DOMA and Prop 8. Both History.

[bldavis]

I'm gonna wave my Canadian flag once again and say that we have the most sensible laws regarding same-sex marriages.

The first part of the Civil Marriage Act makes the definition of marriage gender-neutral. Marriage is the lawful union of two persons to the exclusion of all others.

The second part says that churches aren't required to perform same-sex marriages if it is against their religious beliefs. That's sensible.

this is what i meant in my first post...

add in the legal portion of marriage is in front of a judge or justive of the peace in a courthouse, you can still have w/e religious ceremony you want. that way if you arent religious (like myself) yet still want to provide for the person you love and your family in case something happens to you, you can do so legally.

as i stated before, businesses have the right to refuse service to anyone. when working as a front desk clerk, i had the ability to ask anyone to leave, before, during, or even after they were checked in. hell a couple times i HAD to ask someone to leave.
it is no different than a restaurant denying someone who doesnt meet the dresscode, or any other business that doesnt want your money. if they refuse your business, take it else where, dont sue them because you got butthurt.

[Alram]

Ignoring the content of Prop 8, and looking at only the procedures or events, we have, if I understand it correctly, a situation where the people in a state voted for and passed an amendment to their state constitution. The executive branch declined to enforce it or defend it in court. Those who were instrumental in getting the state amendment passed were found to have no legal standing.

This isn't really correct. I don't think there was any failure of enforcement, and the state defended it up to (but not including) the Ninth Circuit.

This would appear to set a precedent that the will of the people can be overturned by an indifferent executive branch or by non elected judges. Has this happened before? Is this a legal precedent that makes anyone else uncomfortable?

Here's where you go off the rails. A precedent? Like the Supreme Court hasn't ever, ever overruled anything, never gone against popular opinion? That's what they're there for, to ensure the rights of the minority are not trampled by the majority. The will of the people does not determine the rights of the governed.

Additionally, the unelected state of judges is intended to place them outside the pressures of pandering to political interests and place them above the fickle winds of public opinion. If you think electing judges is better, take a look at Texas.

As for the executive branch being indifferent, you say "indifferent", I say "principled", or more likely "politically savvy". They are, despite your rather obsolete sense of the "will of the people", bending to the will of the people by not defending Prop8.

The Executive branch in the state of California refused to defend the law in Federal court.

The SCOTUS ruling opens up the possibility for elected state officials to by refuse to enforce or defend ballot initiatives, leaving proponents of the ballot initiatives with no remedy. Justice Kennedy alluded to the same point in his dissent:

The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court’s decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation...
the Court insists upon litigation conducted by state officials whose preference is to lose the case. The doctrine is meant to ensure that courts are responsible and constrained in their power, but the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed... here the Court refuses to allow a State’s authorized representatives to defend the outcome of a democratic election.”

This same mechanism or process could be used in another state to invalidate or strike down a referendum supporting gay marriage. So, instead of accusing me of using "obsolete" terms, should make a reasoned look at potential unforseen or unwanted effects that occur because of the way SCOTUS formulated its ruling.

[LavCat]

as i stated before, businesses have the right to refuse service to anyone. when working as a front desk clerk, i had the ability to ask anyone to leave, before, during, or even after they were checked in. hell a couple times i HAD to ask someone to leave.

What country, state, planet are you from?

In New Jersey many forms of discrimination, including discrimination because of "affectional or sexual orientation", are illegal in places of public accomodation and other business.

http://www.nj.gov/oag/dcr/law.html#LAD

Note, that as I understand the law, bakeries and churches are not considered places of public accomodation. But should the bakery have a table where one might sit down to have a slice of cake, they could be in real trouble.

[shoju]

In Ohio, I can refuse to serve / sell / etc.. and I don't have to give you a reason.

Oh the double edged sword of that craziness.

[kandrathe]

Well i think it is good to have a special set of laws and rights for two people who get married.

Which begs, what is marriage?

What would you do else when problems arise regarding children or inheritance questions.

Children are frequently produced by unmarried couples, so I don't understand what the issues are here really. The biological parents are responsible, until they relinquish by way of adoption, or have those rights removed by the state for being neglectful or abusive. Inheritance, also frequently results in probate, so a will is always the helpful document in these cases. It is just handy to assume the spouse gets 100% of estates. Without a spouse, you'd need to spell it out in a will. This is not really too big an issue.

The fact is just that the only legal form of marriage is the one you do in city hall.

... said the statist.

If you are religious and want to do one in church as well ( because you feel this is the only real one) you go ahead.

The very religious people I know say this is the only real marriage, the one which consecrates the two people as one flesh in the eyes of God. They feel the license is a formality to get official state recognition.

When I was 19, in college and living with my then girlfriend, now wife, we both worked for the headquarters of the American Lutheran Church in Minneapolis. The leadership there considered us married, except we had not made it official in a church, or by getting the license. They saw we had a committed relationship based upon canonical law; "The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament."

[LavCat]

In Ohio, I can refuse to serve / sell / etc.. and I don't have to give you a reason.

Oh the double edged sword of that craziness.

How do ohioans get around Title II?

http://www.ourdocuments.gov/doc.php?flas...transcript

"TITLE II--INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION
SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin..."

[bldavis]

as i stated before, businesses have the right to refuse service to anyone. when working as a front desk clerk, i had the ability to ask anyone to leave, before, during, or even after they were checked in. hell a couple times i HAD to ask someone to leave.

What country, state, planet are you from?

In New Jersey many forms of discrimination, including discrimination because of "affectional or sexual orientation", are illegal in places of public accomodation and other business.

http://www.nj.gov/oag/dcr/law.html#LAD

Note, that as I understand the law, bakeries and churches are not considered places of public accomodation. But should the bakery have a table where one might sit down to have a slice of cake, they could be in real trouble.

oregon, and i would not have to give you a reason to ask you to leave the premises.
if you could PROVE i was doing simply because of your sexual orientation, disability, or race...or any other protected status then yes i would be f-ed. but there are a ton of reasons i could ask you to leave, so good luck trying to prove that i not only knew of, but acted upon a prejudice against, a certain facet of your life.

honestly, i only ever asked people to remove themselves, or called the cops on a guest to be removed when they were disrupting the other guests.

[eppie]

I understand there is a difference in opinion between the religious and the non religious but in a state which has separation of church and state the one you do in church should be just for you and your family while the one you do at city hall should be the legal one. Also for religious people this should not change anything becuase the state- wedding can be done by just signing a document for almost no cost if you want.

[LochnarITB]

I have the answer. Return marriage to what it truly is, a religious institution. Throw out any law that references marital status. Throw out any lawsuit against any entity for refusing to perform a marriage ceremony or provide the venue and services. Problem solved, easy peasy .

Easy peasy eh?

Of course not. Thus the dodgy "yeah, right" emoticon.

It was of major importance to me that when my husband died, I was automatically the owner of our home and had automatic use of his assets, without waiting for probate. It was of huge importance to me and my children that when my husband lay dying in a hospital emergency unit, I was consulted on what was to happen next. The children were automatically mine to make education and other decisions about.

Of course it was important. But those are still legal issues, issues whose outcome is determined by a legal contract. That contract is the marriage license. As you alluded to below, religion has come to claim ownership of the word marriage. The majority of those against same-sex equality, here in the US, seem to be objecting on religious beliefs with such brain dead slogans as "God made Adam and Eve, not Adam and Steve". When voters vote to create laws based on their beliefs rather than the legal ramifications, we have a huge short circuit in the separation of church and state. They are building discrimination into our legal system. I have no answer how to get the general populace to make the shift of thought, but it can be done. Imagine the uproar if all these protests and laws were against the validity of mixed race marriages. The US will get there, but it will take work and struggle just as all important transformations do.

As DeeBye said above, I think my country got it right.

If not right, the Canadian people (which I believe to be generally more intelligent, as a whole, than those of the US) have certainly allowed the most logical compromise possible. You essentially have a search and replace substituting civil union for marriage in any existing law affected by or affecting marriage. It is what I believe the US must work toward, but it will take time for the US populace to achieve the enlightenment of our neighbors to the north.

[shoju]

In Ohio, I can refuse to serve / sell / etc.. and I don't have to give you a reason.

Oh the double edged sword of that craziness.

How do ohioans get around Title II?

http://www.ourdocuments.gov/doc.php?flas...transcript

"TITLE II--INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION
SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin..."

Because I can say that I don't like your shirt. Or that I don't like your attitude. It's some bizarre state law that also means that they don't have to give you a reason on why they are firing you.

I don't remember what it is, but it's still a little early. I'll see if once I have some caffiene in me that I can find it for you.

Basically it all centers around being able to give you a reason, no matter how ridiculously asinine, or trivial as a reason why we don't have to do something.

[kandrathe]

I understand there is a difference in opinion between the religious and the non religious but in a state which has separation of church and state the one you do in church should be just for you and your family while the one you do at city hall should be the legal one. Also for religious people this should not change anything because the state- wedding can be done by just signing a document for almost no cost if you want.

There is that, and I agree. As society got bigger, the ceremonial aspect got smaller, and ultimately what used to be a big deal is now just another license. As an older man, I applaud the end to bigotry, yet I grieve for our loss of ceremonial importance. It's just another part of how the "melting pot" dissolves the differences between us -- in both good and bad ways. Marriage can mean many things in many cultures, which is why really in a secular multicultural society, the more we do not encode it into law, the better off we'll find ourselves. How about polygamy?

Regarding my regrets; for example, I'm a full blooded swede and I like the Santa Lucia part of Dec. 13th ceremony where a girl dressing in a white dress with a red sash round her waist and wears a crown of lingonberry branches and candles on her head. Which was based on an ancient pagan festival of light, in the midst of the darkness. As a Swede in America, I've lost this tradition, and I mourn that loss. If I had a daughter, I'd probably encourage the rebirth of this tradition in our home. In the same way, for me, marriage is more than a license or a contract, and the state can go to hell. They've tied too many laws to it now to unravel it, but I can still regret its purpose being diluted socially.

Again, I'm really, really happy that people are getting "equal protection", as they should... But, it was wrong to have discriminated in favor of married people in the first place.

---

...
which I believe to be generally more intelligent, as a whole, than those of the US... it will take time for the US populace to achieve the enlightenment of our neighbors to the north.

Harsher climates favor smarter people.

[LochnarITB]

...
which I believe to be generally more intelligent, as a whole, than those of the US... it will take time for the US populace to achieve the enlightenment of our neighbors to the north.

Harsher climates favor smarter people.

Well, we are almost Canadians after all.

[kandrathe]

Well, we are almost Canadians after all.

I got me a bunny hug, eh?

[Nystul]

Because I can say that I don't like your shirt. Or that I don't like your attitude. It's some bizarre state law that also means that they don't have to give you a reason on why they are firing you.

Nothing is so simple. For example, former Ohio State basketball coach Jim O'brien famously sued for wrongful termination and won millions of dollars. Less famously some of my coworkers have been "walked out" and had their jobs reinstated a day or two later. It may be that there are no specific state laws offering protection to people in these situations, but such protection can be built into your contract, and federal laws as well as Constitutional rights also apply. By same token if you refuse service to someone and you are violating some federal law by doing so it really wouldn't matter what state you live in.

[kandrathe]

Because I can say that I don't like your shirt. Or that I don't like your attitude. It's some bizarre state law that also means that they don't have to give you a reason on why they are firing you.

I think the law is "at will employment" in many states.

Nothing is so simple. For example, former Ohio State basketball coach Jim O'brien famously sued for wrongful termination and won millions of dollars. Less famously some of my coworkers have been "walked out" and had their jobs reinstated a day or two later. It may be that there are no specific state laws offering protection to people in these situations, but such protection can be built into your contract, and federal laws as well as Constitutional rights also apply. By same token if you refuse service to someone and you are violating some federal law by doing so it really wouldn't matter what state you live in.

In this case, it is thrice fraught with danger; 1st, the students get federal financial aid so you must be careful to not lose your good graces with the feds, 2nd the NCAA is watching and you don't want the University to get suspended (bad for business), and 3rd, coaches ( and faculty) are covered by contracts, which is what O'Brien felt was breached, and it turned out that way.

As far as I remember, federal labor laws apply to safety, hours worked, overtime, FMLA, EEO, ADA and taxes.

In most at will employment, you can be fired at anytime without cause. If you have a contract, then things are different.

[shoju]

The At Will Employment is one thing, I didn't have time to look yesterday, I'll see if I can find it today.

The O'Brien case is different. He had a contract. the termination of his employment violated the terms of the contract. Not because it violated employment laws. Like Kandrathe pointed out, the At Will Employment ideologies of Ohio would have meant he had no recourse.

[Taem]

@Shoju

Haven't been keeping up with this thread, but in response to your last post, it is at will employment; we have it here in California. But don't let that fool you. People here (not at my work, thank goodness) sue for wrongful termination on a fairly regular basis from what I gather. I'd look it up, but I'm posting from my phone.

[eppie]

There is that, and I agree. As society got bigger, the ceremonial aspect got smaller, and ultimately what used to be a big deal is now just another license. As an older man, I applaud the end to bigotry, yet I grieve for our loss of ceremonial importance. It's just another part of how the "melting pot" dissolves the differences between us -- in both good and bad ways. Marriage can mean many things in many cultures, which is why really in a secular multicultural society, the more we do not encode it into law, the better off we'll find ourselves. How about polygamy?

I am not saying anything against ceremony. I guess in most european countries you do a marriage for the state and if you want the one for the church. Even in the more religious countries.
And the church one, is for those who choose to have one always the most traditional and abundant.
So this seems like a very good compromise. Just go, the two of you, to city hall to sign a document, and then do the 'real' thing with friends and family in church with a 3000 dollar dress a 2000 dollar cake and 250 guests. Even in France things go like that.

Regarding my regrets; for example, I'm a full blooded swede and I like the Santa Lucia part of Dec. 13th ceremony where a girl dressing in a white dress with a red sash round her waist and wears a crown of lingonberry branches and candles on her head. Which was based on an ancient pagan festival of light, in the midst of the darkness. As a Swede in America, I've lost this tradition, and I mourn that loss. If I had a daughter, I'd probably encourage the rebirth of this tradition in our home. In the same way, for me, marriage is more than a license or a contract, and the state can go to hell. They've tied too many laws to it now to unravel it, but I can still regret its purpose being diluted socially.

Again, I'm really, really happy that people are getting "equal protection", as they should... But, it was wrong to have discriminated in favor of married people in the first place.

---

My second son was born on Lucia. There was a choir walking around the hospital (and maternity ward) to sing songs. Meanwhile we missed our oldest sons Lucia celebration at daycare.

Anyway, just book a plane ticket to Stockholm around that date and enjoy the festivities....the world is small.

[kandrathe]

So this seems like a very good compromise. Just go, the two of you, to city hall to sign a document, and then do the 'real' thing with friends and family in church with a 3000 dollar dress a 2000 dollar cake and 250 guests. Even in France things go like that.

Yet, I'll always be the one to ask 'Why?' Why do I need to tell the government what I'm doing in my personal life? If I want a Will, I'll need to make a will. If I want a more complicated contract, then lawyers do prenuptial agreements all the time. From the government's perspective, there is really one question; Are you both of legal age to consent? Which in this day and age is more of a sexual relations concern, rather than a " Are you willing to be committed to this person for the rest of your life" concern. In fact, we'd be better off with tribal customs where if you share a bed and a meal with your mate, you are married. Does the government ever get to say, "No, we're not allowing you to marry"? If not, then its a useless hoop jumping exercise implemented by control freaks and should be abolished. Everything else related to prohibitions of marriage is dominant culture social taboo, and has very little to do with governance. And, then, what prevents us from legalizing polygamy and why would we prevent it?

My second son was born on Lucia. There was a choir walking around the hospital (and maternity ward) to sing songs. Meanwhile we missed our oldest sons Lucia celebration at daycare.

Anyway, just book a plane ticket to Stockholm around that date and enjoy the festivities....the world is small.

I would love that, but I've got these children... :-) Traveling with children is awful. More-so, if you need to fly. Even worse if you need to fly internationally.

[eppie]

Yet, I'll always be the one to ask 'Why?' Why do I need to tell the government what I'm doing in my personal life?

No you don't need to tell them, they know it already. (following the news? )

If I want a Will, I'll need to make a will. If I want a more complicated contract, then lawyers do prenuptial agreements all the time. From the government's perspective, there is really one question; Are you both of legal age to consent? Which in this day and age is more of a sexual relations concern, rather than a " Are you willing to be committed to this person for the rest of your life" concern. In fact, we'd be better off with tribal customs where if you share a bed and a meal with your mate, you are married. Does the government ever get to say, "No, we're not allowing you to marry"? If not, then its a useless hoop jumping exercise implemented by control freaks and should be abolished. Everything else related to prohibitions of marriage is dominant culture social taboo, and has very little to do with governance.

And you solution is making things easier???
In a modern stable society you need a stable form of family. I know lots of people divorce, but it is good to state at a certain point you will start sharing everything officially with your partner. And that there is a set of rules and laws that arrange things like standard ways of how inheritance works. Seriously.....you are lobbying for lawyers here??

And, then, what prevents us from legalizing polygamy and why would we prevent it?

Because it is an unequal type of living together. Well....maybe theoretically also one woman could marry several guys at the same time, but we all know that that is not the deal with polygamy right?
Polygamy is institute in societies in which women are second rank citizens. So the same reason we don't allow children under 18 to get married.