A Message to America

Hope for the Future

          Time magazine recently did a series of pieces that outlined same-sex marriage in America today. One of these pieces stated how same-sex marriage may enter into official national legal status. Unfortunately, this option would come through the divorce of a same-sex couple who happens to have adopted a child. The key to their rights may come in the form of the court recognizing the original marriage in order to enforce the divorce and child support aspects of the case. This would in turn give their marriage full faith and credit. (This idea comes from law professor Sam Marcosson of the University of Louisville Louis D. Brandeis School of Law)

 

               Obviously these decisions would be left up to the Supreme Court, and as it stands now these decisions will most likely not be passed. But if a child custody case were to reach the courts after President Obama is able to make some appointments, then the outcome may be promising. Again, the court has been trending to be more liberal on cases dealing with the privacy of marriage, such as Lawrence v Texas (2003). However, there are those like Justice Scalia who thought that the decision “effectively decree(d) the end of all moral legislation.” I would like to point out that one of the attorneys who argued in the case, Paul Smith, indicated that “the court has taken sides in the culture war” and has gone away from its role as a “neutral observer.” Statements like these indicate that the strict constructivists on the court make have more of an activist agenda than was ever intended by our founders.

 

To read the whole articles from Time magazine click here and here.

The Defense of Marriage Act is Unconstitutional

First and foremost the Defense of Marriage Act (DOMA) violates the Full Faith and Credit Clause of the Constitution. If a driver’s license in one state is valid in another, than a marriage license or certificate denoting a civil union should as well. Article IV, section 1 of the Constitution, the Full Faith and Credit Clause states:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceeding of every other state; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. No judicial precedent has been set on how this clause applies to same-sex marriage. So, opponents to same-sex marriage argue that Congress’ general authority to “prescribe…the effect” of public acts arguably gives it discretion to define the “effect” so that a particular public act is not due full faith and credit.

(Moreover, DOMA violates the equal protection and due prcocess clauses of the 14th amendment for the reasons stated throughout this blog.)

 

A Definition for Consideration

I want to point out that one of Merriam-Webster’s definitions of marriage is “an intimate or close union.” This definition is consistent with same-sex marriages and accurately reflects what marriage is at its most basic level.

Purpose

    

     The passing of proposition eight in California and similar bans on gay marriage in Florida, and Arizona are preposterous infringements of American civil liberties and individual rights. It is important to understand how American’s feel about the issue and what allowed these bans to pass. My project will include a blog outlining the history behind the major legislation in the United States dealing with same-sex marriage and describing the legal standing of the issue, especially in the case of the Defensive of Marriage Act. In addition, I will include a link to the current laws in place on the regulation of gay marriage in the 50 states. Most importantly, I will give an example of what can be done to reverse these rulings and discuss the viability of their reversal due to the likely appointments to the Supreme Court by President Elect Barack Obama.

     My argument will focus on the major documents of our nation’s founding and the jurisprudence that has lead up to our current laws on the subject. I will include arguments sculpted by the congressional research service and other academic sources to educate my audience (which for now will be our class and those who come about my work on the blogosphere) about why our current legislation is not just wrong, but unconstitutional. 

     The main question my project will address is whether or not the government has the right to dictate the definition of a state marriage as a union between a man and a woman. It is important to know the roots of the argument and to look at it from a non-religious standpoint, so that an accurate picture can be developed about whether or not the right course of action is being taken. Overall my purpose will be to use case law in developing a pro same-sex marriage postion.