Looks like someone enjoyed her time in jail

[tomBitonti]

Hmm,

Could a state declare that it is no longer offering "marriage licenses", only "civil union licenses"?

And, could a state legislature declare that its reasons for doing so were a disapproval of non-heterosexual marriage, based on a representation of the religious beliefs of the majority of its citizens?

I suppose this would be a problem in regards to interstate commerce principles, where other states continued to offer marriage licenses.

If not states, could the federal government make a similar statement, "states shall offer civil union licenses, only", using interstate commerce as a justification?

That would have the effect of removing governments from the realm of "marriage". Maybe justified as being too closely affiliated with religion for government to be so much involved.

Thx!
TomB

 

[Ovinomancer]

Hmm,

Could a state declare that it is no longer offering "marriage licenses", only "civil union licenses"?

And, could a state legislature declare that its reasons for doing so were a disapproval of non-heterosexual marriage, based on a representation of the religious beliefs of the majority of its citizens?

I suppose this would be a problem in regards to interstate commerce principles, where other states continued to offer marriage licenses.

If not states, could the federal government make a similar statement, "states shall offer civil union licenses, only", using interstate commerce as a justification?

That would have the effect of removing governments from the realm of "marriage". Maybe justified as being too closely affiliated with religion for government to be so much involved.

Thx!
TomB

Yes. The main issue here is that Federal marriage benefits do not currently accrue to civil unions. Nor would such unions be necessarily honored by other states. But States have authority over marriage licensing and could do this if they wanted.

Yes, given they issue the unions to all.

No/maybe. The courts have clearly recognized that the States have authority over marriages under the Tenth. Since new jurisprudence would be necessary, but that's not outlandish enough for me to dismiss.

 

[billd91]

Hmm,

Could a state declare that it is no longer offering "marriage licenses", only "civil union licenses"?

And, could a state legislature declare that its reasons for doing so were a disapproval of non-heterosexual marriage, based on a representation of the religious beliefs of the majority of its citizens?

I suppose this would be a problem in regards to interstate commerce principles, where other states continued to offer marriage licenses.

If not states, could the federal government make a similar statement, "states shall offer civil union licenses, only", using interstate commerce as a justification?

That would have the effect of removing governments from the realm of "marriage". Maybe justified as being too closely affiliated with religion for government to be so much involved.

The whole problem with civil union licenses is nobody really knows what they heck they are. They'd be (or are in places that already have them) new and would require legislation to construct. The easier and more consistent route is to use the current marriage laws and broaden the groups they apply to. Then you don't really have to write a bunch of new legislation specifying what all applies to a civil union - everything that applies to marriage would simply apply.

On top of the legal issue of nobody knowing what a civil union is, there's also the social issue. If someone says they're married, most of us have some idea what that implies. They can file joint taxes, share some benefits, make medicals decisions for each other if incapacitated. If someone were to say that they have a civil union or partnership, a lot more people would be scratching their heads wondering if that were a business arrangement.

As far as federal involvement goes, when the states were generally all recognizing each other's state-licensed marriages, things were hunky dory (even Utah pretty much had to be on board in order to reach statehood by making polygamy illegal). But once you had some states starting to recognize same-sex marriages, suddenly you had states defying that tradition of reciprocity. I thought that once you have that happening, it's well worth the feds' time getting involved.

 

[Dannyalcatraz]

No, this isn't a violation of the Establishment clause. If she applied a religious test for getting a license, that's a violation of the Establishment clause. But using her own moral conscious (whether you agree with it out not, and I don't), even if based on her religion, is not. The Establishment cause doesn't prohibit any religious reasons in government, it prohibited the establishment of religious requirements for the operation of government. To clarify that, that means rules, laws, and practices that favor a religion it set of religious beliefs, NOT that elected officials cannot make decisions within those authority on religious beliefs.

She DID apply a religious test for getting a license: the formulation for her objection and continued obstreperous behavior was that gay marriage is against God's law.

Yes, it is very much different. Let me give you a counterfactual to show my point.

Imagine that the law says that homosexuals cannot marry. Further imagine that a county clerk began issuing marriage licenses to homosexual couples in violation of the law. The clerk cites her faith as the reason she began issuing licenses. God told her to. This is not a violation of the Establishment clause either.

Actually, it is. It just rarely got tried in court on that grounds. Instead, the people who did so were fired or suspended from duty, and the issued licenses invalidated.

The establishment clause states what can't happen --government cannot enshrine a religion or make a religious belief a condition of doing business with the government. These are actions, not thoughts or motivations. A law can be passed, frex, that has a religious motivation so long as the law doesn't require adherence to that religious belief. Blue laws are exactly this, and are 100% Constitutional.

That's not exactly accurate. A law can have a religious motivation so long as the law does not require adherence to that faith, substantially interferes with another faith's practices or the state can prove a separate compelling interest for enacting the law.

Yes. The main issue here is that Federal marriage benefits do not currently accrue to civil unions.

No, because the main issue is that marriage is considered to be a fundamental constitutional right. Barring all marriages within a state in favor of Civil unions wouldn't pass a constitutional test. The KY courts reaffirmed this to be the case when they didn't buy into Hasting's assertion that she could deny gays marriage licenses because she was denying them to all people, regardless of race, religion, gender, or orientation.

 

[Dannyalcatraz]

As far as federal involvement goes, when the states were generally all recognizing each other's state-licensed marriages, things were hunky dory (even Utah pretty much had to be on board in order to reach statehood by making polygamy illegal). But once you had some states starting to recognize same-sex marriages, suddenly you had states defying that tradition of reciprocity. I thought that once you have that happening, it's well worth the feds' time getting involved.

That reciprocity is enshrined in the Full Faith & Credit clause of the constitution. Once you have states ignoring each other on the basics, you're headed to the SCOTUS.

(The FF&C clause is why Hawaiian officials were pissed off at the Birthers back in 2008.)

 

[Kramodlog]

Let's not forget that marketing when done by government is a euphemism for propaganda.

Marketing is always propaganda, no matter who does the marketing.

2: the spreading of ideas, information, or rumor for the purpose of helping or injuring an institution, a cause, or a person

3: ideas, facts, or allegations spread deliberately to further one's cause or to damage an opposing cause; also : a public action having such an effect.

http://www.merriam-webster.com/dictionary/propaganda

 

[Ovinomancer]

She DID apply a religious test for getting a license: the formulation for her objection and continued obstreperous behavior was that gay marriage is against God's law.

No. A religious test is one that examines the religious beliefs of a person and then affirms or denies them access to government functions based on the results of that test. The test here wasn't religious, it was based on sexual-orientation. The motivation was religious, which is an entirely different thing.

Let's say that she wasn't religious and just hated gay people for reasons -- just not religious ones. She does the same thing. Does that violate the Establishment Clause? Clearly not, and so doing the exact same thing for a different reason does not either. The Establishment Clause does not act against thought crime, it acts against a subset of restrictions that are based on the religious beliefs of the applicant -- not the administrators.

Actually, it is. It just rarely got tried in court on that grounds. Instead, the people who did so were fired or suspended from duty, and the issued licenses invalidated.

No, it's not, and you never heard that it was when (if?) those instances happened. Because it's not a religious test forbidden by the Establishment clause, it's just a religious motivation to engage in other law-breaking.

That's not exactly accurate. A law can have a religious motivation so long as the law does not require adherence to that faith, substantially interferes with another faith's practices or the state can prove a separate compelling interest for enacting the law.

100%. Her choosing to not issue licenses is not require adherence to a faith, nor does it interfere with another's faith (directly, indirect interference isn't covered). She couldn't provide another compelling interest, and so her actions are not legal and she's being admonished by the courts. I'm glad to be in agreement!

No, because the main issue is that marriage is considered to be a fundamental constitutional right. Barring all marriages within a state in favor of Civil unions wouldn't pass a constitutional test. The KY courts reaffirmed this to be the case when they didn't buy into Hasting's assertion that she could deny gays marriage licenses because she was denying them to all people, regardless of race, religion, gender, or orientation.

I see you saying that, but that's not actually what the legalities are. You do not have a right to be married. You have a right to not face discrimination on race, religion, creed, or sex when you go to get married. There's a narrow but very important difference there -- you cannot demand marriage if the state doesn't provide it and have legal recourse, but you can't demand marriage if the state provides for it. The provision of marriage licenses is entirely up to the state.

This is a Tenth issue. Marriage isn't defined anywhere in the Constitution, and so all other powers and rights fall to the States and the people. Since the people have no authority to enact marriages amongst themselves, this is a State right, and the State can execute it as it sees fit within the boundaries of other applicable laws, such as anti-discrimination laws. The recent case, while it cited a right to marriage (again, recall that I think that ruling is a steaming pile even if it did, accidentally, get in the right ballpark), doesn't actually establish (nor is able to) such a right that supersedes the right of the State to administer it as the State sees fit.

So, yes, you have a right to get married, so long as the State you reside in (or visit, for some) provides for marriage. The State is not obligated to do so.

 

[Ovinomancer]

That reciprocity is enshrined in the Full Faith & Credit clause of the constitution. Once you have states ignoring each other on the basics, you're headed to the SCOTUS.

(The FF&C clause is why Hawaiian officials were pissed off at the Birthers back in 2008.)

That's not exactly what FF&C does. All FF&C does is say that a State must at least consider a similar thing from another State. If they didn't have reciprocity for marriage in place, and without other rulings, a suit that involved the validity of marriage from another State would be allowed into the proceedings as evidence under FF&C. Whether or not it was accepted, though, isn't guaranteed under FF&C.

States have explicitly agreed to accept drivers licenses and marriage licenses (and a list of other things) under reciprocity. For an example of something similar, look to concealed carry permits. Even between two states that have largely similar concealed carry laws, there is little reciprocity.

 

[tomBitonti]

She DID apply a religious test for getting a license: the formulation for her objection and continued obstreperous behavior was that gay marriage is against God's law.

Not sure how much this is dancing over semantics, but her objection seems to have this structure:

* I am against homosexual marriage.

* Because I don't want to enable such marriages, I want to deny licenses to homosexual couples.

* But, I don't want to discriminate, so I will deny licenses to all couples.

* Therefore, when a person appears and asks for a marriage license, I will deny them a license, since I have chosen to deny all licenses.

That seems to move her offense from a discrimination one (unless the intent creates a problem: The intent is to discriminate; it's just the vehicle is not) to one of failing to provide a service to which all citizens are entitled (getting married, because that requires a license). There is still an offense, but of a different sort.

(To make an analogy, which somehow comes across as more offensive, if a person decided that "black children do not deserve education (since it is a waste on a lower, incapable, species)", and worked in a school cafeteria, then decided to serve *no* school lunches to anyone, since they could not countenance serving lunches to black children. I'm not sure where to go with the analogy, but it seems illuminating.)

Thx!

TomB

 

[Deset Gled]

No, it's not, and you never heard that it was when (if?) those instances happened. Because it's not a religious test forbidden by the Establishment clause, it's just a religious motivation to engage in other law-breaking.
...
I see you saying that, but that's not actually what the legalities are. You do not have a right to be married.
...
So, yes, you have a right to get married, so long as the State you reside in (or visit, for some) provides for marriage. The State is not obligated to do so.

Many of your opinions differ greatly from the Supreme Court.

Among others, check out Everson v Board of Education. It's a landmark case that establishes that the Establishment Clause goes well beyond a simple religious test, but is rather a "wall of separation between church and state."

Also, here's a list of fourteen cases where the Supreme Court held that marriage was a constitutional right. I believe you will find the fifth and fourteenth amendment sited often.