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Old January 11th, 2016, 08:52 PM   #11
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The newly discovered "right" of homosexual "marriage". Yep, pure activism thanks to court-made substantive due process.


Nope, the ESTABLISHED right to equal protection of the laws applied to marriage.
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Old January 11th, 2016, 08:54 PM   #12
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Nope, the ESTABLISHED right to equal protection of the laws applied to marriage.
It did not, and Kennedy's opinion did not rely it, which contradicted the district and appellate court rulings.
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Old January 11th, 2016, 09:09 PM   #13
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I have to disagree with this.

Article VI does not address fundamental constitutional rights, nor did it have any protection or consideration for citizens. The Supreme Court was left out by design, to encompass all branches and the states. At this juncture of our history, it was the state courts that mostly handled constitutional issues, thus the inclusion of state courts. The debates regarding the purpose of Article VI was limited to Article I, Section 8 and a conflict with a state law that would hinder the federal government regarding Article I, Section 8. There were no rights mentioned in the Constitution in 1787 as they did not join the Constitution until 1791. The further highlight the limited federal judiciary power of Article VI, it was proposed by the anti-federalists.
If you're referring to the whole doctrine of judicial review, that sprang from the Marbury case in 1801, wherein the Marshall Court overturned the congressional Judicial Act that tried to redefine the jurisdiction of the Federal Courts laid out in Article III. Marshall said no, Congress has the power to establish federal courts, but not to define their subject matter jurisdiction. The meaning of any provision in the U.S. Constitution is the sole legal territory of the Federal Courts themselves. For support of this doctrine, Marshall drew heavily from the Supremacy Clause in Article VI.

Cut it any way you want, this same principle of Judicial Review and Constitutional Supremacy over State law was applied in Obergfell.
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Old January 11th, 2016, 09:28 PM   #14
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If you're referring to the whole doctrine of judicial review, that sprang from the Marbury case in 1801, wherein the Marshall Court overturned the congressional Judicial Act that tried to redefine the jurisdiction of the Federal Courts laid out in Article III. Marshall said no, Congress has the power to establish federal courts, but not to define their subject matter jurisdiction. The meaning of any provision in the U.S. Constitution is the sole legal territory of the Federal Courts themselves. For support of this doctrine, Marshall drew heavily from the Supremacy Clause in Article VI.

Cut it any way you want, this same principle of Judicial Review and Constitutional Supremacy over State law was applied in Obergfell.
I am not addressing judicial review. I am limiting my response to Article VI. I don't recall Article VI being a component of the Marbury ruling, but as I have stated before, and Madison clarified, judicial review was limited to federal law.

There is nothing in the plain language or intent of Article III or Article VI that would grant the Supreme Court,or any federal court, the original or subject matter jurisdiction regarding a state marriage law.
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Old January 11th, 2016, 10:31 PM   #15
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It did not, and Kennedy's opinion did not rely it, which contradicted the district and appellate court rulings.
Funny how the actual ruling seems to disagree with you...

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Originally Posted by Obergfell v. Hodges
(3)The right of same-sex couples to marry is also derived from the Fourteenth Amendmentís guarantee of equal protection.
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Old January 11th, 2016, 10:44 PM   #16
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I am not addressing judicial review. I am limiting my response to Article VI. I don't recall Article VI being a component of the Marbury ruling, but as I have stated before, and Madison clarified, judicial review was limited to federal law.
Here is a brief summation of Marbury as it applied to the question of National Supremacy, as explained by the U.S. Supreme Court Historical Society.

"Declaring the Constitution “superior, paramount law,” [as defined in Article VI] the Supreme Court ruled that when ordinary laws conflict with the Constitution, they must be struck down. Furthermore, it is the job of judges, including the justices of the Supreme Court, to interpret laws and determine when they conflict with the Constitution. According to the Court, the Constitution gives the judicial branch the power to strike down laws passed by Congress, the legislative branch. This is the principle of judicial review. Thus, it has been recognized since this decision that it is “emphatically the province and duty of the judicial department to say what the law is.”

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There is nothing in the plain language or intent of Article III or Article VI that would grant the Supreme Court,or any federal court, the original or subject matter jurisdiction regarding a state marriage law.
There would be if a State law was found to be in violation of a citizen's fundamental rights within the parameters of the Constitution. The Roberts Court turned to 14th Amendment due process as the basis for it's decision, but as a general rule an argument can also be made that one's choice for a domestic partner falls within the unenumerated rights broadly defined in Amendment IX. Fundamental rights are purposefully not limited to those specifically named in the Constitution. For what other rights are fundamental, we turn to the courts. As Marshall stated in 1803, "it is emphatically the province and duty of the judicial department to say what the law is."

This precedent has been around for over 200 years. It is unlikely now that the Federal Courts will abrogate what they see as their duty under the Constitution because a right wing contingency doesn't like the result.
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Old January 11th, 2016, 11:48 PM   #17
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The ahistorical posts on this thread are typical of those who think they know something when, in fact, they do not.

Marbury dealt with federal statute, not state. Congress had, in the opinion of the Court, overstepped its bounds when it authorized mandamus as an original jurisdiction of the supreme Court. A violation of Article III, which outlines the Court's original jurisdiction. Thus the Constitution had precedence over the Act of Congress.



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Old January 12th, 2016, 07:13 AM   #18
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The ahistorical posts on this thread are typical of those who think they know something when, in fact, they do not.
Marbury dealt with federal statute, not state. Congress had, in the opinion of the Court, overstepped its bounds when it authorized mandamus as an original jurisdiction of the supreme Court. A violation of Article III, which outlines the Court's original jurisdiction. Thus the Constitution had precedence over the Act of Congress.
Yes, the Marbury ruling overturned the Judiciary Act of 1789. That is correct. But Marshall didn't stop there, he invoked the intent of Article VI, which ALSO makes it clear that the Constitution has supremacy over the States. READ IT! And that the Federal Judiciary has the power to rule on the application of the Constitution and to overturn State laws.

Don't presume to lecture me on history unless you have a graduate degree in history. If you do, then I can welcome you as a learned colleague. If not, then please don't talk down to me on this subject.
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Old January 12th, 2016, 08:20 AM   #19
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Relegated to the states AS LONG as they do not violate the Federal Constitution. States prohibiting same sex marriage were violating the Federal Constitution.

Even your buddy Scalia said so.

I think you made a good point, but I would bet our forefathers never intended to say homosexual marriages are okay. They also did not give women equal rights, and they agreed to ignore the problems with slavery, which later had to be settled in a bloody war. While women basically forced to marry, and therefore, made slaves, protested the liberation of Black slaves while their own slavery was ignored.

A democracy is not frozen in time like religion. Democracies remain open to changed circumstances and new ways of seeing things. Our economy is radically different than it was when the constitution was written, and this new economy is having a strong impact on family dynamics. Because of economic change women are no longer effective held in slavery, and patriarchy is crumbling. We are in the process of realizing new possibilities, new gender roles and new family dynamics.

We need to educate the public about why things are changing so they can respond with knowledge, instead of prejudices.
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Old January 12th, 2016, 09:57 AM   #20
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There is another line of analysis here that we haven't heard much about with all the rhetoric about "states' rights" and how the Roberts Court is "destroying our liberty". It is found in Article VI of the Constitution, which prescribes as follows:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the US., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

This means that when a State law or policy purposefully violates the fundamental constitutional rights of U.S. citizens by express discrimination, U.S. law must prevail. So we must ask ourselves this question. Do the consenting adult citizens of this country retain a fundamental constitutional right to choose their spouse, or does a particular State retain the power to say "no, you must choose someone more to our liking"?

The same principle applies to mixed-race marriage, to age-gap discrimination, to social or economic disparity or grouping, to religious affiliation, to political views or voting record, or any other means by which the state might think it has the power to regulate whom you may or may not choose for a domestic partner. There is simply no sound legal argument that can be made to justify continued discrimination against an entire class of people in this regard.

With all due respect to the sensitivities of those on the religious right: "God says NO" is NOT a valid legal argument. Sorry, but like it or not, this country is governed by a constitution. Not a Sunday sermon. Personal religious convictions simply do not count.
As I have said on several other occasions, I am a resident of the state of Tennessee, but I am a CITIZEN of the Unites States. My most fundamental rights DO NOT CHANGE depending on which side of a river, or some imaginary line, I happen to be standing on.

I truly do not understand how people can think other wise. The 14th Amendment is pretty damned clear.
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