[lbo-talk] Is prop 8 constitutional?

andie nachgeborenen andie_nachgeborenen at yahoo.com
Thu Nov 6 14:51:04 PST 2008


Why not indeed? But sometimes they don't. Look at the 11th Amendment, which says a person can't sue another state without its consent. The S.Ct read that to mean that you can't sue your own state without its consent (or unless Congress clearly abrogates sovereign immunity, which is also atextual.)

There have been cases about recoignozing judgments involving same sex marriages in foreign countries that have had them longer than wee have. Obviously the cases haven't gotten to the Supremes yet.

--- On Wed, 11/5/08, Shane Mage <shmage at pipeline.com> wrote:


> From: Shane Mage <shmage at pipeline.com>
> Subject: Re: [lbo-talk] Is prop 8 constitutional?
> To: lbo-talk at lbo-talk.org
> Date: Wednesday, November 5, 2008, 9:32 PM
> On Nov 5, 2008, at 9:20 PM, andie nachgeborenen wrote:
>
> >
> > Unfortunately Full Faith and Credit seems to be
> suspended when it comes to marriage. The federal DOMA
> (Defense of Marriage Act) exempts a state from any full
> faith and credit obligation to any public act, record or
> judicial proceeding of any other state “respecting a
> relationship between persons of the same sex that is treated
> as a marriage under the laws of such other State ... or a
> right or claim arising from such relationship.” 28 U.S.C.
> 1738(c). Don't ask me how a constitutional ex-law prof
> (Bill C) saw a way to sign that one squaring it with the
> Supremacy Clause of the US Const. It's survived court
> challenges and there's a huge law review industry
> devoted to this question. I can provide the five most-cited
> pieces if this is wanted.
> >
> I know that DOMA has this facially unconstitutional
> provision--but how can it have "survived court
> challenges" when until very recently there were no
> states performing such marriages, meaning there was nobody
> to be even a potentially injured party with standing to sue?
> Are there any Massachusetts-marriage cases, even now, that
> have resulted in decisions binding on the California Supreme
> Court?
> And if not, why shouldn't it follow the plain text of
> the US Constitution?
>
> > --- On Wed, 11/5/08, Shane Mage
> <shmage at pipeline.com> wrote:
> >
> >> From: Shane Mage <shmage at pipeline.com>
> >> Subject: Re: [lbo-talk] Is prop 8 constitutional?
> >> To: lbo-talk at lbo-talk.org
> >> Date: Wednesday, November 5, 2008, 5:25 PM
> >> On Nov 5, 2008, at 4:24 PM, Dennis Claxton wrote:
> >>> At 01:05 PM 11/5/2008, Chuck Grimes wrote:
> >>>> And then there is a good chance that a
> lawsuit can
> >> be put together to
> >>>> over turn the initative. I know several
> women
> >> lawyers who are lesbian
> >>>> with partners and kids and I am pretty
> sure they
> >> are working on how to
> >>>> do that, this very morning.
> >>> Done and done:
> >>>
> >>
> http://thecalifornian.com/article/20081105/NEWS03/81105019/1002/NEWS01
> >>> Three civil liberties groups announced this
> morning
> >> that they have filed a lawsuit asking the
> California Supreme
> >> Court to strike down state Proposition 8 if it
> passes
> >>> The proposition on Tuesday's ballot would
> >> eliminate a right to same-sex marriage in
> California...The
> >> American Civil Liberties Union, the National
> Center for
> >> Lesbian Rights and Lambda Legal filed the lawsuit
> at the
> >> court's headquarters in San Francisco.
> >>> They said the petition contends that the
> proposition
> >> is invalid because the initiative process was
> improperly
> >> used in an attempt to undo the state
> constitution's core
> >> commitment to equality.
> >>
> >> Proposition 8 is clearly unconstitutional, but
> these legal
> >> groups are making a big mistake by basing their
> suit on the
> >> nebulous notion of a "core commitment to
> equality"
> >> that would trump the voters' decision as to
> the meaning
> >> of their state constitution. Proposition 8 is
> clearly
> >> unconstitutional because by specifying that only
> man/woman
> >> marriages will be "valid" in California
> it would
> >> make invalid in California "gay"
> marriages
> >> performed in Massachusetts or Connecticut. This
> blatantly
> >> violates Article IV Section 1 of the US
> Constitution, which
> >> states: "Full Faith and Credit shall be
> given in each
> >> state to the public Acts, Records, and Judicial
> Proceedings
> >> of every other State." Instead of resorting
> to a
> >> more-than- dubious constitutional theory, they
> have to bring
> >> the first case on behalf of a California couple
> married
> >> outside California, even if they have to wait a
> day or two
> >> for the chosen couple to fly to Massachusetts and
> back. The
> >> California Supreme Court would have no choice,
> even if it
> >> wanted not to (it obviously doesn't), but to
> find
> >> Proposition 8 unconstitutional.
> >>
> >>
> >>
> >> Shane Mage
> >>
> >>> This cosmos did none of gods or men make, but
> it
> >>> always was and is and shall be: an everlasting
> fire,
> >>> kindling in measures and going out in
> measures."
> >>>
> >>> Herakleitos of Ephesos
> >>
> >> ___________________________________
> >>
> http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
> >
> >
> >
> >
> > ___________________________________
> > http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
>
> Shane Mage
> Shane Mage
>
> > This cosmos did none of gods or men make, but it
> > always was and is and shall be: an everlasting fire,
> > kindling in measures and going out in measures."
> >
> > Herakleitos of Ephesos
>
> ___________________________________
> http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk



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