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The proposed Federal Marriage Amendment that Bush is pushing has two sentences. The first sentence is:

quote:
Marriage in the United States shall consist only of the union of a man and a woman.


The second sentence is:

quote:
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.


Note that the second sentence does not restrict itself to same sex marriages. Is there any reason why the second sentence would not overturn previous Supreme Court rulings on the issue of marriage equality?

Under what possible reading could this fail to overturn, for example Loving v Virginia?

To the extent that the decision relied on the US Constitution, State Constitutions, State laws, or Federal laws, would the decision not be null and void?

It would seem to me that states would be well within their rights to reintroduce anti-miscegination laws.

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It seems like the trick is the "shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. "
So, it all still lies in whether or not the couples/groups are legally "married" in the first place. (The dog chasing its tail law)
_______________________________________

As I have been hearing so much of this on the news lately, my thoughts are:

Since marriage is a religous institution in the first place, and in this democracy, the government is legally not supposed to mix church and state . . . are they not mixing church and state to have any laws either way?
It seems that to have laws forbidding gay marriage is the government/judiciary enforcing church doctrine, which clearly, by our constitution is not legal.

It seems that it is a violation of your constitutional rights to forbid it (enforce religous doctrine) on the general population, just as much as it would be to have laws that force people to marry.
"Civil Union" seems more fitting because of the fact that by nearly all religous doctrine and tradition, homosexuality is forbidden, therefore, I do not see why gays, particularly even want their unions to be sanctioned by the same entity that denounces their existence or right to exist---its like Blacks people insisting on their right to be a KKK member and insisting on being recognized equally with all its members.

I am not gay, don't want to be gay, but just thought I would put my two cents in
I'm not familiar with "Loving v Virginia." I seem to remember a case involving an interracial Virginia.

I, too, think rules of law on marriage is outside the stated intent of the Constitution.

Civil ceremony for marriage rites currently exist in every State. They meet the standard of marriage in every State, thus enabling full access to the benefits of a couple married in a religious ceremony. The federal government has extended "full faith and credit" to all such unions. The issue of recognition has always been the burden of the religious entity.

Now this has been flipped on its head. What is difference in what is happening (first) in San Francisco? It is a civil ceremony. Is it not? No clergy is involved. How is it different?

The participants are of the same sex.

So what is being demanded is that the definition of marriage be modified to specify ONLY a union of a man and a woman. And that it be the rule of law.

There are a lot of arguments. The one that is going to be the most nagging is enforcement. The penalty for violating the "rule of law" (Constitution) is the admonishment: "Don't do that anymore." and the penalty of: "Fix it. Make it like it was." There is no penalty of either money or time.

That's because it isn't a law. It's a RULE of law.

So now the federal government has to pass a law to have a mechanism for enforcement.

I don't see it happening. A constitutional amendment requires 2/3 of the Senate PLUS ratification of 2/3 or 3//4 of the States.

We are still trying to get that done for ERA, the Equal Rights Amendment(for women).

PEACE

Jim Chester
I'll take a shot:

No, it shouldn't. Under "anti-miscegination laws" the 14th amendment is invoked because this type of race-based discrimination is deemed 'arbitrary', in that it denys the right to both races, and both sexes, on the basis of an 'arbritary discrimination', namely 'race'.

So no, anti-miscegination laws would not be able to be reintroduced, they would remain 'arbritary discrimination' under the 14th amendment.

By defining marriage 'specifically' and 'constitutionally' as between a man and woman, there is no subsequent interpretation that could then say denying two people of the same sex a marriage license is 'arbritary'. It would then be the opposite of 'arbitrary', clearly defined and constitutionally mandated.

The catch is to understand that its a 'definition' thats being constitutionally ensured. Its not an amendment about 'rights'.

I dont' think its going to pass anyway.
quote:
Originally posted by DeltaJ:
I'll take a shot:

No, it shouldn't. Under "anti-miscegination laws" the 14th amendment is invoked because this type of race-based discrimination is deemed 'arbitrary', in that it denys the right to both races, and both sexes, on the basis of an 'arbritary discrimination', namely 'race'.

So no, anti-miscegination laws would not be able to be reintroduced, they would remain 'arbritary discrimination' under the 14th amendment.

By defining marriage 'specifically' and 'constitutionally' as between a man and woman, there is no subsequent interpretation that could then say denying two people of the same sex a marriage license is 'arbritary'. It would then be the opposite of 'arbitrary', clearly defined and constitutionally mandated.

The catch is to understand that its a 'definition' thats being constitutionally ensured. Its not an amendment about 'rights'.

I dont' think its going to pass anyway.


I agree that it won't pass. But that's a seperate question from what it would do, if enacted.

In the majority opinion of Loving v Virginia, various clauses from the US Constitution (and elsewhere), such as the Due Process and Equal Protection clauses of the 14th Amendment to the US Constitution, are construed to require the States to confer marital status and all legal incidents thereof upon unmarried couples (in this case, interracial couples).

The second sentence of the Federal Marriage Amendment would prohibit anything in the US Constitution (including those clauses of the 14th Amendment) from being construed so as to require that marital status or the legal incidents thereof be confered upon any unmarried couples (including interracial couples).

quote:
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.


Similarly, if a state wished to prohibit Christians and Jews from marrying, under the FMA, nothing in the US Constitution (including the 1st and 14th Amendments), State Constitutions, State and Federal Laws could be construed to require that marital status or the legal incidents thereof be confered upon such unmarried couples.

Essentially, any State or County Clerk could refuse to confer marital status or any of the legal incidents thereof to any unmarried couples they wish, for any reason whatsoever, and nothing in the US Constitution, State Constitutions, State or Federal Laws could be construed in such a way as to stop them.

It doesn't matter if the discrimination is race-based or not. Whatever clauses that were previously construed to require that conference of marital status or the legal incidents thereof can no longer be so construed.

Remember, the Federal Marriage Amendment is an Amendment to the US Constitution, and as such, is quite capable of overriding other parts of the Constitution, including the 14th Amendment. In essense, it would amend the 14th Amendment, along with any other part of the US Constitution that it would come in conflict with.
You are being silly dude. There isn't going to be a new consitutional amendment who's purpose is to nullify all the other amendments, nor make it impossible for everyone to marry.

I'd advise you re-read it if thats what you think, you are missing something, probably a law degree.

Here, try this. If the amendment dictates that 'marriage' is between a man and woman, the second part would mean that noone can "CONSTRUE" any part of any constitution or law to "construe" it other than a union 'between a man and a woman'. Like I said, its the 'definition' being preserved here. This is not a case regarding anyone's 'right' to marry. All men and women today have the exact same 'rights' to marriage now. This new amendment has no effect on that but to define what it meant by the term 'marriage'.

Now, those who are invoking a 14th amendment argument in support of gay marriage are making the leap that the word 'arbitrary' in the language prohibiting discrimination is inclusive of one's 'biological sex'. But that is not what the 14th amendment addresses. When it says 'arbitrary' its inclusive of such non-sensical factors as one's race or one's religion for example, but it is not describing a hundred thousand years of human tradition and millions of years of biology itself.

So in essence, the new amendment simply says 'this is this', this is not something 'else'

[This message was edited by DeltaJ on March 01, 2004 at 05:43 PM.]
The idea of the right wing always trying to establish the value systems of others makes the concept of democracy a bunch of bullshiit....If the rights of someone does not infringe on others...it should be allowed.....whether I (or anyone else) like it or not. That Christian or Democratic slant that has been put on everything from the wars this country starts, the people they deny resources to and keep poor while giving money to the rich, to the values they dictate to others and not practice their dammy......is a crock if I have ever sen one....
Essentially, any State or County Clerk could refuse to confer marital status or any of the legal incidents thereof to any unmarried couples they wish, for any reason whatsoever, and nothing in the US Constitution, State Constitutions, State or Federal Laws could be construed in such a way as to stop them. --ricardomath.

This sounds like the stuff Jim Crow is made of. It also sounds like a reasonable interpretation of the citation of the amendment, as presented. And no, I don't have a law degree.

While I agree that 'definition' is what is being addressed, it is also true that an issue fails the definition, the issue fails in fact.

I don't think an amendment to the Constitution can nullify ALL other amendments. Amendments can specify earlier provisions of the Constitution to be superseded/preempted.

And, I still don't think the amendment will happen.


PEACE

Jim Chester
quote:
Originally posted by DeltaJ:
You are being silly dude. There isn't going to be a new consitutional amendment who's purpose is to nullify all the other amendments, nor make it impossible for everyone to marry.


I didn't say that the amendment would make it impossible to marry, but it would make it impossible do defend the right to marry. In most instances, I would presume that States and County Clerks would allow unmarried couples to get married. But we would be subject to their good will and whims, since, according to the second sentence, neither the US Constitution, nor State Constitutions, nor State and Federal Law, can be construed to require that marital status or the legal incidents therein be confered on unmarried couples.

I suppose that courts would still be free to construe International Law or City Ordinances to require that marital status be confered upon unmarried couples, but US Courts have so far been reluctant to apply International Law in their rulings (although I suppose that this amendment could force them to reconsider that reluctance), and the applicability of City Ordinances would depend on which city that the couple was from.

quote:
I'd advise you re-read it if thats what you think, you are missing something, probably a law degree.


You are correct about my degree. It is in mathematics, not law. What law school did you graduate from? What was your specialty?

Actually, we do have somebody here who could perhaps shed some light on this, if VOX is around.

quote:
Here, try this. If the amendment dictates that 'marriage' is between a man and woman,...


Marriage in the United States shall consist only of the union of a man and a woman.

The first sentence does indeed seem to be either defining the term "married" for the purposes of law, or restricting the institution of marriage to a union of one man and one woman. On this we agree.

quote:
...the second part would mean that noone can "CONSTRUE" any part of any constitution or law to "construe" it other than a union 'between a man and a woman'. Like I said, its the 'definition' being preserved here. This is not a case regarding anyone's 'right' to marry. All men and women today have the exact same 'rights' to marriage now. This new amendment has no effect on that but to define what it meant by the term 'marriage'.


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.

While "marriage" may have been defined in the first sentence, do you contend that "unmarried couple" has been defined in such a way so as not to apply to a single man and a single woman? It strains credulity to imagine that the expression "unmarried couple" in the second sentence refers only to two single people of the same sex. If that had been what the authors intended, they would have inserted a sentence like "An unmarried couple shall consist only of two single people of the same sex".

Clearly any two single people would constitute an unmarried couple. And, according to the second sentence, neither the US constitution nor 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 them. The do not have to be of the same sex in order to have this protection withdrawn. The genders of the individuals in the unmarried couple is not even mentioned in the language.

quote:
Now, those who are invoking a 14th amendment argument in support of gay marriage are making the leap that the word 'arbitrary' in the language prohibiting discrimination is inclusive of one's 'biological sex'. But that is not what the 14th amendment addresses. When it says 'arbitrary' its inclusive of such non-sensical factors as one's race or one's religion for example, but it is not describing a hundred thousand years of human tradition and millions of years of biology itself.


It doesn't matter if the 14th Amendment addresses particular factors, such as race and religion, and not others, such as gender, since the FMA would specifically prohibit the 14th Amendment from being construed to require that marital status be confered upon the unmarried couple, reguardless as to the reason that the unmarried couple is being turned down.

quote:
So in essence, the new amendment simply says _'this is this', this is not something 'else'_


No, actually it is saying two things. You can't pretend that it only has one sentence:

(1) Marriage in the United States shall consist only of the union of a man and a woman.

(2) 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.
quote:
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.


Ricardo, what's up? I think you may be right, and Delta J is wrong. Although I've read where the purpose it to prevent courts from saying that the Constitution requires civil unions (while allowing congress to provide for them), it does seem to me that the wording could allow states to create laws against misce-genenation. If a state were to do that, this amendment could be construed as voiding any court decision that has used a constitutional rationale against miscegenation laws. It is absolutely possible that such laws would be constitutional by operation of this amendment. Off-hand, I can't think of an argument a court could come up with for INvalidating a miscegenation law if this language becomes law. Ricardo, interesting point.

BTW, I am opposed to this amendment, and to the president who espouses it. However, for reasons I'll get into later (assuming I can EVER GET ON THE SITE, MBM!!!), I probably would've been in favor of an amendment granting congress the power to pass a statute banning same-sex marriage. I wonder why that was never considered. Turning the constitution into a glorified statutory code (one immune from judicial review, no less) would be as destructive to our social institutions as I have argued same-sex marriage might one day be.
The whole idea of a marriage amendment is silly. The government shouldn't be involved in marriage in the first place. People should be allowed to excercise their right to contract with one another. The government's job is to oversee these contracts and ensure that they are respected- anything other than this is an infringement on people's rights.

Whether these contracts should be called "marriage" is another story.

Government involvement with marriage was started in order to keep blacks and whites from marrying eachother. When blacks and whites started to marry in early settlements, some elites in the government said "oh no!" and decided to get involved by banning the practice, or by enacting ridiculous laws.

Then in 1912 an Amendment was proposed to ban interracial marriages throughout the whole land. It failed but its just another case of government stepping over its bounds and interfering in people's lives.

I agree with Kevin when he says "If the rights of someone does not infringe on others...it should be allowed.....whether I (or anyone else) like it or not." which implies that from an earthly perspective, we own our bodies and the government has no right to tell us what we can or cannot do with them- provided that we aren't infringing on the rights of others.
"But we would be subject to their good will and whims"
would make it impossible do defend the right to marry.


Dude, I think you fail to realize that you are subject to that 'good will' and 'whims' RIGHT NOW TODAY. Nothing changes there.
There is no such 'right' as the 'right' to marry. States issue licenses for marriage.

There is NO constitutional amendment or law RIGHT NOW that guarantees anyone the right to 'marriage'. Its currently a state matter, a 'licensing' issue. Licenses of any type are NEVER guaranteed. For example, noone has a 'right' to a driver's license.


So I think you are needlessly alarmist regarding your interpretation of the second phrase. The second phrase 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, the key word there is "REQUIRE". The state cannot be FORCED to marry someone on the basis of some 'court' decision somewhere else.

Courts are not supposed to 'make' state law, and this amendment prevents states from being forced to define marriage based on a 'whim' of some court's point of view.

The amendment is saying that there shall be no law 'construed' as 'requiring' marital status "must" be inferred, which means the state sets the marriage law for themselves and no court can use a constitution or law to overturn what the state has legistlated.

This does not change the current marriage laws of ANY state.(mass hasn't gone into effect yet)

If a state is granting marriages licenses TODAY, by whatever statute of law the state has legistlated in place, THAT does not change one iota. The state still marries people as it sees fit.

All the new amendment would do is ensure that states respect that marriage is between a 'man and a woman', which is CURRENTLY THE LAW IN ALL STATES except one ANYWAY!!!!

If you think there is some connection to the way marriage is carried out in states today, then you haven't presented that connection here. This amendment changes NOTHING about the way marriages are conducted in 50 states today.

If you want to be alarmist, then by all means alarm away. But a simple reading of what you've provided in no way indicates what you are getting all worked up about, in my humble opinion.
Ricardo, I agree with your analysis. The fatal error in DeltaJ's analysis, as you have pointed out, is the second clause. DeltaJ's analysis neglects the second clause, and when he did mention it, s/he separates out phrases, without considering the entire clause.

The words say what they say, no matter how it is spun. Maybe this is a case of bad draftsmanship, maybe not. But either way, this is a dangerous act.

While I think that the drafter's (obvious) intent was to ban "gay marriage", the second clause was to foreclose gay civil unions, as well. However, the words of the second clause would also prevent hetero, single persons living together from, say, having joint health insurance, or joint bank accounts, or maybe even renting an apartment or buying a house. It all depends on what the states deem "legal incidents [of marriage].

Yes, this is probably is in the extreme, but I think we all see that this administration is a bit extreme.

[This message was edited by Kweli4Real on March 02, 2004 at 03:43 PM.]
quote:
Originally posted by DeltaJ:

Dude, I think you fail to realize that you are subject to that 'good will' and 'whims' RIGHT NOW TODAY. Nothing changes there.
There is no such 'right' as the 'right' to marry. States issue licenses for marriage.

There is NO constitutional amendment or law RIGHT NOW that guarantees anyone the right to 'marriage'. Its currently a state matter, a 'licensing' issue. Licenses of any type are NEVER guaranteed. For example, noone has a 'right' to a driver's license.

So I think you are needlessly alarmist regarding your interpretation of the second phrase. The second phrase 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, the key word there is "REQUIRE". The state cannot be FORCED to marry someone on the basis of some 'court' decision somewhere else.

Courts are not supposed to 'make' state law, and this amendment prevents states from being forced to define marriage based on a 'whim' of some court's point of view.



From Loving v. Virginia: "Marriage is one of the basic civil rights of man"

From Loving v. Virginia: "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men"

From Perez v. Sharp: "the essence of the right to marry is freedom to join in marriage with the person of one's choice"

[This message was edited by ricardomath on March 02, 2004 at 07:39 PM.]
I would ASSume marriage was initially meant to be an agreement between a man and woman, with license, to make a family and live happily ever after. That's a crock and one half.

Slaves were hopping brooms; massa was hopping us, babies were produced. Hence, all Africans in America now confused as to bloodlines, and so-called "white" folks lying thru their damn teeth about their so-called heritage.

Folks no longer getting married, babies still being produced.

"Gay" marriage is nothing but folks confused about orifices, and what to poke in 'em; nothing more, nothing less.

"Gay" unions produce no babies. Good!! No folks to fight these wars. Not to mention the AIDS lurking in everyone's corner. Hail to the Vaseline!!

Non-confused, produce babies, all parents lives are spent trying to keep babies alive. Government takes 'em to die in wars, while the so-called "elite" fill their pockets and laugh all the way to the bank. Cop beat-downs, imprisonment, killings of each other. Six in one hand; half a dozen in the other.

How many "races" do we have now on the planet; about 2,050?? Hairs of the Lamb, Hairs of the Horse, Hairs of the Dog. Confused muthas, ALL!!

White man makes the laws we all HAVE to abide by and everybody breaks 'em, including HIM. (Priests, child molestations, and other deviancies, too laborious to mention).

The hypocracy of all this madness, sexual and otherwise. Like I said before, there's a reason there's just so many days allotted to each "human" on this planet to live. We become too demented and crazy; consequently, we have to be put permanently "to sleep". AND THE BAND PLAYS ON!!

[This message was edited by Norland on March 03, 2004 at 03:31 AM.]
From Loving v. Virginia: "Marriage is one of the basic civil rights of man"

From Loving v. Virginia: "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men"

From Perez v. Sharp: "the essence of the right to marry is freedom to join in marriage with the person of one's choice"

*****************************************

It is not a civil right to marry. Sorry, you will not find that in the constitution. Its lovely language, but it is rhetorical only, as is common coming from court decisions.

There is 'freedom' in the sense that one can choose the mate of choice, and cannot be prevented from doing so under the 14th amendment due to 'arbitrary' considerations as cited in the amendment. But the ability to 'marry' is not 'guaranteed' to anyone, thats why one must seek a 'license' from the state in order to do so. The 'freedom' from discrimination is guaranteed, and that goes to the original point and questions you were asking earlier. But 'marriage' itself is not a civil right, never has been.

Licenses are not guaranteed, as in the state refusing to issue a marriage license to two 12 yr olds, or between a brother and sister. Its the STATE that decides the legitimacy of the coupling, and issues, or denies, the 'priviledge' that the state affords to its citizens.

If there were a 'right' to marry, the state would have to acquiese to ALL requests of marriage. But that has never been the case. Certain couplings are illegal. Thats why a 'license' is first required, the state must approve of the union first.

So, can I take this shift of focus as a sign you've resolved your original questions? Good discussion.
Marriage is a religious sanctioned institution. OK I believe that the Church should have the last say on this issue. I think that if the state decides to honor relationships that fall outside of this boundry such as common law marriages as many unmarried, yet couples who have lived together and have joint assests, that should be up to each individual state. I mean doesn't this "Gay Marriage" issue kind of fall under this common law marriage law? I'm sure that there are several legal loopholes that would allow gay couples to be "married". They just need to find them. I mean sometimes you have to find ways to make the law work for you with strategic manuevers.
Personally, everytime I think of Strom Thurman and that young girl Carrie who he impregnated and forced to give up her child I find myself cringing at the thought of even looking a white man in those kinds of ways. I also think of my great-great grandmother who was probably more white than a lot of whites I know and how she came to be that way. I almost want to cry. Sorry if that offends anyone, but that's just the way Yssys feels about that. It's cool if anyone else wants to do it, but I can't bring myself to it.
I also think of my great-great grandmother who was probably more white than a lot of whites I know and how she came to be that way. I almost want to cry. Sorry if that offends anyone, but that's just the way Yssys feels about that. --- Yssys

It's painful to see anyone deal with circumstances of identity. We are a proud people, because of us not in spite of us.

I know I have no authority to tell you what to do. But, if I may offer advice: Never, ever, apologize to ANYONE for WHO you are, or ANY of your ancestors are.

PEACE
DeltaJ, you are correct that many of the "rights" that we enjoy, are not "rights" as defined by the Constitution. According to that document, our "rights" are limited to the ten amendments known as the Bill of Rights. However, the courts have, for right or wrong, expanded these beyond the ten to include such rights as privacy; the right that the government shall not interfere in our lawful personal affairs.
quote:
Originally posted by Yssys:
Marriage is a religious sanctioned institution. OK I believe that the Church should have the last say on this issue. I think that if the state decides to honor relationships that fall outside of this boundry such as common law marriages as many unmarried, yet couples who have lived together and have joint assests, that should be up to each individual state. I mean doesn't this "Gay Marriage" issue kind of fall under this common law marriage law? I'm sure that there are several legal loopholes that would allow gay couples to be "married". They just need to find them. I mean sometimes you have to find ways to make the law work for you with strategic manuevers.


There is a difference between religious marriage and civil marriage.

Who a religion or denomination wishes to allow to marry is not something that the government can legislate. Indeed, religions have many rules about who is and is not allowed to marry. Some churches refuse to allow interreligious marriages, some even refuse to allow interracial marriages, and many refuse to allow same sex marriages. (Some religions do allow same sex marriages, and there are many gay couples who are married from a religious standpoint, but have been unable to obtain a civil marriage, and the 1049 rights and previlages that go with it.)

A civil marriage is a legal status recognized by the government. Just as there are couples who are religiously married, but not civilly married (the government considers them single), so too are there couples who are civilly married, but not religiously married.

In fact, my wife and I are not allowed to marry in a religious cerimony due to the Catholic Church's attitudes towards divorce and remarriage. Our wedding took place in a courthouse before a judge. By marrying civilly, we gained 1049 rights and privilages under federal law. Those rights affect many aspects of our lives, including our ability to even be allowed to cohabitate in this country.

Common law marriage is something different than civil marriage. I believe that you have to be living as a married couple, and presenting yourselves as married in public for a period of time, after which time the government will consider you as civilly married. I'm not sure exactly how it works. If a couple is not eligible for civil marriage, the government will not consider them a common law marriage.
quote:
Originally posted by DeltaJ:

It is not a civil right to marry. Sorry, you will not find that in the constitution. Its lovely language, but it is rhetorical only, as is common coming from court decisions.


The California Supreme Court disagreed with you in Perez v Sharp, and the US Supreme Court disagreed with you in Loving v Virginia. Take it up with them.

quote:
There is 'freedom' in the sense that one can choose the mate of choice, and cannot be prevented from doing so under the 14th amendment due to 'arbitrary' considerations as cited in the amendment. But the ability to 'marry' is not 'guaranteed' to anyone, thats why one must seek a 'license' from the state in order to do so. The 'freedom' from discrimination is guaranteed, and that goes to the original point and questions you were asking earlier. But 'marriage' itself is not a civil right, never has been.

Licenses are not guaranteed, as in the state refusing to issue a marriage license to two 12 yr olds, or between a brother and sister. Its the STATE that decides the legitimacy of the coupling, and issues, or denies, the 'priviledge' that the state affords to its citizens.

If there were a 'right' to marry, the state would have to acquiese to ALL requests of marriage. But that has never been the case. Certain couplings are illegal. Thats why a 'license' is first required, the state must approve of the union first.


There is no right to vote, since 12 year olds are not allowed to vote! rotflmao

quote:
So, can I take this shift of focus as a sign you've resolved your original questions? Good discussion.


I was responding to your points about the right to marry. I believe that it is clear that Bush's proposed Federal Marriage Amendment would indeed do what it says, which would essentially overrule Perez v Sharp and Loving v Virginia. You have offered no reasonable arguements to the contrary. Indeed, you have made your oposition to the conclusions stated in those two court decisions quite clear, so it is not surprising that you would support the FMA.
Of course, you do not need to obtain a LICENSE prior to practicing your 'right to Privacy', do you kweli4real.

Think of this as simular to the 'right' to bear arms. Everyone has the 'right' to bear arms, its clearly spelled out, and noone needs validate the 'right' itself, its guaranteed in the constitution.

However, it is still within the goverment's or state's jurisdiction to 1) decide which arms are appropriate in the interest of the public good, 2) decide 'which' individuals may bear the arms for the public good.

In both cases are limitations placed on the type of arms and the bearer of the arms, despite the guarantee of a 'right to bear arms'.

The mechanism through which this 'check' is carried out is through the 'licensing' process in each state. And so it is with 'marriage licenses'. Has noone ever even wondered why they had to get this license before?(not me)

I don't think mixing 'church and state' is very popular these days, one is 'separated' from the other when it comes to legalities.

Common law marriages are still a 'state sanctioned' entity, and the state can grant such status based on factors of its own choosing, usually based on concerns and the welfare of any children who might be involved.

However, what does 'marriage' mean? All fifty states currently have only considered marriage to be between 'a man and a woman'. And 37 of the states have codified that meaning by state law. So, common law 'marriage' does not escape the scrutiny of what a 'marriage' constitutes. One man and one woman = one marriage, common-law or otherwise. And all men and women have that same right to marriage.

Thats the issue here, what is 'marriage', and who gets to define it. Is it the people through their elected legistlatures who are supposed to carry out the people's wishes thru elected representation, or a judge/lawyer in a courtroom somewhere, in essence 'dictating' what he wants to do, and telling others to do like him/her.

So my friend Ricardo, you were 'always' at the mercy of state law, if not that 'clerk' you mentioned earlier. And nothing has changed due to this new amendment proposal, which was the point we were debating.

And I haven't said whether I support the amendment or not, I'm simply explaining the issue to you, which is what I thought you were seeking with your topic here.

You asked whether this new amendment would 'overturn' Loving v Virginia, and I'm contending that this new amendment is not even relevant to Loving v Virginia. The plaintiffs in that case were a 'man' and a 'woman', and the new amendment does not 'undo' that in any way shape or form. Loving v Virginia is wholly compatible with this new proposed amendment, and still would stand.

[This message was edited by DeltaJ on March 05, 2004 at 12:19 PM.]

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