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As I see it, there are three options for marriage.
1. The government opens marriage to any 2 consenting adults.
2. The government has civil unions for any two consenting adults, and no marriage.
3. the government gets out of marriage all together. No recognition, benefits, or privileges.
I am limiting this to only two because the legal framework we currently have is made for two people.
The 14th amendment says that ALL persons are to be afforded the same rights, and privileges. There is no way around this.
Which do you think should happen, and why?
3. I'm polyamorous and would still feel excluded if same-sex marriage were to pass. I think that the government should just duck out of the marriage business altogether and leave marriage up to families, communities, and private organizations to define and grant according to their own values.
When federal law grants special status, then no one can prevent anyone from using that.
The federal government enforces all kinds of laws not expressly written in the constitution. It also enforces rights that aren't expressly written either.
Since the federal government honors and makes special privilege to married couples, then the states can't bar the free access to that procedure.
Really your argument is "that's the way it is, get used to it ". No change would ever happen with that mind set.
Yes they can because a person's marital status is determined by state (not federal) law. That's the way it works under the law. In order to change that, the Constitution would have to be amended to extend federal supremacy over the subject of marriage. As it stands now, the federal courts do not have "subject matter" jurisdiction over marriage (i.e., you can't get divorced in federal court); nor may the parties consent to confer such federal jurisdiction, and any removal action would be subject to mandatory abstention.
Yes they can because a person's marital status is determined by state (not federal) law. That's the way it works under the law. In order to change that, the Constitution would have to be amended to extend federal supremacy over the subject of marriage. As it stands now, the federal courts do not have "subject matter" jurisdiction over marriage (i.e., you can't get divorced in federal court); nor may the parties consent to confer such federal jurisdiction, and any removal action would be subject to mandatory abstention.
However the 14 amendment allows for the federal government to step in when states are denying rights.
Quote:
Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
They have ALREADY done this in the case of interracial marriage.
Loving v. Virginia presented a "federal question" as to whether the Virginia statute violated the Fourteenth Amendment. It did not create federal jurisdiction over the subject of marriage. Under Article III, Section 2 of the U.S. Constitution, the judicial power is vested in the Supreme Court, and such other lower federal courts as the Congress may establish, with jurisdiction over cases and controversies arising under the Constitution ("federal question") and substantial cases where there is "diversity of citizenship" subject to the limitations of the Eleventh Amendment.
Loving v. Virginia presented a "federal question" as to whether the Virginia statute violated the Fourteenth Amendment. It did not create federal jurisdiction over the subject of marriage. Under Article III, Section 2 of the U.S. Constitution, the judicial power is vested in the Supreme Court, and such other lower federal courts as the Congress may establish, with jurisdiction over cases and controversies arising under the Constitution ("federal question") and substantial cases where there is "diversity of citizenship" subject to the limitations of the Eleventh Amendment.
And with more and more cases heading to the Supreme Court, they might just decide the state laws denying same sex marriage to be unconstitutional, just like the did with Loving V Virginia.
No is asking the federal government to take over marriage. We are asking that STATE laws be found to be unconstitutional, and for the federal government to recognize legal same sex marriages like they recognize legal hetero marriages.
That depends on whether the Supreme Court grants certiorari in such cases, viz. Golinski v. Office of Personal Management (Ninth Circuit) and Gill v. Office of Personal Management/Massachusetts v. Dept. of Health and Human Services (First Cirtuit). Not all cases make it to the Supreme Court. In this, the power of the judicial branch is limited; and the federal courts have always been self-limiting under long-standing provisions of abstention and principles of comity; and more recently under the Rooker-Feldman doctrine. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
3. I'm polyamorous and would still feel excluded if same-sex marriage were to pass. I think that the government should just duck out of the marriage business altogether and leave marriage up to families, communities, and private organizations to define and grant according to their own values.
I could go for this approach. If your going to open it up to adults it should be 'All adults' not just seletive groups. The common definition 'One man or One Woman' should be 'All and multiple'.
the question on FFC clause is when two straight people are married in oklahoma and are married by the state of oklahoma, when they get a job transfer to Idaho, they are still married, and do not have to seek a new marriage license from the state of idaho to remain married due to the FF&C clause..so for those who say it is ONLY a state issue.. you're wrong.. it's a state AND federal issue.. I know of a gay couple here in idaho that were married in Massachusetts and were transferred by their job to idaho, they not only are now NOT married under the law.. but the insurance provider of the company was no longer obliged to offer coverage to his partner that had cancer..
People move freely between states, that is why we are the United states and one sovereign nation.. DOMA restricts gay marriages from FF&C clause, so if doma is struck down.. essentially if someone goes to iowa or Massachusetts to get married and then moves to another state that maybe doesn't offer gay marriage licenses, they are obligated to at least recognize the marriage under FF&C clause...
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