for the SCOTUS. I think, if a well-crafted debate were presented, lawmakers and justices would paint themselves into the very awkward position of having to uphold the equal protection clause, AND FF&CC.

I think the HRC, when it has bothered to say anything at all, has asked all the wrong questions and presented all the wrong evidence in these cases. I actually don't think the HRC lawyers (as is so common with so many attorneys) care about what is right or about winning a case; they care about prolonging the debate... which, of course, is a grand idea when you are paid by the hour.

 

[Lex]

Great points, jason_els. Really good reasoning and makes total sense.

 

[2322]

Long and difficult, jason but EXCEPTIONALLY well-presented and documented.

I would LOVE to be in on some of the "vested interest" discussion on Capitol Hill, and I would love to contribute to an amicus curiae brief on the same topic for the SCOTUS. I think, if a well-crafted debate were presented, lawmakers and justices would paint themselves into the very awkward position of having to uphold the equal protection clause, AND FF&CC.

I think the HRC, when it has bothered to say anything at all, has asked all the wrong questions and presented all the wrong evidence in these cases. I actually don't think the HRC lawyers (as is so common with so many attorneys) care about what is right or about winning a case; they care about prolonging the debate... which, of course, is a grand idea when you are paid by the hour.

Great points, jason_els. Really good reasoning and makes total sense.

Thanks guys!

I doubt the HRC will have a hand in it. The best of these cases usually turn on multiple points of law with each point having a backing argument that finds credible basis in constitutional law. The People v. Larry Flynt was a good example of this. The best arguments are usually plain and obvious.