Politics: Onward from New Hampshire

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch
It's a funny thing. I understand each of the individual words, even the hard ones. I think I understand each sentence taken individually. It's when we get to the paragraph level that I'm missing your point.

I think you can sort it out at the Yahoo Serious Festival.

[Atticus Grinch]

Originally posted by Tyrone_Slothrop
Read it, and cogitate about the reference to the "incidents" of marriage in the second sentence. And if you think that sentence is unclear, ask yourself why someone drafting an amendment to the Constitution would purposefully make it ambiguous.

I'm a little rusty on my Roberts', but the question will be probably be answered when someone proposes a "friendly" amendment to clarify the ambiguity.

Unless they want civil unions to be a poison pill, which is a dangerous strategem considering how the gender discrimination language wound up in Title VII as enacted.

[sgtclub]

Originally posted by Tyrone_Slothrop
Read it, and cogitate about the reference to the "incidents" of marriage in the second sentence. And if you think that sentence is unclear, ask yourself why someone drafting an amendment to the Constitution would purposefully make it ambiguous.

"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."

I read this as permissive not prohibitive.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
"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."

I assume Atticus's point is that any court decision by a state requiring civil unions in lieu of marriage (e.g., Vermont) would be barred by this amendment, as it would be a decision construing a state constition or law to require the "legal incidents" of marriage to be conferred on gays (who can't, through its definition, be married).

It's not just court decisions. The bill doesn't say "judicially construed." The inclusion of state law can only possibly mean that no state law can be enacted that confers the legal incidents of marriage on same-sex couples --- i.e., states are powerless to create civil unions that confer legal incidents of marriage. Anyone who calls this "ambiguous" is being charitable toward the GOP's intentions.

[Mmmm, Burger (C.J.)]

Originally posted by sgtclub

I read this as permissive not prohibitive.

It's permissive as to legislatures, but prohibitive as to courts,

[Atticus Grinch]

Originally posted by sgtclub
"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."

I read this as permissive not prohibitive.

C'mon, you went to law school. Think. Why include state law if what you say is true?

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch
It's not just court decisions. The bill doesn't say "judicially construed." The inclusion of state law can only possibly mean that no state law can be enacted that confers the legal incidents of marriage on same-sex couples --- i.e., states are powerless to create civil unions that confer legal incidents of marriage. Anyone who calls this "ambiguous" is being charitable toward the GOP's intentions.

I don't see how that reading doesn't still allow a state legislature to decide that it believes that the "right" thing to do is to provide a marriage-equivalent for gays called civil unions. Not because the state constitution or state law requires it, but because it's desirable policy.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
It's permissive as to legislatures, but prohibitive as to courts,

Aaargh! Maybe we're saying the same thing, but how can a state court, after ratification of this amendment, construe a state statute as creating a civil union? Statutes require things to occur, or compel executive officers to do things. A court construing this amendment in conjunction with a civil union law would strike the civil union law down.

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch
C'mon, you went to law school. Think. Why include state law if what you say is true?

Because right now it's only state courts that have held that state constitutions require a marriage equivalent? It's preemptive of further Mass SJC and Vermont SC decisions.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
I don't see how that reading doesn't still allow a state legislature to decide that it believes that the "right" thing to do is to provide a marriage-equivalent for gays called civil unions. Not because the state constitution or state law requires it, but because it's desirable policy.

Then the phrase "state law" wouldn't be in the list, would it? State law means legislative enactments here, not constitution.

[sgtclub]

Originally posted by Atticus Grinch
C'mon, you went to law school. Think. Why include state law if what you say is true?

It says that fed and state courts/law shall not be construed as requiring same rights to gays. It does not say that they are prohibited from doing so. I read this to require the states to take specific action via the legislature (i.e., the people) in order to recognize civil unions, meaning that general provisions regarding marriage/incidents thereof cannot be applied absent specific authority.

[sgtclub]

Originally posted by Mmmm, Burger (C.J.)
Because right now it's only state courts that have held that state constitutions require a marriage equivalent? It's preemptive of further Mass SJC and Vermont SC decisions.

exactly.

[Atticus Grinch]

Originally posted by sgtclub
It says that fed and state courts/law shall not be construed as requiring same rights to gays. It does not say that they are prohibited from doing so. I read this to require the states to take specific action via the legislature (i.e., the people) in order to recognize civil unions, meaning that general provisions regarding marriage/incidents thereof cannot be applied absent specific authority.

Statutes that prescribe official action (here, we call it the "Government Code") compel officials to do things. Like issue licenses. Statutes require things.

If a local clerk refuses to issue a marriage license, the question is whether a WRIT OF MANDATE can be brought to compel him/her to perform a mandatory duty under the statute. What is the result if the amendment is enacted, Poindexter?

If what you and Burger were saying was true, they would have stopped at "state constitutiton," wouldn't they?

[ltl/fb]

Originally posted by Atticus Grinch
Aaargh! Maybe we're saying the same thing, but how can a state court, after ratification of this amendment, construe a state statute as creating a civil union? Statutes require things to occur, or compel executive officers to do things. A court construing this amendment in conjunction with a civil union law would strike the civil union law down.

Here's a hypo:

Texas (this is a hypo!) passes a law that says in the state of Texas, two men may join in a union and that for all purposes under state law (e.g., inheritance, insurance stuff, state income tax (if there were any), making medical decisions) they would have the same rights as as spouses.

OK, I hear that some people (club?) are interpreting the amendment to allow this type of law. Others are reading this as prohibited. Is that correct?

If club is correct and this type of state law is permitted, what does a judge do if someone challenges the law? Under the amendment as written, can this state law be construed as requiring that same-sex couples get to enjoy the incidents of marriage?

[Not Me]

http://content.nejm.org/cgi/reprint/NEJMp048039v1.pdf

Enjoy the read.