Respect for Marriage Act introduced

[JTalbain]

Isn't marriage a state responsibility under your constitution? How would a federal law change anything?

Due to the Supremacy Clause of the Constitution, federal law trumps state law. If word comes from any of the 3 branches of government, in the form of a federal law, a supreme court decision, or an executive order, the state law loses. This, incidentally, is why gay marriage has never been brought to the Supreme Court. If someone tries to dispute the constitutionality of gay marriage in the Supreme Court and loses, then the Supreme Court ruling will override everyone else. Either all states would be forced to recognize gay marriage, or no states would. It's too big a risk for either side.

 

[cdarro]

Due to the Supremacy Clause of the Constitution, federal law trumps state law. If word comes from any of the 3 branches of government, in the form of a federal law, a supreme court decision, or an executive order, the state law loses. This, incidentally, is why gay marriage has never been brought to the Supreme Court. If someone tries to dispute the constitutionality of gay marriage in the Supreme Court and loses, then the Supreme Court ruling will override everyone else. Either all states would be forced to recognize gay marriage, or no states would. It's too big a risk for either side.

That sounds odd. I'm certainly not knowledgeable in US constitutional law, but isn't the essence of federation the division of sovereignty? Canada is not a true federation, more of a quasi-federation with a somewhat strange division of legislative powers - civil/common law is under provincial authority, except for marriage and divorce, which is federal, except for "solemnization" of marriage - confusing, I know - but our Supreme Court has held that each level of government is sovereign within the areas assigned to it by the constitution. Gay marriage rights are not guaranteed by any law passed by the federal or any provincial Parliament, but were "read in" to the Charter of Rights and Freedoms (more-or-less equivalent to US Bill of Rights)and are therefore binding nationwide. But how does one level of government arbitrarily override another? Or am I missing your point completely?

 

[D_Cleon W Ballbreath IV]

That sounds odd. I'm certainly not knowledgeable in US constitutional law, but isn't the essence of federation the division of sovereignty? Canada is not a true federation, more of a quasi-federation with a somewhat strange division of legislative powers - civil/common law is under provincial authority, except for marriage and divorce, which is federal, except for "solemnization" of marriage - confusing, I know - but our Supreme Court has held that each level of government is sovereign within the areas assigned to it by the constitution. Gay marriage rights are not guaranteed by any law passed by the federal or any provincial Parliament, but were "read in" to the Charter of Rights and Freedoms (more-or-less equivalent to US Bill of Rights)and are therefore binding nationwide. But how does one level of government arbitrarily override another? Or am I missing your point completely?

The Massachusetts Supreme Judicial Court ruled that denying same-sex marriage was a violation of the state's Constitution, not the federal Constitution. The SCOTUS doesn't get to rule on the validity of the Constitutions of the various states, unless those are found to be in violation of the federal Constitution. For that to happen with same-sex marriage, the SCOTUS would have to find that the US Constitution forbids it, which is not likely to happen. Constitutionally speaking, not finding where a right is granted to do something is very different from finding that it is prohibited.

Of course, if DOMA were expanded to define marriage not just for federal purposes but for the whole of the country, it would take precedence over any state laws or rulings. Luckily, the tide seems to be moving away from that to full recognition.

Funny how in Canada, when the current Conservative government came into power, even they voted to not reopen SSM for discussion in Parliament, even though they had run on the issue. Despite the fears of many, civilization hasn't ended and heterosexuality continues to be a popular choice for a large segment of the population.

 

[JTalbain]

Yes, both of you are correct. The rules are intentionally left to the states, but there is nothing disallowing the federal government from making a legally binding decision later. For instance, before Roe v Wade, 49 of 50 states had declared abortion illegal, all on their own. Taking Roe v Wade to the Supreme Court of the US overturned all of those laws simultaneously.

States have their own court systems, and thus their own Supreme Courts. It would take a case tried in the US Supreme Court to overturn or legitimize in either direction nationwide. Both sides have to much to lose to attempt to take it there.

If someone did want to take it to the Supreme Court to force gay marriage recognition nationwide, however, they'd probably do so under the 14th Amendment, claiming that the law discriminates against them on the basis of gender.

 

[cdarro]

Funny how in Canada, when the current Conservative government came into power, even they voted to not reopen SSM for discussion in Parliament, even though they had run on the issue. Despite the fears of many, civilization hasn't ended and heterosexuality continues to be a popular choice for a large segment of the population.

Actually, not that funny. They can read opinion polls as well as anyone else. The inclusion of a gay marriage ban on the Conservatives' platform was driven by the rightist fringe element (the old Reform Party), there was no public response to calls for such a ban, and immediately after the election the party moved to the centre of the political spectrum - where any party must stay if they wish to remain in power here. Although Prime Minister Harper leads the Conservative party, in the US he would be considered liberal.