Gay marriage and the law

I don't see how the first half of your message has anything to do with my position.

What do you mean by "redlining"?

Even the title of the act, the Defense of Marriage Act suggests that it was responsive.

I don't have a problem with gay people having equal access to federal and state benefits. I do have a problem with changing the understood definition of marriage without considering the ramifications that it will have on thousands of laws.

They wouldn't be being discriminated against, because they could still do whatever they were doing, the state just wouldn't recognize it as sex. Since they could still have sex, according to the legal definition, that definition would not discrimiate against gay people.

The majority opinion formulated the issue as involving “whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.”This framing of the issue involved applying the Court’s substantive due process doctrine, under which the Court has protected a range of private activities. It also required the Court to reconsider its own decision upholding state sodomy laws in Bowers v. Hardwick, decided in 1986 by a 5-4 majority.After reviewing its right-to-privacy precedents, the Court turned its attention directly to Hardwick.The majority first chided the Hardwick court for characterizing the issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy...” This characterization of the issue, said the Court, “demeans the claim the individual put forward, just as it would demean a married couple were it said marriage is simply about the right to have sexual intercourse.”In both Hardwick and this case, the Court emphasized, the laws at issue did more than simply prohibit a particular sexual act. “Their penalties and purposes,” said the Court, “touch upon the most private human conduct, sexual behavior, and in the most private of places, the home.”The Court questioned Hardwick’s historiography. In order to show that there is no tradition of protecting homosexual sodomy, and thus no justification for protecting it under the Due Process Clause, Hardwick had argued that “[p]roscriptions against such conduct have ancient roots.”

Work by historians since Hardwick has shown, however, that this view is simplistic and misleading.In fact, said the Court, “there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.” While sodomy laws in the states have prohibited a range of conduct, they have historically applied both to same-sex and opposite-sex conduct.Laws targeting gay couples did not appear until the last third of the 20th century.

In Lawrence v. Texas, the Supreme Court held state sodomy statutes unconstitutional under the Fourteenth Amendment’s Due Process Clause. Writing for a majority of five was Justice Anthony Kennedy. Justice O’Connor filed a concurring opinion holding sodomy laws targeted only at same-sex activity unconstitutional under the Fourteenth Amendment’s Equal Protection Clause .

They wouldn't be being discriminated against, because they could still do whatever they were doing, the state just wouldn't recognize it as sex. Since they could still have sex, according to the legal definition, that definition would not discrimiate (sic) against gay people.

This is the problem: When talking about the Constitution, you have to interpret it from a moral perspective. Like it or not, your argument will end in the moral arena -- I guarantee it, because you will have no other way to justify the act.

In Lawrence v. Texas, the Supreme Court held state sodomy statutes unconstitutional under the Fourteenth Amendment’s Due Process Clause. Writing for a majority of five was Justice Anthony Kennedy. Justice O’Connor filed a concurring opinion holding sodomy laws targeted only at same-sex activity unconstitutional under the Fourteenth Amendment’s Equal Protection Clause .

MBG Message 68 writes:Because DOMA has the effect of modifying the U.S. Constitution's Full Faith and Credit Clause, something that Congress does not have the power to do without following the proper procedures for constitutional amendment.Virtually all constitutional scholars agree that the U.S. Supreme Court -- especially the conservative justices who like to be consistent in constitutional interpretations -- would rule that full faith and credit takes precedent.

wiki writes:Beginning in 2003, members of Congress have annually introduced a "court-stripping" provision that would prevent all federal courts from hearing claims challenging the constitutionality of DOMA.

After all, Scalia has already said exactly that. He directly stated that Lawrence v. Texas means that gay people have the right to get married and it is clear he will never allow that. He will come up with some tortuous excuse for logic which is his wont and declare that gay people are to be strangers to the law.

I would predict that Scalia would use this to declare that same-sex marriages are "declared void by statute" and thus are exempt from the Full Faith and Credit clause. I would be slightly (but only slightly) surprised if he then declared the marriages performed in Massachusetts to be null and void, for DOMA does not declare same-sex marriage to be illegal...just that it isn't recognized for Federal purposes and that no other States have to recognize them. That is, Massachusetts can do whatever it wants, but it won't affect anything anywhere else.

Need I remind you that while it was only Democrats and a lone, gay Republican that voted against DOMA, it is also true that DOMA was overwhelmingly passed by Democrats?

What does that have to do with anything?

Therefore, in order to get anything done in the Senate, it is not enough that all the Democrats line up: Because of Republican obstructionism, it requires 60 votes to get anything done.

And since there are quite a few Democrats in the Senate that are Democrats in name only (for example, Lieberman), they don't even have the 50 votes they need to get anything passed.

So why didn't the Democrats do then what the Republicans are doing now? There was no reason for DOMA to make it past the Senate, even though they were in the minority.

They said that about gays in the military when Clinton was elected: A Democratic Congress and a Democrat in the White House. And what did we get?

Do you seriously think a super-majority of Senators are going to vote to repeal it?

Unless they can get 60 votes...er...make that 66 in order to ensure that the likes of Lieberman are countered, then it won't really matter.

A dozen years and no progress. In fact, the situation has become much worse.

They don't have that ability now.

wiki writes:Beginning in 2003, members of Congress have annually introduced a "court-stripping" provision that would prevent all federal courts from hearing claims challenging the constitutionality of DOMA. See, e.g., Marriage Protection Act of 2003, H.R. 3313 (108th Cong., 1st Sess.). This proposed court-stripping provision has itself been challenged as being of dubious constitutionality. See Jason J. Salvo, Comment, Naked Came I: Jurisdiction-Stripping and the Constitutionality of House Bill 3313, 29 Seattle U. L. Rev. 963 (Summer 2006); Maxim O. Mayer-Cesiano, On Jurisdiction-Stripping: The Proper Scope of Inferior Federal Courts' Independence from Congress, 8 U. Pa. J. Const. L. 559 (May 2006); J. Spencer Jenkins, Note, 'Til Congress Do Us Part: The Marriage Protection Act, Federal Court-Stripping, and Same-Sex Marriage, 40 New Eng. L. Rev. 619 (Winter 2006); Sarah Kroll-Rosenbaum, Note, The Marriage Protection Act: A Lesson in Congressional Over-Reaching, 50 N.Y. L. Sch. L. Rev. 809 (2005-2006); Michael J. Gerhardt, The Constitutional Limits to Court-Stripping, 9 Lewis & Clark L. Rev. 347 (Summer 2005); Theodore J. Weiman, Comment, Jurisdiction Stripping, Constitutional Supremacy, and the Implications of Ex Parte Young, 153 U. Pa. L. Rev. 1677 (2005).

Since Congress and the President will never overturn DOMA, the only hope is the Supreme Court and with its current make up, it will never happen there, either.

No, we don't.

The sole existence of all people is attendant upon the notion of procreation, which is the very basis for the institution of marriage itself. The very core of its existence in human civilization is to regulate the obligations and responsibilities attendant upon procreation. Playing a game of semantics assumes that the institution of marriage has no basis independent of your own arbitrary whim. -Alan Keyes

Proponents of same-sex marriage in Olympia, Wash., have introduced a ballot measure ... The measure would require couples to prove they can have children to get a marriage license. Couples who do not have children within three years could have their marriages annulled. All other marriages would be defined as 'unrecognized,' making those couples ineligible for marriage benefits.

The Massachusetts Supreme Judicial Court ... on a 4-3 vote, dismissed the procreation argument, pointing to opposite-sex couples in which the woman was over childbearing age or otherwise infertile. Could the state "rationally" tell them that they could not marry? It could not. Indeed, the court noted that, under state law, even those "who cannot stir from their death bed may marry," provided they were of the opposite sex. Moreover, infertility is not grounds for divorce, and so by inference it is not a bar to marriage, either. In addition, the court noted that Massachusetts law protects the parental rights of homosexuals and allows same-sex couples to adopt children. It was irrational for the state to enable "gay parenting" while also denying the children involved the benefits of "family stability and economic security" found in a marital home.

Such discrimination, he implies, could not survive a test by the "equal protection clause" of the Fourteenth Amendment.[3] Indeed, that usually faithful, conservative Supreme Court justice, Antonin Scalia, in his 2003 dissent in Lawrence v. Texas, noted:
If moral disapprobation of homosexual conduct is 'no state interest' for purposes of proscribing [private adult sex], what justification could there possibly be for denying the benefits of marriage to homosexual couples? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

Except there is no reason to call an identical contract with identical rights by a different name except for the purpose of discriminating against a minority, which would be Unconstitutional under the 14th Amendment.

We have explained in detail why the 14th Amendment means that gays need to be treated equally under the law.

You can't explain why heterosexual marriage is a right, in the first place.