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In looming federalism fight, three states say feds can't 'unmarry' gay couples

Slartibartfast

Slartibartfast

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In looming federalism fight, three states say feds can't 'unmarry' gay couples - CSMonitor.com

ATLANTA

Three states where members of the clergy and justices of the peace today marry gay couples argued on Friday that it’s a violation of states’ rights for the federal government to then “unmarry” those people under the 1996 Defense of Marriage Act (DOMA).
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In an amicus brief to a New York case involving a lesbian widow, Vermont, Connecticut, and New York argue that the federal government had no right, despite the federal designation of marriage as being between a man and a woman, to demand $350,000 in estate taxes when Edie Windsor’s partner died. That would not have happened under a marital tax deduction that lets other married couples pass their assets to their spouse without penalty.

The three states who filed amicus briefs argue that states regulate marriage and family relationships and that Congress doesn’t have constitutional authority to interfere with that license at any level.

Several federal and state judges have struck down parts of DOMA, but it was only earlier this year that a federal appeals court in Boston, called it discriminatory regarding partner benefits, saying the law “fails the test” when looking at its “disparate impact on minority interests and federalism concerns.”
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I figured it was going to end up like this. It may be that federal recognition of gay marriage will happen over the next year or two.
 
I've been saying this for years. The solution to this is so simple. Run a bill through Congress that amends every law that references "marriage" and change to "civil union", "state recognized union," "legal union" or whatever (biggest impact would likely be the tax code). Add a stipulation that no institution can be sued to refusing to "marry" anyone and call it a day. Important aspect as where same sex marriage has been legally allowed, litigation against religious institutions exploded.

Solves the problem. No "separate but equal" and everyone is the same in the eyes of the federal government.
 
Fishstyx said:
I've been saying this for years. The solution to this is so simple. Run a bill through Congress that amends every law that references "marriage" and change to "civil union", "state recognized union," "legal union" or whatever (biggest impact would likely be the tax code). Add a stipulation that no institution can be sued to refusing to "marry" anyone and call it a day. Important aspect as where same sex marriage has been legally allowed, litigation against religious institutions exploded.

Solves the problem. No "separate but equal" and everyone is the same in the eyes of the federal government.
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Not a bad idea. For some groups the primary objection is that the word "married" is a special term. If nobody is "married" in a legal sense, but are in some sort of union regardless, it would make that objection go away and probably help lend support for the civil rights of gay people.
 
Problem is entrenchment. The gay community as well as those that oppose same sex marriage have adopted an all or nothing approach.
 
Fishstyx said:
Problem is entrenchment. The gay community as well as those that oppose same sex marriage have adopted an all or nothing approach.
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For the gay community an all or nothing approach is what we need. Why should I have to compromise on my rights just because someone believes that their deity says it is wrong?
 
Mr. Invisible said:
For the gay community an all or nothing approach is what we need. Why should I have to compromise on my rights just because someone believes that their deity says it is wrong?
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Because then you'd be compromising their rights. Whats needed is a compromise which is what occurs when rights are at conflict. Which is why I think the solution I proposed is the best way forward. It removes the issue of contention which is marriage and changes to what it really is, a legal union or contractual union between two people.

The litigation stipulation is as important. Why should someone be able to sue a church that refuses to conduct a ceremony for someone that goes against its doctrine?
 
Fishstyx said:
Because then you'd be compromising their rights. Whats needed is a compromise which is what occurs when rights are at conflict. Which is why I think the solution I proposed is the best way forward. It removes the issue of contention which is marriage and changes to what it really is, a legal union or contractual union between two people.

The litigation stipulation is as important. Why should someone be able to sue a church that refuses to conduct a ceremony for someone that goes against its doctrine?
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Well, I don't care about churches. Marriage is a civil not a religious institution, which is why you need a marriage license to be officially married.

To your other point, there anti-SSM people would not be compromising their rights as in this case none of their rights are in danger of being infringed upon.
 
Mr. Invisible said:
Well, I don't care about churches. Marriage is a civil not a religious institution, which is why you need a marriage license to be officially married.

To your other point, there anti-SSM people would not be compromising their rights as in this case none of their rights are in danger of being infringed upon.
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"Marriage" is a civil and religious institution, to claim otherwise is simply false. Churches or private families agreements were the only "marriage licenses". Wasn't until the late 1800s when States got involved. So, if you change the term "marriage" to one of the ones I proposed, under the law, it allows private institutions to decide their "marriage" guidelines. Would also allow churches in favor of same sex unions to use the term marriage as well.

And at the end of the day, "marriage" would likely remain common in the description of two people together under a legal union.
 
Fishstyx said:
"Marriage" is a civil and religious institution, to claim otherwise is simply false. Churches or private families agreements were the only "marriage licenses." Wasn't until the late 1800s when States got involved. So, if you change the term "marriage" to one of the ones I proposed, under the law, it allows private institutions to decide their "marriage" guidelines. Would also allow churches in favor of same sex unions to use the term marriage as well.

And at the end of the day, "marriage" would likely remain common in the description of two people together under a legal union.
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Ah! Didn't know that. However, I still think that the all or nothing approach is the way to go.

Also, edited for punctuation :p
 
I still find it hilarious that America is still fighting about same-sex marriage get with the times.
 
Mr. Invisible said:
Ah! Didn't know that. However, I still think that the all or nothing approach is the way to go.

Also, edited for punctuation :p
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Well, thats why there is little progress on this. Everywhere where this a vote on this issue, it loses. Only places its been allowed is where judges have made it happen. Even in California which is one of the most "progressive" states in the union, failed when put to a vote. However, polls indicate a majority is open to a the idea of a civil union.

I'd bet the idea I proposed, would win favor on the more federalist folks on the right as well.
 
Fishstyx said:
Important aspect as where same sex marriage has been legally allowed, litigation against religious institutions exploded.
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Has it really? I've seen lots of statements claiming churches would be sued where gay marriage were made legal but churches refused on religious grounds but I've not seen anything about it actually happening, certainly not about it "exploding".
 
HonestJoe said:
Has it really? I've seen lots of statements claiming churches would be sued where gay marriage were made legal but churches refused on religious grounds but I've not seen anything about it actually happening, certainly not about it "exploding".
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Look in Canada and Denmark. Denmark actually passed a bill forcing churches to perform the ceremonies.
 
Mr. Invisible said:
For the gay community an all or nothing approach is what we need. Why should I have to compromise on my rights just because someone believes that their deity says it is wrong?
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Because, from Fishstyx's suggestion you're not being asked to compromise any rights. At least be honest about it. You could have your concept of equal rights under most civil union legislation, but you want the title. A ridiculous hill to die on.

As to the thread topic, the courts have upheld the elasticity of the commerce clause, it would apply to this. The states may control marriage within their borders, but nowhere that receives federal funding or crosses state lines. The courts cannot rule for the states in this matter - doing so would invalidate all federal drug laws. It's not going to happen and this is the gay marriage movement folks shooting themselves in the foot.
 
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Ultimately, this is why I agree that gocernments should adopt new terminology, than people can define marriage how they see fit and nobody else has to care.

We have issues of actual importance to not be distracted from by stuff like this.
 
The federal government has no enumerated power to involve itself in state marriage. Marriage is a state affair. If the people of a state want marriages between two men, a woman, and a goat, it is none of the federal government's business. I'm sure the states didn't form their compact between themselves so that the new federal government could tell them how to run their marriages.
 
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Federalist said:
The federal government has no enumerated power to involve itself in state marriage. Marriage is a state affair. If the people of a state want marriages between two men, a woman, and a goat, it is none of the federal government's business.
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Yes and no. Even if ones goes with the originalist constitutional argument, government does have the power of setting its own tax policy (16th amendment), defined benefits for government employees, etc and that is where a lot of the fight about recognition of marriage comes in.
 
megaprogman said:
Yes and no. Even if ones goes with the originalist constitutional argument, government does have the power of setting its own tax policy (16th amendment), defined benefits for government employees, etc and that is where a lot of the fight about recognition of marriage comes in.
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True enough. For the purposes of federal tax policy, the feds can call marriage anything they want.
 
Fishstyx said:
Look in Canada and Denmark. Denmark actually passed a bill forcing churches to perform the ceremonies.
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Yes, but has there been an "explosion of litigation" as you stated? Do you have examples of any litigation at all?

Such litigation may be technically possible but it's also possible (and I believe reality) that the vast majority of people involved are carrying on within the context of these laws without any significant issues.
 
Federalist said:
True enough. For the purposes of federal tax policy, the feds can call marriage anything they want.
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Sometimes the best way to win a battle is to change the game.
 
Federalist said:
The federal government has no enumerated power to involve itself in state marriage. Marriage is a state affair. If the people of a state want marriages between two men, a woman, and a goat, it is none of the federal government's business. I'm sure the states didn't form their compact between themselves so that the new federal government could tell them how to run their marriages.
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That's not true if you wish those marriages to be portable across all state lines or be recognised by the federal government.
 
Some Gays are a bunch of trouble makers.
 
Fishstyx said:
Because then you'd be compromising their rights. Whats needed is a compromise which is what occurs when rights are at conflict. Which is why I think the solution I proposed is the best way forward. It removes the issue of contention which is marriage and changes to what it really is, a legal union or contractual union between two people.

The litigation stipulation is as important. Why should someone be able to sue a church that refuses to conduct a ceremony for someone that goes against its doctrine?
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uhm thats not going to happen with equal rights and gay marriage, legal gay marriage has nothing to do with religious marriage. Nor would legal gay marriage provide a new platform to sue a church, they turn away STRAIGHT couple all the time and do it now and they cant be sued for it


EQUAL rights its the way to go


religious marriage isnt effected by that
 
Fishstyx said:
"Marriage" is a civil and religious institution, to claim otherwise is simply false. Churches or private families agreements were the only "marriage licenses". Wasn't until the late 1800s when States got involved. So, if you change the term "marriage" to one of the ones I proposed, under the law, it allows private institutions to decide their "marriage" guidelines. Would also allow churches in favor of same sex unions to use the term marriage as well.

And at the end of the day, "marriage" would likely remain common in the description of two people together under a legal union.
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no its factually true because they are SEPARATE.

giving equal rights on LEGAL marriage has no effect on religious marriage

hell BOTH religious marriage and legal gay marriages already are done

religious marriage can already happen between who ever the church allows or doesnt allow this is already going on or
 
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