Politics: Onward from New Hampshire

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
I'll see your Supremacy clause and raise you a 14th amendment. Under your approach, Art. IV, Sec. 2 obviates the 14th amendment, sec 1, p&i clause. And I'll also toss in a 15th and 19th amendment. I hope you'll see my raise with the incorporation doctrine, because that seems more likely to get you where you're going, even though either phrasing seems to result the same--the laws of the united states are still supreme, no?

No, Art. IV, Sec. 2 doesn't obviate the 14th Amendment, because until the 14th amendment "citizen of each state" wasn't yet constitutionally defined to include all native born. I know I'm missing your point.

The Supremacy Clause only works on matters expressly in the Constitution or on which Congress is authorized to legislate. The need for this Amendment is a concession that there is no constitutional basis for Congress to act here --- yet. But when the "In the United States"* language is enshrined in the Constitution itself, it's the law of the land, and an independent form of legislation. I just don't see the argument that the first sentence of the Amendment could be read to affect only federal law.

*As opposed to "of the United States" or "by the United States," which is the phrasing in the other amendments you cite.

[Tyrone Slothrop]

Originally posted by Mmmm, Burger (C.J.)
Sure, but despite atticus's strict constructionism, interpreting the constitution has not been uniformly conducted in Scalia's Chevron-type Stage I, Stage II analysis. If a party marshalls uniform evidence of what an amendment was purportedly designed to accomplish, and it's spelled out in tabular form at the Alliance for Marriage's website, and, if Allard is an indicium of what R's mean, there are enough wacko judges on the 9th circuit to limit the interpretation to allow for the enforcement of legislatively initiated and passed laws providing for civil unions.

There are wacko judges on other circuits. Including the Eleventh Circuit, thanks to W.

If that was Allard's intent, it could have been translated into language more effectively.

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch

I'm sure the state legislatures will all be grateful to be put through their paces on ratifying a FUCKING AMENDMENT TO THE UNITED STATES CONSTITUTION to be saved the trouble of limiting a state law that might be construed by a court as requiring civil unions, or the trouble of later overturning such a statute if it is every successfully so used by an "activist judge."

Can't the same be said for state constitutions, recognizing that it can be harder to amend some state constitutions than state laws? We're already in bizarro-federalism-supremacy world here. Why not make sure those walls are high and tight?

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
Can't the same be said for state constitutions, recognizing that it can be harder to amend some state constitutions than state laws? We're already in bizarro-federalism-supremacy world here. Why not make sure those walls are high and tight?

Because individual rights, when we take the trouble to enshrine them in constitutions, are supposed to perserve an untouchable space for the minority. Enshrining a purely majoritarian principle in a constitution is redundant.

I recognize this is irrelevant to the decisionmaking that is actually happening here.

[Not Me]

Martha's defense team rested her case after only one hour. She didn't testify.

She is guilty. Spare me the 5th amendment crap. The only reason an accused doesn't testify in their own defense is if they did it.

[Secret_Agent_Man]

Originally posted by sgtclub
Because the first sentence just defines "marriage." The second sentence (1) opens the door for the states to pass civil union type legislation or constitutional amendments, so long as they are not called "marriage" and (2) says (or is intended to say) that unless their is specific legislation or amendment, a court cannot be required to say that general marriage statutes apply to couples that are not comprised of 1 man/1 woman.

Club, You continue to ignore the plain meaning of the legal term of art "incidents" in the phrase "incidents of marriage". Look it up.

You also seem to ignore that the Amendment would apply prospectively as well as retrospectively -- and thus render "unconstitutional" any future federal or state laws permitting civil unions, much less gay marriages.

"Acourt cannot be required to say that . . "" WTF?? Who _requires_ a court to say anything.

You are also engaged in monumental wishful thinking about the intentions of the hard-core social conservatives among the House Republicans who rushed to introduce this bill.

S_A_M

[Mmmm, Burger (C.J.)]

Originally posted by Secret_Agent_Man


You are also engaged in monumental wishful thinking about the intentions of the hard-core social conservatives among the House Republicans who rushed to introduce this bill.

S_A_M

STP, SAM, STP.

But I wouldn't call it a rush. The amendment's text has been kicking around for a while.

Rather than debate the semantics, let me pose this challenge:

Redraft the amendment so that it accomplishes what it purportedly intended to do (by public statements). To wit: 1) Ban marriage other than between a man and a woman; 2) prohibit any state or federal court from requiring a state to offer a marriage equivalent to gay couples; 3) allow state legislatures to enact civil union laws providing the same (or similar) "incidents" of marriage to gay couples, so long as their doing so is not under compulsion of a court ruling.

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone_Slothrop

If that was Allard's intent, it could have been translated into language more effectively.

See challenge above.

[Secret_Agent_Man]

Originally posted by Atticus Grinch
Do y'all not practice in courts in which the rule is that you consult the legislative history only when the language of the statute is unclear and cannot be resolved on the grammar, with a judicially noticeable dictionary? Recognize that, mere days ago, several smart people were arguing that strict constructionism is a superior method of constitutional interpretation.

Allard's idea of what this amendment does isn't worth a bucket of warm spit. Plus, I think it's a lie. I cannot wrap my brain around why "state law" would have been included if his intent was other than what he now says.

Exactly, plus Mr. Allard's supposed meaning would render the term "incidents of marriage" as bereft of any meaning and entirely superfluous. Everyone knows you don't interpret statutes or constitutions that way.

Thus, unless the "freindly amendment" pulls those words -- this Amendment prohibits civil unions no matter what Allard thinks.

S_A_M

[ltl/fb]

Originally posted by Mmmm, Burger (C.J.)
STP, SAM, STP.

But I wouldn't call it a rush. The amendment's text has been kicking around for a while.

Rather than debate the semantics, let me pose this challenge:

Redraft the amendment so that it accomplishes what it purportedly intended to do (by public statements). To wit: 1) Ban marriage other than between a man and a woman; 2) prohibit any state or federal court from requiring a state to offer a marriage equivalent to gay couples; 3) allow state legislatures to enact civil union laws providing the same (or similar) "incidents" of marriage to gay couples, so long as their doing so is not under compulsion of a court ruling.

To avoid conflict between 2) and 3), you need to have 2) include "absent state law specifically addressing the incidents of marriage being conferred on unmarried persons." That can be phrased way better. I need a snack.

I wonder what the hardcore social conservatives would say if Bush said, "I support the rights of any state to pass laws allowing same-sex unions"? The ambiguous language lets them think "never, nowhere" and lets you and club think "maybe in CA or someplace, if legislation passes."

Edited to add, what SAM said about incidents, unless the VT courts said that because of language in the VT constitution, same-sex couples got all the incidents of marriage but couldn't actually be joined in a marriage.

Also edited to ask what's STP? Motor oil? Stone Temple Pilots?

[Mmmm, Burger (C.J.)]

Originally posted by ltl/fb


Edited to add, what SAM said about incidents, unless the VT courts said that because of language in the VT constitution, same-sex couples got all the incidents of marriage but couldn't actually be joined in a marriage.

Also edited to ask what's STP? Motor oil? Stone Temple Pilots?

scroll then post.

VT said our equal protection requires state to offer gay marriage or an equivalent form extending benefits/rights/obligations of marraige to gay couples. Legislature opted for civil unions. If "incidents of marriage" were not included, then this amendment would not prevent another state court from doing teh same thing, and preventing state courts, as opposed to legislatures, to allowing civil unions, is one of the stated goals.

[sgtclub]

Originally posted by Secret_Agent_Man
Club, You continue to ignore the plain meaning of the legal term of art "incidents" in the phrase "incidents of marriage". Look it up.

You also seem to ignore that the Amendment would apply prospectively as well as retrospectively -- and thus render "unconstitutional" any future federal or state laws permitting civil unions, much less gay marriages.

"Acourt cannot be required to say that . . "" WTF?? Who _requires_ a court to say anything.

You are also engaged in monumental wishful thinking about the intentions of the hard-core social conservatives among the House Republicans who rushed to introduce this bill.

S_A_M

I've already agreed that the drafting is technically deficient - what more do you want me to say. I am in favor of gay marriage (yes, not just civil unions), opposed to the amendment on principal, and equally opposed to court mandated extensions of marriage rights. But from what I've read, the intent is not to prohibit civil unions with express consent of the legislature or amendment to state constitution.

[ltl/fb]

Originally posted by Mmmm, Burger (C.J.)
scroll then post.

VT said our equal protection requires state to offer gay marriage or an equivalent form extending benefits/rights/obligations of marraige to gay couples. Legislature opted for civil unions. If "incidents of marriage" were not included, then this amendment would not prevent another state court from doing teh same thing, and preventing state courts, as opposed to legislatures, to allowing civil unions, is one of the stated goals.

There is nothing between my post and the post I was responding to that would have provided enlightenment. But that's a technicality. I didn't scroll back up to check because I'm lazy.

What's STP? Sickly terrifying putrefecation?

[Not Me]

Originally posted by sgtclub
I am in favor of gay marriage

And you are also in favor of polygamous marriages, true?

[Secret_Agent_Man]

Originally posted by Mmmm, Burger (C.J.)
STP, SAM, STP.

But I wouldn't call it a rush. The amendment's text has been kicking around for a while.

Rather than debate the semantics, let me pose this challenge:

Redraft the amendment so that it accomplishes what it purportedly intended to do (by public statements). To wit: 1) Ban marriage other than between a man and a woman; 2) prohibit any state or federal court from requiring a state to offer a marriage equivalent to gay couples; 3) allow state legislatures to enact civil union laws providing the same (or similar) "incidents" of marriage to gay couples, so long as their doing so is not under compulsion of a court ruling.

(a) You know I don't do that. I have no objection to repeating precisely what someone else has already said. It is worth hearing because it comes from me -- raises the credibility.

(b) That would be a whole different ball of wax, and it will not happen.

S_A_M