CA AG Brown: 'Proposition 8 violates the 14th Amendment'

[ponyboy]

CA AG Brown: 'Proposition 8 violates the 14th Amendment'

California Attorney General Jerry Brown tonight filed his answer (pdf) to Perry v. Schwarzenegger, the federal Defense of Marriage Act challenge brought by Ted Olson and David Boies. Brown takes a far different tack in this California DOMA challenge than did President Obama’s Justice Department in another California DOMA challenge, Smelt v. United States (discussed here).

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http://lawdork.net/2009/06/13/ca-ag-...4th-amendment/

The Fourteenth Amendment (Amendment XIV) to the United States Constitution, along with the Thirteenth and Fifteenth Amendments, was adopted after the Civil War as one of the Reconstruction Amendments. It was adopted on July 9, 1868.

The amendment provides a broad definition of citizenship, overruling the decision in Dred Scott v. Sandford (1857), which had excluded slaves, and their descendants, from possessing Constitutional rights; this was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954). Its Due Process Clause has been used to apply most of the Bill of Rights to the states. This clause has also been used to recognize: (1) substantive due process rights, such as parental and marriage rights; and (2) procedural due process rights requiring that certain steps, such as a hearing, be followed before a person's "life, liberty, or property" can be taken away. The amendment's Equal Protection Clause requires states to provide equal protection under the law to all people within their jurisdictions. The amendment also includes a number of clauses dealing with the Confederate

[Lee]

What i dont understand is...

Rather than constantly going after gay marriage rights citing the United States Constitution, why dont these groups cite internationally recognized HUMAN RIGHTS claims, would seem to be a much better case to win if they did, specifically article #7 and article #16 of the international human rights...

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

No offence to any Americans but the Constitution really isnt worth the paper it is written on in the U.S.


Regards,

Lee

[ponyboy]

To start off with this country is supposed to support human rights, ya right. Also that all men are cratered equal. It’s what gives you your rights in this wonderful country, ya right. Its what all laws are supposed to be written on.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.


In the United States, the Bill of Rights is the name by which the first ten amendments to the United States Constitution are known.[1] They were introduced by James Madison to the First United States Congress in 1789 as a series of articles, and came into effect on December 15, 1791, when they had been ratified by three-fourths of the States. Thomas Jefferson was a proponent of the Bill of Rights

[rawTOP]

I don't understand why anyone isn't taking the Federalist approach and saying that contracts valid in one state have to be recognized by all other states in the Union. People keep thinking marriage is a religious institution - it's not - weddings are religious, the marriage CONTRACT is completely civil. The funny part is that a federalist argument is one even Scalia would agree with and is at the very core of our Constitution. It's a strict constructionist way of thinking.

The other issue is we're talking about contracts written by states that were all part of the original 13 colonies. While Utah was forced to change their definition of marriage to join the Union, the original 13 colonies were never expected to change - they define what is fundamentally "American"... I think it's funny how people who live in 20 year old tract homes are trying to lecture people who live in 200 year old homes about what "traditional" means and why it's important.

[GayGeek]

I don't understand why anyone isn't taking the Federalist approach and saying that contracts valid in one state have to be recognized by all other states in the Union.

Because Proposition 8 and the Defense of Marriage Act are two different things. Proposition 8 says California won't recognize gay marriages, even those performed within the state. And since this thread is about Prop 8, the commerce statutes of the Constitution don't apply.

The Defense of Marriage Act, on the other hand, says that states do not have to recognize same-sex marriages performed within other states. It is a clear-cut violation for the reason you mentioned. However, gay and lesbian groups are scared to challenge it before the US Supreme Court with only a handful of states recognizing same-sex marriages. The court is currently leading on the moderately conservative side, and a defeat on that level would sit on the books for at least 10 years, probably more like 20.

The top gay legal groups (Lamda Legal, ACLU LGBT Rights Project, and the National Center for Lesbian Rights) all want to win in more states before they bring about any case that makes its way to the Supreme Court.

That's why they're so pissed about the Prop 8 lawsuit from Theodore Olsen. He's a guy who has argued in front of the US Supreme Court over 30 times and is highly respected even by his political opponents for his legal and oratory skills. He's the sort of guy who will proceed with an airtight case that leaves no wiggle room for silly challenges on minor issues. He may not win, but his case will be exactly the sort of expertly-done legal challenge that the Supreme Court likes to hear.

--Aaron