Marriage is Equal Again in California

[HYHYBT]

However, if someone with standing does sue in California, the injunction could be stayed again. Prop 8 supporters are vowing to do just that, but in the meantime marriages are taking place all over.

Not quite. The proponents were ruled not to have standing to *defend* Prop 8; only the relevant state officials have that, and they exercised their right not to appeal the case back when the original ruling came out. A suit attempting to force the government to enforce Prop 8 again would require someone to be directly harmed by the lack of a ban on gay marriage, and no such person exists anywhere.

Only Section 2 of DOMA was struck down; meaning that if the marriage took place in those states that recognize gay marriage, the feds must provide federal benefits no matter where the couple live.

The part struck was actually Section 3, but you've got the content right.

All the federal government would be doing at that point is affirming the fact that you cannot restrict the rights of two adults to enter into a marriage contract based on their gender. Because that's sexual discrimination, which has already been ruled to be unconstitutional.

So why is it that, if I make that exact argument pretty much anywhere, I'm generally either completely ignored or else called an idiot even by others on the same side? It seems straightforward enough, and even obvious, but it's the one argument that, at least in my experience, consistently flies with nobody.


As for the state/federal thing.... in principle, I like the consistency and cohesiveness that comes from having what's called upthread a top-heavy government. Much better, particularly in the modern world where transportation and communication are reliable and swift, than almost having 50 separate nations which only loosely coordinate. But on this, I don't think it matters. There's nothing wrong with "marriage is the domain of the states so long as they don't discriminate on certain bases."

[Panacea]

*I read your statement as indication as a desire for a federal Amendment; not a state one; if I got it wrong, my apologies.

I'm of mixed mind on it. I think a federal amendment would be the only way to ensure everyone has the right to marry. However, recent court decisions are already setting that precedent, so right now it is not a fight worth fighting.

Marriage is more than just about religious belief. There are important property rights that go along with it; which is why Edith Windsor sued. She got nailed for a big part of her inheritance because of DOMA. Now she gets it back with interest, which is the right thing IMHO.

Until you seperate the other legal issues that go along with marriage, the state has a vested interest in what constitutes a marriage. I lean more towards expanding it than restricting it, and a federal standard in our mobile society makes a lot more sense than 50 widely different state rules.

[Andara Bledin]

I think a federal amendment would be the only way to ensure everyone has the right to marry. However, recent court decisions are already setting that precedent, so right now it is not a fight worth fighting.

I don't think this will require an ammendment of its own, nor even an adjustment to one already existing. We just need to set the precedent that gender equality/neutrality exist with regards to the marriage contract as it does for every other form of contract. And, as you say, that precedent is already being set.

[HYHYBT]

I'm of mixed mind on it. I think a federal amendment would be the only way to ensure everyone has the right to marry. However, recent court decisions are already setting that precedent, so right now it is not a fight worth fighting.

Long before such an amendment would be possible it will become unnecessary.

[s_stabeler]

maybe not unnessecary as such- look at how much state governments are screwing wiht abortion laws. a federal amendment would stop an equivalent of that from being done.

[HYHYBT]

Yes, but that's because large numbers of people continue to be against abortion. It's a static controversy. This isn't.

A constitutional amendment requires 2/3 of the House and Senate plus a majority vote in 3/4 of the state legislatures. If a state's legislature would vote for such an amendment nationwide, it can be assumed to support marriage within the state, and therefore would act to remove the existing ban. (State amendments generally have to be ratified by popular vote, but that doesn't matter because the legislatures are generally more heavily conservative than their voters.) So by the time it would be possible to pass an amendment forcing states to allow gay couples to marry, there would only be 12 left that didn't anyway, and the way demographics are looking, those wouldn't be far from it. There's also the Supreme Court, which (at least so long as new appointees are reasonable) would surely be willing to rule directly by that point.