One reason the "state's rights" approach to same-sex marriage won't work

[MNBrewer]

<http://www.salon.com/wires/us/2011/07/17/D9OHFIEG0_us_military_gay_couples/index.html>

"The Pentagon says the 1996 Defense of Marriage Act -- which defines marriage for federal program purposes as a legal union between a man and woman -- prohibits the Defense Department from extending the benefits to gay couples, even if they are married legally in certain states."

Bans on same-sex marriage MUST be eliminated by the Federal government, like the bans on interracial marriage were thrown out. A "state's rights" approach is not only wrong, it's HARMFUL.

[Bluenorthwest]

1. That is just a situational excuse from the President

On Medical Marijuana, he claims the States have no rights at all, in fact his administration is threatening State employees who enforce their own state's laws. So he's a slippery stack of whatever gets him through the speech that day, his words are meaningless.

[MNBrewer]

2. I'm left with the conclusion that Obama does not believe

that constitutional protections extend to gay people. For example, regarding interracial marriage, I suspect he would say it was discriminatory and wrong AND unconstitutional. Whereas for DOMA, he just says it's discriminatory and wrong. He believes the Constitution does not protect homosexuals.

[Old Codger]

3. Constitution

Might apply

Section. 2.

Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

[dbackjon]

9. So you think that states can discriminate?

[Old Codger]

11. Absoluely not

I read that as the states are required to recognize the rights of citizens of all other states, marriages in one state are legal in all other states regardless of DOMA, it is unconstitutional according to section 2.

[dbackjon]

12. Gotcha!

[customerserviceguy]

4. Big difference on the two

When the SCOTUS threw out bans on interracial marriage in 1967, there were very few places that had laws against them, and they were not always enforced. The laws banning interracial marriage were about a century old at that point.

With the current stains on state constitutions, not only do a vast majority of states have them, they've been enacted in the last couple of decades, often with popular support on ballots. It's not terribly often that a Supreme Court tosses out laws that enjoy fairly broad support, and are of recent origin.

Let's see how repealing DOMA in Congress goes. The President didn't want to make that even an agenda item when his party controlled both houses of Congress.

[MNBrewer]

5. I disagree that there IS a big difference

and, see the number of states banning abortion prior to Roe v. Wade.

[customerserviceguy]

6. When it comes to human rights

yes, there is no fundamental difference, all I was trying to point to was the history behind the Loving vs. Virginia decision. I certainly don't think we need to see another eighty years go by before equal marriage becomes the law of the entire land.

You make a good point about Roe vs. Wade, but that was from the days when Republicons were naive about their SCOTUS appointments, they've learned how to become much more careful about them these days. Only Souter has 'slipped through' since 1973. Also, most abortion laws on the books, besides the newly liberalized ones, were also pretty old laws, passed solely through legislatures. The abortion liberalization movement had some voter support, as I recall from the Referrendum 20 situation in Washington State in 1970.

It would have been politically much easier for a less polarized Supreme Court in 1973 to see a trend on abortion developing, and get on board with that trend, than it will be for an ideologically divisive Court to do the right thing on equal marriage. Even if they do, I fear it will not let the issue rest, clearly, Roe vs. Wade did not quiet the battles over abortion that we saw forty years ago.

I prefer legislative solutions like NY and a couple of other states have taken, yes, they're nail-biters, but they seem to resolve an issue more completely than judicial solutions that cannot craft the necessary exceptions that it takes to ease the path.

[Creideiki]

7. It's not supposed to be a popularity contest

That's why they're called "civil rights" and not "special rights given to popular groups of people."

Regardless, the wording in Loving v. Virginia is pretty clear. They don't say that marriage is a fundamental right of straight people, but of people. Since most of us believe that people in same-sex relationships are still people, then it's not a stretch. Of course, if you're a bigoted asshole, then yes, it would be too much of a stretch. In that case, I'd suggest a compassion transplant.

[MNBrewer]

8. State-by-state "legislative solutions" is inadequate

A Federal dimension is required, and the states must be required to apply Full Faith and Credit to the marriages performed in other states. DOMA must go!

For example: A New York same-sex couple gets married. They have all the benefits provided to married people by the state, yet NONE of those provided by the Federal Government. If one of those people are employed by the state of New York, they will have the opportunity to have benefits applied to the other partner, such as being included in health coverage. A heterosexual couple will not be taxed by the Federal Government on the value of that health coverage, while a same-sex couple will be taxed. That's essentially a tax on being gay and in a relationship.

Once DADT is fully repealed, gay service members can marry without fear of being kicked out of their job, but are ineligible for being treated as married.

Even when DOMA is repealed, and IF the Federal Government starts to treat same-sex marriages on an equal legal footing as different-sex marriages, if Obama gets his way and states are free to NOT apply full faith and credit to marriages performed in other states, how will a legally married military family be treated at the FEDERAL level if they get transferred from New York to Virginia? Will the Fed base benefits on the state in which the person is stationed?

If the Federal Government recognizes same-sex marriages, and allows joint filing on tax returns, will it be based on the state of residence, or the state where the marriage occurred? I live in Minnesota. MN does not have same-sex marriage, and might get a Constitutional Amendment banning it. If I get married in New York, could I still file jointly on my Federal Taxes?

MN bases state income tax filing on the Federal form. If I file jointly on my Federal taxes, but am ineligible to file state taxes jointly based on state law, will I have to figure my federal taxes twice, in order to file state taxes?

[dbackjon]

10. So you are ok with delaying equality?

Can I make YOU a second-class citizen?