SAME SEX MARRIAGE
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Transcript of SAME SEX MARRIAGE
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SAME SEX MARRIAGE
WHERE DO YOU STAND?
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SAME SEX MARRIAGE
• What’s Love got to do with it?
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Who has the power?
• Which level of government has traditionally had the power to regulate marriage?
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MARRIAGE
• It has always been a States Right to regulate marriage under the 10th Amendment
• Falls under the 10th Amendment “Reserved Powers”.
• So what type of regulations have always existed about marriage?
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MARRIAGE
• So can the Federal Government pass a law that creates a national definition and rule about marriage?
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SAME SEX MARRIAGE
• It is all about federalism –
• Who has the power to regulate marriage?????
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SAME SEX MARRIAGE
• DOMA is the big deal. Congress passed a law called the Defense of Marriage Act in 1996
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SAME SEX MARRIAGE
• 1st – “a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex.”
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SAME SEX MARRIAGE
• 2nd – “no State shall be required to give effect to a law of any other State with respect to a same-sex "marriage."
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MARRIAGE
• Under Federalism, is this law constitutional?
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SAME SEX MARRIAGE
• Step 1 - Is there an express power that gives the U.S. Congress the power to regulate marriage?
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SAME SEX MARRIAGE
• Step 2 – If there is no express power for the national government to regulate marriage, then is it connected to some other express power (the necessary and proper clause)?
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SAME SEX MARRIAGE
• So how does the Full Faith and Credit Clause come into play?
• Where is it?
• Article IV, Section 1
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SAME SEX MARRIAGE
• Article IV, Section 1 • “Full faith and credit shall be given in
each state to the public acts, records, and judicial proceedings of every other state.”
• What does this mean? It is about COOPERATION among the states.
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Same Sex Marriage
• So 1 state can force the other 49 to comply.
• Is this what the Framers had in mind when they created our federal system?
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SAME SEX MARRIAGE
• Is there a Constitutional Right to get married?
• Be careful here!
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THE CONSTITUTION
• 1st Amendment
• 4th Amendment
• 5th Amendment Due Process – Life, Liberty and Property
• 9th Amendment – Power to the Peeps
• 10th Amendment – Reserved Powers
• 14th Amendment – Equal Protection and Due Process
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SAME SEX MARRIAGE
• SO WHO WINS? The Umpire of Federalism (the US Supreme Court) is about to tell us.
• But one last piece!
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SAME SEX MARRIAGE
• Article IV, Section 1 – I forgot the rest of the provisions
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SAME SEX MARRIAGE
• Article IV, Section 1 • “the Congress may by
general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
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SAME SEX MARRIAGE
• So the answer is???• I do not know – wait and see
as it has been challenged in court and it will get to the US Supreme Court in 2011-2012
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SAME SEX MARRIAGE
• Ted Olsen and David Boies, who faced off against each other in Bush v. Gore, have joined together to challenge Prop 8, the CA law overturning same-sex marriage.
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SAME SEX MARRIAGE
• Here is a link for video clips from their presentation: http://www.365gay.com/news/exclusive-video-olson-and-boies-qa-on-prop-8/