State courts don't really matter at this point because their on the bottom rung as I understand it. And with the Supreme Court out of the picture, that leaves the highest courts the Court of Appeals correct? And if that is so, I'm assuming that (at least) one of them has heard the case, otherwise it wouldn't of gotten a shot at the SC. So on the Appellate level, how many have heard and what's the tally there. Because correct me if I'm wrong but with the SC not hearing any cases like this, their rulings are what go onto become precedent that the lower courts will then cite.
I guess the point is that they're not watching to see if you are having sex. Except for the legal contract, what's the difference between a sexless marriage and a roommate situation?
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The problem with your argument is along came the 14th amendment which put a certain limit on the powers of the states. It states...
"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."
So...the constitution does no specifically mention "marriage" but it does mention "laws" and same sex marriage bans happen to be "laws" and as a matter of argument they happen to be "laws" which deprive certain people " of life, liberty, or property, without due process of law" and deny certain people with their jurisdiction "equal protection."
Now if you need further precedent we have Loving versus Virginia which was the court case in 1968 in which the Supreme Court struck down interracial marriage bans and as the majority decision stated...
"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... 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 discrimination. 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."
So to take the "state marriage bans are fine because marriage is not mentioned in the Constitution" argument would mean that SCOTUS was somehow wrong in striking down the interracial marriage bans on the grounds of the 14th amendment. It just is not a historically or Constitutionally sound argument to make.
"We have met the enemy and they are ours..." -- Oliver Hazard Perry
"I don't want a piece of you... I want the whole thing!" -- Bob Barker
It just so happens that the Colonial states set themselves up as marriage authority claiming that right.
If the states can claim 10th amendment states rights on marriage, then the people can claim their 9th amendment right as well.
The whole of the US Constitution is the people's rights over the state.
And yes, with SCOTUS rejecting the case, the circuit court decisions stand. Every circuit that has upheld same-sex marriage will have marriage equality in all of its states now. (well, I think technically each state has to have its ban challenged, but since the precedent is already set that's really just doing the paperwork)
Virginia, Indiana, Wisconsin, Oklahoma and Utah just had marriage equality granted directly by this SCOTUS (in)decision. North Carolina, South Carolina, West Virginia, Colorado, Kansas and Wyoming are all covered in the same circuits as the first five, so they have effectively had marriage equality granted, it's just a matter of filing the challenges. Federal judges for those states will be bound by their circuit's decision.
Last edited by Deuce; 10-06-14 at 03:00 PM.
One of you will end up here next!