In Defense Of…

DOMA: The Confusing Legal Precedent Of State v. Federal

Yesterday the Supreme Court of the United States (SCOTUS) heard the case involving California’s Proposition 8, but today the court heard the case involving the Defense of Marriage Act (DOMA).  It’s the second of the two cases involving gay marriage.  So what is DOMA?  The Defense of Marriage Act was signed in 1996 by President Bill Clinton, and it defined marriage as between a man and a woman for federal and interstate purposes.  Section 2 of DOMA states that no state or territory has to recognize a same-sex marriage that is performed legally in another state.  Section 3 states that for federal purposes, a marriage is between a man and a woman only.  When the law was passed in 1996, no state had legalized same-sex marriage.  Today, there are 9 states and the District of Columbia that have legalized same-sex marriage, but the federal government has refused to recognize them.  There are several ways the court could rule with this case.  One is to strike down the entire law as unconstitutional, another would be to just strike out Section 3, and, of course, it could say that the law is legal via the Full Faith and Credit Clause of the US Constitution which is how the law was argued in Congress in the first place.

supreme-courtIn an op-ed piece in the Washington Post on March 20, conservative columnist George Will stated that marriage is performed at the state level and not at the federal level, and that until DOMA, the federal government had always just gone along with the states on the issue of marriage.  He’s half right and half wrong.  Yes, marriages are done at the state level.  This would be why at weddings the power is invested by God and the state, not the federal government.  Where Mr. Will gets it wrong is that the federal government hasn’t ventured into the marriage issue until DOMA.  In 1862, Congress passed the Morrill Anti-Bigamy Act which stated that having more than one spouse (bigamy) was illegal.  It was passed as a way to target the Mormon practice of plural marriage, which was then in the Utah territory.  The law was challenged in 1878 in the case Reynolds v. United States.  The Supreme Court ruled that religious duty was not a defense to a criminal indictment.  Reynolds was a Mormon and had multiple wives.  He had claimed that as a Mormon male, it was his religious duty to have multiple spouses.  The Morrill Anti-Bigamy Act would be amended in 1882 by the Edmunds Act and again in 1887 by the Edmunds-Tucker Act.  The latter would be fully repealed in 1978.

There is also the case of Loving v. Virginia (1967).  This is different as it didn’t challenge a federal rather law, but rather state laws that banned interracial marriage.  In its decision, the Supreme Court ruled that Virginia’s anti-miscegenation laws (and thus any of other state that had such laws) were in violation of the Due Process Clause and the Equal Protections Clause of the 14th Amendment.  In writing the decision for the unanimous court decision, Chief Justice Earl Warren stated, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 9th Amendment

“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.”
10th Amendment

Other than the 14th Amendment, the 9th and 10th also could come into play with the court’s decision.  In setting precedent in 1965 on the 9th Amendment, the court ruled that “personal rights should not be denied simply because they are not listed” in the Constitution.  This would almost seemingly fall right into what Chief Justice Warren said with the Loving case in 1967 in that marriage is a right; therefore, it cannot be denied by government.  However, to fly contrary to this argument would be the 10th Amendment that powers not delegated to the United States by the Constitution are given to the states.  In going back to George Will’s argument from earlier, marriage is a state issue.  States still cannot violate the Constitution, but it still doesn’t determine where the line for DOMA falls at.  In Sherrer v. Sherrer (1948), the Supreme Court stated that, “[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.”  This would make the argument for the 10th Amendment; however, it flies in the opposite direction of the Loving case from 1967 which makes the case for the 9th and 14th amendments.

gay-marriage-debate-thumb-320x240-9845It’s interesting that the Supreme Court took up this case at the same time it’s deciding California’s Proposition 8.  The decision in the DOMA case could very well be intertwined in how the court rules in the Prop 8 case.  Does the court rule that all of DOMA is unconstitutional, which would go along the same lines that determined the Loving case or does it rule that that only Section 3 is unconstitutional in that the federal government must recognize same-sex marriages that are performed legally in states where it is legal?  If the court rules that the Prop 8 decision only applies to the state of California and none of the others that have banned same-sex marriage, then it would seem the more logical decision in the DOMA case would be to rule that Section 3 is unconstitutional only.  If the court rules that the Prop 8 decision applies to California and all the other states that have banned same-sex marriage, then the it would seem more plausible that all of DOMA would be ruled unconstitutional as well.  The big difference between the Loving case and the DOMA case is that the Loving case involved state law, and the DOMA case involves federal law.  It would seem that in order to challenge the states that have passed same-sex marriage bans (other than California) would require an entirely different lawsuit.  Remember, California stripped away the right of same-sex marriage after it had already been granted; whereas, other states banned same-sex marriage before such action could be taken.

Earlier this month in Sacramento, Justice Anthony Kennedy stated that, “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.”  That might lead to a conclusion on the bigger issue as it basically means to leave it to the states to make up their own minds.  However, that still doesn’t address the issue in regard to the federal government’s role with DOMA.  And here’s one last twist to make the end result even more confusing.  If the court strikes down only Section 3 thus making the federal government recognize same-sex marriages that are performed in states where it is legal (though still allowing the individual states to decide on their own), how will it work for those individuals that get married in a state where it is legal but live in a state where it is not?  And could this question… this confusion… actually influence the court’s decision?  The days are numbered for Section 3, but the bigger question is whether the rest of DOMA will follow.  Where will history write the final chapter on this particular law?

UPDATE:
DOMA: Oral Arguments – Audio
DOMA: Transcript

PREVIOUS BLOGS:
The Rights of the People
By Popular Vote
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From The Shadows

“Hope is the dream of a soul awake.”  French Proverb~

I have thought over this blog entry for the past several days and even still, I cannot come up with the proper words on how to start this.  It honestly breaks my heart to even think about this.  But as it seems to continually surface in the news, I feel like I need to speak up… to lend my voice with those of my community so that the light might shine again for those that find themselves stuck in the shadows.

Behind the smiles and the friendships and the everyday lives is the pain and the suffering of someone’s soul.  Despite their outward appearance, they find themselves slipping farther and farther away and feeling as if there is no way out… no where to turn for help.  They might be young; they might be middle-aged; or they might be elderly.  It is defined not by any age or race or religion, but it usually ends in the same result… someone with no hope left just giving up.

Whether we know the individual or not, whether it makes headline news or not, it still affects those of us that are left behind.  We wonder how and why.  We look for absolution, though it never comes.  We carry the burden in our hearts and hope that there is no more.

We live in a changing time.  Though LGBT-rights have been making progress over the past several years, there is still much to be done.  For those that have gone before, we keep their memories in our hearts as we move forward.  For those of us that have lived through it, we know that it gets better.  We know that there are places to turn to when we need that helping hand… whether it be a family member, a personal friend, or an organization within the bigger community.  All we ask is that before things get so bad, that one seeks out help and guidance.  There is nothing wrong in admitting that help is needed.  Even I, at one point in my life, needed that crutch, and it helped me get through some dark days.  That crutch was that light that I needed to get me to emerge from the shadows.  And there is a light for all of us.  We just must take the time and not be afraid to reach out for it.

Amongst our changing world, there is plenty of hate, violence, and bullying.  It can seem as though that’s all our culture is.  But there is plenty of love, kindness, and hope that exists out there, as well.  Sometimes, we just have to look a little harder to find it.  No matter who you are… no matter of age, race, religion, nationality, sex, sexual orientation, gender identity, etc… there is someone out there that cares about you, and they might not even know you.  It can be hard to turn off all the negativity that exist within life, but it can be done.

Albert Einstein once said, “Learn from yesterday, live for today, and hope for tomorrow.”  Even if yesterday was horrible and today is no better, there is always hope for a shining light tomorrow.  Regardless of what life throws at you, you have the ability to overcome.  All one must do is plant his/her feet firmly on the ground and march forward.  Suicide is never an option and should never be considered as such.  There is much more to live for, and we all have a reason for being here.  Let us stop the hate and the bullying.  Let us reform our culture to be one of positive energy instead of negative.  Let us build people up instead of always tearing them down.  Let us remember that we are all someone’s father or mother, brother or sister, son or daughter, aunt or uncle or cousin, husband or wife, friend or foe.  No one deserves such harsh treatment that they wish to make an early exit from our realm.  Mind your words and your actions for they do have consequences that might not be considered.  Let us together end the suicides that are plaguing our community, and let everyone know, no matter where they are, that there are those of us out here that care about them and will help get them through whatever dark time they are currently in until they can once again emerge from the shadows.  No one is ever alone.  No one is ever alone.

For those that have already fallen, we will never forget them.  For those of us that remain, we must do better to make sure no one else follows them.  We must be willing to stand up and say “We Care!” and reach out to those that need us.  I am proud to stand up and say that “I Care!”.  The bigger question is, do you?  And if you are one that needs that helping hand, do you have the courage to seek that crutch that you need so that you can stand up with us?  I know that within your heart, you do.  So reach out today for your community is here to help you.

INFORMATION:
If you or anyone you know is contemplating suicide, please call 1-866-4-U-Trevor (1-866-488-7386).  You can also click on the link for The Trevor Project.  There are people there that are willing to listen and to help.  You can also look up your closest LGBT Center.  Remember, you are loved… whether you know it or not… and you can get through this.

“He who has health, has hope.  And he who has hope, has everything.” Proverb~

In Memory of Those that have Fallen…
Let there be light so there are no more shadows.

A New-Found Voice

As of this morning, it is official… Don’t Ask Don’t Tell, the military policy that refused to allow gay servicemen and women to serve openly for their country, is a dead and a part of the history books.  It is a new day for our brave men and women in our armed forces who are constantly putting their lives on the line for our country and for our freedoms.  And though we celebrate the end of this draconian law, we must remind ourselves that despite winning this battle, the conflict that we fight still rages on.

Though our fellow brothers and sisters can now officially be out and proud of who they are, instead of hiding in shame on fear of being discharged, they are still denied the same benefits that their heterosexual colleagues enjoy.  If a gay couple is legally married, they are still not allowed to get a pay raise or an increase in housing allowance… though the straight couple would.  When a gay spouse is deployed, the partner is not given a family separation allowance.  Same-sex partners are denied dependent identification cards, so that if i gay partner is injured, the spouse has no way of gaining access.  (I’m not sure if the Obama administration’s new policy regarding gay partners and hospitals has changed this for military families.)  It also doesn’t allow the gay partner access to the same shops, gas stations, or other recreational facilities that are given to other military spouses.  And here’s the worst of it all… If a gay spouse in killed in the line of duty, the partner is denied survivor’s benefits.

As you can see, though we have won the bigger battle of getting this law repealed, we still have a long road ahead of us with these smaller battles.  We must not let our celebratory mood allow us to forget.  In an issue that pertains to them, gay servicemen and women that are currently serving in our armed forces were forced to keep silent on the very issues that pertained to them.  Now, for the first time, they can speak up loud and clear on these issues and make sure that all the elected officials in Washington can hear their voices and their side of the issue.

There is but one thing that keeps most of these smaller things from disappearing in the same way that Don’t Ask Don’t Tell has now done.  It’s the Defense of Marriage Act (DOMA) in which the federal government does not recognize any same-sex union… whether it be gay marriage or a civil union.  It is this draconian law that now needs to be dismantled so that our brave countrymen and women can enjoy all of the same benefits that other military families enjoy.  Let those new voices speak up with the rest of us to end this grave injustice and set our country on the right course.  Even now, the Respect for Marriage Act, the official repeal of DOMA, has been introduced once again in Congress.  Though it is unlikely to pass, yet again, our voices must still be heard, and we welcome the voices of our servicemen and women on this very issue as it does pertain to them, as well.

They say the military is a microcosm of the American public.  It is through changes in military policy that have led the way before.  It was in 1948, that President Harry S. Truman signed Executive Order 9981 which order the integration of all our armed forces.  (President Truman was able to bypass Congress with the Executive Order since there was no actual federal law that Congress would have to abolish.  It was just a long-standing policy.  This was not the route that President Obama could take as a result of Don’t Ask Don’t Tell being passed by the Clinton administration.)  It was a major step in the civil rights movement.  And as the desegregation of our armed forces took hold, a bigger and better conversation began to evolve.  And though there were still many dark days ahead in the civil rights movement, the military stepped up to start the country on a new path… a trend that I hope continues with today’s news.

These are our the men and women who serve our country both at home and on the front lines.  They deserve our utmost respect.  Still classifying them and treating them as second-class citizens is an abomination and disrespectful.  Without these men and women, the very freedoms we take for granted each day would be in peril.  We in the civilian world fought a fight for them that they could not lend a voice to.  Now, in our ongoing struggle, they have the ability to speak up and add their voice to ours without the fear of being discharged.  The witch-hunt is over, but the quest for our rights is still ongoing.  Though I am saying “Huzzah” to the end of Don’t Ask Don’t Tell, I know that it is not the end of the ordeal.  And to all of our armed forces, I say thank you for your commitment and dedication to your country… I salute you.

LINK:  http://www.cnn.com/2011/09/20/opinion/watts-dadt-equality/index.html

VIDEO:  A Gay Soldier Comes Out To His Father

To Go Boldly…

It was a successful launch of the spaceshuttle Atlantis on the 135th, and final, space flight.  NASA has decided to end the shuttle program and to start focusing its energies and resources into other projects.  Besides for having to fix one camera at the 31-second mark, the launch was perfect.  I sat and watched both on my TV and on my computer, and I will admit that it did bring a tear to my eye knowing there would be no more.

Some might see the shuttle program as a waste of government spending, but I see it as something that has furthered our knowledge of our place within the universe.  It truly has been scientific exploration at it’s finest.  But now it is time to step aside and refocus ourselves on our next mission.  Going up and down to the International Space Station has become common place.  We have come to that point that we must move beyond to challenge ourselves once again to reach further than mankind ever has before.  NASA engineers are already working on the next generation of ships… ones that will take us beyond our small planet and into our solar system.

I look back at the past 30 years with great astonishment and with the eyes of a child.  The shuttle program has been around for the majority of my time in existence.  It has become common for me to hear of a launch, a mission, and a successful landing.  Even when media coverage became non-existent, I still managed to find the news somewhere and to play close attention to each bit.  I was too young when the Challenger blew up upon launch in 1986, but I remember how heartbroken I was when the Columbia was lost upon reentry.  Those two crews will always remain with us for all that they did.

Today, we do not mourn the end of anything; rather, we celebrate the beginning of our next journey.  The time is now upon us to move the height of the bar even farther.  As the shuttle grew from the Gemini and Apollo missions, the next phase will grow from the shuttle missions.

We have achieved a great many things during the past three decades and our understanding of the universe and our broad knowledge has expanded beyond imagination.  The biggest of these tools, the Hubble Space Telescope, has allowed us to see so much more than we ever thought we could (despite being blind when it was first turned on).  We have continuously upgraded it’s systems so that it could continue to give us more than it was ever set out to do.  The beauty it has captured can only be considered to be priceless.

Our eyes are now set upon Mars as the next step of our journey.  In the 60s, we took great pride in landing man on the moon, and we still take great pride in the fact that we are the only nation to still have done so.  But we have also entered a time that the moon landing is becoming just a page in the history books… a major accomplishment to be celebrated, but not one that gets the current generations all fired up.  And like others before us, we must always go one step further.  And I do believe that it is possible to get to Mars (and during my lifetime) with overall human ingenuity.  We have proven before that there is nothing we can’t accomplish when we put our minds to it, and we work together.  The moon landing came about from the space race with the Soviet Union, but it was still something to be cherished by all mankind.  With the Cold War over, future space programs should be used to unite a planet behind something positive.  Working together as a people, we can accomplish what we have deemed impossible.  Remember, your cell phone has more computing power than all of the computers that landed man on the moon.

So as we set foot into an unknown future and go boldly where we haven’t gone before, I take this time to honor the shuttle fleet and it’s various crews.  You are a source of great pride… not just in our country but within the people around the world.  You have been courageous, honorable, and valiant.  And as we say our goodbyes with that pride in our hearts and a tear in our eyes, we remember all that you have done, all of those whose lives you’ve touched (especially those from the Challenger and Columbia), and the amount of knowledge you have given.  God speed Enterprise, Columbia, Challenger, Discovery, Atlantis, and Endeavour.  You will never be forgotten.  Live long and prosper.

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