Gay Marriage


equality72521

Recommended Posts

Just as a P.S. to my previous post:

In "The Age of Envy," Ayn Rand wrote:

“Equality,” in a human context, is a political term: it means equality before the law, the equality of fundamental, inalienable rights which every man possesses by virtue of his birth as a human being, and which may not be infringed or abrogated by man-made institutions, such as titles of nobility or the division of men into castes established by law, with special privileges granted to some and denied to others.

Right. The equality of ~rights~, not the equality of ~privileges~. The freedom to start up and operate a newspaper is not a privilege, but an instance of one's right to liberty, viz., one's right to freedom of the press. If the government were to insist on licensing only certain people to run a newspaper, the licenses granted would be "special privileges." If the government were then to relent and grant licenses to ~anyone~ wanting to run a newspaper, the add-on folks would not have been granted a right they didn't have before. Why the licenses would be needed or even desired is not clear; nor is it clear why one should be required by the government to get one.

The same is true for marriage. The freedom to enter into a loving, committed, domestic relationship is not a privilege, but another instance of one's right to liberty, viz., one's right to freedom of association and freedom of contract. Again, since the government currently insists on licensing only certain people to be "legally" married, the licenses granted are "special privileges." If the government were to relent, as gay marriage advocates and their supporters urge, and to grant licenses to ~any~ adult couple wanted to enter into a loving, committed, domestic relationship, the add-on folks would not have been granted a right they didn't have before. And again, why the licenses are needed or even desired is not clear. (Ted Keer has made it clear that the legal protections are obtainable under domestic partnership law and legal next-of-kin provisions.) Nor is it clear why one should be required by the government to get a marriage license in order to enjoy one's natural right to live together and enter into contractual relationships and obligations.

To summarize: as for equality, we have equal rights to freedom of action, but we do ~not~ have equal rights to privileges. Legitimate "equal treatment under law" applies to natural rights, liberty, freedom of action -- not privileges.

REB

Link to comment
Share on other sites

  • Replies 123
  • Created
  • Last Reply

Top Posters In This Topic

I'm not interested in further debating legal inequality in regard to ~privileges~.

Roger,

I have yet to debate this topic.

You have been debating it up a storm.

I have been discussing equal treatment under the law for all individuals. I do not believe in special treatment for some over others under identical circumstances. You somehow don't either from what I can discern between all the inflamed rhetoric, but resist saying that treatment must be equal. This is logical weirdness for me. It seems that nobody can get special treatment, but they don't get equal treatment, either. But isn't equal the opposite of special in this context? Yup.

Anyway, let's give equal privileges under the law a spin. I believe if equal treatment under the law were preached, all minority privileges would disappear. Anyone would be able to claim any privilege granted to any minority. In other words, it would be impossible to justify protecting minorities, or majorities for that matter. People would have to be treated equally.

So if there were a special scholarship fund for, say, Native Americans, a white kid could also quality. That's where the legal logic would ultimately lead (as the logic from "all men are created equal" ultimately led to the abolishment of slavery).

Since this would bankrupt the Union, this is a great argument for getting rid of special entitlements.

On a different note, let's look at this:

"Equal justice" is an extraneous concept.

Really?

Well, I decided to look it up with a quick Google search. Here is the Wikipedia article: Equal justice under law. The article starts like this:

Equal justice under law is a phrase engraved on the front of the United States Supreme Court building in Washington D.C.

You should read the article. The phrase comes from a Supreme Court discussion of the Fourteenth Amendment. Also, here is a quote from the Fourteenth Amendment, Section 1:

... 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.

Since we are nitpicking, "equal protection of the laws" sounds a hell of a lot like an explicit right to me.

Sorry, Roger. I just don't find your arguments compelling enough to change my thinking.

You are entitled to your opinion, of course.

Michael

I have no objection to the wording in the 14th Amendment, just the fact that some courts have interpreted it in ways that expand the power of the state.

The meaning of the phrase "equal protection" is very specific, much more so than "equal treatment." Recognizing our right to "equal protection under the law" means that we each have certain inalienable rights and that the government promises to protect those rights for each of us. By contrast, privileges granted by government are ~not~ based on natural rights we have and which should be protected -- and failing or refusing to extend such privileges to certain people is ~not~ a failure to "protect" their "right" to receive those privileges. "Equal protection" of privileges is just not a legitimate sub-category of "equal protection under the law" of our natural, inalienable rights.

REB

Link to comment
Share on other sites

Perhaps so, but "equal treatment" -- while laudably intended as part of one of the "Civil War Amendments" -- was also infamously used in the 1960s to deprive countless retaurant and hotel owners of their rights to liberty (free association) and property. Blacks, you see, have the "equal right" to accomodation and service from those engaging in "interstate commerce."...

Roger,

It sure would be different if humans were what Robert Bidinotto calls "principles with feet." Then you just make a rational law and everyone obeys.

Unfortunately, people are often complicated, especially when longstanding fear and hatred are involved. And they play with guns. At night. When nobody's looking.

Sometimes you just have to take out the hornet's nest to get rid of the killing and maiming.

If you want to use Objectivist classifications, I put those situations in the same category as "emergency."

With the present awakening, I am sure we will see a trend toward smaller government. As intellectuals, we have a responsibility to keep the ideas that led to this stay in the public discourse.

Michael

This post sort of slipped by me....Michael, please clarify the second and third paragraphs from the end of your comments. In particular, what is the nature of the "emergency" that justifies depriving bigoted hotel and restaurant owners of their property rights in order to provide "equal access" to "public accomodations"?

And let me further clarify my position on the wording in the 14th Amendment. "Equal treatment under the law" could well have been rephrased: "Each individual has the inalienable rights protected by this Constitution, and the government shall not deprive any citizen of protection of those rights." (Or something like that.) On the other hand, it could ~not~ legitimately have been rephrased: "No individual shall be denied any special privilege from the government that other individuals receive." I know that court precedent does not agree with me, OK? I'm just saying that's not what the 14th Amendment means. It speaks to rights, not privileges.

REB

Link to comment
Share on other sites

Michael said:

"My point is that neither are the other rights "fundamental stand alone"--including freedom of speech, as I have illustrated."

---------------------------------------------------------------------------------------------------

Ok, first, the disclosure that when the threads get long (winded, that is) I usually stop following them intently. However it shouldn't be a problem to comment if we keep our writing true, clear, and concise. If I screw up cause I'm not familiar with the thread, then just blast me. Ok?

I think you refer to equal treatment as a right; I do not. Equal treatment is definitely one of the outcomes we are seeking from government, but the means to that outcome is simply: proper government. Using equal treatment as a fundamental means to proper government would tend to just perpetuate the group warfare: Gays demanding to be treat equally to married people, with I demanding that gays AND married people be treated equally to me! This is a relativistic way of looking at things. In other words, using "equal treatment" as a right, by itself, does NOT necessarily translate into a just outcome.

Does that make any sense.

Link to comment
Share on other sites

Roger said:

"Equal treatment under the law"

---------------------------------------------------------------

Roger do you think that's the clause in the 14th ?

Link to comment
Share on other sites

"Life, liberty and the pursuit of happiness." Now we are talking about rights.

Right: defines and sanctions social human action. Equal protection under the law is not a man acting. That's a government thing. One has the right to set up a government that protects rights and provides equal protection because that's copacetic. If not, maybe unequal protection would work better to protect those rights. I don't think it would, but if it would, sayonara to that "right."

However--pay attention everybody!--if the government is in the business of providing equal protection under the law, then we have a right to that protection in that agents of said government are obligated to comply with the legal structure in place! Why? Because that's the deal--the contract. This kind of right is derivative or secondary. If I hire you to build a house and you take my money and don't perform, I have a right as defined by contract for x, y or z redress. We can call these payback rights.

--Brant

the neverending story

Edited by Brant Gaede
Link to comment
Share on other sites

Roger said:

"Equal treatment under the law"

---------------------------------------------------------------

Roger do you think that's the clause in the 14th ?

I mis-spoke myself above. I should have said "equal protection under the law," which is closer to the precise wording from the second sentence of Section 1 of the amendment:

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.

Even though the 14th amendment granted citizenship to all individuals born or naturalized in the United States and "subject to its jurisdiction" (are illegal immigrants subject to U.S. jurisdiction, or have they not submitted to it yet? if the latter, then their babies born here do not become citizens until they are naturalized) -- it did not fix the voting problem. It penalized states that didn't allow ~male~ blacks (or any other ~males~) to vote by reducing their Congressional representation proportionally -- but women continued to be denied suffrage or even any ~incentive~ for states to grant it to them. Even the 15th amendment only fixed the voting problem for male blacks, not for women.

A really bright, liberty-oriented, non-sexist Supreme Court would have trotted out the 9th amendment and saved us a lot of hassle (not to mention deaths) with the Civil War, as well as with the women's Suffrage movement. But noooooooooo.....

reb

Link to comment
Share on other sites

  • 1 year later...

Boy oh boy, nothing worse than a former "Randian". Like Hillary Clinton, and now this lady.

http://www.salon.com...riages_top_foe/

Having slogged through this l o n g article, I did get to the really important part which was the last line.

"Because a son, as Maggie Gallagher will tell you, needs a dad."

No amount of social engineering will break that fact.

Link to comment
Share on other sites

This is just too funny for words...

Oy Veh!

"Poster Couple" For Gays Rights Divorcing

Tyler and Olson have known each other for 40 years and were together as a couple for 18. They were the poster couple for gay and lesbian rights.

When they wed, in June of 2008, they had gone to the Beverly Hills Courthouse every year for seven years to apply for -- and be denied- a marriage license.

The ceremony on the steps of the same courthouse was a monumental moment for gay couples everywhere.

"I don't know how to describe it - I wanted this all my life," Olson told the Jewish Journal that day. "Every time I went to a girlfriend's wedding, and when my brother got married, it was something I always wanted for myself. It looks like God must have wanted it for me, too."

http://www.nbcbayarea.com/news/local/Poster-Couple-For-Gays-Rights-Divorcing-138944094.html

Link to comment
Share on other sites

Having slogged through this l o n g article, I did get to the really important part which was the last line.

"Because a son, as Maggie Gallagher will tell you, needs a dad."

No amount of social engineering will break that fact.

Shit, you actually read all of it?

On the son's needing a dad thing, there are certainly cases of great men who grew up without fathers, or even father figures. Do they count as contrary evidence, or is this one of those truisms that isn't subject to falsification?

Link to comment
Share on other sites

Having slogged through this l o n g article, I did get to the really important part which was the last line.

"Because a son, as Maggie Gallagher will tell you, needs a dad."

No amount of social engineering will break that fact.

Shit, you actually read all of it?

On the son's needing a dad thing, there are certainly cases of great men who grew up without fathers, or even father figures. Do they count as contrary evidence, or is this one of those truisms that isn't subject to falsification?

Interesting. A few examples please, they interest me. Of course there are exceptions.

Link to comment
Share on other sites

Interesting. A few examples please, they interest me. Of course there are exceptions.

Here's a couple significant historical leaders.

http://en.wikipedia....an_the_Apostate

http://en.wikipedia....y_Roman_Emperor

Then there's Newton.

http://en.wikipedia....ki/Isaac_Newton

Also Rousseau, but his father was around for a while, and I don't know about calling him a "great man". Either way, he was hardly well adjusted.

http://en.wikipedia.org/wiki/Rousseau

That ought to do.

I've been quoting from Foucault's Pendulum again lately, and this made me think of another good bit (Chapter 7):

I believe that what we become depends on what our fathers teach us at odd moments, when they aren’t
trying to teach us. We are formed by little scraps of wisdom. When I was ten, I asked my parents to
subscribe to a weekly magazine that was publishing comic-strip versions of the great classics of literature.
My father, not because he was stingy, but because he was suspicious of comic strips, tried to beg off.
“The purpose of this magazine,” I pontificated, quoting the ad, “is to educate the reader in an entertaining
way.” “The purpose of your magazine,” my father replied without looking up from his paper, “is the
purpose of every magazine: to sell as many copies as it can.”
That day, I began to be incredulous.
Or, rather, I regretted having been credulous. I regretted having allowed myself to be borne away by a
passion of the mind. Such is credulity.
Not that the incredulous person doesn’t believe in anything. It’s just that he doesn’t believe in everything.
Or he believes in one thing at a time. He believes a second thing only if it somehow follows from the first
thing. He is nearsighted and methodical, avoiding wide horizons. If two things don’t fit, but you believe
both of them, thinking that somewhere, hidden, there must be a third thing that connects them, that’s
credulity.

Link to comment
Share on other sites

Thanks.

I think that the point the lady made in the last sentence is more applicable to non great men where the all consuming drive to be great carries them despite not having a father growing up.

The absence of fathers in too many American homes is one critical factor in the feminization of boys not becoming men in today's culture.

Link to comment
Share on other sites

Newton was an emotional cripple. He had a hissy fit that delayed the publication of Principia Mathematica for 20 years. Fortunately his mathematical genius was not killed by his other demons.

Being a "throw away child" can be rather painful.

Ba'al Chatzaf

Link to comment
Share on other sites

Newton was an emotional cripple.

Yeah, but that's a problem with the point I was trying to make. "Great men", geniuses, etc. are atypical by definition, so they will seem/be messed up in some way.

Link to comment
Share on other sites

  • 3 years later...

Damn nice payday for the enterprizing...

The cost of securing a seat for Supreme Court oral arguments on gay marriage today is $50 an hour.

That’s how much money it cost to hire a service to hold a place in line for arguments in Obergefell v. Hodges, Slate reports. The line began to form at 6 a.m. on Friday, according to BuzzFeed News.

The first 14 people in line were paid to be there, BuzzFeed reports. According to the National Law Journal (sub. req.), there were two lines for the event—one was for members of the Supreme Court bar and the other was for the general public

Those in line included a gay couple who married after a federal court struck down Michigan’s gay marriage ban, a University of Denver law school lecturer, and a Georgetown University law student facing finals in two weeks.

“That’s school, but this is education,” the law student, Peter Knight, told the National Law Journal. “This is too big to miss. Hopefully, it doesn’t reflect on my grades, but it would take a Category 5 hurricane to pull me away from my seat.”
Link to comment
Share on other sites

Here are the details on the SCOTUS case.

In Obergefell v. Hodges, the Supreme Court will review a 6th U.S. Circuit Court of Appeals decision that upheld laws in Kentucky, Michigan, Ohio and Tennessee prohibiting same-sex marriages. The 6th Circuit’s 2-1 ruling followed decisions in the 4th, 7th, 9th, and 10th Circuits that declared unconstitutional state laws prohibiting gay and lesbian couples from marrying.

The Supreme Court has granted review on two questions: (1) Does the 14th Amendment require a state to license a marriage between two people of the same sex? (2) Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Reflecting the importance of the case, a large number of briefs have been filed on both sides. On the petitioners’ side, urging the court to strike down such laws, are separate briefs challenging each of the state’s laws and supporting briefs from the United States and about 50 amici. On the respondents’ side, urging the court to uphold these laws are briefs from each of the four states and about 66 amici.

A...

Link to comment
Share on other sites

Upholding a law is not striking down a law nor does it mean law is being made which is technically not a court function. Practically speaking courts do make law and court decisions become legal precedents in a kind of circularity no longer involving the Constitution directly until, for some reason, likely social if no other, some court decides to go straight at the Constitution again to destroy precedent. That may eventually happen with Roe v. Wade and did happen with "separate but equal." (There was, of course, no equal in "equal.")

The really interesting issue is recognition of gay marriage across state lines with one state legal by its laws and the other state not.

I think all "marriage" should be by variable private contracts and no court involvement on any level beyond tort considerations which in turn raises the issue of why any tort at all for anything contractual instead of private arbitration respecting a performance bond secured, perhaps, by insurance. That would leave the public weal only concerned with criminal law which is as far as I can go so far with "anarchy."

--Brant

Link to comment
Share on other sites

"Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014)."

Obviously, there are many issues raised in all of these briefs, though the court need not, and certainly will not, address all of them. Some of the most important questions addressed in the briefs are:

• What is the significance of the court’s summary affirmance in Baker v. Nelson, issued in 1972? In Baker v. Nelson, the Supreme Court, without opinion, summarily affirmed an 8th Circuit decision rejecting a challenge to Minnesota’s law limiting marriage to opposite sex couples. The states argue that this is a binding precedent and resolves the matter. The challengers, though, virtually ignore this case. The Supreme Court gave it no weight in United States v. Windsor, decided in 2013, striking down a key provision of the federal Defense of Marriage Act. The challengers believe that if the majority of the court believes that these laws are unconstitutional, a 40-year-old summary affirmance is not going to make any difference.

• What is the appropriate level of scrutiny for sexual orientation discrimination and do state laws prohibiting same-sex marriage deny equal protection? The United States urges the court to adopt “heightened scrutiny” for sexual orientation discrimination. The states and their amici believe that only rational basis review is appropriate for laws discriminating based on sexual orientation.

Although this is an important question, the Supreme Court could strike down the states’ laws without even reaching the level of scrutiny question. In Lawrence v. Texas, decided in 2003, the court declared unconstitutional a Texas law that criminally prohibited private, consensual adult homosexual activity without indicating the level of scrutiny that was being used. Even more important, in United States v. Windsor, decided in 2013, the court’s declared Section 3 of the Defense of Marriage Act without using heightened scrutiny or even specifying the level of scrutiny being used.

• Does the right to marry, which previously has been recognized by the Supreme Court, include a right to same-sex marriage? The Supreme Court long has held, in cases like 1967’s Loving v. Virginia and 1978’s Zablocki v. Redhail, that the right to marry is a fundamental right. The supporters of marriage equality argue that they are asking the court to apply this existing right to protect gay and lesbian couples. The states argue that the challengers are asking for the recognition of a new constitutional right. They contend that great weight should be given to the long tradition of marriage being only for opposite sex couples, a point emphasized by Justice Samuel Alito in his dissent in United States v. Windsor.

• What is the appropriate role of the states’ political process and of the federal judiciary with regard to this issue? The 6th Circuit’s opinion upholding the laws in these four states, written by Judge Jeffrey Sutton, stressed that this is an issue that should be decided through the political process and resolved at the state level. This is a core theme of the briefs for the states and their amici. It is clear that the federalism argument is designed to appeal to Justice Anthony M. Kennedy, who has long championed state sovereignty. Those who hope that the court will affirm the 6th Circuit stress that Justice Kennedy’s opinion in Windsor stressed that marriage is traditionally regulated at the state level.

But the challengers and their amici argue that deference to the states and the political process is unwarranted when there is a denial of equal protection or an infringement of a fundamental right. In Loving v. Virginia, the court declared unconstitutional state laws prohibiting interracial marriage despite their existence throughout American history. That issue was not left to the states and the political process, nor was the long tradition of such laws dispositive.

• Do state laws prohibiting marriage equality serve sufficiently important government interests? Ultimately, this is the issue that the case most turns on. Do the states have a good reason for keeping gays and lesbians from being able to marry? In Windsor, the court concluded that Section 3 of the Defense of Marriage Act, which said that for purposes of federal law, marriage had to between a man and a woman, served no legitimate purpose and was based on an animus against gays and lesbians.

The primary argument made by the states and their amici is that marriage is linked to procreation and that only opposite sex couples can procreate without artificial assistance. Michigan, for example, echoes the 6th Circuit’s opinion and declares in its brief: “Separating marriage from procreation dramatically changes the state’s interest in the institution. … It is the state’s interest to encourage opposite sex couples to enter into a permanent, exclusive union within which to have and raise children that motivates state marriage laws.”

But the problem with this argument is that marriage never has been linked to procreation. Opposite sex couples can marry even if they do not have the desire or the ability to have children. More importantly, same sex couples will have children–through adoption, surrogacy, and artificial insemination–whether or not they can marry. If marriage is beneficial to children in creating a stable family, these children should have that benefit as well. The states emphasize that only heterosexual couples can have children without artificial assistance, but that does not explain why same sex couples should be denied of the right to marry and why children of these couples should not able to have married parents.

• If there is not a constitutional right to marriage equality, must a state recognize same sex marriages from other states? This is the second question upon which the Supreme Court has granted certiorari, yet it is given relatively little attention in the briefs of the challengers and their amici. By contrast, the brief for the state of Ohio focuses almost entirely on this question and argues, as do some of its amici, that each state should able to decide for itself what it deems to constitute a marriage.

Predictions are free and worth what they cost, and we’ll all know by the end of June how the court will decide these cases. That said, my prediction is that Tuesday, June 30, at about 10 a.m. Eastern Time, the court will hold 6-3 that laws prohibiting marriage equality deny equal protection. Either Chief Justice John G. Roberts or Justice Kennedy will write the opinion for the court and it will be joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.

Why this prediction? There have been three Supreme Court decisions in history expanding rights for gays and lesbians: Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. The majority opinion in each was written by Justice Kennedy. He likely sees one of his most important legacies as being the expansion of rights for gays and lesbians. Liberals and conservatives alike expect that Justices Ginsburg, Breyer, Sotomayor, and Kagan will vote to strike down these laws.

It is harder to predict Chief Justice Roberts’ vote. Unlike these other justices, he dissented in Windsor. But I believe that Chief Justice Roberts cares deeply about his legacy and he knows that no matter how long he serves as chief justice, he will be evaluated in part on this issue. I think he is a justice who wants to be on the right side of history and there is no doubt where history is going on this question. At this point, marriage equality exists in 38 states. The issue is less about whether the court will extend it to the country and more about whether the court will take the right away from the states where it exists by virtue of federal court decisions. Twenty foreign countries now allow marriage equality. Recent opinion polls show that 61 percent of Americans favor marriage equality and support for it is overwhelming among those under age 35.

Ultimately, for Chief Justice Roberts, and for Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan, the question is whether they want to be part of the next Plessy v. Ferguson, a decision regarded by history as based on bigotry and being terribly misguided, or the next Brown v. Board of Education, a ruling seen as expanding equality and the court playing its most important role for society. Looked at this way, it is easy to see why most expect that the court will find a constitutional right to marriage equality.

Link to comment
Share on other sites

An excellent aspect of this SCOTUS case, despite the excellent question by Justice Alito which posed four lawyers getting married together as part of redefining marriage, is a small amici brief which concerns the infamous:

"domestic relations exception" to federal Article III courts in the Constitution.

See:

Symposium: Supreme Court should address the domestic-relations exception to federal jurisdiction in its marriage-case decision

Larry Joseph serves as outside counsel to the Eagle Forum Education and Legal Defense Fund.

In an amicus brief filed in support of neither party in DeBoer v. Snyder, a client (the Eagle Forum Education & Legal Defense Fund) asked the Court to add an additional Question Presented on federal courts’ jurisdiction to hear these marriage controversies in the first place: “Whether a ‘domestic-relations exception’ to federal jurisdiction deprived the lower federal courts of subject-matter jurisdiction over this litigation?” With that background, the Court’s order that “[t]he parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions” could be read to foreclose the briefing of non-merits issues such as jurisdiction that the parties did not raise in their petitions. If that reading is correct, the order seems to reject the longstanding rule that jurisdictional issues go to the very power of appellate courts to hear a case and thus can be raised at any time – or sua sponte – even for the first time on appeal.

Alternatively, the order may simply reflect the fact that each of these collected cases involves one or both of two questions: the right to in-state marriage and the right to state recognition of out-of-state marriages. On that more plausible reading, the order simply confines each party’s merits-stage brief to the substantive question or questions presented in its petition-stage filings, without limiting the right to raise jurisdictional issues for the first time on appeal.

The domestic-relations exception to federal jurisdiction derives from the Constitution’s and federal statutes’ limiting the judicial power to cases in law and equity.

Reflecting our federal structure, in which the states remain sovereign in the spheres not delegated to the federal government, the Supreme Court’s 1890 In re Burrus decision recognized a “domestic-relations” exception to federal jurisdiction: “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” Moreover, the Court’s pre-Fourteenth Amendment Barber v. Barber decision previously had “disclaim[ed] altogether any jurisdiction in the courts of the United States upon the subject of divorce, … either as an original proceeding in chancery or as an incident to divorce a vinculo.” That exception has both a statutory and a constitutional component, and it concerns both where litigation starts and where it ends. As explained below, these petitions from the Sixth Circuit may present only the statutory question of where litigation starts – e.g., state or federal court – without addressing the constitutional question whether the Supreme Court has the power to review such cases coming from the state-court systems.

Constitutionally, Article III, Section 2 extends the “judicial power” of the Supreme Court (and any lower federal courts that Congress creates) to “all cases, in law and equity, arising under this Constitution, the laws of the United States,” as well as other contexts not relevant here. The key – and potentially limiting – phrase is “all cases, in law and equity.” While that phrase today might sound like it covers all cases, the phrase did not cover all cases at the time of this nation’s founding.

Specifically, when the states ratified the Constitution, cases at law were heard before the Court of King’s Bench or the Court of Common Pleas, and cases in equity were heard before the Court of Exchequer or the Court of Chancery. But only ecclesiastical courts could hear marriage-related cases, as the Supreme Court recognized in its 1878 Reynolds v. United States decision: “upon the separation of the ecclesiastical courts from the civil[,] the ecclesiastical [was] supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage.” Although there is a question whether the states vested the Supreme Court with authority over these issues, that constitutional issue is not necessary to deciding these petitions from the Sixth Circuit because a statutory limitation on the lower federal courts’ jurisdiction requires these cases to be brought in state court.

The statutory and constitutional questions pose the same etymological issue, but the statutory one focuses not on the outer constitutional limits of the federal judicial power but on the limits that Congress intended when it created the lower federal courts. As the Court recognized in its 1986 Merrell Dow Pharmaceuticals, Inc. v. Thompson and 1992 Ankenbrandt v. Richards decisions, respectively, the two are not the same thing: “[the] Article III … power to hear cases ‘arising under’ federal statutes… is not self-executing,” and “Whatever Article III may or may not permit, we thus accept the Barber dictum as a correct interpretation of the Congressional grant.” Statutorily, the original grants of jurisdiction to the federal courts used the same law-and-equity limits as Article III, and the 1957 Fourco Glass Co. v. Transmirra Products Corp. decision already has recognized that the 1948 modernization of the statutory language made no unannounced changes: “no changes of law or policy are to be presumed from changes of language in the revision unless an intent to make such changes is clearly expressed.”

Suggesting a domestic-relations exception to federal-court jurisdiction requires a response to the audience’s incredulous question: how could a federal court possibly lack jurisdiction over a claim arising under the Fourteenth Amendment? The fact that virtually all currently practicing lawyers assume that federal-question jurisdiction is available for any federal claim does not make it so. As Justice Holmes recognized in New York Trust Co. v. Eisner, sometimes “a page of history is worth a volume of logic.” Until 1875, the lower federal courts did not have federal-question jurisdiction. Indeed, until 1980, federal-question jurisdiction itself had an amount-in-controversy requirement that likely would have precluded suits over marriage rights under Section 1331. As these historical examples demonstrate, unexamined assumptions cannot accurately define the bounds of the lower federal courts’ jurisdiction. As creatures of statute, the lower courts have only the jurisdiction that Congress gave them, which need not extend to the full limits – whatever they may be – of the judicial power under Article III.

The Ankenbrandt decision suggests a narrowing of the domestic-relations exception to cases “involving the issuance of a divorce, alimony, or child custody decree,” but not to torts such as fraud. As far as it goes, that distinction supports including the right to marriage within the domestic-relations exception, in contrast to recognized federal jurisdiction over torts at law and in equity. Moreover, other marriage-related cases would fall within the law-equity categories, even if a pure marriage-rights case does not. For example, the Court’s 1967 Loving v. Virginia decision arose from a criminal action appealed from a state supreme court, and the 2013 United States v. Windsor decision arose from a federal tax case brought under 28 U.S.C. § 1346(a)(1). In both cases, the suit was in equity (Loving) or law (Windsor), and the petitioner Loving and plaintiff Windsor did not seek the right to marry, having married under another jurisdiction’s laws that implicated rights vis-à-vis the respondent Virginia and the defendant United States. No decision of the Supreme Court has specifically addressed and rejected the lower federal courts’ lack of jurisdiction over pure domestic-relations issues.

State courts provide an alternate and more appropriate forum to hear domestic-relations issues

If the lower federal courts lack jurisdiction over domestic-relations issues like the ones presented here, plaintiffs still could bring these federal claims in state court under the doctrine of concurrent jurisdiction. Indeed, several of the Supreme Court’s decisions touching upon domestic-relations issues reached the Court on direct review from state court systems: Palmore v. Sidoti (1984); Michael H. v. Gerald D. (1989); Troxel v. Granville (2000); and Adoptive Couple v. Baby Girl (2013). Significantly for future cases, however, these decisions involved no discussion – for or against – a domestic-relations exception to Article III jurisdiction. As what the Court in Steel Co. v. Citizens for a Better Environment called “drive-by jurisdictional rulings,” in which the Court simply assumed jurisdiction, these merits decisions do not rebut a domestic-relations exception to Article III jurisdiction. On the other hand, it is entirely possible that Article III’s law-and-equity jurisdiction is broader than the statutory jurisdiction that Congress has conveyed to the lower federal courts.

http://www.scotusblog.com/2015/01/symposium-supreme-court-should-address-the-domestic-relations-exception-to-federal-jurisdiction-in-its-marriage-case-decision/

A...

Link to comment
Share on other sites

  • 6 months later...

This is the proper Objectivist analysis of the issue

How does the law now force landlords respecting heterosexual couples? Insurers? Why should heterosexual couples have legal rights qua couples? If A wants to marry B why not private contracts? Why Sacramento? Why Washington? Are you sure you're not chewing the wrong end of the stick?

and its solution:

It will be illegal to discriminate against "married" couples, just as it is now illegal to discriminate against, say, mixed race marriages.

If there were no legal ramifications, there would be no reason to create the pretense of legal gay marriage. The whole point is to get the men with the guns on your side, against whomever, the the church, the employer, the neighbours, the insurer - or even the biological parents.

Civil unions allow any consenting adults, heterosexual, homosexual, or even just platonic to name each other next of kin. This is exactly proper - but the model for this should properly be adult adoption - not a bizarre form of marriage.

Julius Caesar named Octavius Caesar next of kin through adult adoption - not marriage.

Common law marriage has one justification, the protection of minor children and, secondarily, their guardian parents. It is the existence of children - biological offspring - that makes the concept rational.

What will happen now if a minor child of lesbians wants the legal right to visitation or support from her biological father? What rights will the father have?

This whole thing is about making children into fashion accessories for gay couples, at gunpoint.

Gay couples can play at make house all they like, and no one can stop them.

Why do they need men with guns to help them do this?

Ah Ted Keer, I do miss him...

Adult Adoption was his legal solution to "Gay Marriage" which was the only "proper" Objectivist solution.

Prior to the Supreme Court’s legalization of same-sex marriage nationwide, many gay couples used adoption laws as a way to gain legal family ties in order to get benefits, as reported by CNN.

This was the case for Esposito, a retired teacher, and his now adopted partner Roland “Drew” Bosee, a former freelance and technical writer. The couple went through with the adoption in 2012 after 40 years of being together

Now, a Judge denied them the annulment of the adoption...

Judge Lawrence J. O’Toole, of the Court of Common Pleas of Allegheny County, denied the couple’s request saying that he was “sensitive to the situation” but that they cannot marry “because they are legally father and son.”

“This Court welcomes direction from our appellate courts in handling parallel cases,” O’Toole wrote.

ACLU Pennsylvania says it doesn’t believe the judge was unsympathetic, and that he most likely just believes the legal path should be “forged by an appellate court.”

“The ACLU is hopeful that the Superior Court will apply established legal principles to allow annulment of adoptions by same-sex couples who that they can finally partake of their constitutional right to marry,” Witold Walczak, the Legal Director of the ACLU

http://washington.cbslocal.com/2015/11/03/father-adopted-son-seek-right-to-marry-each-other/

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now