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Tuesday, August 03, 2004
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ASK skippy, VOLUME TWO
I gots a question for yeh:
What about HR 3313, the latest attempt by the Republicans to quash gay marriage by stripping federal courts of their jurisdiction in the matter? It seems this law would have to be unconstitutional -- otherwise, what's to stop Congress from passing a law making it illegal to be an atheist or to criticize the government, and attaching a rider forbidding the courts from ruling on the law's Constituional validity?
Thanks,
Kilgore
Kilgore,
To be specific (and fair), HR 3313 wouldn't quash gay marriage, it would merely limit interstate recognition of same. This is the preferred policy of both the administration and of the Kerry campaign. I expect that on November 3, the Democrats will put forward the same arguments I have on the unconstitutionality and the Constitutional dangers of this position. It should be remembered that this is an election year and politicians enjoy lying during campaigns.
What HR 3313 is designed to be is an end-run around the failure of the delusionally misguided Federal Marriage Amendment. Most serious people agree that the FMA never had a hope of meeting the requirements of ratification. Federal laws are much easier, requiring only a majority in each house and the signature of the president. The federal code is resplendent with stupid laws passed this way. The Constitution, however only has one. That would be the Eighteenth Amendment.
What will happen with HR 3313? Precisely nothing. Firstly, it won't pass the Senate. Secondly, even if it did, a federal court somewhere (probably the 9th Circut Court of Appeals) would strike it down and the whole mess would go to the Supreme Court.More likely than not, the Supremes would affirm the Circut court on grounds that it violates seperation of powers and the full faith and credit clause and American case law going back to Marbury v. Madison (1803). Essentially, it would overrule the Defense of Marriage Act (1996) at the same time.
Once that happens, things get really interesting. There will be a couple married in another state, or in Canada, who will return to a state that does not recognize their marriage. This will lead to a federal court challenge. This, too, will go to the high court and based on Lawrence v. Texas (2003) and Loving v. Virginia (1967), the Fourteenth Amendment and the full faith and credit clause, the Court will have little choice but to strike down all laws banning same sex marriage.
I believe the Republicans actually know that 3313 will never pass. This is a campaign strategy more than anything. The problem with it is, that it only plays well in places the Republicans are already going to win. The theory is, that it makes Kerry look like a fag lover in places like downstate Illinois, West Virginia and rural Ohio and Wisconsin. The problem there is that Illinois is pretty much contrlled by Cook County and Ohio and Wisconsin will be decided on the economy. That leaves the only place that the strategy is important is West Virginia.
There's another reason that 3313 will die. If the courts are prohibited from ruling on cases regarding same-sex marriage, what's to stop them from being stopped on matters of discrimination? This could imperil any number of presedents. I can't imagine that a group like the NAACP hasn't considered this already. I'm actually surprised that they haven't used it to brand Republicans as racist demagouges yet again. They seem to enjoy doing that.
In any event, I wouldn't worry too much, Kilgore. You'll be able to marry John in due course. I figure it'll take between 18 and 24 months.
Feel better?
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