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

[Seawytch]

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.

You're putting Prop 8 in the wrong order. First came marriage then came Prop 8.

 

[Procrustes Stretched]

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?

Where do you get your talking points?

 

[Seawytch]

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.

That's the point. Your license is good in all 50 states, mine isn't.

 

[Procrustes Stretched]

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.


>>>>

you are correct on the Full Faith and Credit...I used to bait people with that and none were aware enough to dispute it. Gay Marriage/Marriages -- The full faith and credit clause is not covered there. It is not argued there

http://blog.constitutioncenter.org/...st-states-opposing-gay-marriages-accept-them/

 

[konradv]

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.

Correct, DOMA contradicts that tenet, but that's why it'll be taken to court. In the past no state allowed same-sex marriage. Now that a number do, it's time for the USSC to revisit the question. IMO, I don't see how it can be disallowed. It's a civil contract like any other and any religious questions aren't within the court's purview.

 

[WorldWatcher]

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.

It's kind of hard to justify rational basis scrutiny when the whole purpose of the law was specifically to deny equal treatment under the law for a targeted group.

It's kind of like the Romer decision. If Colorado had passed a law repealing all it's Public Accommodation laws so that no group received or had access to special consideration - then it probably would have been upheld. But the Romer decision specifically targeted homosexuals has being outside redress.


>>>>

 

[WorldWatcher]

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.)

Bod's.


>>>>

 

[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. 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.

She didn't say the legislature passed a law to legalize SSCM, she said the legislature passed the law creating Civil Marriage.


>>>>

 

[jwoodie]

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.

Expectation of biological children?

 

[Obamanation]

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?

So, does that mean that once the Supreme Court dismisses a case, it's cast in stone for ever and ever and ever?

until the next liberal wackjob comes along to try to destroy our great nation...

 

[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.

It's kind of hard to justify rational basis scrutiny when the whole purpose of the law was specifically to deny equal treatment under the law for a targeted group.

It's kind of like the Romer decision. If Colorado had passed a law repealing all it's Public Accommodation laws so that no group received or had access to special consideration - then it probably would have been upheld. But the Romer decision specifically targeted homosexuals has being outside redress.


>>>>

I doubt if you will be able to establish convincingly that marriage laws passed hundreds of years ago were drafted with the sole and exclusive insidious purpose of excluding gays. You might have a better argument with respect to constituional amendments recently passed which specifically exclude gay marriage. However, the state I live in has defined marriage as a "union between a man and a women" since the 1800's. For those laws, I think you need heightened scrutiny and place sexual orientation isn the same class as gender. Not strict scrutiny... but I do not believe you need strict crutiny. Hieghtened scrutiny will get you where you want to go.

 

[The Rabbi]

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.

That would involve recognizing homosexuals as a protected group, like blacks or ROman Catholics. That goes against common logic as there is no common basis. At all. Last I checked homosexuals had all the same rights anyone else did. What they want are special rights.

 

[The Rabbi]

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.

Proof? Link?

 

[g5000]

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?

It seems you have failed to notice that 1972 was a long time before DOMA.

DOMA, in and of itself, presents a substantial federal question.

Nice try.

 

[The Rabbi]

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.

Correct, DOMA contradicts that tenet, but that's why it'll be taken to court. In the past no state allowed same-sex marriage. Now that a number do, it's time for the USSC to revisit the question. IMO, I don't see how it can be disallowed. It's a civil contract like any other and any religious questions aren't within the court's purview.

Since states have the power to regulate and define marriage it would intrude on the basic principle of federalism for the fed.gov to dictate to states what they can and cannot recognize as marriage.

 

[Procrustes Stretched]

Keep hearing conservative bigots in the media say Gay Couples cannot have children.

What century are they living in?

 

[WorldWatcher]

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.

It's kind of hard to justify rational basis scrutiny when the whole purpose of the law was specifically to deny equal treatment under the law for a targeted group.

It's kind of like the Romer decision. If Colorado had passed a law repealing all it's Public Accommodation laws so that no group received or had access to special consideration - then it probably would have been upheld. But the Romer decision specifically targeted homosexuals has being outside redress.


>>>>

I doubt if you will be able to establish convincingly that marriage laws passed hundreds of years ago were drafted with the sole and exclusive insidious purpose of excluding gays. You might have a better argument with respect to constituional amendments recently passed which specifically exclude gay marriage. However, the state I live in has defined marriage as a "union between a man and a women" since the 1800's. For those laws, I think you need heightened scrutiny and place sexual orientation isn the same class as gender. Not strict scrutiny... but I do not believe you need strict crutiny. Hieghtened scrutiny will get you where you want to go.

1. Never tried to imply that Civil Marriage laws passed hundreds of years ago were passed to explicitly exclude same-sex couples. However laws passed in 2000, 2004, 2006, 2008, and 2009 were explicitly passed to exclude same-sex couples from Civil Marriage.

2. And while the laws that were passed targeted a group based on their sexual orientation, each and every law passed in those recent years were based on gender. I don't remember any law that says Civil Marriage is defined as only for those who are heterosexual (sexual orientation), all that I remember defined Civil Marriage as a man and a woman (gender or "sex" if you prefer).


>>>>

 

[The Rabbi]

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.

Expectation of biological children?

Well that and the fact that marriage has been between one man and one woman for the entire history of this country. The USSC is being asked to overturn the entire history of the US. I doubt they will do that.

 

[g5000]

Keep hearing conservative bigots in the media say Gay Couples cannot have children.

What century are they living in?

So what if they can't have children. Federal law does not require you to have children to file a married tax return, to receive Social Security survivor benefits, or to qualify for federal employment insurance benefits.

"Fags can't have kids" is a total red herring.

 

[The Rabbi]

It's kind of hard to justify rational basis scrutiny when the whole purpose of the law was specifically to deny equal treatment under the law for a targeted group.

It's kind of like the Romer decision. If Colorado had passed a law repealing all it's Public Accommodation laws so that no group received or had access to special consideration - then it probably would have been upheld. But the Romer decision specifically targeted homosexuals has being outside redress.


>>>>

I doubt if you will be able to establish convincingly that marriage laws passed hundreds of years ago were drafted with the sole and exclusive insidious purpose of excluding gays. You might have a better argument with respect to constituional amendments recently passed which specifically exclude gay marriage. However, the state I live in has defined marriage as a "union between a man and a women" since the 1800's. For those laws, I think you need heightened scrutiny and place sexual orientation isn the same class as gender. Not strict scrutiny... but I do not believe you need strict crutiny. Hieghtened scrutiny will get you where you want to go.

1. Never tried to imply that Civil Marriage laws passed hundreds of years ago were passed to explicitly exclude same-sex couples. However laws passed in 2000, 2004, 2006, 2008, and 2009 were explicitly passed to exclude same-sex couples from Civil Marriage.

2. And while the laws that were passed targeted a group based on their sexual orientation, each and every law passed in those recent years were based on gender. I don't remember any law that says Civil Marriage is defined as only for those who are heterosexual (sexual orientation), all that I remember defined Civil Marriage as a man and a woman (gender or "sex" if you prefer).


>>>>

Right, a man and a woman. Which means homosexuals aren't discriminated against under the law, just because they have trouble telling the difference.