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  •  Allard amendment (none / 0)

    There's still argument as to whether the Allard amendment prohibits states from making civil union laws or not.  Sullivan still vehemently insists that it does.  What Allard did was take out the words "nor state or federal law" from the Musgrave amendment.

    99% perspiration

    by DaveOinSF on Tue Jul 13, 2004 at 01:16:32 PM PDT

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    •  One way to look at it... (none / 0)

      The current amendment language...
      and a link
      Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the Constitution of any State,  shall be construed to require that marriage or the legal incidents thereof be conferred upon  any union other than the union of a man and a woman
      ...but interestingly...
      The revised amendment retains the objectionable "legal incidents" language. Interestingly, the amendment appears to allow laws passed by a state legislature to have greater authority than a state constitution. For example, if the people of Massachusetts vote that their state constitution should require recognition of same sex civil unions, but the Massachusetts Legislature prohibits civil unions, then the legislature, not the constitution, would prevail if the Allard amendment passes.
      Of course the reverse is true too, so the fact remains the legislature MAY pass domestic benefits laws, and they'd be enforceble -- kinda moot point, I hope, but notable...

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      Please don't bite the heads off the chocolate Elvises.

      by PBJ Diddy on Tue Jul 13, 2004 at 01:40:44 PM PDT

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      •  The inverse is not true (none / 0)

        I don't think the reverse is true.  If, say the Constitution of Mass. prohibited same-sex civil unions, the Federal Allard Amendment language does not do anything to nullify that prohibition.  A Mass. Legislative law creating civil-union arrangements would be still be against the state constitution.

        99% perspiration

        by DaveOinSF on Tue Jul 13, 2004 at 01:48:50 PM PDT

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        •  aoeu (none / 0)

          Yeah but the massachusetts courts could not enforce that part of the constitution.

          "Presumptuous" is the new "uppity"

          by TealVeal on Tue Jul 13, 2004 at 01:55:15 PM PDT

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          •  Why is that? (none / 0)

            The FMA does not say that state constitutions can make no judgment with regards to what constitutes a marriage or who is eligible for the incidents of marriage.  It says that no state constitution can be construed to allow such things for any couple other than a man/woman couple.  If the Mass. constitution prohibited same-sex marriage or benefits, I don't see how the Allard-language FMA even comes into play.  If Mass. courts are interpreting the law literally I don't see how they can ignore something like that in their own state constitution.

            99% perspiration

            by DaveOinSF on Tue Jul 13, 2004 at 02:02:24 PM PDT

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            •  aoeu (none / 0)

              Maybe I am thinking of another version of the FMA going around, but one said that the courts cannot interpret their constitutions to say that gay marriage, or anything providing the incidents of marriage, is ok.

              "Presumptuous" is the new "uppity"

              by TealVeal on Tue Jul 13, 2004 at 02:04:00 PM PDT

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              •  Yes (none / 0)

                We are in agreement.  Perhaps I failed to explain sufficiently clearly the hypothetical scenario  discussed above.

                99% perspiration

                by DaveOinSF on Tue Jul 13, 2004 at 02:08:10 PM PDT

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              •  Hypothetical (none / 0)

                The example provided by PBJ shows how if
                1.  Mass Constitution allows same-sex marriage and
                2.  Mass Legislature prohibits the same
                Then the FMA allows the Legislature to ignore the Constitution, as you said.

                I was commenting on PBJ's assertion that the reverse was true to, which I think it is not.  The reverse would be

                1.  Mass Constitution probibits same-sex marriage and
                2.  Mass Legislature allows the same
                Then the FMA does not have any impact and the courts would have no choice but to declare the law passed by the legislature unconstitutional.

                99% perspiration

                by DaveOinSF on Tue Jul 13, 2004 at 02:12:59 PM PDT

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                •  I guess I meant "obverse" not (none / 0)

                  reverse, or inverse...(I had no idea there was so much math involved!)

                  IF Mass constitution is SILENT on Same sex marriage, and legislature allows SS benefits, then FMA (Allard) would not prevent SS benefits...UNLIKE Musgrave amendment which could be construed to prohibit SS benefits (unmarried hetero also) including those already on the books...I think,... now I have to go throw up...homophobic heartburn!

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                  Please don't bite the heads off the chocolate Elvises.

                  by PBJ Diddy on Tue Jul 13, 2004 at 02:25:51 PM PDT

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                  •  Construing the constitution (none / 0)

                    The constitution of the state states that the is a body that makes laws that the governor has to sign.  If that process resulted in the passage of a law giving same-sex couples marriage rights or benefits, the FMA would give some judge out there enough leeway to say, well, in this case, why should we construe that the legislature has any law-writing power whatsoever?  Why is what the legislature did any different than if me and a couple friends voted for benefits for gay couples and then got my cat to put its pawprint on it?  

                    You can say that the constitution gave the legislature those powers, but I'm not allowed to interpret the constitution anymore when it comes to issues related to benefits for gay couples.

                    99% perspiration

                    by DaveOinSF on Tue Jul 13, 2004 at 02:36:28 PM PDT

                    [ Parent ]

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