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Supreme Court will tackle same-sex marriage

Samhain said:
I'm hoping they go a different route and lay the groundwork for the state to be removed from marriage altogether.
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Although I think they will just legalize it, this is the way it SHOULD go.
 
ttwtt78640 said:
DOMA does not violate equal protection, it violates the 10th amendment. Marriage is not a federal power, these are state contract law issues.
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I don't think you understand the issue.

DOMA doesn't prevent states from allowing gay marriage. It prevents the federal government from recognizing any marriages between gay couples for the purpose of federal laws or programs, even if those couples are considered legally married by their home state. And it allows states that don't permit gay marriage to not recognize such marriages if performed in another states.

Only the section that deals with federal recognition is being currently challenged in court, and it will be a equal protection question, I'm pretty sure. The issue will be on what basis the federal government can disallow marraige tax and benefit treatment for gay marriages that are legal in states that allow it.

I really think even without strict scrutiny, DOMA will be overturned.
 
Paschendale said:
The amount that you get wrong on this forum about American law is staggering. Of the four clauses in this post, all of them are wrong. Okay, one is half right. But it is wrong in spirit.

1) DOMA does violate equal protection, and equal protection will be used to strike it down. 2) This issue has nothing to do with the 10th amendment, and as I keep having to explain to people, the 10th amendment does not actually bar the federal government from doing anything. 3) Marriage is not a power. It is, however, a federally protected civil right. 4) Marriage is not covered under contract law. Family law is its own special body.

Seriously, learn something true about the US system of law before you make these pronouncements.




What would be so bad about that?
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What makes you an expert? And, don't tell us you're a lawyer, because they **** it up on a regular basis.
 
apdst said:
What makes you an expert? And, don't tell us you're a lawyer, because they **** it up on a regular basis.
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I base my opinions on many hours of studying the cases. I have actually read all the rulings and the arguments in both cases about to go to SCOTUS. I have also read many of the analysis and critiques of those rulings from those on both sides.
 
ttwtt78640 said:
DOMA is unconstitutional, because it violates states rights. It is not discrimination to define a contract between one man and one woman. This has existed for centuries. It is no more discrimination to deny GLBT "marriages" than to offer them, it is simply a matter of state contract law. Why is not having SSM contracts any more discriminatory than not having polygamy contracts?
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You've missed the issue. DOMA bars the federal government from recognizing gay legal because a state has allowed them, for the purposes of federal tax, social security, and other treatment. That's a big deal for gay couples for SS and joint filing purposes.

So the issue is what is the basis for DOMA to discriminate against LEGAL marriages in states that allow same-sex marriage. There doesn't appear to be a coherent reason for this discrimination, so it violates the 14th amendment.

At least that's the argument. Point is, that's the issue.
 
Paschendale said:
The amount that you get wrong on this forum about American law is staggering. Of the four clauses in this post, all of them are wrong. Okay, one is half right. But it is wrong in spirit.

1) DOMA does violate equal protection, and equal protection will be used to strike it down. 2) This issue has nothing to do with the 10th amendment, and as I keep having to explain to people, the 10th amendment does not actually bar the federal government from doing anything. 3) Marriage is not a power. It is, however, a federally protected civil right. 4) Marriage is not covered under contract law. Family law is its own special body.

Seriously, learn something true about the US system of law before you make these pronouncements.




What would be so bad about that?
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Look up the definition of marriage and you will usually find the word contract included:

Legal Definitions of Marriage in the United States | CLGS

Marriage - Wikipedia, the free encyclopedia
 
TaraAnne said:
Gay marriage should have been legal years ago. I think those against gay marriage would have an arguement if they gave up the 1400 government hand outs gay couples are denied! The great thing is gay marriage by the end of the year. equal rights for all
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LOL. As a gay person with a partner (we had a ceremony but are not legally married) I can tell you that neither of us want any "handouts." What ridiculous terminology.

We have every "benefit" that married people have. We simply had to have an attorney draw it up. What's mine is his; what's his is mine... even if one or the other die. There are no estate tax penalties, no income tax penalties... As a matter of fact, we have TREMENDOUS income tax benefits by NOT being legally married.

I certainly support the right of each state to legislate on this matter. The case in California (the ban on gay marriage) passed by referendum. The original law allowing gay marriage was a stunt of judicial activism which was foiled by the majority of voters. I absolutely respect that.

SCOTUS will have to uphold that referendum vote unless the states ratify a conflicting amendment between now and then.

On the DOMA, I think the law violates the 10th amendment. It should be overturned. All powers not specifically referenced in the Constitution are relegated to the states. DOMA is an effort to circumvent the states' rights to decide on this issue.
 
head of joaquin said:
Thanks for that. The thread was getting flooded with the usual tea party 10th amendment nonsense, which has no bearing on this case. It appears it will be a direct equal protection case, without strict scrutiny. The outcome will be very interesting.
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The 10th amendment does have bearing on Windsor. States have the right to determine who they marry, within the limits of the constitution. That is a 10th amendment argument. Hollingsworth v. Perry is the case you are thinking of. Entirely different issue.
 
kamikaze483 said:
LOL. As a gay person with a partner (we had a ceremony but are not legally married) I can tell you that neither of us want any "handouts." What ridiculous terminology.

We have every "benefit" that married people have. We simply had to have an attorney draw it up. What's mine is his; what's his is mine... even if one or the other die. There are no estate tax penalties, no income tax penalties... As a matter of fact, we have TREMENDOUS income tax benefits by NOT being legally married.

I certainly support the right of each state to legislate on this matter. The case in California (the ban on gay marriage) passed by referendum. The original law allowing gay marriage was a stunt of judicial activism which was foiled by the majority of voters. I absolutely respect that.

SCOTUS will have to uphold that referendum vote unless the states ratify a conflicting amendment between now and then.

On the DOMA, I think the law violates the 10th amendment. It should be overturned. All powers not specifically referenced in the Constitution are relegated to the states. DOMA is an effort to circumvent the states' rights to decide on this issue.
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No, the case before the SC is about federal tax and social security treatment of gay marriage that are legal in the states that allow them. The issue of how each state treats gay marriage is not an issue in the case. It's a direct equal protection clause because DOMA treats gay marriage different from straight marriage for purposes of various federal benefits (like SS).

Conservatives are fixated on the 10th amendment, which has no application to the case at hand.
 
Redress said:
I base my opinions on many hours of studying the cases. I have actually read all the rulings and the arguments in both cases about to go to SCOTUS. I have also read many of the analysis and critiques of those rulings from those on both sides.
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Was I addressing you, madam?
 
ttwtt78640 said:
Convince me that prefering to have two (or more) wives is not equally as strong a desire.
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I support legalized polygamy.

That said, the EP clause is violated when contracts are denied on the basis of sex, gender, race, religion, sexuality, gender identity, physical disability, ethnicity, or number of contractually obligated parties. Since marriage must be controlled via contract in order to be legally recognized, restricting it based upon race, sex, gender, gender identity, or number of parties to the contract doesn't pass the smell test.
 
head of joaquin said:
Irrelevant to the case at issue.
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Not irrelevant. In fact part of Mass case rulings and Windsor:

Cases predating Murphy demonstrate that the Supreme Court consistently lauded this
10 conception of marriage as a critical social institution. See Reynolds v. United States, 98 U.S.
11 145, 165-66 (1878) (“Marriage, while from its very nature a sacred obligation, is nevertheless, in
12 most civilized nations, a civil contract, and usually regulated by law. Upon it society may be
13 said to be built, and out of its fruits spring social relations and social obligations and duties.”).
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ttwtt78640 said:
DOMA is unconstitutional, because it violates states rights. It is not discrimination to define a contract between one man and one woman. This has existed for centuries. It is no more discrimination to deny GLBT "marriages" than to offer them, it is simply a matter of state contract law. Why is not having SSM contracts any more discriminatory than not having polygamy contracts?
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It was once defined as between one man and one woman of the same race. It was still discrimination.

Polygamy is a red herring. Gender is a classification protected from discrimination. Number of people in a group is not.
 
head of joaquin said:
No, the case before the SC is about federal tax and social security treatment of gay marriage that are legal in the states that allow them. The issue of how each state treats gay marriage is not an issue in the case. It's a direct equal protection clause because DOMA treats gay marriage different from straight marriage for purposes of various federal benefits (like SS).

Conservatives are fixated on the 10th amendment, which has no application to the case at hand.
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You really need to stop and read up before making statements like this. There are two cases going before SCOTUS. Neither of them is specific to taxes and social security. One of them is about how states treat SSM.
 
winston53660 said:
SSM is legally recognized by several states now.
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Yes, and in those states federal homosexual employees that are legally married in that state do not receive the job benefits that married couples may receive. I believe a ruling on this in MA ruled that because MA allows for SSM that those individuals are legally wed and that the DOMA provisions that prevent them from receiving benefits from the federal government are unconstitutional because it steps on the state of MA's right to define marriage.
 
digsbe said:
Yes, and in those states federal homosexual employees that are legally married in that state do not receive the job benefits that married couples may receive. I believe a ruling on this in MA ruled that because MA allows for SSM that those individuals are legally wed and that the DOMA provisions that prevent them from receiving benefits from the federal government are unconstitutional because it steps on the state of MA's right to define marriage.
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Just to be clear, niether of the Mass. cases is being reviewed by SCOTUS, probably because Kagan would have had to recuse herself from them.
 
digsbe said:
Yes, and in those states federal homosexual employees that are legally married in that state do not receive the job benefits that married couples may receive. I believe a ruling on this in MA ruled that because MA allows for SSM that those individuals are legally wed and that the DOMA provisions that prevent them from receiving benefits from the federal government are unconstitutional because it steps on the state of MA's right to define marriage.
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DOMA will almost certainly fall to that particular challenge.
 
clear cut equal protection issue.
 
head of joaquin said:
You've missed the issue. DOMA bars the federal government from recognizing gay legal because a state has allowed them, for the purposes of federal tax, social security, and other treatment. That's a big deal for gay couples for SS and joint filing purposes.

So the issue is what is the basis for DOMA to discriminate against LEGAL marriages in states that allow same-sex marriage. There doesn't appear to be a coherent reason for this discrimination, so it violates the 14th amendment.

At least that's the argument. Point is, that's the issue.
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I agree somewhat. To me the issue is who gets to define marriage; the states or the federal gov't. If the state can include SSM (or polygamy) then the federal gov't must honor that marriage contract "definition" for "equal protection". If state A denies SSM then they should not have to honor that contract, simply because state B allows it. Because the 21st amendment removed federal power over alcohol prohibition it is still legal for a state/county or city to do so. There are 13 states that now allow SSM so there is no reason for the federal gov't to deny recognizing that state contract, but also no reason to expect the other 37 states to accept it. Think of the state issuing of CCW permits, simply because AZ does not require them that does not mean that TX may not have them. If UT grants CCW permits freely, even to non-residents, that does not mean that all other states must accept them.
 
Redress said:
You really need to stop and read up before making statements like this. There are two cases going before SCOTUS. Neither of them is specific to taxes and social security. One of them is about how states treat SSM.
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I"m just interested in Windsor. It's clearly about equal protection. It uses heightened scrutiny, which may be challenged in the SC. But beyond that, it's a direct equal protection case.

The question whether the federal government may
7 constitutionally define marriage as it does in Section 3 of
8 DOMA is sufficiently distinct from the question in Baker:
9 whether same-sex marriage may be constitutionally restricted
10 by the states. After all, Windsor and Spyer were actually
11 married in this case, at least in the eye of New York, where
12 they lived. Other courts have likewise concluded that Baker
13 does not control equal protection review of DOMA for these
14 reasons.1
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ttwtt78640 said:
I agree somewhat. To me the issue is who gets to define marriage; the states or the federal gov't. If the state can include SSM (or polygamy) then the federal gov't must honor that marriage contract "definition" for "equal protection". If state A denies SSM then they should not have to honor that contract, simply because state B allows it. Because the 21st amendment removed federal power over alcohol prohibition it is still legal for a state/county or city to do so. There are 13 states that now allow SSM so there is no reason for the federal gov't to deny recognizing that state contract, but also no reason to expect the other 37 states to accept it. Think of the state issuing of CCW permits, simply because AZ does not require them that does not mean that TX may not have them. If UT grants CCW permits freely, even to non-residents, that does not mean that all other states must accept them.
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I would say that the Full Faith and Credit clause does require other states to recognize that marriage.
 
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