federal gay marriage ban unconstitutional

[nonlnear]

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Murder, robbery, rape, assault, etc., are actions that cause appreciable harm to another. Morality laws (gambling, prostitution, drug use, sodomy, etc.) seek to ban behavior that harms only willing participants.

That's just perpetrate harm by proxy.

You're right. Morality laws perpetrate harm using the state as a proxy.

 

[werepossum]

Murder, robbery, rape, assault, etc., are actions that cause appreciable harm to another. Morality laws (gambling, prostitution, drug use, sodomy, etc.) seek to ban behavior that harms only willing participants.

I was going to agree with Atreus but you make an excellent argument. Defining morality laws as those laws which don't affect others (except by offending them) seems to be a pretty workable and useful separation even if both sets of laws have to be based on morality at their core.

 

[Possessed Freak]

As always my belief has been that this was always a state's decision. As such I do not think there should be ANY benefit/penalty of marriage at the Federal level. If there is a benefit/penalty at the Federal level than it should be the same requirements across the Union.

 

[xj0hnx]

I was going to agree with Atreus but you make an excellent argument. Defining morality laws as those laws which don't affect others (except by offending them) seems to be a pretty workable and useful separation even if both sets of laws have to be based on morality at their core.

Yip, CallMeJoe pretty much nailed it. As the saying goes "your right to swing your fist ends at the tip of my nose". Murder, rape, robbery aren't wrong because "god" said they were, they are wrong because you are directly causing harm to another, infringing on their natural right to life, peace, and prosperity.

 

[juiio]

This paves the way for Obama to really piss off nearly every Religious Republican in ways previously unimaginable should he get the Defense of Man-Woman Only Marriage Act re-pealed.

:thumbsup:

Obama is against gay marriage.

 

[Thump553]

As mentioned before, this is a federal district court decision-that is basically the lowest level of federal courts. Above that there is the circuit court of appeals and then the Supreme Court. So, unfortunately, this decision is not evidence of there being five rational members of the Supreme Court.

Even if the sarcastically named Defense of Marriage Act is ultimately struck down nationwide, there are over 500 specific instances of federal laws that explicitly discriminate against same sex couples. For example, even in states where gays can marry they can't file joint federal income tax returns.

 

[nonlnear]

Obama is against gay marriage.

Do you honestly believe Obama gives a shit one way or another? You have to shovel a lot of bullshit at the voters to be elected POTUS.

 

[Carmen813]

Thank goodness we still have 5 sane judges on supreme court so they can smack this back down.

Activist judges FTW!

Actually a real conservative justice would uphold this ruling, as it is not the governments job to define what marriage is.

I'm not holding my breath.

 

[MJinZ]

As mentioned before, this is a federal district court decision-that is basically the lowest level of federal courts. Above that there is the circuit court of appeals and then the Supreme Court. So, unfortunately, this decision is not evidence of there being five rational members of the Supreme Court.

Even if the sarcastically named Defense of Marriage Act is ultimately struck down nationwide, there are over 500 specific instances of federal laws that explicitly discriminate against same sex couples. For example, even in states where gays can marry they can't file joint federal income tax returns.

If they really wanted to Defend Marriage, they would make adultery and divorce illegal and/or criminal.

 

[Fern]

Fern, do you perhaps have some hidden, unacknowledged social bigotry that interfered with your basic reading comprehension?

If not (I hope not) what other explanation can you give us for getting this simple and clear cut ruling so completely wrong?

The Feds LOST the case, on the crux of state's rights! This ruling is EXACTLY what this is about.

Could be, but that's irrelevent.

The feds were in court over this, not because of "states' rights", but because it affected federal benefits.

If you or someone else thinks defining eligibility for federal benefit is a "states' rights" issue, please explain how so.

Fern

 

[Perknose]

If you or someone else thinks defining eligibility for federal benefit is a "states' rights" issue, please explain how so.

Fern

I'll let the judge who decided the case handle explain it to you. :sneaky:

“This court has determined that it is clearly within the authority of the commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights and privileges to which they are entitled by virtue of their marital status,” Judge Tauro wrote in the case brought by Ms. Coakley. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state.”

In the Coakley case, the judge held that that federal restrictions on funding for states that recognize same-sex marriage violates the 10th Amendment, the part of the Constitution that declares that rights not explicitly granted to the federal government, or denied to the states, belong to the states.

 

[bfdd]

Any time we can wrestle power away from the Federal Gov and give it back to the States is great day!

Pretty much agree with this.

 

[Fern]

states don't really have any rights. Never did. That was why Jefferson was so concerned about. I wiegh the dilema a bit differently.

show me where alot of the states have ever been on the side of the citizen in a issue of states rights.

The Constitution was originally between the federal government and the states. Thus the necessity of the 14th Amendment in the 1860's (IIRC) which extended the previously enumerated rights etc to citizens (from the federal gov).

The states have some rights enumerated in Article 4, in the 2nd amendment (militias), the 5th (states have ability to amend the Constitution), the 10th (powers reserved to states). And somewhere in there the states have rights regarding taxation - that's why the federal government cannot tax (state) bond interest etc.

The states also have rights to, generally, conduct their elections the way they see fit. This is why some states will have the Governor appoint a vacant Congressional seat while others will hold special elections etc.

And really, the whole set-up of the House and Senate was designed to ensure some level of states' rights - particulalry the design of the senate where the small states have the same representation as the large states.

Fern

 

[MJinZ]

Could be, but that's irrelevent.

The feds were in court over this, not because of "states' rights", but because it affected federal benefits.

If you or someone else thinks defining eligibility for federal benefit is a "states' rights" issue, please explain how so.

Fern

Same reason why you could get federal benefits if you were Black and married a White person years ago.

Same reason why you get federal benefits for marrying whatever cousin you have in whatever State that allows it.

You should read the decision and enlighten yourself.

 

[Atreus21]

Murder, robbery, rape, assault, etc., are actions that cause appreciable harm to another. Morality laws (gambling, prostitution, drug use, sodomy, etc.) seek to ban behavior that harms only willing participants.

Isn't criminalizing harm to another also a morality law? On what is this law based if not morality, if not on the claim that bringing harm to another is morally wrong?

I don't think the argument is whether or not laws should be subject to morality, but on what version of morality they should be founded.

 

[Fern]

I'll let the judge who decided the case handle explain it to you. :sneaky:

Same reason why you could get federal benefits if you were Black and married a White person years ago.

Same reason why you get federal benefits for marrying whatever cousin you have in whatever State that allows it.

You should read the decision and enlighten yourself.

The issue or concept of "states' rights" is not generally considered to include a state's determination of who qualifies for federal benefits . Federal law decides that.

That this (lower court) judge has decided to (mis)use that concept as an artifice to reach his/her desired outcome is unpersausive.

While I do believe in general that it is a state's right to define marriage, I repeat - the federal gov is in court over this because of federal benefits (at least according to yesterday's article which has now been revised, and the link to case is not working for me so can't read it).

The issue of states' rights does not include the states' rights to overrule the federal government regarding federal benefits. It would, however, include the exact opposite - were the federal government to try to tell the states who qualifies for their state benefits. This inversion of the concept of states' rights would more appropriately be referred to as 'federal government rights' (it's rights over it's own domain - federal benefits).

Fern

 

[shira]

You do understand that the Constitution does not grant rights. It only outlines some of the rights you already had and says the government cannot infringe on them.

A slight problem: If something isn't explicitly mentioned one way or the other in the Constitution, is it a right or not a right?

For example, there's no "right to privacy" explicitly mentioned in the Constitution, but the SCOTUS rulings in the 1967 case Katz v. United States plus at least seven subsequent cases firmly established that a "right to privacy" is embodied in the 4th Amendment's injunction against unreasonable searches and seizures.

 

[GodisanAtheist]

Isn't criminalizing harm to another also a morality law? On what is this law based if not morality, if not on the claim that bringing harm to another is morally wrong?

I don't think the argument is whether or not laws should be subject to morality, but on what version of morality they should be founded.

-The denial of rights. By murdering another human being, you have infringed so totally on their fundamental rights that they will never be able to regain them again.

Like the first amendment, you have a right to free speech until that speech infringes on the rights of another, then you don't have the right of free speech anymore.

In such a way, criminal justice can be constructed without the need for religion or morality. It is a balancing act of rights owned and denied.

 

[Atreus21]

-The denial of rights. By murdering another human being, you have infringed so totally on their fundamental rights that they will never be able to regain them again.

Like the first amendment, you have a right to free speech until that speech infringes on the rights of another, then you don't have the right of free speech anymore.

In such a way, criminal justice can be constructed without the need for religion or morality. It is a balancing act of rights owned and denied.

Well, I suppose my next question would be on the origin of any supposition of objective rights. But I'll quit here. Thanks for a civil response.

 

[werepossum]

Isn't criminalizing harm to another also a morality law? On what is this law based if not morality, if not on the claim that bringing harm to another is morally wrong?

I don't think the argument is whether or not laws should be subject to morality, but on what version of morality they should be founded.

Joe's point is that those laws termed "morality laws" directly affect only the perpetrator rather than separate victims. It doesn't mean that all laws aren't based on morality, but rather that it's a useful definition for those laws which criminalize behavior simply because we don't think it's good for you to engage in those behaviors - sort of "government knows best" or "the rest of us know best" laws. These behaviors may still indirectly affect me - for example, my taxes will ultimately go up (albeit imperceptibly) if gay partners are allow federal benefits or if government must support families abandoned by gamblers or drinkers - but this is true of virtually any behavior. Allowing heterosexual marriage (assuming federal benefits) has the same affect, as does allowing investing, which can certainly leave one destitute. Personally I reject these "morality laws" which restrict freedom even if it costs me a bit more, and doubly so in denying benefits to one minority (e.g. gay people) whilst giving those benefits to the majority (e.g. normal marriage.)

There's a big difference between making laws against directly harming others and making laws against things we find foolish or distasteful and the term "morality laws" allows us to quickly and broadly make that distinction.

 

[Elfear]

Joe's point is that those laws termed "morality laws" directly affect only the perpetrator rather than separate victims. It doesn't mean that all laws aren't based on morality, but rather that it's a useful definition for those laws which criminalize behavior simply because we don't think it's good for you to engage in those behaviors - sort of "government knows best" or "the rest of us know best" laws. These behaviors may still indirectly affect me - for example, my taxes will ultimately go up (albeit imperceptibly) if gay partners are allow federal benefits or if government must support families abandoned by gamblers or drinkers - but this is true of virtually any behavior. Allowing heterosexual marriage (assuming federal benefits) has the same affect, as does allowing investing, which can certainly leave one destitute. Personally I reject these "morality laws" which restrict freedom even if it costs me a bit more, and doubly so in denying benefits to one minority (e.g. gay people) whilst giving those benefits to the majority (e.g. normal marriage.)

There's a big difference between making laws against directly harming others and making laws against things we find foolish or distasteful and the term "morality laws" allows us to quickly and broadly make that distinction.

You make some good points but it's kind of a slippery slope to try and distinguish what crimes are victimless and which aren't. You said that you would be willing to take a modest financial hit in order to allow the victimless crimes to be abolished. I assume you would do that to increase someone else's happiness. So what about stealing something worth relatively little. If a person broke into your home and stole your microwave because they had a strong desire to steal something (i.e. it makes them happy when they steal stuff), would you be willing to make that sacrifice too?

What about the guy who from birth has had a rage problem. One day he gets so horked off that he walks over to your yard and smashes all your new plants out front. Afterwards he feels much better and calmly goes back to his home. Would you be willing to make the modest sacrifice of some plants to help him find his happiness?

I guess my point is at what level do we set that modest sacrifice (be that monetary or happiness) for the good of humanity and label it a victimless crime? At some point we have to label behavior as good or bad, it has to have some basis in morality. I'm not sure if a victimless crime really exists.

 

[MJinZ]

The issue or concept of "states' rights" is not generally considered to include a state's determination of who qualifies for federal benefits . Federal law decides that.

That this (lower court) judge has decided to (mis)use that concept as an artifice to reach his/her desired outcome is unpersausive.

While I do believe in general that it is a state's right to define marriage, I repeat - the federal gov is in court over this because of federal benefits (at least according to yesterday's article which has now been revised, and the link to case is not working for me so can't read it).

The issue of states' rights does not include the states' rights to overrule the federal government regarding federal benefits. It would, however, include the exact opposite - were the federal government to try to tell the states who qualifies for their state benefits. This inversion of the concept of states' rights would more appropriately be referred to as 'federal government rights' (it's rights over it's own domain - federal benefits).

Fern

Who said anything about States Rights?

This is not "State Rights" issue, it's an issue of equal protection under the 5th amendment.

Please actually know what the hell you are talking about by reading the decision.

Oh wait, you must have read MSNBC's retarded summary.

HERE is Summary Judgment Discussion, on the issue of Equal Protection:

D. Equal Protection of the Laws
“[T]he Constitution ‘neither knows nor tolerates classes among citizens.’”83 It is with this
fundamental principle in mind that equal protection jurisprudence takes on “governmental
classifications that ‘affect some groups of citizens differently than others.’”84 And it is because of
this “commitment to the law’s neutrality where the rights of persons are at stake”85 that legislative
provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional
Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 19 of 39
86Id.
87City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe,
457 U.S. 202, 216 (1982)).
88Romer, 517 U.S. at 631 (citing Personnel Administrator of Mass. v. Feeney, 442 U.S.
256, 271-72 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).
89Id.
90Id. (citing Heller v. Doe, 509 U.S. 312, 319-320 (1993)). This constitutional standard of
review is alternately referred to as the rational relationship test or the rational basis inquiry.
20
scrutiny.86
To say that all citizens are entitled to equal protection of the laws is “essentially a direction
[to the government] that all persons similarly situated should be treated alike.”87 But courts
remain cognizant of the fact that “the promise that no person shall be denied the equal protection
of the laws must coexist with the practical necessity that most legislation classifies for one
purpose or another, with resulting disadvantage to various groups or persons.”88 And so, in an
attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply
strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a
fundamental right or target a suspect class.89 A law that does neither will be upheld if it merely
survives the rational basis inquiry–if it bears a rational relationship to a legitimate government
interest.90
Plaintiffs present three arguments as to why this court should apply strict scrutiny in its
review of DOMA, namely that:
• DOMA marks a stark and anomalous departure from the respect and recognition
that the federal government has historically afforded to state marital status
determinations;
Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 20 of 39
91Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005) (internal citation omitted).
92Heller v. Doe, 509 U.S. 312, 319-20 (1993) (internal citations omitted).
93Id. (internal citations omitted).
94Shaw v. Oregon Public Employees’ Retirement Bd., 887 F.2d 947, 948-49 (9th Cir.
1989) (internal quotation omitted).
21
• DOMA burdens Plaintiffs’ fundamental right to maintain the integrity of their
existing family relationships, and;
• The law should consider homosexuals, the class of persons targeted by DOMA, to
be a suspect class.
This court need not address these arguments, however, because DOMA fails to pass
constitutional muster even under the highly deferential rational basis test. As set forth in detail
below, this court is convinced that “there exists no fairly conceivable set of facts that could
ground a rational relationship”91 between DOMA and a legitimate government objective. DOMA,
therefore, violates core constitutional principles of equal protection.

1. The Rational Basis Inquiry
This analysis must begin with recognition of the fact that rational basis review “is not a
license for courts to judge the wisdom, fairness, or logic of legislative choices.”92 A
“classification neither involving fundamental rights nor proceeding along suspect lines is accorded
a strong presumption of validity...[and] courts are compelled under rational-basis review to accept
a legislature’s generalizations even when there is an imperfect fit between means and ends.”93
Indeed, a court applying rational basis review may go so far as to hypothesize about potential
motivations of the legislature, in order to find a legitimate government interest sufficient to justify
the challenged provision.94
Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 21 of 39
95Matthews v. de Castro, 429 U.S. 181, 185 (1976) (internal quotation omitted).
96Romer, 517 U.S. at 633.
97Id.
98Id. (citing Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J.,
concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its
impartiality would be suspect.”).
99Bd. Of Trs. Of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (quoting City of
Cleburne, 473 U.S. at 441).
100Heller v. Doe, 509 U.S. 312, 321 (1993).
101City of Cleburne, 473 U.S. at 447.
22
Nonetheless, “the standard by which legislation such as [DOMA] must be judged is not a
toothless one.”95 “[E]ven in the ordinary equal protection case calling for the most deferential of
standards, [courts] insist on knowing the relation between the classification adopted and the
object to be attained.”96 In other words, a challenged law can only survive this constitutional
inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the court]
to ascertain some relation between the classification and the purpose it serve.”97 Courts
thereby “ensure that classifications are not drawn for the purpose of disadvantaging the group
burdened by the law.”98
Importantly, the objective served by the law must be not only a proper arena for
government action, but also properly cognizable by the governmental body responsible for the law
in question.99 And the classification created in furtherance of this objective “must find some
footing in the realities of the subject addressed by the legislation.”100 That is to say, the
constitution will not tolerate government reliance “on a classification whose relationship to an
asserted goal is so attenuated as to render the distinction arbitrary or irrational.”101 As such, a law
Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 22 of 39
102Garrett, 531 U.S. at 366 n.4 (citing City of Cleburne, 473 U.S. at 447-450).
103House Report at 12-18.
104City of Cleburne, 473 U.S. at 446.
105See Def.’s Mem. Supp. Mot. Dismiss, 19 n. 10.
23
must fail rational basis review where the “purported justifications...[make] no sense in light of
how the [government] treated other groups similarly situated in relevant respects.”102

 

[werepossum]

You make some good points but it's kind of a slippery slope to try and distinguish what crimes are victimless and which aren't. You said that you would be willing to take a modest financial hit in order to allow the victimless crimes to be abolished. I assume you would do that to increase someone else's happiness. So what about stealing something worth relatively little. If a person broke into your home and stole your microwave because they had a strong desire to steal something (i.e. it makes them happy when they steal stuff), would you be willing to make that sacrifice too?

What about the guy who from birth has had a rage problem. One day he gets so horked off that he walks over to your yard and smashes all your new plants out front. Afterwards he feels much better and calmly goes back to his home. Would you be willing to make the modest sacrifice of some plants to help him find his happiness?

I guess my point is at what level do we set that modest sacrifice (be that monetary or happiness) for the good of humanity and label it a victimless crime? At some point we have to label behavior as good or bad, it has to have some basis in morality. I'm not sure if a victimless crime really exists.

No, I am not willing to make a modest sacrifice to increase someone else's happiness. I am willing to make a modest sacrifice to increase someone else's opportunity, or for basic fairness, or to redress a societal wrong done to that person, or to ensure their liberty, or to help them out if they've honestly become unable (temporarily or permanently) to do for themselves. But I don't really give a damn about increasing someone else's happiness. We are entitled by G-d to life, liberty, and the pursuit of happiness - not happiness itself, that's up to each of us.

Your point about there being no truly victimless crime is valid to a point. A gambler's family may be broke; a drunk may kill innocents while driving intoxicated. But again, this can be true of other, legal behaviors as well. A man who with the best of intentions invests in the stock market may leave his family destitute; a perfectly sober driver may make an error and wipe out a family. It's still useful to distinguish between crimes with direct victimization (murder, rape, extortion) and those without.

Also, it's recognized by almost everyone that there is no societal will to criminalize the actual behavior - homosexuality. Very few people wish to see the United States tread the path of Iran. With laws prohibiting gay marriage we're actually just preventing people from reaping the rewards we would otherwise assign, rightly or wrongly, to that behavior because of a condition of that behavior. So arguably laws prohibiting gay marriage are not morality laws, but rather retaliatory laws. Your behavior offends me, and while I recognize that I can't prohibit you from engaging in it, or make you hide it in the closet, I can frame the debate to get away with punishing you for it, financially and by denying you some of the security that our society affords me.

I should say too that I totally sympathize with those who support traditional family values. I wish everyone could be happily straight and married to their first lover. I wish life could be a stylized version of fifties America, Mom and apple pie and baseball without the racism and repression. Life ain't like that. Some people are not straight no matter what; some people have events that make them cross the fence. No one should have the power to enforce their will on others simply because they wish to preserve their own privileged position, or because they are offended, or because they think they know best how life should be lived. And no government should be given the power to dictate who can and cannot engage in something so fundamental and personal as marriage.

 

[ModestGamer]

I suggest you should reread the constitution and the bill of rights.

Also unplug your brain from whatever law professor planted that dumb ass line of thinking in there.

read this carefully

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Keep reading it till it sinks in.

1. [FONT=arial,helvetica][SIZE=+1]
2. Freedom of Speech, Press, Religion and Petition [/SIZE][/FONT]
   
   Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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2. Right to keep and bear arms [/SIZE][/FONT]
   
   A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

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   No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

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2. Right of search and seizure regulated [/SIZE][/FONT]
   
   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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1. [FONT=arial,helvetica][SIZE=+1]
2. Provisons concerning prosecution [/SIZE][/FONT]
   
   No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

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1. [FONT=arial,helvetica][SIZE=+1]
2. Right to a speedy trial, witnesses, etc. [/SIZE][/FONT]
   
   In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

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1. [FONT=arial,helvetica][SIZE=+1]
2. Right to a trial by jury [/SIZE][/FONT]
   
   In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

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1. [FONT=arial,helvetica][SIZE=+1]
2. Excessive bail, cruel punishment [/SIZE][/FONT]
   
   Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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1. [FONT=arial,helvetica][SIZE=+1]
2. Rule of construction of Constitution [/SIZE][/FONT]
   
   The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

exactly where in the bill of rights does it specify that the states have the ability to not grants the rights guarenteed by the constitution ?

You won't find it becuase it does not exsit.

the Bill of rights is the minimum rights the states MUST GRANT TO ALL CITIZENS

The Constitution was originally between the federal government and the states. Thus the necessity of the 14th Amendment in the 1860's (IIRC) which extended the previously enumerated rights etc to citizens (from the federal gov).

The states have some rights enumerated in Article 4, in the 2nd amendment (militias), the 5th (states have ability to amend the Constitution), the 10th (powers reserved to states). And somewhere in there the states have rights regarding taxation - that's why the federal government cannot tax (state) bond interest etc.

The states also have rights to, generally, conduct their elections the way they see fit. This is why some states will have the Governor appoint a vacant Congressional seat while others will hold special elections etc.

And really, the whole set-up of the House and Senate was designed to ensure some level of states' rights - particulalry the design of the senate where the small states have the same representation as the large states.

Fern

 

[ModestGamer]

your forgetting equal protection. In the case of states rights. the sate may not grant LESS then what is guarenteed by the constitution. a state may grant more however. Which is a retarded concept on paper.

The issue or concept of "states' rights" is not generally considered to include a state's determination of who qualifies for federal benefits . Federal law decides that.

That this (lower court) judge has decided to (mis)use that concept as an artifice to reach his/her desired outcome is unpersausive.

While I do believe in general that it is a state's right to define marriage, I repeat - the federal gov is in court over this because of federal benefits (at least according to yesterday's article which has now been revised, and the link to case is not working for me so can't read it).

The issue of states' rights does not include the states' rights to overrule the federal government regarding federal benefits. It would, however, include the exact opposite - were the federal government to try to tell the states who qualifies for their state benefits. This inversion of the concept of states' rights would more appropriately be referred to as 'federal government rights' (it's rights over it's own domain - federal benefits).

Fern