Politics: Onward from New Hampshire

[Sidd Finch]

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.

Because the state law cannot require any private or public entity to confer the same benefits on the couple joined by civil union as they do on the couple joined by marriage.

[Not Me]

Originally posted by Mmmm, Burger (C.J.)
That gay marriage is so bad it's deserving of a constitutional amendment barring it.

No, that once you start broadening the definition of marriage by saying that the justifications for limiting it to one man/one woman unions aren't valid reasons, you have no way to limit and anything goes.

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone_Slothrop
Then what is the point of the second sentence? On your reading, it is entirely superfluous.

eta: Burger, I see your point, but read the first sentence to be referring to the states, too. Particularly because marriage is generally a function of a state law. If that is the reason for the second sentence, it's very poor draftspersonship indeed.

I think you still need it to prevent judicially mandated civil unions by renegade state courts. One could revise the first sentence to read: Marriage in the United States and any of the several States shall consist only of the union of a man and a woman. But that still wouldn't prevent the Vt. or (first) Mass. decision (the one requiring gays to be allowed to something).

[Mmmm, Burger (C.J.)]

Originally posted by Not Me
No, that once you start broadening the definition of marriage by saying that the justifications for one man/one woman unions are valid, you have no way to limit and anything goes.

You know, with this macro/autoscript, you really should be able to respond 24/7.

[Mr. Polygamist]

Originally posted by Not Me
No, that once you start broadening the definition of marriage by saying that the justifications for limiting it to one man/one woman unions aren't valid reasons, you have no way to limit and anything goes.

You are so right.

[sgtclub]

Originally posted by Tyrone_Slothrop
Your (1) is redundant of the first sentence. If marriage is x, y can't be marriage. Your (2) is hard to square with the reference to "state law," as I said above. The amendment doesn't say "specific state constituton or law," it says "state law." And it's more than a little odd to say that a state constitution's guarantee of equal protection cannot require civil unions, but the state legislature can.

I don't understand your reasoning, so let me try another approach. If we stopped after the first sentence, we leave open the possibility that states will construe equal protection clauses as requiring the incidents of marriage to be applied to same sex couples, absent a specific state statute or constitutional amendment expressly setting out the will of the people as to those incidents of marriage. This is what happend in MA, if I understand it correctly. So my reading of the second sentece (putting aside the technical deficiencies Fringey has pointed out) is that general marriage statutes are not required to be construed, under equal protection, to afford the incidents of marriage to same sex couples. However, it does not prohibit the state from passing legislation or amendment specifically giving those rights independent from the general marriage statutes.

[Tyrone Slothrop]

Originally posted by Mmmm, Burger (C.J.)
I think you still need it to prevent judicially mandated civil unions by renegade state courts. One could revise the first sentence to read: Marriage in the United States and any of the several States shall consist only of the union of a man and a woman. But that still wouldn't prevent the Vt. or (first) Mass. decision (the one requiring gays to be allowed to something).

On this view, Bush wants to amend the Constitution (as opposed to just passing a law) to ensure that a state that wants to recognize same-sex marriages must pass a law, instead of just applying its constitution.

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone_Slothrop

And it's more than a little odd to say that a state constitution's guarantee of equal protection cannot require civil unions, but the state legislature can.

Why, if you believe in democracy and that its principles solve the countermajoritarian difficulty? (assuming the state's constitutional provision is general, not specific to marriage).

[Tyrone Slothrop]

Originally posted by sgtclub
I don't understand your reasoning, so let me try another approach. If we stopped after the first sentence, we leave open the possibility that states will construe equal protection clauses as requiring the incidents of marriage to be applied to same sex couples, absent a specific state statute or constitutional amendment expressly setting out the will of the people as to those incidents of marriage. This is what happend in MA, if I understand it correctly. So my reading of the second sentece (putting aside the technical deficiencies Fringey has pointed out) is that general marriage statutes are not required to be construed, under equal protection, to afford the incidents of marriage to same sex couples. However, it does not prohibit the state from passing legislation or amendment specifically giving those rights independent from the general marriage statutes.

If so, it's an odd view of process that says that the Equal Protection guarantee in a state constitution cannot be applied to permit civil unions, but a legislative enactment in that state can. It's anti-states rights on a whole new level.

I still think you guys are reading the reference to "state law" in that second sentence too narrowly. Sidd put it well. It doesn't say that a state legislature can only create civil unions if it does so very, very explicitly.

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone_Slothrop
On this view, Bush wants to amend the Constitution (as opposed to just passing a law) to ensure that a state that wants to recognize same-sex marriages must pass a law, instead of just applying its constitution.

Yes. Why is that an inherently surprising desire, particularly in light of his stated goal of avoiding judicial activism (whether or not he, or the judges he appoints, hew to it)?

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone_Slothrop
If so, it's an odd view of process that says that the Equal Protection guarantee in a state constitution cannot be applied to permit civil unions, but a legislative enactment in that state can. It's anti-states rights on a whole new level.

Sure, which is why I called it stunning on a general level. But I don't think that such a requirement is surprising. Do you think that states with equal protection guarantees would have so phrased them if they thought a majority of their s. ct. would have deemed it to extend to require gay marriage? No. Sure, they could amend their own constitutions, as could Massachusetts. bush wants to save them the effort.

[bilmore]

Originally posted by Mmmm, Burger (C.J.)
Yes. Why is that an inherently surprising desire, particularly in light of his stated goal of avoiding judicial activism (whether or not he, or the judges he appoints, hew to it)?

From the lips (okay, the pen) of one of the authors, if this helps:

==================

"Five of my Senate colleagues and I have introduced a resolution to amend the U.S. Constitution. Our amendment would define the institution of marriage as a union between a man and a woman. This topic that has generated an enormous amount of information, some credible and some not. I want to set the record straight here on my website so citizens know exactly what my amendment will do, and what it will not do.

The language I introduced is simple and direct: the institution of marriage “shall consist only of the union between a man and a woman.” This definition is neither new nor radical. It is a concept embraced by a majority of Americans of all religions, races and political affiliations. A recent national Wirthlin poll revealed that 62 percent of Americans agree with this definition and that 57 percent support an amendment to the Constitution protecting marriage. The Amendment further reads that no law, at any level, “be construed to require that marital status or legal incidents thereof be conferred on unmarried couples or groups.” Simply put, this means that only a marriage between a man and a woman will be legally recognized as a marriage. This does not prohibit state legislatures from creating other types of legal unions.

Opponents of this amendment argue that it is not that simple. I submit that it is. Opponents argue that a Constitutional definition of marriage threatens to undo existing state authority to allow for the creation of civil unions. This claim is absolutely false.

My Amendment is specific to the traditional union of marriage. Regardless of alarmist interpretations by those with broader political agendas, that definition does not seek to define or negate any power held by state legislatures to create civil union statutes and any benefits that may apply to that status. With a Constitutional definition of marriage, democratically elected state legislators would remain free to define civil unions without having the courts thrust those definitions upon them. Further, the institution of marriage remains sacred and protected from activist courts as well. While I have long advocated keeping the federal government out of the homes of citizens, I prefer the courts stay out of their homes as well.

There are no hidden intentions behind my proposal. The Amendment is a scant 52 words dedicated solely to defining the union of marriage in the way all 50 states already agree upon.

The Amendment reads as follows: “Marriage in the United States shall consist only of the union of a man and a woman. Niether this Constitution, nor the Constitution of any State or Federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

By defining marriage, but going no further, the Amendment does not impose on the authority of the states. A series of courts - not state legislatures, but courts - have sought to redefine the institution of marriage in recent years. This in a country where not one state legislature has sought to change the definition of marriage. "

Wayne Allard
http://allard.senate.gov/features/Marriage/

[Tyrone Slothrop]

Originally posted by Mmmm, Burger (C.J.)
Why, if you believe in democracy and that its principles solve the countermajoritarian difficulty? (assuming the state's constitutional provision is general, not specific to marriage).

Because any kind of respect for states as sovereigns means that you should let the states decide how they're going to approach these things. The federal government should not be deciding that a state's judiciary is not a co-equal branch of state government.

And I still don't think you're reading the reference to state law right. What Sidd said.

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone_Slothrop
Because any kind of respect for states as sovereigns means that you should let the states decide how they're going to approach these things. The federal government should not be deciding that a state's judiciary is not a co-equal branch of state government.

And I still don't think you're reading the reference to state law right. What Sidd said.

Sure, but what Bilmore said Allard said.

On sovereignty, I agree, it's turning things on their head, or some part of the body, perhaps the elbow. But that doesn't mean it can't be done. And, remember, it's not the federal government alone saying how the division of power in state government works, it's 3/4 of the states as well.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
Have I missed some S. Ct. ruling on the 11th amendment that suggests that "United States" means "United States and its constituent states"

Supremacy clause?

If they wanted to limit the marriage definition to federal laws, they would have said "Marriage under the laws of the United States," not "in the United States."