SAME SEX MARRIAGE

WHERE DO YOU STAND?

SAME SEX MARRIAGE

• What’s Love got to do with it?

Who has the power?

• Which level of government has traditionally had the power to regulate marriage?

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?

MARRIAGE

• So can the Federal Government pass a law that creates a national definition and rule about marriage?

SAME SEX MARRIAGE

• It is all about federalism –

• Who has the power to regulate marriage?????

SAME SEX MARRIAGE

• DOMA is the big deal. Congress passed a law called the Defense of Marriage Act in 1996

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.”

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."

MARRIAGE

• Under Federalism, is this law constitutional?

SAME SEX MARRIAGE

• Step 1 - Is there an express power that gives the U.S. Congress the power to regulate marriage?

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)?

SAME SEX MARRIAGE

• So how does the Full Faith and Credit Clause come into play?

• Where is it?

• Article IV, Section 1

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.

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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• Is there a Constitutional Right to get married?

• Be careful here!

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

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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• Article IV, Section 1 – I forgot the rest of the provisions

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.”

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

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.

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/