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» The Ornery American Forum » General Comments » Obama dismisses gay marriage case

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Author Topic: Obama dismisses gay marriage case
Kent
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SF Gate
quote:
"The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT (lesbian, gay, bisexual, transgender) couples from being granted equal rights and benefits," she said. "However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system."
See the full motion here.

[ June 12, 2009, 01:46 PM: Message edited by: Kent ]

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Pyrtolin
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He's taking a similar stand on DADT, which is admirable, if somewhat frustrating to the people affected.
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Doug64
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I have to say that the arguments given in the article for one of the cases are fairly ridiculous - I can't think of a single part of the Constitution that would apply a privacy right to marriage, I have no idea how one state refusing to recognize another state's marriage laws would interfere with someone's right to travel, and free speech? where does that come from?

Personally, I think those pushing the Supreme Court to rule on the issue are making a serious tactical blunder. Either the Court rules against them, in which case the chance of getting the ruling reversed inside of at least a decade are very poor; or the Court rules in their favor, in which case there's a major increase in the chances of a constitutional amendment passing that either defines marriage as heterosexual monogamy for the entire country or guarantees states the right to set their own rules and not recognize those of other states.

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Pyrtolin
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quote:
Originally posted by Doug64:
I have to say that the arguments given in the article for one of the cases are fairly ridiculous - I can't think of a single part of the Constitution that would apply a privacy right to marriage, I have no idea how one state refusing to recognize another state's marriage laws would interfere with someone's right to travel, and free speech? where does that come from?

Full Faith and Credit.

DOMA is an explicit and flagrant violation of it.

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Doug64
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quote:
Originally posted by Pyrtolin:
Full Faith and Credit.

DOMA is an explicit and flagrant violation of it.

That would seem to be the obvious grounds for a challenge, which makes me wonder why it wasn't given as one of the grounds in the article. Either the writer might have thought it as too "inside baseball," or that isn't one of the grounds being used.
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Doug64
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I've taken a look at the current status of the full faith and credit clause, and think I see why the plaintiffs may be avoiding it - the Supreme Court has only used that clause in three contexts, all relating to state courts: determining when a state has to take jurisdiction over claims arising in other states, limiting the applications of local state law over the laws of another state in multi-state disputes, and recognizing and enforcing judgments rendered by other states' courts. Apparently, the Court hasn't previously dealt with the question of how states' licensing regulations apply to this clause, and the plaintiffs might feel that an argument that undercuts the states' ability to regulate the licensing of, say, doctors and lawyers would be unlikely to be seriously considered by the Court.

In fact, the only branch of government to invoke this clause in relation to marriage/family matters has been Congress, dealing with child custody, child support, and the Defense of Marriage Act, and in the case of the child support and custody Congress was also dealing with how state courts handle the issues rather than what state laws might be.

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hobsen
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While I agree that taking same sex marriage cases to the Supreme Court is probably unwise at the present time, for those who want rulings favorable to them, there is no way to prevent people from doing so - either because they overestimate their chances, or because they really want Supreme Court rulings against same sex marriage.

As to full faith and credit, Wikipedia notes,
quote:
Nevada's early reputation as a "divorce haven" arose from the fact that, prior to the no-fault divorce revolution in the 1970s, divorces were quite difficult to obtain in the United States. Already having legalized gambling and prostitution, Nevada continued the trend of boosting its profile by adopting one of the most liberal divorce statutes in the nation. This resulted in Williams v. North Carolina, 317 U.S. 287 (1942), in which the U.S. Supreme Court ruled that North Carolina had to give "full faith and credit" to a Nevada divorce.
Saying that all other states had to recognize divorces performed in Nevada seems to me quite similar to saying that all other states must recognize same sex marriages performed in Massachusetts. Did you look into what might make these cases different, Doug64?
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Doug64
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quote:
Originally posted by hobsen:
... Saying that all other states had to recognize divorces performed in Nevada seems to me quite similar to saying that all other states must recognize same sex marriages performed in Massachusetts. Did you look into what might make these cases different, Doug64?

No, I didn't, but off the top of my head, I'd say a difference is that a divorce is a legal process involving the courts, where a marriage is not, and the Supreme Court has apparently applied the Full Faith and Credit clause only to court proceedings and findings of one sort or another.
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RickyB
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" I have no idea how one state refusing to recognize another state's marriage laws would interfere with someone's right to travel"

You're not serious, are you? Say my wife and I are recognized as married in NY. We wish to relocate to, say, Alabama, which for whatever crimson-based reason does not recognize our marriage. Suddenly there's a part of the country I can't move to without yielding some pretty damn fundamental rights. the free travel issue is not just about tourism, it's about it being one country, to any part of which a citizen may relocate at will and with minimal adjustments in terms of personal and basic rights.

[ June 14, 2009, 05:25 AM: Message edited by: RickyB ]

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Pyrtolin
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quote:
Originally posted by Doug64:
No, I didn't, but off the top of my head, I'd say a difference is that a divorce is a legal process involving the courts, where a marriage is not, and the Supreme Court has apparently applied the Full Faith and Credit clause only to court proceedings and findings of one sort or another.

So is marriage, we just have it streamlined to the point where people barely notice it.
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PSRT
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A repeal of DOMA is one of the things that I look for out of a successful Obama presidency (along with a repeal DADT, on the front of gay rights).
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hobsen
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Obama has never supported same sex marriage, and might not have been elected if he had. He does support equivalent rights for same sex couples without the name. And I wish he would repeal the DOMA, but he cannot pass legislation by himself. On that I do not think he has the votes, although I have not studied the matter closely.

Meanwhile the government does have an obligation to defend existing law. And as someone pointed out, the defense they chose is not likely to be wildly popular. One main point is that the government is saving money by discriminating against same sex couples, which makes the DOMA look even more like Jim Crow laws in the South. If they were trying to advance same sex marriage, they could hardly have done anything more effective.

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Doug64
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quote:
Originally posted by RickyB:
You're not serious, are you? Say my wife and I are recognized as married in NY. We wish to relocate to, say, Alabama, which for whatever crimson-based reason does not recognize our marriage. Suddenly there's a part of the country I can't move to without yielding some pretty damn fundamental rights. the free travel issue is not just about tourism, it's about it being one country, to any part of which a citizen may relocate at will and with minimal adjustments in terms of personal and basic rights.

Ah, you're equating right to travel with the right to live wherever you choose. But that right to travel doesn't mean that you have the right to be comfortable wherever you choose to live.
quote:
Originally posted by Pyrtolin:
So is marriage, we just have it streamlined to the point where people barely notice it.

No it isn't, any more than getting a license to practice law or medicine is a court proceeding.
quote:
Originally posted by hobsen:
... Meanwhile the government does have an obligation to defend existing law....

In the case of medical marijuana Obama has demonstrated a willingness to refuse to enforce federal law out of either personal belief or political considerations.
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hobsen
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That does make sense, Doug64. Obama in fact seems to be inconsistent. The reason I suspect is that probably 75% of voters want medical marijuana to be available to sick people who think it helps them - the opposition comes mostly from those who think that is usually a pretext for recreational use, which they oppose for one reason or another. But the DOMA appeals both to those opposed to SSM, and to those who think the decision should be left to each state, which has almost always been true in the past for marriage issues. Things like Loving v. Virginia have been rare exceptions, and for the most part states have regulated marriage any way they pleased. So the act is defended by a lot of solid citizens who voted for Obama. Support for same sex marriage is growing, but for now the coin is still standing on edge.

[ June 14, 2009, 03:51 PM: Message edited by: hobsen ]

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Doug64
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All true enough, but also I think an abuse of power on the part of the president. Mind, I'm one of those that believes all bans on recreational drugs should be abolished. I also believe that the outright federal ban of drugs is unconstitutional and if I thought President Obama made his decision because he agreed with me he'd have my support to an extent - but the way he decided to only partially enforce the law shows that constitutionality isn't what he's concerned about, and a US president (or governor, or mayor, for that matter) to choose to selectively enforce a law based on personal or political considerations is flat-out wrong.
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