Should the Federal Gov't Recognize Same-Sex Marriages?
19 Apr 2012, 12:37 pm
Traditionally, state laws defined who could and couldn't marry. The federal government was obliged to recognize the couple as married, as was, generally, each of the other states (plus the District of Columbia).
Previously, many states enforced rather draconian anti-miscegenation laws,
http://en.wikipedia.org/wiki/Anti-misce ... ted_States
In light of the Fourteenth Amendment, passed during the heady days of the early Reconstruction Era, there were numerous attempts over the course of about a century, by Conservative forces, to make anti-miscegenation the law of the entire country. The Fourteenth Amendment (with sections relevant to the present discussion) reads
Fourteenth Amendment wrote:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
In the landmark case of Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court effectively put an end to all anti-miscegenation laws in the United States, based upon the Equal Protection and Due Process clauses of the Fourteenth Amendment, which had been passed by radical liberals almost exactly one century earlier.
http://en.wikipedia.org/wiki/Loving_v._Virginia
According to the original trial judge in Virginia,
Leon M. Bazile wrote:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
This seems like quite an ignorant statement for a judge to make, particularly in light of our formal separation of Church and State.
The liberal activist judges on the Supreme Court determined that
Supreme Court wrote:
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....
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.
Regarding homosexuality, President Clinton signed in law the Defense of Marriage Act
http://en.wikipedia.org/wiki/Defense_of_Marriage_Act
Quote:
The Defense of Marriage Act (DOMA) (Pub.L. 104-199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C) is a United States federal law that defines marriage as the legal union of one man and one woman. The law passed both houses of Congress by large majorities and was signed into law by President Bill Clinton on September 21, 1996.
Under the law, no state or other political subdivision of the U.S. may be required to recognize as a marriage a same-sex relationship considered a marriage in another state. Section 3 of DOMA codifies the non-recognition of same-sex marriage for all federal purposes, including insurance benefits for government employees, Social Security survivors' benefits, and the filing of joint tax returns. This section has been found unconstitutional in two Massachusetts court cases and a California bankruptcy court case, all of which are under appeal. The Obama administration announced in 2011 that it had determined that Section 3 was unconstitutional and, though it would continue to enforce the law, it would no longer defend it in court. In response, the House of Representatives undertook the defense of the law on behalf of the federal government in place of the Department of Justice (DOJ).
Under the law, no state or other political subdivision of the U.S. may be required to recognize as a marriage a same-sex relationship considered a marriage in another state. Section 3 of DOMA codifies the non-recognition of same-sex marriage for all federal purposes, including insurance benefits for government employees, Social Security survivors' benefits, and the filing of joint tax returns. This section has been found unconstitutional in two Massachusetts court cases and a California bankruptcy court case, all of which are under appeal. The Obama administration announced in 2011 that it had determined that Section 3 was unconstitutional and, though it would continue to enforce the law, it would no longer defend it in court. In response, the House of Representatives undertook the defense of the law on behalf of the federal government in place of the Department of Justice (DOJ).
For many people, spouse insurance benefits, social security spouse and survivors' benefits, etc., are a big deal, from which married homosexuals are excluded
[youtube]http://www.youtube.com/watch?v=GRN9Y5Nvdqk[/youtube]
For people who are as rich as Mitt Romney, government benefit programs (social security, medicare, etc.) are of no consequence. For the rich, the issue is being able to leave property to a surviving spouse without having to pay an estate tax.
In reaction to the U.S. Supreme Court's decision that struck down sodomy laws in the U.S., President Bush proposed a 28th amendment to the U.S. Constitution called the Federal Marriage Amendment, which states:
Federal Marriage Amendment wrote:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
Passage of The Federal Marriage Act would create a federal definition of marriage as "the union of a man and a woman." and remove the power of individual states to define marriage. The amendment would also limit judiciary power by overriding anti-discrimination guarantees. Language within the act can be used to overturn local domestic partnership benefits and other rights given to unmarried couples by individual states.
I suspect that poll respondents will be responding based upon their visceral attitudes towards homosexuality. I would rather the ensuing discussion be more intellectual in nature.
I would like to see a discussion as to whether the Fourteenth Amendment, applied to end anti-miscegenation laws, would, should, or could be applied to homosexual marriage.
Also, given that marriage is "one of the basic civil rights of man", should homosexuals not be accorded this right?
19 Apr 2012, 1:56 pm
No, I do not agree. I do not agree that any two people in a relationship should automatically qualify for tax-relief. This is not an example of 'equality for all', it is 'equality for us'.
_________________
'You seem very clever at explaining words, Sir,' said Alice. 'Would you kindly tell me the meaning of the poem called "Jabberwocky"?'
19 Apr 2012, 2:34 pm
I think that the federal government should recognize same-sex marriages (not just civil unions) a best as they can without violating the rights of the individual states. If two people love each other then they should be able to get married regardless of their sexes or genders. That is all there is to it.
19 Apr 2012, 3:23 pm
The tax issues and social security issues have the greatest practical impact.
Granted, our Conservatives would rather get rid of Social Security ("If you aren't rich enough to support yourself in old age, then you shouldn't get old"), but would feel sorry for the rich homosexual whose inheritance went to estate taxes (Conservatives would abolish estate taxes, anyway).
This is something that will probably end up having to be decided at the national level, as the anti-miscegenation laws were.
If the Fourteenth Amendment killed the anti-miscegenation laws, then what is to prevent the Fourteenth Amendment from killing anti-homosexual-marriage laws?
Hence, President Bush seeking to supercede the 14th Amendment with his Federal Marriage Amendment.
19 Apr 2012, 3:57 pm
Ending federal recognition of all marriages would be a solution to the problem. No more joint tax returns. No more spouse benefits in Social Security.
However, I will point out that baptism is a strictly religious undertaking, performed solely by Christian and Mandaean clergy. You can't go to a court house and ask a judge to baptize you. Nor is a baptism license required prior to being baptized.
19 Apr 2012, 4:01 pm
YippySkippy wrote:
Atheists can get baptized too, if they like. Baptism is still a religious institution.
Marriage and baptism are two different things. Marriage happens and has happened all over the world for ages, including non Abrahamic parts.
_________________
...and his prowess on the battlefield is surpassed only by his skill in the bed chamber.
19 Apr 2012, 4:34 pm
As far as I am concerned, the fight is over--the loser just hasn't stopped breathing, yet.
But I think your analysis is targetting the wrong part of the Constitution. You have omitted "full faith and credit," and it is there, I suggest, that the die will be cast. Litigants in same sex marriages are already suing for federal recognition of their state celebrated marriages--in precisely the same way that the federal government is compelled to recognize any other marriages validly celebrated between two people.
What the Fourteenth Amendment will do is invalidate statutes, like DOMA, that purport to insulate government from its full faith and credit responsibilities. It's a subtle difference, perhaps, but an important one.
_________________
--James
19 Apr 2012, 6:55 pm
visagrunt wrote:
As far as I am concerned, the fight is over--the loser just hasn't stopped breathing, yet.
But I think your analysis is targetting the wrong part of the Constitution. You have omitted "full faith and credit," and it is there, I suggest, that the die will be cast. Litigants in same sex marriages are already suing for federal recognition of their state celebrated marriages--in precisely the same way that the federal government is compelled to recognize any other marriages validly celebrated between two people.
What the Fourteenth Amendment will do is invalidate statutes, like DOMA, that purport to insulate government from its full faith and credit responsibilities. It's a subtle difference, perhaps, but an important one.
But I think your analysis is targetting the wrong part of the Constitution. You have omitted "full faith and credit," and it is there, I suggest, that the die will be cast. Litigants in same sex marriages are already suing for federal recognition of their state celebrated marriages--in precisely the same way that the federal government is compelled to recognize any other marriages validly celebrated between two people.
What the Fourteenth Amendment will do is invalidate statutes, like DOMA, that purport to insulate government from its full faith and credit responsibilities. It's a subtle difference, perhaps, but an important one.
Where is the "full faith and credit" part?
Jacoby
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19 Apr 2012, 7:01 pm
The government, state or federal shouldn't recognize any marriage. Marriage licenses were only invented to stop interracial marriages. People that are 'married' shouldn't receive special rights that single people don't either. Why should two friends that live together but aren't in a relationship receive different tax benefits than someone that are married?
19 Apr 2012, 8:07 pm
Jacoby wrote:
Marriage licenses were only invented to stop interracial marriages.
Not entirely true, although they were used for that purpose.
http://en.wikipedia.org/wiki/Marriage_license
Here is an interesting article
http://www.nytimes.com/2007/11/26/opini ... wanted=all
Quote:
WHY do people — gay or straight — need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.
For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.
In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.
Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.
The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.
By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.
In the mid-20th century, governments began to get out of the business of deciding which couples were “fit” to marry. Courts invalidated laws against interracial marriage, struck down other barriers and even extended marriage rights to prisoners.
But governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents. The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.
In the 1950s, using the marriage license as a shorthand way to distribute benefits and legal privileges made some sense because almost all adults were married. Cohabitation and single parenthood by choice were very rare.
Today, however, possession of a marriage license tells us little about people’s interpersonal responsibilities. Half of all Americans aged 25 to 29 are unmarried, and many of them already have incurred obligations as partners, parents or both. Almost 40 percent of America’s children are born to unmarried parents. Meanwhile, many legally married people are in remarriages where their obligations are spread among several households.
Using the existence of a marriage license to determine when the state should protect interpersonal relationships is increasingly impractical. Society has already recognized this when it comes to children, who can no longer be denied inheritance rights, parental support or legal standing because their parents are not married.
As Nancy Polikoff, an American University law professor, argues, the marriage license no longer draws reasonable dividing lines regarding which adult obligations and rights merit state protection. A woman married to a man for just nine months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments.
Possession of a marriage license is no longer the chief determinant of which obligations a couple must keep, either to their children or to each other. But it still determines which obligations a couple can keep — who gets hospital visitation rights, family leave, health care and survivor’s benefits. This may serve the purpose of some moralists. But it doesn’t serve the public interest of helping individuals meet their care-giving commitments.
Perhaps it’s time to revert to a much older marital tradition. Let churches decide which marriages they deem “licit.” But let couples — gay or straight — decide if they want the legal protections and obligations of a committed relationship.
For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.
In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.
Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.
The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.
By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.
In the mid-20th century, governments began to get out of the business of deciding which couples were “fit” to marry. Courts invalidated laws against interracial marriage, struck down other barriers and even extended marriage rights to prisoners.
But governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents. The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.
In the 1950s, using the marriage license as a shorthand way to distribute benefits and legal privileges made some sense because almost all adults were married. Cohabitation and single parenthood by choice were very rare.
Today, however, possession of a marriage license tells us little about people’s interpersonal responsibilities. Half of all Americans aged 25 to 29 are unmarried, and many of them already have incurred obligations as partners, parents or both. Almost 40 percent of America’s children are born to unmarried parents. Meanwhile, many legally married people are in remarriages where their obligations are spread among several households.
Using the existence of a marriage license to determine when the state should protect interpersonal relationships is increasingly impractical. Society has already recognized this when it comes to children, who can no longer be denied inheritance rights, parental support or legal standing because their parents are not married.
As Nancy Polikoff, an American University law professor, argues, the marriage license no longer draws reasonable dividing lines regarding which adult obligations and rights merit state protection. A woman married to a man for just nine months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments.
Possession of a marriage license is no longer the chief determinant of which obligations a couple must keep, either to their children or to each other. But it still determines which obligations a couple can keep — who gets hospital visitation rights, family leave, health care and survivor’s benefits. This may serve the purpose of some moralists. But it doesn’t serve the public interest of helping individuals meet their care-giving commitments.
Perhaps it’s time to revert to a much older marital tradition. Let churches decide which marriages they deem “licit.” But let couples — gay or straight — decide if they want the legal protections and obligations of a committed relationship.
Present rules were established when most adults were married, compared to now, when marriage rates are in steep decline.
19 Apr 2012, 8:21 pm
visagrunt wrote:
As far as I am concerned, the fight is over--the loser just hasn't stopped breathing, yet.
But I think your analysis is targetting the wrong part of the Constitution. You have omitted "full faith and credit," and it is there, I suggest, that the die will be cast. Litigants in same sex marriages are already suing for federal recognition of their state celebrated marriages--in precisely the same way that the federal government is compelled to recognize any other marriages validly celebrated between two people.
What the Fourteenth Amendment will do is invalidate statutes, like DOMA, that purport to insulate government from its full faith and credit responsibilities. It's a subtle difference, perhaps, but an important one.
But I think your analysis is targetting the wrong part of the Constitution. You have omitted "full faith and credit," and it is there, I suggest, that the die will be cast. Litigants in same sex marriages are already suing for federal recognition of their state celebrated marriages--in precisely the same way that the federal government is compelled to recognize any other marriages validly celebrated between two people.
What the Fourteenth Amendment will do is invalidate statutes, like DOMA, that purport to insulate government from its full faith and credit responsibilities. It's a subtle difference, perhaps, but an important one.
Okay, I've looked it up.
United States Constitution, Article IV Section 1. wrote:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
However, until the Supreme Court struck down all laws banning interracial marriage in 1967, a number of states banned interracial marriage and did not accept interracial marriage licenses issued in other states. The full faith and credit clause was never used to force a state to recognize a marriage it did not wish to recognize.
http://www.nytimes.com/2004/03/17/us/ba ... gewanted=1
Quote:
Without a constitutional amendment banning gay marriages, President Bush warned on Feb. 24, there is a grave risk that ''every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage.''
The president invoked the Constitution's ''full faith and credit'' clause, which requires states to honor court judgments from other states, as the basis for his alarm.
But legal scholars say that an examination of the last wrenching national debate over the definition of marriage -- when, only 50 years ago, a majority of states banned interracial marriages -- demonstrates that the president misunderstood the legal terrain.
''No state has ever been required by the full faith and credit clause to recognize any marriage they didn't want to,'' said Andrew Koppelman, a law professor at Northwestern University and the author of ''The Gay Rights Question in Contemporary American Law.''
Indeed, until the Supreme Court struck down all laws banning interracial marriage in 1967, the nation lived with a patchwork of laws on the question. Those states that found interracial marriages offensive to their public policies were not required to recognize such marriages performed elsewhere, though sometimes they did, but as a matter of choice rather than constitutional compulsion. That experience is instructive, legal scholars say, about what is likely to happen when Massachusetts starts performing gay marriages in May.
The president invoked the Constitution's ''full faith and credit'' clause, which requires states to honor court judgments from other states, as the basis for his alarm.
But legal scholars say that an examination of the last wrenching national debate over the definition of marriage -- when, only 50 years ago, a majority of states banned interracial marriages -- demonstrates that the president misunderstood the legal terrain.
''No state has ever been required by the full faith and credit clause to recognize any marriage they didn't want to,'' said Andrew Koppelman, a law professor at Northwestern University and the author of ''The Gay Rights Question in Contemporary American Law.''
Indeed, until the Supreme Court struck down all laws banning interracial marriage in 1967, the nation lived with a patchwork of laws on the question. Those states that found interracial marriages offensive to their public policies were not required to recognize such marriages performed elsewhere, though sometimes they did, but as a matter of choice rather than constitutional compulsion. That experience is instructive, legal scholars say, about what is likely to happen when Massachusetts starts performing gay marriages in May.
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