Politics: Onward from New Hampshire

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch


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

alright, I'm seeing your point now. And for club's benefit, let me try to articulate it in a way I understand it.

Any civil union law, even one passed voluntarily by a legislature, would necessarily refer to incidents of marriage. Any judicial officer called to "construe" that statute at any point would be obligated to follow this constitional amendment and refuse to allow its enforcement.

Okay, I'll be charitable. I don't take the amendment to include that. State law is included because, I'm somewhat confident, not all states enact basic rights through constitutions, or may provide some rights through statute, and this is designed to cover it.

Even Robert Bork, no friend of legislative intent, explained that

"the text clearly restricted only courts, not legislatures. What is more, Mr. Bork said, the public debate over the amendment would determine how any court interpreted it. If voters approving the amendment believed it meant one thing, courts would be hard pressed to say it meant another."

(link)

So, no need for a "friendly" amendment; just clarification on the floor.

But this reading, and any reasonable reading, continues to amaze me at the degree to which this entirely alters the legal landscape. Even Bork would be blocking majoritarian decisionmaking. Egad!

[Tyrone Slothrop]

Originally posted by Not Me
http://content.nejm.org/cgi/reprint/NEJMp048039v1.pdf

Enjoy the read.

This transparent ploy to curry favor with Flinty would be more successful if he ever came over to this board.

[sgtclub]

Originally posted by ltl/fb
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?

I think you have correctly pointed out a deficiency in the drafting, but not in the intent.

[ltl/fb]

Originally posted by sgtclub
I think you have correctly pointed out a deficiency in the drafting, but not in the intent.

I don't think they are stupid enough to draft it deficiently, and I think that they are against any state recognizing same-sex unions. Therefore, I disagree, but we won't know unless they clarify it to say what you say they intended, and we may never know if they don't change it.

If they don't change it and it's eventually interpreted to require that no state law -- even one that specifically addresses and legalizes civil unions -- may be interpreted to permit civil unions, then I'm sure there will be people who will have plausible deniability when they say "oh no! what has happened?? how can this be?!?!? we didn't intend it this way!!"

Depending on who is saying that, they'd be either stupid or disingenuous (aka lying).

[Tyrone Slothrop]

Originally posted by sgtclub
I think you have correctly pointed out a deficiency in the drafting, but not in the intent.

"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."

If you guys are right, isn't the entire second sentence superfluous? The only way a state or federal law could be construed to require that the legal incidents of marital status be conferred on unmarried couples is if a legislature, state or federal, tried to permit civil unions.

[Tyrone Slothrop]

Impress your friends! Name a gay Republican who will speak at the Republican National Convention in New York City this year!

[ltl/fb]

Originally posted by Tyrone_Slothrop
"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."

If you guys are right, isn't the entire second sentence superfluous? The only way a state or federal law could be construed to require that the legal incidents of marital status be conferred on unmarried couples is if a legislature, state or federal, tried to permit civil unions.

Is the issue in MA that some are saying that their constitution requires that same-sex couples be permitted to marry, not just enter into a union with the incidents of marriage?

[Tyrone Slothrop]

Originally posted by ltl/fb
Is the issue in MA that some are saying that their constitution requires that same-sex couples be permitted to marry, not just enter into a union with the incidents of marriage?

I think so, but that doesn't explain the reference to "incidents" in the proposed amendment.

[Not Me]

Originally posted by Tyrone_Slothrop
Impress your friends! Name a gay Republican who will speak at the Republican National Convention in New York City this year!

Do you know who is scheduled to speak? If so, post the list of speakers and I will pick out the gay. I have tremendous gaydar. Mine is better than most gays.

[ltl/fb]

Originally posted by Tyrone_Slothrop
I think so, but that doesn't explain the reference to "incidents" in the proposed amendment.

I could make the argument that this sentence is to cover the following:

If the issue in MA (or an anticipated issue in other states) is not that marriage per se is permitted, but that some other kind of union must be permitted, under the state constitution, then the "incidents" part keeps the non-marriage union from looking like marriage.

[Tyrone Slothrop]

Originally posted by Not Me
Do you know who is scheduled to speak? If so, post the list of speakers and I will pick out the gay. I have tremendous gaydar. Mine is better than most gays.

If someone has a schedule, I suspect that they're going to have to revisit it after yesterday. Log Cabin Republicans aren't feeling the love.

In case there was any ambiguity, I meant someone who is out. E.g., Lindsey Graham does not count.

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone_Slothrop

If you guys are right, isn't the entire second sentence superfluous? The only way a state or federal law could be construed to require that the legal incidents of marital status be conferred on unmarried couples is if a legislature, state or federal, tried to permit civil unions.

Didn't the Mass SJC -- not a legislature -- do just that?

On the whole, I think the precise meaning is irrelevant, both politically and legally. Politically because it's pretty clear what Bush, and any other proponent's position on gay marriage is. The possibility of legislatively initiated civil unions is of secondary, or even tertiary, importance. Legally, because it won't pass, and certainly won't be ratified by 38 states.

[Mmmm, Burger (C.J.)]

Originally posted by ltl/fb
I could make the argument that this sentence is to cover the following:

If the issue in MA (or an anticipated issue in other states) is not that marriage per se is permitted, but that some other kind of union must be permitted, under the state constitution, then the "incidents" part keeps the non-marriage union from looking like marriage.

I.e., Vermont.

[Tyrone Slothrop]

Originally posted by Mmmm, Burger (C.J.)
Didn't the Mass SJC -- not a legislature -- do just that?

On the whole, I think the precise meaning is irrelevant, both politically and legally. Politically because it's pretty clear what Bush, and any other proponent's position on gay marriage is. The possibility of legislatively initiated civil unions is of secondary, or even tertiary, importance. Legally, because it won't pass, and certainly won't be ratified by 38 states.

But the first sentence would bar what the Mass SJC did.

Disagree with you on the second point. Barring civil unions means state-required divorce of people now in such arrangements. That will strike reasonable people as wrong, even if they aren't ready for gay marriage.

[ltl/fb]

Originally posted by Mmmm, Burger (C.J.)
I.e., Vermont.

I am not up on this. VT didn't specifically pass a law permitting same-sex unions? It came about because a court interpreted some part of their constitution or some other state law not directly addressing the issue as requiring that such unions be recognized? I was making the argument that the amendment isn't intended to restrict the ability of a state legislature to pass a law permitting marriage-type unions.