Why I'm disappointed in Mass. marriage court ruling.

[David__77]

I'm tired of the courts doing this with same-sex marriage. If it is unconstitutional for same-sex marriages to be denied, then the solution is to allow for them immediately.

In Vermont, the court ruled that same-sex marriage must be allowed, and gave the legislature time to find a "solution." The solution was civil unions, which, while good, is still less then equal.

When courts ruled against anti-miscegenation (anti-inter-racial marriage) laws, they allowed for couples of different races to marry immediately--they did not refer the issue back to the legislatures. Why do this? The solution is clear: open existing marriage laws to include same-sex couples.

I am concerned that this ruling will be undermined before it ever has any effect on real couples. We deserved more from a court that is concerned about truly righting wrongs.

[rucky]

1. It's a Step in the right direction

patience, grasshopper

It is not the job of the court to rule on anything beyond the scope of the case that was brought before them - which is the express banning of same-sex civil unions.

Now that that road block is cleared up, Mass can move forward.

[David__77]

4. But it's not cleared up...

The case wasn't about civil unions at all--it was about marriage. The court said there's a right to same-sex marriage, but won't order that this right be respected as of now. I think this was an excellent opportunity to allow same-sex couples to MARRY NOW. Once the "genie was out of the bottle," the backlash would have a harder time disenfranchising the already married. Now there'll be time for a state amendment prohibiting same-sex marriage. I think the court was wrong to delay implementing its ruling.

[rucky]

9. Here's what the Chief Justice Said:

Marriage is a vital social institution," Chief Justice Marshall wrote. "The exclusive commitment of two individuals to each other nurtures love and mutual support. It brings stability to our society,

"For those who choose to marry, and for their children, marriage provides an abundance of legal, financial and social benefits. In return, it imposes weighty legal, financial, and social obligations."

She added: "The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry.

"We conclude that it may not."

The state's Attorney General's office, which defended the Department of Public Health, argued that neither state law nor its constitution created a right to same-sex marriage. The state also said any decision to extend marriage to same-sex partners should be made by elected lawmakers, not the courts.

http://www.nytimes.com/2003/11/18/national/18CND-GAYS.html?ex=1069822800&en=8abeb6ee6c0af68d&ei=5062&partner=GOOGLE

Yeah, the ruling could've been stronger, but at 4-3, it probably came down to one judge & a compromise.

They're saying that rejecting a denial of rights is not the same as supporting the right, which is technically true. Now it's kicked back to the legislature, where there's a proposed amendment to the Constitution which would make the judges' interpretation of the existing Constitution obsolete.

So that's where the fight is now. It sucks, but that's how it's gone in every state so far. Vermont's been the only one to win in the legislature (2 years after their SC ruling). Not even Hawaii could do it in the legislature. Kudos to Dean for that one.

[Norcom]

2. I was wondering

about this.

How can the court rule that banning same sex marriage is unconstitutional and in the same ruling DENY same sex couples marriage licenses and refer the matter to the legislature?

Can someone find for us another state supreme court or US supreme court ruling that determined a ban on something to be unconstitutional and NOT lifted the ban?

[rucky]

3. Are you sure they expressly denied it?

they did in a defacto sort of way, but it is not my understanding that they expressly denied it.

[Norcom]

5. For all intents and purposes

they denied it.

They ruled that banning same sex marriages is unconstitutional. Thus, gays should be able to go get a marriage license and get married. Can they? NO!

Why not? Didn't the court just rule that to deny them this right is unconstitutional?

[David__77]

6. They did not order licenses to be issued.

They gave a six-month time-line to the legislature. Why do this? I may be totally off but I do not think licenses will be issued to same-sex couples as of today--though they should be.

[MsUnderstood]

7. 3 branches of government

3 branches of government are at work here. The legislative pass laws. The judicial DO NOT PASS laws but simply determine if the laws passed fit within the Constitution. The Executive. . .I'm still trying to figure out the purpose of that area.

The judicial branch cannot tell the the legislative branch "you must write the law this way." They can only say "This is wrong, do it again." If the judicial gives away the answers, it would be cheating.

P.S. This is why Gay Marriage Matters, please read.

http://www.fculittle.org/sermons/Why_Gay_Marriage_Matters.pdf

[Norcom]

8. Laws

Your post was directly concerning the legislative branch passing laws and the court reviewing them for constitutionality. And if a law is found to be unconstitutional it is struck down and the legislature often resists the issue and trys to write the law to stand up to constitutional muster.

Was this court reviewing a law passed by the Mass legislature banning gay marriage?

I am not from Mass and do not know the details of the case.

But as I asked above, is there any other state or US supreme court rulings that determined a ban on something to be unconstitutional whose ruling did not lift the ban?

[MsUnderstood]

10. Because there is no law giving Same Sex couples a right to marry

The couples in the case went to court because they applied for marriage license and were denied. They were denied because of a law passed that does not allow same sex marriages.

Before this case, there never was a law allowing same sex marriages; therefore, eliminate the law, does not eliminate the ban on same sex marriages.

What the Mass. Supreme court is saying (IMHO) is that you cannot ban gay marriage based on this law because it violates the constitution. Ban the marriage on a different law or do not ban it at all.

What they are implying is: QUICK, pass an amendment to the constitution or give gays the same rights as Heterosexuals.

[Norcom]

11. When

did the Mass legislature and Gov sign a law banning same sex marriage?

I have been operating under the impression (possibly wrongly) that no such law has been passed and signed into law in Mass.

[David__77]

12. They aren't saying that.

For one thing, their stay is only for six months right now. An amendment would take at least until 2006 to be voted on.

I don't know what's so hard to understand: when inter-racial marriage bans were overturned, the courts ORDERED inter-racial marriage to be included in EXISTING marriage laws. Why not do the same thing with same-sex marriage?

[apsuman]

26. That's not what MsUnderstood said...

Let me try it this way:

At some point in history let's say in 1800, laws are made defining when people get married, specifically when they go to get a marriage license.

Then in 1850 a new law (adding to the existing) one adds the limitation that you can not marry two people of races, X and Y.

Then in 1950, the Court overrides the 1850 law as unconstitutional. So people of race X can marry people of race Y.

In the case of gay marriage, there is no 1800 law to resort back to.

[David__77]

13. WHY are few agreeing with me??

I don't get it. If there was a state disallowing inter-racial marriage, would it make any sense for the court to say "the state must recognize inter-racial marriages" but then not order the state to issue licenses? Courts are instruments of state POWER--they ORDER compliance with their rulings, on penalty of law.

I don't know what's ambiguous here. And, in this case, the court ruled that me and other gay and lesbian people deserve marriage rights, but then somehow isn't willing to do the right thing and enforce what is constitutional. Every day that we are denied marriage rights in MA, under the court's own logic, is an injustice. Why are they perpetuating and abetting that injustice?

[kentuck]

14. Perhaps someone will appeal it to the US Supreme Court ??

What happens then?

[David__77]

16. cannot be appealed...

this is a state matter in the strict sense...

[KaraokeKarlton]

15. Does this mean Kerry is ineffective in his own state?

Dean got Civil Unions for Vermont, why hasn't Kerry gotten the same for Massachussetts? I think it's obvious who gets more change accomplished.

[David__77]

17. Probably an unfair criticism...

I don't support Kerry, but that is unfair: Dean was complying with a court order. In fact, had civil unions not been enacted, it is likely that the Vermont court would have ordered marriage licenses to be issued, which would to me have been preferable. I'm not discounting Dean's courage, but Kerry, a senator, dealt with vastly different political conditions and situations than Dean.

[KaraokeKarlton]

19. I think it's fair

and Dean could have fought the court order. He never had to sign the bill or support it, but he did. He suffered tremendous abuse for doing that, too. He was called every name in the book, including a child molestor. He was spat on, had his car vandalized, got death threats, harassing phone calls at home and had to wear a bullet proof vest for the 2000 campaign. He didn't run from any of it. He faced it all head on and talked about dignity, human rights, diversity and doing the right thing. He won people over and healed the state. Dean is a real hero and champion for civil rights and equality. Anyone who says otherwise is not telling the truth. Kerry doesn't take the tough stands on issues like this. He's too afraid to do it. He's been a representative for the state for many years and as far as I know he has never tried to help get civil unions for Massachussetts. Why not?

[David__77]

20. I'm not discounting Dean's stand, BUT...

I don't think that this in itself speaks to a weakness of Kerry's. Kerry did vote against the DOMA, which is significant to me. He has a very good voting record on LGBT issues. I don't know if it's relevant that he "pushed" for civil unions in MA, because I don't know if he was ever a state-level official.

That said, I would support Dean over Kerry. I haven't made up my mind and don't expect to before the new year.

[KaraokeKarlton]

21. If it was really important to him (Kerry)

he could do a lot more to make it a reality. Votes alone don't cut the mustard. People in his position need to vocally support things and make those pushes to move the issues along. I don't see where Kerry is willing to take those kinds of stands.

[curse10]

24. You do realize that Kerry is a federal representative

and not a local one. He can do nothing to change the course of state legislature except to offer his opinion. Which he has done, many times. Nor does he have control over the courts- this whole checks and balances thing is a real bitch sometimes :eyes:

In addition, he voted against the protection of marriage act, voted to pass a bill prohibiting job discrimination on the basis of sexual orientation, and voted to expand the definition of hate crimes to include gender, sexual orientation and disability.

[Hippo_Tron]

18. The funniest part...

If you'll take a look at the CNN poll, you might notice that it has been freeped.

[DarkPhenyx]

22. My solution is to...

...disallow "government sanctioned" marriage for everyone" and require civil unions for everyone. The Gov't has no business with religious sacraments, which is what "marriage" is. No matter how you want to spin it.

Existing unions get grand-fathered in of course.

[Name removed]

23. Deleted message

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[Romberry]

25. Courts don't get to write law

It's really as simple as that. They can strike down laws that are unconstitutional according to their reading of their state constitution but they can't write law, nor should they.

[dsc]

27. My guess

is that the difference is that once the law barring interracial marriage was stuck down you had a law letting men and women get married which thwy would follow and marry the interracial couple. I am presuming that marriage licences are defined legally as being between men and women. If that is the case it requires a change in the law which the court can't do. Or at least feels it can't do.