"Republicans and Democrats are both responsible for the legalization of homosexual marriages," Republican political activist Eric Miller declared, standing outside the Indiana State Capital.
Miller blames lawmakers for not taking action on the proposed constitutional amendment in 2013. Now he will be asking lawmakers to reintroduce a constitutional amendment in 2015 allowing voters to ultimately decide the issue in 2016.
"We must pass a constitutional amendment because we believe the Supreme Court will rule the same as it did last year that states can decide marriage the way they want to," Miller added.Excuse me, Mr. Miller, but it would have made absolutely no difference whether Indiana's Defense of Marriage Act was written in our state's constitution as opposed to the Indiana Code. Whether the law in question was approved by voters as opposed to elected representatives would have made no difference in Judge Young's analysis. The Supreme Court's decision in U.S. v. Windsor cannot be read to say that states were still free to discriminate in its recognition of marriages based on sexual orientation as Miller asserts. Indeed, Justice Scalia's dissenting opinion predicted the exact result Judge Young reached just like dozens of other federal judges faced with the same question have already decided. As a lawyer, what part of federal preemption does Mr. Miller not understand? The Supremacy Clause of the U.S. Constitution means that states cannot enact laws that conflict with federal law, particularly laws that seek to interfere with individual rights found to be guaranteed by the Bill of Rights and applied to the states by incorporation through the Fourteenth Amendment. If you don't agree with Judge Young's ruling, your problem is with the U.S. Constitution and how that document has been interpreted by our Supreme Court, not state lawmakers.
UPDATE: One of the few holdouts among the state's county clerks in refusing to issue marriage licenses to same-sex couples following Wednesday's ruling by Judge Richard Young is Daviess County Clerk Sherri Healey, who tells reporters that "the U.S. was founded on the biblical principle of one man and one woman in marriage" and that's what she will follow until she is ordered to issue marriage licenses to same-sex couples. Indianapolis gay activist Kevin Fyffe, who hails from Washington, Indiana originally, tells his Facebook friends that Healey is his sister. "Yes ladies and gentlemen-this is my sister," Fyffe writes. "You can't make this s_ _ _ up."
27 comments:
"Excuse me, Mr. Miller, but it would have made absolutely no difference whether Indiana's Defense of Marriage Act was written in our state's constitution as opposed to the Indiana Code."
Actually, it would. Clear state constitutional language trumps ambiguous national court legal reasoning.
Outright repudiating a state constitution and replacing it with legal reasoning not found in the plain text of the Constitution is a bold step for a national court to take. It would violate the Ninth and Tenth Amendments for a U.S. court to repeal a state constitution in all cases except where clear U.S. Constitution language is present.
We need to get a marriage definition in the Indiana Constitution.
Oh, is that why the Supreme Court was able to strike down anti-misceganation laws among the states, including those incorporated in state constitutions?
The definition of marriage is based upon tradition & has been around for millennia.
No profession, legal or otherwise, owns the language; that which is used to define all human endeavor.
There is no "right" to redefine or speciously pervert tradition in the name of "love;" which isn't evocative but provocative to those embracing tradition / meaning.
Words exist to define that which is claimed to be unique; commensurately & in unique terms, such as civil union.
Attempts to redefine marriage aren't loving they're provocative.
I suspect that we will start to
see some adoption petitions filed
for those who got married yesterday
and where one of them had legal custody of a child/children.
In a few years, we should also start to see some divorce petitions filed.
TENTH AMENDMENT TO U. S. CONSTITUTION:
"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."
Marriage is a State issue, by authority of The Constitution. The Federal Government is prohibited from intervention in State's Rights!
Outright repudiating a State Constitution and replacing it with legal mumbo-jumbo not found in the text of the Constitution is a bold step for a Federal Court to take, and cause to impeach the Judge!
It would violate the Ninth and Tenth Amendments for a U.S. Court to repeal a State Constitution in all cases except where clear U.S. Constitution language is present.
We need to get a marriage definition in the Indiana Constitution and impeach Federal Judge Richard Young for violation of his Oath of Office and the U. S. Constitution!
This white, middle-aged, suburban, Christian, conservative, straight wife and mother says no state has the right to impede these marriages without offering factual and constitutional support of that position. And barring religious objection, I personally haven't heard a meaningful argument against it yet.
How can we argue that government should be subservient to individual liberty - except in this situation? And for no other reason than "my faith tells me so"? Respectfully, if personal faith opposes same sex marriage - than don't marry someone of the same sex. But the right of each of us to swing our fists stops where someone else's nose begins....
These couples have every right as citizens to the legal protections and societal affirmation offered by civil marriage and I for one, offer my congratulations to them.
Good point, Pete. The rationale behind marriage is not "love," far from it.
Arkansas and Wisconsin and Virginia and Utah, among others, have had their state constitutional amendments prohibiting same sex marriage ruled unconstitutional. They’re on appeal, but if the 10th circuit is any indication of how the other federal appeals courts will rule, there is nothing special about having the provision in state constitutions. Whether by statute or constitutional amendment, if a federal appeals court says your law violates the U.S. Constitution it will be invalidated. I don’t know why commenters on this site continue to believe the Indiana Constitution can protect prohibitions against same sex marriage. It can’t. And the U.S. Supreme Court is unlikely to take up the issue unless there develops a split among the federal appeals courts. With some 14 wins in a row at the federal court level, it seems speculative that a rift between circuits will develop. The best practice would be to accept Indiana’s place in history and to abandon the appeal and request for the stay. It just seems so desperate. If Greg Zoeller had lived in the 1860’s apparently he would have defended slavery and in the 1950’s supported bans on interracial marriage. He’s on the wrong side of history. At this point all he can do is embarrass Indiana. If he can’t personally stomach gay marriage he should step down and resign as Attorney General, because we don’t need or want bigots running this fine State, and crying and whining about the direction the nation is moving on same sex marriage is best done privately. If you can’t lead get out of the way.
There is a Constitutional right to associate & contract; not redefine common language. No common language, no common law.
"Actually, it would. Clear state constitutional language trumps ambiguous national court legal reasoning. "
You're just wrong. Please see Utah. Their constitutional amendment was overturned AND their appeal was also denied by the 10th circuit court. The amendment would have ZERO impact on this situation. Zero!
It would be another waste of time, effort, and money of which personally I think the A /G should be found responsible to repay the state due to obvious derelict of duties.
I was once heard failure creates opportunity. Micah Clark and Eric Miller can use this failure to define marriage as only between a man and woman to appeal to the "flock" for more donations to carry on the fight.
I suppose the Bible Thumpers can use this opportunity to double down and blame the education establishment for not allowing "Creation Science" to be taught in Public Schools.
Gary's analysis is spot on.
Anonymous 7:49, 10:40 and 10:46: You are flat-out wrong. Nowhere in the U.S. Constitution does it state that the Ninth or Tenth Amendment takes precedence over the other rights promised by the constitution. So when a state treads upon the constitutionally protected rights of free speech, association or religion, then a court most certainly can rule the action unconstitutional - whether it be in the state constitution or by state law.
Pete Boggs: Go read Loving v. Virginia - you make the same arguments the State of Virginia made when defending its law against miscegenation. Also, your statement: "No common language, no common law" makes absolutely no sense. I suspect you do not understand that common law is law that is derived from judicial decisions.
Anonymous 9:57: You need to come out from under that rock a bit more often. Same sex couples have now been adopting children for some years and thank goodness as we heterosexuals seem pretty good at creating them but often lack the wherewithal to care for them.
Anonymous 10:51, 7:02 and 8:12: Thank goodness - finally, three comments that are correct. Thank you!
State constitutional definition is sufficient to intimidate a national court and to remind a national court of the limits of its jurisdiction under a federalist system. All you need to is inform the court of just what's at stake.
Ask the court if it can produce a passage in the national Constitution speaking to gay marriage that the state can be shown it assented to. Failing that, remind the judge of his proper place in the federalist scheme.
Simply remind the court that its ruling in the instant matter may be considered by the state in deliberating whether to remain part of the Union.
Read the Declaration of Independence. It lists many usurpations and excesses by the then-governing national government. If this government won't learn from its predecessors mistakes, remind the court of just what it's risking.
Of course, you need a real attorney to go into that court and speak the truth to the judge, and you need state police outside to arrest the U.S. judge if he tries any action against the state attorney.
Play hardball with the national court, and they'll fold. Their power is merely apparent.
What remains true that this was not established to be a homosexual marriage country.
"And barring religious objection, I personally haven't heard a meaningful argument against it yet."
With your ears closed, you won't.
I haven't seen a single argument that spells out just where in the Constitution gay marriage is.
I've read the Constitution. I can't find gay marriage in there.
These cases are judicial agenda pushing, breaking free from all bounds of restraint.
Great Point Anon 9:15. I don't see the words "gun" or "privacy" in there either... I guess they don't exist.
It's sad that these Bible Thumpers think the U.S. is a theocracy. Naturally, these are the same people who shriek about Sharia law in the Middle East.
I moved to Washington, DC over five years ago and of course we have same sex marriage here. The sky isn't falling. I guess I'd rather me government by the liberal kooks on the DC City Council than by Pastor Pence and the religious zealots in the Indiana legislature.
9:30
Second Amendment
"right to keep and bear arms..."
Fourth Amendment
"secure in their persons, houses, papers and effects..."
These are mathematical 1 to 1 equivalents for your lexicographical choice of "guns" and "privacy."
Show me the gay marriage amendment.
Further, any amendment you would show will have been around a long while. Tell me why gay marriage wasn't found in that amendment until now.
Point to any contemporaneous congressional debate or discussion relating to the amendment that discussed gay marriage.
Then read this:
http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2210568_code1540408.pdf?abstractid=2210568&mirid=1
I fail to understand how this man wakes up every morning and looks himself in the mirror knowing that he hates the world so much..It must really suck to be him
Common law or law, is born of common language; not vice versa, Veracity. Common language supersedes common law; a product of common language.
I can't see the right to use the streets in the U.S. Constitution either. But, you can bet if the states said, only heterosexual people can use the streets, that would violate the 14th Amendment. On the other hand, if the states said, "monster trucks can't use the streets," there would be no 14th Amendment violation.
The distinction is that the former lacks a rational basis; the latter has one.
There may be a basis under various religions for not allowing same sex couples to marry. There isn't, however, a rational basis for the prohibition.
He's laughing all the way to the bank, anon. 10:25. His gig pays well.
Gary you are exactly right. Miller has torqued up an issue that is sensitive to certain groups. He raises funds to fight the cause. He then hires his law firm to fight the cause. Most likely office rent, cars, insurance and other employment benefits are paid also. I believe you wrote an article on this a year or so ago. Miller did not invent this scam. P. S. Ask people in Rush County about Eric Miller.
If only Doug's analogy were relevant.
The purported "right" to gay marriage has us suppose that Congress allowed some to make demands on others. Rights, however, don't work that way. Rights are things we can do without making application upon any other person.
We may pray to our gods, speak on what we wish, where we wish, read what we want, move where we want, eat what we want. All of this requires no assistance, recognition. or assent from any other person. All that is necessary for me to listen to whatever speaker interests me, or to exercise any other right, is for others to get out of my way. I ask nothing of another.
Gay marriage is fundamentally different from a right. Marriage is a legal rank and status, not an activity. Heterosexual couples live together, for years, but are not considered married by the mere activity of cohabitation. Marriage is more than love, living together, devotion to one another, or any of the other benefits couples, both hetero- and homosexual enjoy, without asking anything from anyone else.
Marriage, however, is something above any beyond mere coupling. Marriage is a legal status deliberately and rightly not available to everyone. One cannot be married absent a partner. If people are forced to confer this legal status on others, some are making demands on others, thereby proving there is no right to the legal status.
In your analogy, both homosexuals and heterosexuals can walk down the street without making any demands of anyone. The monster truck does make demands of others. It requires us to make wide and durable roads to accommodate it, and it requires us to endure its 125 db exhaust noise.
Gay marriage is not equivalent to walking down a street, making no demands upon anyone. Gay marriage is demanding that each one of us change our laws, records and our codified legal status regimes to accept new persons as "married."
Requiring a people to accept and legalize homosexual marriage is most certainly not a liberty-neutral event; ergo, there is no "right" to homosexual marriage.
Further, drop that "rational basis" nonsense. That's court-made claptrap.
Anon 8:57: The 10th Amendment takes the matter of marriage away from the Federal Government!
There is NO Constitutional right to marriage. That is a UNION of two people, substantially different from an association by creating a legal joining of two into one.
An "association" is communication between two or more.
The Constitution prohibits the Federal Courts from hearing matters involving the State's Rights specifically in the 10th Amendment.
4:25 said it so well, it is worth saying again:
"Gay marriage is not equivalent to walking down a street, making no demands upon anyone. Gay marriage is demanding that each one of us change our laws, records and our codified legal status regimes to accept a new class of persons as "married."
Requiring a people to accept and legalize homosexual marriage is most certainly not a liberty-neutral event; ergo, there is no "right" to homosexual marriage.
Drop that "rational basis" nonsense.
In the words of Mike Royko "We suffer from terminal jurisprudence"
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