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Someone should start a campaign to make atheist marriages illegal in California. If that passes, then the US finally has the ammo it needs to come in and say "Hey, that constitution of yours, it's insufficient for the purposes of being a state. Fix it." (Who could say that? The DOJ? The Supreme Court?)

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( 10 comments — Leave a comment )
bdeakin
May. 27th, 2009 01:29 pm (UTC)
The Supreme Court doesn't say anything unless a case comes up, so I'd assume it'd be the DoJ.
tirianmal
May. 27th, 2009 01:44 pm (UTC)
It seems unlikely that the Federal courts would get involved at this stage. Since the DOMA was passed and since this is still, as yet, an intra-state issue, the Federal courts don't have a reason to get involved unless a Federal law gets broken. And since DOMA exists, there isn't a law against what Prop 8 did.

But IANAL and all that.
crs
May. 27th, 2009 01:55 pm (UTC)
Does DOMA override the first amendment in the case of blatant religious discrimination, too?
tirianmal
May. 28th, 2009 12:46 am (UTC)
I doubt it but I was mostly commenting on the cause of your post not the actual content. :)
luckylefty
May. 27th, 2009 02:52 pm (UTC)
There is no federal requirement that a state constitution offer any protection to its citizens over and above what is offered by the US constitution. That's purely the state's decision. If California passes a law that makes atheist marriages illegal, the federal response would be to overturn the law, because it violates the first and fourteenth amendments to the US constitution, not to overturn the CA constitution because of some requirement that state constitutions must redundantly grant the people the same rights that the US constitution already protects.

The closest I can find to a US constitutional requirement on state constitutions is Amendment XIV, section 2, which isn't especially relevant here.

If you want US Supreme court action on gay marriage, the thing that should happen is that they should overturn DOMA as violating the full faith and credit clause. That's both what I want to happen, and my belief as to what should happen based on what the US constitution says. But it won't happen until the composition of the court changes.

If the supreme court overturned the CA constitution, wouldn't it have to overturn 40+ other state constitutions on the same ground?

crs
May. 27th, 2009 03:11 pm (UTC)
It's a straight-up 50% popular vote to amend the constitution in 40 other state constitutions?
nathanw
May. 27th, 2009 04:06 pm (UTC)
How about something like this?
luckylefty
May. 27th, 2009 05:06 pm (UTC)
While I'd like to see that (a lawsuit requiring same-sex marriage be legal on federal equal-protection grounds) succeed, I think that there's no chance of success with the current supreme court. This would overturn the federal Defense of Marriage Act, and constitutions and laws in many states.

I think this will happen in between 5 and 15 years.
luckylefty
May. 27th, 2009 03:27 pm (UTC)
I misunderstood, and thought you were complaining about the lack of protections of individual rights in the constitution, rather than about the ease of amendment. I have no idea about how hard it is to amend the constitution in various states. But I can't see any federal requirement in the US constitution that state constitutions be hard to amend. If an amendment was passed that violated the US constitution, I would expect the US supreme court to strike down that amendment, rather than to interfere in the state's decision as to how to amend its own constitution, whether the unconstitutional amendment took 50% or 90% of the vote to pass.

Difficult-to-amend constitutions don't provide any real protection against the passing of provisions that violate the US constitution. I think that more than have the states now have constitutional anti-gay-marriage provisions, which I think violate the full faith and credit clause if they don't recognize all legal marriages performed in other states.


ext_190329
May. 27th, 2009 07:25 pm (UTC)
Amen
I agree that the marriage debate intertwines church and state in a dangerous manner. One tactic would be to get rid of the legal concept of marriage and go to civil union for all "marriages" in terms of the law. This tactic would allow religions to define a non-legal concept of marriage however they like separate from all legal definitions. After that, we could either continue to deputize individuals (e.g., ministers) to officiate over the legal union or restrict the legal union to justices of the peace and other civil servants.

If people are too attached to the "marriage" label and hate the "civil union" label, then create a "civil marriage" label?

My agreement is that no religious figure should have any right to impose their beliefs or standards on the non-religious through laws (and possibly vice-versa).
( 10 comments — Leave a comment )