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View Diary: Brace yourselves: we have a war on our hands... (345 comments)

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  •  We will just have to disagree (2+ / 0-)
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    VClib, sfbob

    here is my case for why you and Alec are wrong.

    The NH legislature did not create a new institution for gays. It took what has already been recognized as a fundamental right, marriage, and granted it to the homosexual minority-- recognizing those relationships as falling under the umbrella of relationships worthy of state recognition and state protections. From that point on, there has been no distinction between homosexual relationships and heterosexual relationships under NH law-- they are both equally marriage, and both classes of people (hetero and homo) have been recognized as equal in regards to marriage, child rearing, adoption, inheritance, etc. That finding, that homosexuals as a minority and their relationships are to have the same standing as straights', is still valid.

    What has changed in the meantime, since NH recognized homosexuals' relationships as being covered by the same fundamental, constitutional right of Marriage that heterosexuals already enjoy, other than a new legislature is taking power? Absolutely nothing. Unless NH could show that a new law, revoking the homosexual minority's already existing right to marriage advances compelling state interests, I can't see it surviving a challenge.

    I think what we may be missing each other on is to what exactly a Federal court would be reviewing. They would solely be reviewing the potential revocation law, and its upsetting of an already well-established status quo. It would not be trying to find a currently non-existant right to marry for Gays, cause it will have already existed. Now it would be on the state to show why this fundamental right, which currently exists for gays in NH, can be revoked.

    •  exotrip - I hope you are right (1+ / 0-)
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      And you certainly know more than I do about NH law. I was putting the California template over the NH situation and it was not a correct way to view this. I do hope you are correct, not me.

      "let's talk about that"

      by VClib on Wed Nov 03, 2010 at 01:18:23 PM PDT

      [ Parent ]

      •  I don't know law at all (3+ / 0-)
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        neroden, VClib, sfbob

        In fact I am a little embarrassed, perhaps I should preface my comments with "IANAL" :)

        But I think it matters enormously that it was NH's LEGISLATURE, not a court, that determined that homosexual relationships are to be considered covered by the fundamental right to marry. That gives homosexuals a stronger base from which to argue-- that at least within the borders of NH, that homosexual relationships are non-different from heterosexual ones in regards to the right found in Loving. The legislature, through the normal political process, declared that homosexual relationships ARE MARRIAGE. It made that finding through legislative fact-finding, debates, etc. It went through a lengthy process to make this determination, that homosexual relationships are non-different from hetero ones and therefore homosexuals, as a minority, have the same right of marriage as heterosexuals.

        Essentially, the genie is out of the bottle. Once NH's legislature made this finding, and changed its marriage laws accordingly, homosexuals from that point forward had the same fundamental right to marry as heterosexuals-- the same right protected in Loving and other marriage cases.

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