Thursday, May 5, 2011

Constitution vs. Emotion: Things to Think about

So, while I'm all wrapped up in the art and theory of editing a manuscript for publication...

okay, gotta pause here for a little *squee*.

The Minnesota congress is talking about whether or not to alter their freaking Constitution to make gay marriage illegal.

Huh.

Um, separation of church and state anyone?

Anyone?

Bueller?

Right then...as in far right...scary, can we move it to the left, to the left?

In the responses to a very cogent argument presented by Rep. Steve Simeon (which you can view here http://news.yahoo.com/s/yblog_thelookout/20110504/us_yblog_thelookout/minnesota-lawmakers-gay-marriage-defense-goes-viral  ) was one that I found particularily interesting. So I did the old copy and paste thingy. Check it out. I especially like the bits about how we don't live in a Theocracy (ummm...we don't? Sure starting to seem that way...) and that the Supreme Court would likely be too cowardly (my words, not the commentors) to take the case. Pffft. If they refuse I'll personally see about starting a grass-roots movement to make refusing pertinent cases cause for dismissal from the court. No fooling.
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It will be interesting when this issue finally hits the Supreme Court. I expect it to be entertaining.

First, we do not live in a theocracy, so religious arguments are moot.

I am not a gay rights advocate; I support the US Constitution, and this IS a Constitutional issue. Gay couples (whether or not we agree with them, they ARE couples) are being denied the rights that we take for granted as married couples. The right to make medical decisions for an incapacitated partner, the tax policy benefits afforded married couples and the right to inheritance, for a few examples.

I support the US Constitution - ALL of it. I don't pick the provisions I like.

AMENDMENT XIV
No State shall make or enforce any law which shall...deny to any person within its jurisdiction the equal protection of the laws.

What part of "NO STATE shall make or enforce ANY LAW" or "DENY ANY PERSON" is unclear?

Gay couples do NOT have the same rights as married straight couples, thus the equal protection clause is being violated. Yes, they can go to a lawyer and have documents drawn up, but that imposes a financial burden on them that straights do not have to bear. Again, it violates the equal protection clause.

Also consider the full faith and credit clause - Article IV, section 1. All states must recognize the "public acts, records and judicial proceedings" of every other state. Since 5 states allow gay marriage, all other states are COMPELLED to recognize those. They don't have to allow gay marriage to take place, but they do have to acknowledge those from other states as legal. This is the same principle that allows people to run off to Vegas to get married and still be married when they return home. Full faith and credit. So if any of those 5 states do not have residency laws, we already have gay marriage by default.

I used to suggest civil unions to give the same rights as marriage, but “separate but equal” has already been struck down.

For those that claim this is a states rights issue, the Constitution is superior to any state law or state constitution. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." So if the Supreme Court rules that bans are unconstitutional, it does not matter what any state puts in their constitution.

So if/when this issue is taken up by the Court, I will find it entertaining, either watching a conservative court jump through hoops to find such laws constitutional, or watching the far right scream about "activist courts" if they actually follow the Constitution.

That's assuming they would even take it. It would not surprise me if they refused to take it.
1) The conservatives would not want to be on record as having to outlaw DOMA laws.
2) If the Supreme Court took it, any ruling would likely apply nationwide, whereas refusing the case leaves the ruling only applying to the states in whichever circuit court the case comes from; I would assume the California case is the most logical one at this point.

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3 comments:

  1. I find it telling that even a "non-gay rights advocate" can see that this is a matter where our country is sadly leaning toward Theocracy, and as far from our separation of Church and State roots as we can possibly get.

    Pfft.

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  2. I find it amusing that we send our soldiers to war in order to keep our rights but when it comes to trampling the Constitution the worst culprit is us.......Every day constitutional rights are so heavily trod upon by American so-called leaders it is sad and pathetic....A country that is celebrating the demise of a man who held us in a stranglehold for a decade cannot see that they are corrupting the same rights. Will there ever come a day when we really do all have equal rights? I sure as hell hope so but I dont think our generation will be alive to see it...

    Thanks for the enlightening and insightful post Cherie darlin!

    hugs,
    jo

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What's your take?