General Gay Marriage Issues Thread

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Re: Citing religious freedom, NC clergymen sue state

Post by Alyrium Denryle »

No, they can't. The right to religious freedom does not and should not place the particulars of religious doctrine above secular law. You cannot ban something because it is religious doctrine, but something does not have to be legal just because your imaginary friend says it should be.

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You are an idiot. And I hate to say it, but in this case, Simon is as well.

Here is what it boils down to, and the argument the UCC is likely to actually make.

A) When it comes to religious liberty, in order to pass constitutional scrutiny, a law must pass the Lemon Test (Lemon v. Kurtzman, 1971), the three prongs of which are as follows:


1. The government's action must have a secular legislative purpose; (Purpose Prong)
2. The government's action must not have the primary effect of either advancing or inhibiting religion; (Effect Prong)
3. The government's action must not result in an "excessive government entanglement" with religion. (Entanglement Prong)

B) The ban on gay marriage was done for religious reasons, and there is no other secular purpose.

C) Even if there was, the primary effect is to enshrine the religious doctrine WRT of one theological group into law, to the exclusion of others.

D) And, even if C is not found to strictly hold, bans on gay marriage still result in excessive entanglement. Even if religious discrimination is not the law's primary effect, it is a secondary effect that fails to meet the third prong of Lemon

Alternatively, they could combine a First Amendment argument with a 14th amendment argument as follows.

A2) Strict Scrutiny applies when the government seeks to discriminate on the basis of religion or religious practice. The requirements for passing Strict Scrutiny are as follows:

1. There must be a compelling government interest
2. The law or policy must be narrowly tailored to achieve the goal or interest with minimal knock-down effects
3. It must be the least restrictive means available

B2) Bans on gay marriage discriminate on the basis of religious doctrine WRT marriage recognition. One sacrament is valid, the same sacrament performed by a different faith is not valid, based soley on religious doctrine.

C2) There is no compelling government interest in doing so that is not a tautology or based on animus, which is ipso facto not a valid purpose.

D2) Even if there was, banning gay marriage does not serve that interest and is thus not adequately
tailored narrowly. For example, if the goal is to provide an adequate family life for children, gay
parents can do so just as well as straight parents, and thus the law is not narrowly tailored

E2) Banning gay marriage, even in the event that some interest is served, is not the least restrictive
means available. The government could institute a parenting course program, make divorce more
difficult, or do any number of other things that are less restrictive with respect to religious practice.

If it were me, I would argue both simultaneously. Both are perfectly valid arguments, in point of fact, and there is NOTHING saying that they have to pick.
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Re: Citing religious freedom, NC clergymen sue state

Post by Executor32 »

Simon_Jester wrote:I think the logical counter to the North Carolina clergymen is that while they have the right to perform whatever marriage ceremony they wish, the marriage has no legal force unless it is recognized (and licensed) by the state. Thus, their freedom of religion is unimpaired, and they can unite anyone they wish in the eyes of God (according to their own church's doctrine).

They just can't unite anyone in the eyes of the state, without the state's authorization. Which is not a freedom of religion issue, it's a secular legal issue.
The problem with that argument is that they don't even have that right, since a law separate from the one banning gay marriage makes it illegal for clergy to solemnize a marriage without a license for that marriage. That's largely why they're challenging the state on religious liberty grounds to begin with.
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Re: Citing religious freedom, NC clergymen sue state

Post by Esquire »

That's the law I'd expect them to go after, actually - the religious concept of marriage is entirely different from the secular effects of one, which is why civil unions exist. What the UCC seems to be saying is that a church can perform a marriage ceremony for whoever they like because it's an internal religious decision and the Federal government can only regulate the tax status of the new couple. And other legal spousal rights, of course, but you get the point.
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Re: Citing religious freedom, NC clergymen sue state

Post by Simon_Jester »

Ahhh. So basically the clergy is challenging the state's right to forbid them from holding a wedding?

That's actually fair in my opinion.
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Re: Citing religious freedom, NC clergymen sue state

Post by Esquire »

That was my interpretation, anyway. Separation of church and state goes both ways.
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Re: Citing religious freedom, NC clergymen sue state

Post by Highlord Laan »

Borgholio wrote:
Broomstick wrote:since no one is physically harmed here I think it can be argued Amendment One overreached.
But...it harms the sanctity of traditional marriage...
So does divorce.
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Re: Citing religious freedom, NC clergymen sue state

Post by Ralin »

Highlord Laan wrote:
Borgholio wrote:
Broomstick wrote:since no one is physically harmed here I think it can be argued Amendment One overreached.
But...it harms the sanctity of traditional marriage...
So does divorce.
Don't give them ideas.
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Re: Citing religious freedom, NC clergymen sue state

Post by Alyrium Denryle »

Esquire wrote:That's the law I'd expect them to go after, actually - the religious concept of marriage is entirely different from the secular effects of one, which is why civil unions exist. What the UCC seems to be saying is that a church can perform a marriage ceremony for whoever they like because it's an internal religious decision and the Federal government can only regulate the tax status of the new couple. And other legal spousal rights, of course, but you get the point.

Except it is not what they are going after. They are going after the ban itself. Did the large post I made on the legal reasoning just... escape people's notice?

Here, I will give you the TL;DR version.

The state enshrines the religious doctrine of one set of sects WRT marriage into law. This is an endorsement of that set of sects doctrine, and not only entangles the government in matters religious, but discriminates on the basis of religion, because there is Zero Secular Reason to bar gay marriages from being recognized by the state.

In other words

Secular law and religious sacraments are separate. But that goes both ways. The state may not utilize religious reasoning to create secular law. As a result, the ban on gay marriage violates the first amendment, and 14th amendment both. On the grounds of both a government entanglement in religion, and discrimination on the basis of religion.
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Re: Citing religious freedom, NC clergymen sue state

Post by Esquire »

LaCroix's Article wrote: According to a plaintiff in the case, Rev. Joe Hoffman, Senior Minister of First Congregational United Church of Christ in Asheville, NC, “As senior minister, I am often asked to perform marriage ceremonies for same-sex couples in my congregation. My denomination – the United Church of Christ – authorizes me to perform these ceremonies. But Amendment One denies my religious freedom by prohibiting me from exercising this right.”
So they actually are suing over State interference in the specifically-religious side of marriage, not the legal side.

Actually, hold on - am I right in thinking you need a certificate as well as a ceremony in North Carolina? Because if not, I withdraw my statements.
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Re: Citing religious freedom, NC clergymen sue state

Post by Broomstick »

Most, if not all, places in the US the certificate is actually more important than the ceremony from a legal standpoint.
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Re: Citing religious freedom, NC clergymen sue state

Post by Borgholio »

Broomstick wrote:Most, if not all, places in the US the certificate is actually more important than the ceremony from a legal standpoint.
Indeed. My wife and I could have gotten married right at the county clerk's office had we wanted to. But we wanted somewhat nicer surroundings. :)
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Re: Citing religious freedom, NC clergymen sue state

Post by Executor32 »

Esquire wrote:
LaCroix's Article wrote: According to a plaintiff in the case, Rev. Joe Hoffman, Senior Minister of First Congregational United Church of Christ in Asheville, NC, “As senior minister, I am often asked to perform marriage ceremonies for same-sex couples in my congregation. My denomination – the United Church of Christ – authorizes me to perform these ceremonies. But Amendment One denies my religious freedom by prohibiting me from exercising this right.”
So they actually are suing over State interference in the specifically-religious side of marriage, not the legal side.

Actually, hold on - am I right in thinking you need a certificate as well as a ceremony in North Carolina? Because if not, I withdraw my statements.
That is exactly right. The law I linked to in my previous post makes it illegal (specifically, a Class 1 misdemeanor with a $200 fine) for clergy to officiate a wedding ceremony without providing the couple with a marriage license, and since same-sex couples can't get marriage licenses due to Amendment One, it also effectively bans even strictly ceremonial same-sex marriages with no legal standing whatsoever. I'm sure that was precisely their intent in passing the law, too.
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Re: Citing religious freedom, NC clergymen sue state

Post by Highlord Laan »

Ralin wrote: So does divorce.
Don't give them ideas.[/quote]

Oh, I think feeding the retards enough rope to publicly hang themselves is actually a very good idea.
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Re: Citing religious freedom, NC clergymen sue state

Post by Maraxus »

Highlord Laan wrote:
Borgholio wrote:
Broomstick wrote:since no one is physically harmed here I think it can be argued Amendment One overreached.
But...it harms the sanctity of traditional marriage...
So does divorce.
Funny you should mention that!
Slate wrote:Republicans have decided to start waging war on a ubiquitous and generally noncontroversial part of American life: no-fault divorce. Scott Keyes, writing for the Washington Post, reports on this alarming trend, one that has largely flown under the radar, of Republican-controlled state houses pushing for waiting periods, mandating marriage classes, or even eliminating no-fault divorce entirely. Rick Santorum, Michele Bachmann, and Rick Perry have signed a pledge from Family Leader, a Christian-right group, denouncing "quickie divorce" and urging couples to endure a "cooling off period."

The hope is that by making divorce a hassle, or forcing couples to really think about what divorce means, the government can encourage/make more couples give up on the idea and recommit themselves to marriage. This is, of course, not the government's job. But also, by artificially elongating the divorce process, the state simply creates more time for all the petty, embittered bickering that divorce tends to cause, as anyone who's actually ever been through a divorce, or known anyone else who has divorced, or is the child of divorce can tell you. A cooling-off period is just more time for adults to squabble over who gets the lamps and chairs and try to assign blame for the relationship's demise. It's the children who end up suffering, as marriage historian Stephanie Coontz argues, telling Keyes that mothers and fathers are "more likely to parent amicably if they haven’t been locked into a long separation process."

Waiting periods and mandatory classes also provide an abusive partner more control. Needless to say, this means any push back to no-fault divorce will disproportionately hurt women. As Keyes writes:

No-fault divorce has been a success. A 2003 Stanford University study detailed the benefits in states that had legalized such divorces: Domestic violence dropped by a third in just 10 years, the number of husbands convicted of murdering their wives fell by 10 percent, and the number of women committing suicide declined between 11 and 19 percent. A recent report from Maria Shriver and the Center for American Progress found that only 28 percent of divorced women said they wished they’d stayed married.

Yet the conservative push for “divorce reform” is finding sympathetic ears in statehouses, where Republican lawmakers have regularly introduced bills to restrict the practice. Their rationales range from the biblical (God bemoans divorce in Malachi 2:14-16) to the social (divorce reduces worker productivity) to the financial (two households are more expensive to maintain than one). Leading conservatives such as Sen. Marco Rubio (R-Fla.) and Rep. Paul Ryan (R-Wis.) have also argued that marriage is a solution to poverty.

No one is against marriage here. But putting up more obstacles to divorce won't mend broken relationships. It only serves to make the process more painful and more punishing. Divorce is hard enough on all parties involved—shame on Republican legislators for trying to make it harder.
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Re: Citing religious freedom, NC clergymen sue state

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I can't see Newt, Rush, or McCain being too happy with this idea.
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Arkansas gay marriage ban ruled unconstitutional

Post by Borgholio »

http://www.usatoday.com/story/news/nati ... n/8914837/

They be falling like dominoes. Sorry, can't post full article...on mobile.
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Re: Arkansas gay marriage ban ruled unconstitutional

Post by Gaidin »

An Arkansas judge Friday invalidated the state's voter-approved ban on same-sex marriage, saying it violates the equal-protection clause of the U.S. Constitution.

"Although marriage is not expressly identified as a fundamental right in the Constitution, the United States Supreme Court has repeatedly recognized it as such," Pulaski County Circuit Judge Chris Piazza ruled in striking down the 2004 amendment to the state's constitution as well as a statute passed in 1997.

"This is an unconstitutional attempt to narrow the definition of equality," he wrote. "The exclusion of a minority for no rational reason is a dangerous precedent."

Voters overwhelmingly supported changing the constitution to define marriage as being only between a man and a woman.

Last week, state Attorney General Dustin McDaniel, a Democrat, said he personally supported same-sex marriage but would defend the ban in court.

"We respect the Court's decision, but, in keeping with the Attorney General's obligation to defend the state constitution, we will appeal," McDaniel's spokesman, Aaron Sadler, said Friday after the ruling. "We will request that Judge Piazza issue a stay of his ruling so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter."

In several other cases nationwide, judges or courts have stayed rulings striking down marriage bans while appeals are working their way through the courts.

Piazza released his decision after county clerks offices had closed for the week. Without a stay, marriage license bureaus are expected to be jammed Monday.

Piazza's 13-page ruling in Wright vs. Arkansas rests heavily on the landmark 1967 case Loving vs. Virginia, in which the U.S. Supreme Court overturned that state's ban on interracial marriage.

"It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters," Piazza wrote. "We will be stronger for it."

Last year, the U.S. Supreme Court last year struck down a law forbidding the federal government from recognizing same-sex marriages. Since then, federal judges in Michigan, Oklahoma, Utah, Virginia and Texas have declared marriage bans unconstitutional. In addition, Kentucky, Ohio and Tennessee have been ordered to recognize same-sex marriages from other states.

The nation's biggest lesbian, gay, bisexual and transgender organization praised Piazza's ruling as a "historic victory for Arkansas values."

"All across my home state, throughout the South, and around the country, LGBT people and their families are seeking basic respect and dignity," said Chad Griffin, president of the Human Rights Campaign and an Arkansas native. "This victory is an essential step on the journey toward full equality for all."

In 2004, Massachusetts became the first state to make same-sex marriages legal. Since then, 16 other states and the District of Columbia have followed suit, while 33 states restrict marriage to heterosexuals.

More than 70 lawsuits challenging marriage bans have been filed in 29 states and Puerto Rico, the Human Rights Campaign said. Only Alaska, Montana, and the Dakotas have not faced lawsuits.
For the OP.

Don't really have much to say other than agree with the falling like dominoes part. I was surprised that the state judge did it on its own. Used to seeing federal judges do it.
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Re: Arkansas gay marriage ban ruled unconstitutional

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Gaidin wrote:Don't really have much to say other than agree with the falling like dominoes part. I was surprised that the state judge did it on its own. Used to seeing federal judges do it.
If the case is brought in state court, a state judge is perfectly capable of ruling on the constitutionality of a state measure under the federal Constitution.
United States Constitution, Article 6, Clause 2 wrote:This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
You just don't see it as much, presumably because lawsuits of this nature are typically filed in federal court to begin with.
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Re: Arkansas gay marriage ban ruled unconstitutional

Post by Gaidin »

Rogue 9 wrote:
Gaidin wrote:Don't really have much to say other than agree with the falling like dominoes part. I was surprised that the state judge did it on its own. Used to seeing federal judges do it.
If the case is brought in state court, a state judge is perfectly capable of ruling on the constitutionality of a state measure under the federal Constitution.
United States Constitution, Article 6, Clause 2 wrote:This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
You just don't see it as much, presumably because lawsuits of this nature are typically filed in federal court to begin with.
I know. Let's just say I'm used to seeing it in the federal court. Maybe they're not so confident in the state judges? I don't know. I could run up the numbers across all fifty states and find them rather even and end up with a foot in my mouth for all I know if I look at them all. I just know the stories I've read across the past year have been about federal courts mostly.
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Re: Arkansas gay marriage ban ruled unconstitutional

Post by Alyrium Denryle »

I know. Let's just say I'm used to seeing it in the federal court. Maybe they're not so confident in the state judges? I don't know. I could run up the numbers across all fifty states and find them rather even and end up with a foot in my mouth for all I know if I look at them all. I just know the stories I've read across the past year have been about federal courts mostly.
State judges are often elected, and thus beholden to voters come re-election. Arkansas is a Klan stronghold. Do the math.
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Re: Arkansas gay marriage ban ruled unconstitutional

Post by Marcus »

Let me get a link to the decision... back when gay marriage was being discussed in Lawschool, I was always the one screaming that we needed to be pushing up the Loving line of cases... and thats a large part of Judge Piazza's decision.


Link to the text of the decision...

http://lawprofessors.typepad.com/files/ ... kansas.pdf


"It has been over forty years since Mildred Loving was given the right to
marry the person of her choice. The hatred and fears have long since vanished and
she and her husband lived full lives together; so it will be for the same-sex couples.
It is time to let that beacon of freedom shine brighter on all our brothers and sisters.
We will be stronger for it."


I'm really proud of Judge Piazza. Ive never gotten to practice in front of him, but I've heard very good things about him from other attorneys in the area. In an area where he has to run for reelection, this takes a lot of courage.
I do have one connection to the case.. I used to work for Jack Wagoner, the attorney for plaintiffs. Great guy, never misses a change to go forth and slay the dragons, in the legal sense.

Anyway, yay Arkansas, for once.
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Re: Arkansas gay marriage ban ruled unconstitutional

Post by Gaidin »

Alyrium Denryle wrote: State judges are often elected, and thus beholden to voters come re-election. Arkansas is a Klan stronghold. Do the math.
Piazza runs unopposed in the sixth circuit in May 2014. But the point of interest is that in Arkansas, Judges get six year terms on ballots where their parties aren't revealed. One wonders who will really be able to match this to his name especially if it has to make its way through Arkansas's Supreme Court before 2020.
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Re: Arkansas gay marriage ban ruled unconstitutional

Post by Rogue 9 »

Does the seat actually undergo an election every six years, or do they have retention votes? Indiana does the latter for the state supreme court, where you vote yes/no on whether to keep the judge, rather than for the incumbent or a challenger.
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Re: Arkansas gay marriage ban ruled unconstitutional

Post by Gaidin »

He had opposition in 1990 according to his Wikipedia page, at least as far as anybody that edits has bothered to find. It matches up in six year intervals with 2014. That was just his first reelection and could be a special case though. He's apparently not had opposition since 1990 according to the Arkansas results.

The ones I could find:
Wiki re: 1984, 1990
Link 1 - 2008
Link 2 - 2002
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Re: Arkansas gay marriage ban ruled unconstitutional

Post by Highlord Laan »

Reading the meltdowns at cesspits like townhall is pure comedy gold. I'd get an account just to troll them harder, but it's hardly needed. Reich wing screaming is the best music ever.
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