New Prop 8 challenge from … Ted Olson?
posted at 10:12 am on May 27, 2009 by Ed Morrissey
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After yesterday’s ruling from the California Supreme Court upholding Proposition 8’s ban on gay marriage but allowing the already-existing gay marriages to remain legal, I predicted that an inventive attorney would attack the judgment in federal court on equal-protection arguments arising from that Solomonic split. That challenge came more quickly than even I predicted, and from an unusual choice of attorneys. Byron York profiles Ted Olson’s decision to make a federal case out of Prop 8:
The suit argues that the state’s marriage ban, upheld Tuesday by the California Supreme Court, violates the federal constitutional right for same-sex couples to marry. The complaint was filed Friday, and Olson and co-counsel David Boies — who argued against Olson in the Bush v. Gore case — will hold a news conference in Los Angeles Wednesday to explain the case. The conference will feature the two same-sex couples on whose behalf Olson filed suit.
The suit also asks the U.S. District Court for the Northern District of California to issue an injunction that would stop enforcement of Proposition 8 and allow same-sex couples to marry while the case is being decided. …
I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California. “It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution,” Olson said. “The constitution protects individuals’ basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation.”
This gets us back to whether a ban on same-gender marriage is discriminatory. Opponents of same-sex marriage argue that each individual has the same rights as everyone else, since the state does not bar any man from marrying any woman, outside of consanguinuity, current marital status, and age of consent. Proponents, such as Olson, argue that it equates to the ban on interracial marriage, but that actually did treat people differently based on ethnicity rather than gender. It’s a specious argument, perhaps best demonstrated by the enormous opposition to gay marriage in the African-American community.
However, Olson may have a more limited equal-protection case with the limited class of relief the California Supreme Court created in its decision. In this case, we have 36,000 citizens in single-sex marriages recognized by the state, while refusing to recognize any others. The only delimiter is the date of the decision. A federal court might find that a violation of the equal-protection clause and overturn Proposition 8, or at least the ruling. The danger here for Olson is that a federal court might take action that invalidates those existing marriages rather than forcing California to recognize gay marriage altogether.
If I had to guess, I’d bet that the federal courts will punt on the matter entirely, leaving the California decision to stand on its own. They will have to recognize that the people of California amended their own Constitution to restore a definition of state-recognized marriage that was the norm for more than 200 years. They’re not going to be eager to invalidate an election, especially to force the same people to give government recognition to same-sex marriages when they’ve expressly mandated the opposite.
Having Ted Olson head this plaintiff’s legal team, along with David Boies, will certainly give some conservatives considerable pause. He’s been a hero to the Right, so much so that Rudy Giuliani tapped him for the presidential campaign to give himself credibility on judicial restraint. What happens to Olson’s standing now?
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“the arc of the moral universe is long but it bends toward justice”
Terry Silver on May 27, 2009 at 10:17 AM
Ted changed teams?
faraway on May 27, 2009 at 10:17 AM
How much is all this costing the tax payer?
Firebird on May 27, 2009 at 10:19 AM
Is it possible Olson is doing this to lose and create a federal precedent saying there is no constitutional right to same-sex marriage? Too Rovian?
factoid on May 27, 2009 at 10:19 AM
Answering the question with a question, what did Shakespeare say to do with lawyers?
jgapinoy on May 27, 2009 at 10:19 AM
The next thing ya know it’ll be some lady wanting to marry a dolphin…Oh wait!!! That already happened.
sdd on May 27, 2009 at 10:19 AM
Money, get away.
Get a good job with good pay and you’re okay.
Money, its a gas.
Grab that cash with both hands and make a stash.
New car, caviar, four star daydream,
Think I’ll buy me a football team.
Money, get back.
I’m all right jack keep your hands off of my stack.
Money, its a hit.
Don’t give me that do goody good bullshit.
I’m in the high-fidelity first class traveling set
And I think I need a Lear jet.
Money, its a crime.
Share it fairly but don’t take a slice of my pie.
Money, so they say
Is the root of all evil today.
But if you ask for a raise its no surprise that they’re
Giving none away.
TheBigOldDog on May 27, 2009 at 10:19 AM
he lost his wife in 9/11, and still remained part of the govt. he’s been through a lot.
with that said, i think it boils down to:
1. he honestly believes gay marriage bans hold back “rights” (someone ask him about abortion “rights”, im curious)
2. he doesn’t really care either way, but like a good mccain-style-republican, he will join up with the gore side of bush v. gore to draw attention to a lefty issue, winning friends on the left (like those stupid ‘couch’ commercials for global warming)
3. he doesn’t care either way, but sees he can be in the spotlight if he does this
i’m thinking 75% #1, 25% #2, 0% #3
battleoflepanto1571 on May 27, 2009 at 10:20 AM
Just like any ambulance chaser.
jgapinoy on May 27, 2009 at 10:20 AM
Whose Justice? Which Rationality?
ninjapirate on May 27, 2009 at 10:22 AM
Goats have rights too.
faraway on May 27, 2009 at 10:22 AM
Why not? Who wouldn’t want to marry a good looking, well paid professional athlete. Oh, wait a minute… you mean an actual dolphin. Never mind!
TheBigOldDog on May 27, 2009 at 10:22 AM
I still respect Ted Olson. But I hope he fails.
myrenovations on May 27, 2009 at 10:23 AM
That did not stop them before.
Johan Klaus on May 27, 2009 at 10:24 AM
I CAN NOT BELIEVE he trotted out this canard.
Sad and pathetic, but typical.
mankai on May 27, 2009 at 10:24 AM
I don’t buy the equal protection argument. All laws allow grandfathering. I owned a 1953 Willys, with no turn signals, no backup lights, and lap only seatbelts. I was able to regularly register the vehicle, because it was built before those devices were mandated.
Vashta.Nerada on May 27, 2009 at 10:25 AM
Lawyers change teams all of the time. It’s usually the result of the check clearing.
amerpundit on May 27, 2009 at 10:25 AM
What are the chances of his case being thrown out door? Anyone?
FontanaConservative on May 27, 2009 at 10:27 AM
It means that the pro-gay marriage side has a damned good lawyer on their side.
Mr. D on May 27, 2009 at 10:27 AM
Olson stand with Giuliani, politically, conservative except on marriage and abortion issues.
atemely on May 27, 2009 at 10:27 AM
Olson’s argument, if accepted, opens the floodgates.
The equal protection clause would then trump even more common sense and could be used to invalidate laws that forbid incest, polygamy, bestiality, and yes, (sadly) pedophilia as discriminatory.
That is the Pandora’s box the buggers have opened up, if their own pet deviancy is somehow protected by the Constitution, then all other sexual deviances also MUST be, by implication.
This is an example of why we never should have let the government get involved in marriage in the first place. Like all other government takeovers of activity it started benignly, by first registering marriages, which led to them profiting by requiring the purchase of licenses, which led to the courts being involved in everything regarding them.
Marriage should have remained in the Church.
Yes, if homosexuals can find some heretical church that will “marry” them, (probably just need to visit their nearest Episcopal church), fine, the first amendment covers that.
But don’t expect myself or others to EVER accept what you do as normal. Which is what this is really all about. Gays long ago got equal rights under the law. This is beyond that, it’s about forcing acceptance of normality.
wildcat84 on May 27, 2009 at 10:27 AM
Incest and polygamy make sense, but bestiality and pedophilia are not actions performed between consenting equals. That’s an entirely different issue.
Esthier on May 27, 2009 at 10:29 AM
Everyone that works for HotAir should file a lawsuit demanding your rights to all marry each other.
faraway on May 27, 2009 at 10:30 AM
I have to say that the most amusing thing about this is that Ted Olson and David Boies are on the same team for this one… There was this famous case about eight and half years ago when they were on different teams…
Illinidiva on May 27, 2009 at 10:30 AM
I’m against gay marriage but no it won’t open to any of that… it will alienate Christians more and more away from the government though…
ninjapirate on May 27, 2009 at 10:31 AM
By the way, let’s not overestimate how good Olsen is as an attorney. He had a pretty good case in Bush v. Gore regardless of who fought it. He’s lost many-a-case brought on shaky grounds, too. He defended Jonathan Pollard and Pollard ended up with a life sentence. His appeal for declaration of mistrial failed, too.
amerpundit on May 27, 2009 at 10:31 AM
This treats people differently based on sexual orientation.
Why?
BTW even though I agree with Olson, I hope he loses this fight. This needs to happen, but it should happen through the legislature. I don’t want every SCOTUS fight from here on out being a litmus test on Roe v. Wade and “the Gay Marriage case.” Having everyone focus on abortion come judicial confirmation time is bad for the process, and making it about gay marriage would make it even worse.
Proud Rino on May 27, 2009 at 10:32 AM
Reading the decision yesterday the court highlighted that in California any two people are afforded all rights of any spouse under California. It further highlighted the matter in ways dealt with a title on paper and the right to be given the title.
California family law code 297-297.5.
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=80525423302+0+0+0&WAISaction=retrieve
(a) Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses
How the USSC will act is a different story…
theblacksheepwasright on May 27, 2009 at 10:32 AM
Well if changing the definition of marriage is ok, it shouldn’t be too difficult to change the definitions of “consenting” and “adult.” After all, they’re just words. They’ve long since stopped meaning anything specific.
TugboatPhil on May 27, 2009 at 10:33 AM
The late great, Barbara Olsen, is probably rolling over in her grave.
sinsing on May 27, 2009 at 10:33 AM
I know you have to post many items every day, but if you can’t recognize a fund raising gimmick when you see one …
corona on May 27, 2009 at 10:34 AM
I posted this in the headlines:
From La Shawn Barber, Loving v. Virginia: Legalizing Interracial Marriage:
INC on May 27, 2009 at 10:34 AM
Eh, if the pro-gay side would just wait a while, they can take the matter to the SCOTUS which will have Soto AND Kagan on it.
Bishop on May 27, 2009 at 10:34 AM
This same stupid argument could be used by NAMBLA.
Akzed on May 27, 2009 at 10:35 AM
I believe the argument is that marriage itself is defined as a man and a woman. No one is being denied the right to marriage (ie. marrying someone of the opposite sex). If you redefine “voting” to mean “owning a Lexus”, you can’t insist that someone is being denied the right to “vote” because you won’t buy them a Lexus.
amerpundit on May 27, 2009 at 10:38 AM
Again, why not polygamy?
Upstater85 on May 27, 2009 at 10:38 AM
No, it’s based on gender. No man can marry another man. It has nothing to do with his orientation.
A man does not have the same right as a woman does to marry a man.
Esthier on May 27, 2009 at 10:39 AM
>>…interracial marriage… actually did treat people differently based on ethnicity rather than gender.
Really? Under anti-miscegenaton laws, blacks couldn’t marry whites, and whites couldn’t marry blacks. The law applied equally to blacks and whites. So that argument doesn’t stand.
The problem with same-sex “marriage” is that it’s not, in fact, marriage at all. That’s why the schoolyard joke — “I love hamburgers.” “Then why don’t you marry one?” — is so hilarious.
Marriage is a man and a woman, and nothing else. This is the only argument that holds up. Leftists and the homosexual lobby are creating a right out of thin air.
tommy shanks on May 27, 2009 at 10:39 AM
By the way, I like how the same people who support affirmative action are screaming their heads off about discrimination.
amerpundit on May 27, 2009 at 10:40 AM
Don’t be naive enough to believe that.
30 years ago, the acceptance of sodomites being able to keep their OWN children much less to adopt others would have been unthinkable and would have been seen as something that would piss off the Christians.
Yet this is a done deal today.
10 years ago the concept of homosexual marriage was thought of in the same way (even as sodomy itself was being accepted as legal).
10 years from now those who will be wanting to legalize at the very least the two deviances that can be argued as being “between or among consenting adults”, ie: incest and polygamy will be using today’s precedents with homosexuality to win that as a “constitutional right”.
Never mind that incest produces defective children (see the Spanish Habsburgs, and the royal families of Europe in general), at least it can produce them (unlike homosexual marriage), or that polygamy as practiced (both the ROP and Mormon forms) end up in the oppression of women.
Indeed, the pressure to legalize both those deviances will be increasingly high as the ROP rises unchecked in America. The ROP even approves of pedophilia. After all, muhammed did it.
This makes me sick to even contemplate, but it’s coming. Don’t think that ANY lines exist anymore, they don’t. Western civilization is in it’s twilight, being squeezed out between the pressures of our decadent leftist elite, and the barbarians at the gate (ROP).
wildcat84 on May 27, 2009 at 10:40 AM
Well…yeah…that’s kinda what the whole argument is about – they want to redefine marriage so that it means “two consenting adults” instead of “one consenting man and one consenting woman.”
What’s your point?
Proud Rino on May 27, 2009 at 10:40 AM
I hope you’ll be taking that tone when bisexuals want to enter into a 3 person marriage.
Upstater85 on May 27, 2009 at 10:40 AM
Me too.
bluelightbrigade on May 27, 2009 at 10:41 AM
Yes it does. Heterosexuals can get married to the persons they want to marry, and homosexuals cannot.
Proud Rino on May 27, 2009 at 10:42 AM
La Shawn had some links at the end of the post I cited:
Same-Sex Marriage: Hijacking the Civil Rights Legacy
by Eugene F. Rivers is Founder and President of the Seymour Institute for Advanced Christian Studies ( http://www.siacs.org ) and is a pastor of the Church of God in Christ, the nation’s largest historically Black Pentecostal denomination. Kenneth D. Johnson is Senior Fellow for Social Policy and Civil Society at the Seymour Institute for Advanced Christian Studies.
INC on May 27, 2009 at 10:42 AM
No, heterosexuals cannot.
spmat on May 27, 2009 at 10:43 AM
No one is being denied the right to marry. They’re being denied the right to change the definition of a multi-thousand year-old definition of an institution. Good Lord, even President “Compassion” Obama understands this concept.
I’m changing the word “vote” to mean “owning a Lexus”. Why? Because I feel like it. I insist you provide me a Lexus or I’ll sue because you’re denying me my rights.
amerpundit on May 27, 2009 at 10:43 AM
You would assume that if he’s confident in his position, Olson will be willing to go on conservative media sites in print, radio and television to explain/defend his viewpoint. People will still be mad at him for taking the case and/or if his arguments spin around the questions of why just stop at same-sex marriages, but if he offers up a measured argument and doesn’t go off the reservation on other social/economic/national defense issues, he’ll probably end up with about the same standing on the right that Rudy has (i.e., not perfect, but not terrible, either).
jon1979 on May 27, 2009 at 10:44 AM
“WE THE PEOPLE” has no relevance anymore. Our once great land is being eroded by activist judges who serve the few instead of the many. To paraphrase Mr. Spock as he died in STAR TREK: THE WRATH OF KAHN, “The needs of the many outweigh the desires of the few”
CynicalOptimist on May 27, 2009 at 10:44 AM
You mean a heterosexual girl can’t marry her loving father?
Upstater85 on May 27, 2009 at 10:45 AM
Homosexuals can marry whomever they wish. The problem being that “marriage” means the union of a man and woman. If homosexuals wish to enter into the union of a man and woman — the definition of marriage — they should feel free.
amerpundit on May 27, 2009 at 10:45 AM
Oh, and heterosexuals can’t marry whomever they wish, either. I can’t marry my mother, first cousin, an 8-year-old girl, and a plethora of others. Ageism! Familyism!
amerpundit on May 27, 2009 at 10:46 AM
No, heterosexuals can’t marry any person they want. There are still restrictions even in heterosexual marriages. I can’t marry any male in my family. I’m already married and am unable to take on an additional spouse should I want to.
Marriage has never meant “anyone you want to marry” and won’t mean that even if gay marriage is legalized. Until it does, this line of arguing is ridiculous.
To be fair (to those who “love” their family), incest is no worse than a woman in her 40s having a child. It’s better than a woman in her late 40s having one.
Esthier on May 27, 2009 at 10:46 AM
On a related note:
‘Gay’ gene claim suddenly vanishes: American Psychological Association revises statement on homosexuality
INC on May 27, 2009 at 10:47 AM
This isn’t the first time Olson has broken with our side. There’s that West Virginia case where Olson is trying to create law that says that judges have to recuse themselves every time someone donates to their election campaign. It’s a huge violation of free speech.
Olson should resign his membership in the Federalist Society and the Republican Party effective immediately. The equal protection argument has been roundly dismissed by conservatives, so to pull this now is just proof that Olson is no longer one of us. It’s a real shame, too, because he is a brilliant legal mind.
Outlander on May 27, 2009 at 10:47 AM
Interesting. At one point does something that is unconstitutional stop being unconstitutional because it’s been around for a long time? If slavery had been in place for 2000 years in the United States, would it be constitutional?
Proud Rino on May 27, 2009 at 10:48 AM
But according to the denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy argument, if you are a freak that wants to marry your mother, you should be allowed to, right?
Upstater85 on May 27, 2009 at 10:49 AM
Good point. The question is, are they in “this” category?
Upstater85 on May 27, 2009 at 10:50 AM
Yes, *very* astute of you to point this out. There’s not an equal protection problem in these cases.
No one can marry a relative. No one can marry more than one person at a time.
Under the current law in most states, heterosxuals can get married to the people they want to marry subject to all other restrictions and laws – jeez – and homosexuals can’t.
Proud Rino on May 27, 2009 at 10:51 AM
Time for the US Constitutional amendment that we were told… well… we didn’t need because… nobody would, like, go there.
littleguy on May 27, 2009 at 10:52 AM
Wrong. Normal people cannot marry siblings, parents, 1st cousins, people of their sex, underaged people, two people, etc. These are all in the category of sexual perversion.
And any sodomist can marry any woman who’ll have him, and any lesbian can marry any man who’ll have her. This would not involve sexual perversion.
Akzed on May 27, 2009 at 10:52 AM
I would remind you that slavery wasn’t abolished in the courts. It wasn’t the result of some lawsuit. It required a constitutional amendment passed by a vote. Slavery became unconstitutional when people decided to change the constitution.
And I wouldn’t exactly compare the practice of slavery to not being able to change the definition of a religious institution.
amerpundit on May 27, 2009 at 10:52 AM
Then this is clearly a violation of the equal protection rights that incestuous individuals may want. If two or more people love each other, we shouldn’t deny them the right to legally enter into a marriage, right?
Upstater85 on May 27, 2009 at 10:53 AM
I’m really tired of these idiotic Equal Protection suits. They tend to be moronic, in the extreme. Before you know it, manufacturers and stores will have to produce and stock equal numbers of right-handed and left-handed items. This unbelievably stupid abuse of logic that thrives under “Equal Protection” is killing us.
progressoverpeace on May 27, 2009 at 10:53 AM
Homosexuals can get married. Simply find someone to perform a ceremony and say they’re married. Done. The issue is government recognition of that marriage and the benefits that go along with it.
So the question is, why do governments recognize marriages? Answer that, see if homosexual unions fit the criteria and make the judgment.
I am still consistently surprised by how worked up conservatives get over this issue.
Dash on May 27, 2009 at 10:53 AM
No, homosexuals can as well, but like those who love their mother and can’t imagine being with anyone else, they don’t want to.
The point, is that’s what marriage is. It comes with restrictions and laws.
Homosexuals want to change that, but they must change it. As it currently stands, marriage is not attractive to those who are attracted to their own gender.
Esthier on May 27, 2009 at 10:54 AM
Olson is a REPUBLICAN…no surprise he’d do something like this…
and they want us to shut up and keep voting for em..
right4life on May 27, 2009 at 10:55 AM
With incest the state can likely show a compelling state interest that is narrowly addressed. It differs from a gender restriction in that regard.
dedalus on May 27, 2009 at 10:55 AM
It really comes down to whether you believe that the defintion of marriage is an individual right or a collective right of society. If you believe that each individual or group of individuals have the right to define marriage for themselves, then you have to allow for gay marriage, polygamy, incest, and other form of marriage.
On the other hand, if ANY of that disgusts you and you say for example, “now, wait a second, I’ll support gay marriage, but NOT incest”, then you have ceded the ground to the idea that the definition of marriage is determined by societal norms.
And if that is the case, the proper place to determine the definition of marriage is at the ballot box and through the actions of representative government and NOT at the courts.
PackerBronco on May 27, 2009 at 10:56 AM
The fact that slavery wasn’t abolished in the courts doesn’t mean Dred Scott was decided correctly. And saying the people “decided” to change the Constitution is pretty laughable. That was a condition of allowing the states back into the Union without punishment. The Southern states were forced to ratify the 13th Amendment. I agree that it should be done through the legislatures.
As to the quoted sentence – we’re not debating the religious institution – they can marry or not marry whomever they want. This is about what government can do.
Proud Rino on May 27, 2009 at 10:56 AM
maybe because we value freedom of religion and expression..you know things that will soon become crimes if we disagree with the gay movement.
right4life on May 27, 2009 at 10:56 AM
So I can’t marry whomever I wish. I can’t marry underage girls, cousins, parents, or…people of the same sex. Think of it as a restriction like the same ones placed against me.
amerpundit on May 27, 2009 at 10:57 AM
for how much longer??
right4life on May 27, 2009 at 10:57 AM
By this I assume you mean so that they can form families and have children, but if that’s the case, then the government shouldn’t be recognizing unions that don’t or can’t produce children.
But if the answer is that they recognize them because they want to support loving relationships as a cornerstone of society, then there is little reason why they shouldn’t also recognize homosexual unions and any other unions that can be made between consenting adults.
Esthier on May 27, 2009 at 10:57 AM
I don’t see skin color and sexual behavior belonging to the same category. One is an immutable characteristic, the other is action or conduct. No one is suggesting that the action or conduct be prohibited, only that it shouldn’t have the same status as traditional marriage–the foundation of an ordered society.
BuckeyeSam on May 27, 2009 at 10:58 AM
I haven’t seen that case made here. Further, it doesn’t matter. If people are going to use the emotional attempt at argument that this somehow hurts people that LOVE each other, then as we are unwilling to define LOVE, I’m willing to accept that the incestuous parent really does LOVE their child, and if they so wish to marry, they should be allowed to on the same grounds that gays can marry.
Further, if it’s all about LOVE, then we should also let multiple partner marriages exist. Even if Incestuous marriage was SOMEHOW LOGICALLY ruled out, how do you rule out polygamy but let same-sex marriage?
Upstater85 on May 27, 2009 at 10:59 AM
“Allowing states back into the Union”? You’re kidding, right? The war was fought because they wanted to leave the Union, which was their right. I don’t think they were asking to be allowed back in. They were forced back in.
progressoverpeace on May 27, 2009 at 10:59 AM
Let’s keep this one around…
Upstater85 on May 27, 2009 at 10:59 AM
Agreed.
Esthier on May 27, 2009 at 10:59 AM
amerpundit on May 27, 2009 at 11:02 AM
One of these days I’ll learn how to format a post.
amerpundit on May 27, 2009 at 11:02 AM
Ah… but Olsen tried to be careful, by then referring to it as THIS CATEGORY… This is actually where his argument goes south. He tries to make an equal protection argument by merely slightly lowering the bar, but not completely. If it’s an equal protection argument, shouldn’t it apply to ALL CATEGORIES?
Upstater85 on May 27, 2009 at 11:06 AM
PackerBronco
amerpundit
Upstater85
Proud Rino
progressoverpeace
among others…
This is a great thread. You guys are making for lots of interesting reading and the posts are quite thoughtful. Thank you.
myrenovations on May 27, 2009 at 11:08 AM
What are you smoking Ed? The ruling has already been written; they’re just waiting for the case to come up.
Change. Yes they are.
BobMbx on May 27, 2009 at 11:09 AM
Repaying for your great posts in the past ;)
Upstater85 on May 27, 2009 at 11:10 AM
By the time Loving v Virginia arrived at the Supreme Court, only 16 states still carried interracial marriage bans. The Supreme Court was not protecting a minority from discrimination with Loving v Virginia, but was interperting the law based on the will of the majority.
BohicaTwentyTwo on May 27, 2009 at 11:13 AM
Article 4 of the US Constitution states:
Article Four of the Federal Constitution states:
So if gay marriage is legal in one state, it’s to be legal in all…that gay couple who married in Conn. or Mass. must be able to carry that to another state if they should move.
In effect, the DOMA itself is unconstitutional.
The 10th ammendment:
Marriage is a civil matter left to the states. Congress had no real authority to pass the DOMA in the first place.
JetBoy on May 27, 2009 at 11:14 AM
We can go down the list of reasons it is inappropriate to compare homosexual marriage to interracial marriage, but the real problem with the ban on interracial marriage was that it went far beyond issues of legal recognition, to infringe on the rights of mixed race couples to associate: the law was a restriction on individuals, something entirely absent with the current issue of homosexual marriage.
The CA law places restrictions on the State, not on individuals.
Count to 10 on May 27, 2009 at 11:14 AM
So their whole premise is that Proposition 8 denies federal constitutional rights under the equal protection and due process clauses of the constitution. Well in that case since they are putting a persons sexual preference against our constitution, they should also put in other sexual preferences such as toe licking and leather wearing for constitutional protection as well.
SGinNC on May 27, 2009 at 11:15 AM
This is really what the debate is about. On some level you either think homosexuality is a choice or it is not. If it’s not a choice, it should be protected. If it is a choice, then (maybe) it shouldn’t. I do think sexual orientation is an immutable characteristic, although it’s not as easily visible as race or gender (unless you have Gaydar?)
Proud Rino on May 27, 2009 at 11:16 AM
And in your own words…
Upstater85 on May 27, 2009 at 11:16 AM
If a gay couple were wed in a state that has legalized gay marriage, any other state must recognize that marriage. That’s what I’m saying…and that’s what the Constitution says.
JetBoy on May 27, 2009 at 11:18 AM
He didn’t phrase that well. If gay marriage is legal in one state, that same gay marriage is to be recognized (and afforded all the same rights as it would in its original state) as in all the other states.
That doesn’t mean the other states have to perform gay marriages.
Proud Rino on May 27, 2009 at 11:18 AM
Not only that, but if they (they being those using Olson’s argument) are going to make these unfounded arguments the way they are… the leather wearer should be able to wear his attire in public and the toe licker should be able to lick toes in public, because non-deviants are allowed to do their thing in public.
Upstater85 on May 27, 2009 at 11:19 AM
Ah… but you said it’s a state’s issue… Which is it?
Upstater85 on May 27, 2009 at 11:19 AM
A little fuzzy, there.
If one is born with the desire to masturbate in the presence of, and using the bodies of, members of one’s own sex, what exactly do you want protected? The ability to take advantage of privileges given to male-female pairs (in the hopes of streamlining and encouraging child rearing)?
Count to 10 on May 27, 2009 at 11:21 AM
Incestuous couples can challenge the state restriction in court and the state would have to show a compelling interest in denying the license–arguably they could for many reasons.
A while back Wisconsin denied marriage licenses to dead beat dads (a good idea in my book since failing to provide for one family should limit one’s ability to start another one). However, they were sued and SCOTUS ruled against the state. The idea was that the state had other means (wage garnishment etc.) to address its compelling interest in getting dads to pay for their kids.
A polygamist can currently sue a state for denying a marriage license. If they aren’t gay I’m not sure how strong a precedent a gender change would set for them. One big difference is that polygamy would effectively change the marriage contracts of everyone who is currently married. It would seem that marriage laws would have to be adjusted so people could ensure exclusivity if they wanted.
dedalus on May 27, 2009 at 11:22 AM
OK, so the modified argument is that gay marriage should be recognized at the federal level (all 50 states included), but that it can’t always be performed on this level? Hmmmm… What was one of the conditions of Utah entering the Union?
Upstater85 on May 27, 2009 at 11:22 AM
The federal govt. has no business in marriage…gay or straight. Period.
Now, back to the states, no state has the right to nullify a marriage, gay or straight, re a couple from another state. This brings us to “popular vote” like Prop 8…barring gay marriages in certain states…which goes against not a specific congressional mandate, but against the 4th, 10th, and 14th ammendments to the US Constitution.
JetBoy on May 27, 2009 at 11:25 AM
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