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3rd April 2009, 01:05 PM | #81 |
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3rd April 2009, 04:54 PM | #82 |
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3rd April 2009, 06:01 PM | #83 |
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Justice Mark Cady authored the opinion. He may take fire for being the author, but as the opinion is unanimous (and since Justice Cady's term runs through 2016), other members of the Court are likely to feel some displeasure as well.
It is noteworthy that the opinion is in the name of Justice Cady and not an anonymous "per curium" (by the Court) opinion. It shows a certain degree of integrity to put one's name on a document that will raise the ire of thousands of people. The opinion begins, as do many judicial opinions, by reciting the facts of the case, how the case got to the district court, how it proceeded through the district court, and how it got to the Supreme Court. The opinion then discusses, as do many judicial opinions, the legal standard of review. In this case, the ruling can be upheld only if the plaintiffs were entitled to prevail as a matter of law. If there was an issue of material fact, then the matter would have to be sent back to the district court for additional factfinding. Part III of the opinion is where things start to get interesting. Fully aware that various citizens and commentators will brand the opinion as "activist" merely because they disagree with the result, Justice Cady offers a brief yet polite lecture about the Supreme Court's role. At times, the Iowa Supreme Court's opinion reads less like a legal opinion and more like a Civics textbook:
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The notion of tradition appears many places in the opinion. Justice Cady invests considerable effort in describing that an idea may be held for a very long time, but that does not necessarily mean it is constitutional:
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In a footnote, however, Justice Cady remembers that not all of the Iowa Supreme Court's decisions have been so supportive of civil rights. He cites a case from 1910 that authorized discrimination against women in the conduct of business. But he added poetically that the Iowa cases on slavery, segregation and women's rights …
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But there is also a level of "intermediate scrutiny" between the two. When applying intermediate scrutiny to a statute, the Court looks at whether there is a very good reason for the disparate treatment. There must be an important governmental interest at stake, and the difference in treatment "must be genuine and must not depend on broad Generalizations." In Iowa, equal protection cases based upon gender or illegitimacy have usually involved intermediate scrutiny. Before getting to what level of scrutiny will be applied, the Court discussed the facts in more detail. At this point, Justice Cady provided some commentary that may be ammunition for those who see the decision as "activist":
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Although Justice Cady discusses at length how the appropriate level is to be determined, in the end, he leaves the issue open:
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Applying intermediate scrutiny, Justice Cady addressed the rationales put forward to support the same-sex marriage ban. Justice Cady called the argument that government should maintain "traditional" marriage for its own sake an "empty analysis." In regard to whether the ban promotes an optimal environment to raise children, Justice Cady acknowledged that this is an "important governmental objective." Expert opinions that held that different-sex marriages are better than same-sex marriages were "thoughtful and sincere," [but] were largely unsupported by reliable scientific studies." "If the marriage statute was truly focused on optimal parenting," Justice Cady observed, "many classifications of people would be excluded, not merely gay and lesbian people." Like who? Child abusers, sexual predators, parents neglecting to provide child support, and violent felons can all be straight, can all get married and can all be really horrible parents. Besides being unable to keep unfit people for being parents, the statute also is flawed because it protects the rights of couples who have no intention or ability to have children… as long as they're opposite-sex couples. Another justification offered in support of the statute was that it promotes procreation. Assuming for the moment that the State of Iowa has such an interest, is it a good reason for the statute? Justice Cady felt the link between the statute and procreation was tenuous:
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It is unusual for a Supreme Court opinion to go out of its way to address arguments that are not properly before it. I can think of no previous Iowa Supreme Court opinion in which the Court has ever done anything like this. Basically, Justice Cady addresses what appears to be the REAL reason underlying the same-sex marriage ban: religion.
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Justice Cady continues:
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The concluding words of the opinion are:
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Klaatu: I'm impatient with stupidity. My people have learned to live without it. Mr. Harley: I'm afraid my people haven't. I am very sorry. I wish it were otherwise. -- The Day The Earth Stood Still, screenplay by Edmund H. North "Don't you get me wrong. I only want to know." -- Judas in Jesus Christ Superstar, lyrics by Tim Rice |
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3rd April 2009, 06:34 PM | #84 |
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I am not a fan of same-sex marriage. I think marriage should between a man and a woman and same-sex couples should get EVERYTHING but the title of married.
That said, if the judges in Iowa feel that a ban on gay marriage violates the Iowa state constitution, then that is their job and I respect that. I suggest the people of Iowa, if they do not like this ruling, change their constitution. |
3rd April 2009, 07:18 PM | #85 |
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As cultural anthropologists have always said "human culture" = "human nature". You might as well put a fish on the moon to test how it "swims naturally" without the "influence of water". -Earthborn |
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4th April 2009, 12:25 AM | #86 |
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seperate but equal is considered unequal, Parky, for .. well, historical reasons.
That said... |
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4th April 2009, 09:15 AM | #87 |
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The Almighty is already expressing disapproval with the ruling. In Iowa today, it is ... raining.
In April. There might even be flooding. Flooding hasn't occurred in Iowa for ages and ages, well, almost a year now. When the weather warms up, there might even be tornadoes. |
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Klaatu: I'm impatient with stupidity. My people have learned to live without it. Mr. Harley: I'm afraid my people haven't. I am very sorry. I wish it were otherwise. -- The Day The Earth Stood Still, screenplay by Edmund H. North "Don't you get me wrong. I only want to know." -- Judas in Jesus Christ Superstar, lyrics by Tim Rice |
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4th April 2009, 09:28 AM | #88 |
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Damn! I should've applied for the million dollars, because I could have predicted with 100 percent accuracy the following (from various news services):
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Klaatu: I'm impatient with stupidity. My people have learned to live without it. Mr. Harley: I'm afraid my people haven't. I am very sorry. I wish it were otherwise. -- The Day The Earth Stood Still, screenplay by Edmund H. North "Don't you get me wrong. I only want to know." -- Judas in Jesus Christ Superstar, lyrics by Tim Rice |
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4th April 2009, 09:46 AM | #89 |
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4th April 2009, 01:20 PM | #90 |
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I vote #4. Although to be fair to the Republicans, these social issues are the only area where they have gotten any traction with the voters. Which is why Democrats did what they could to keep gay marriage off the ballot in 2008.
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4th April 2009, 04:56 PM | #91 |
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I just wanted to say thanks to Brown for all his excellent posts in this thread. I feel like I've had a (free!) legal education.
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4th April 2009, 06:22 PM | #92 |
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4th April 2009, 10:01 PM | #93 |
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4th April 2009, 11:17 PM | #94 |
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So ... 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. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.Does that mean that if you get gay-married in Iowa, you remain gay-married in Utah? If not, why not? |
4th April 2009, 11:20 PM | #95 |
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As cultural anthropologists have always said "human culture" = "human nature". You might as well put a fish on the moon to test how it "swims naturally" without the "influence of water". -Earthborn |
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4th April 2009, 11:24 PM | #96 |
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5th April 2009, 05:48 AM | #97 |
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Don't think there has been a case yet, but it is only a matter of time. Once it hits the courts, it will be very difficult to argue that a law that says states may ignore contracts from other states is constitutional. On the other hand, Bush vs Gore showed that the US Supreme Court is not immune to fitting legal arguments to a preferred outcome.
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5th April 2009, 06:02 AM | #98 |
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Yup, that was a big mess. The insurance company couldn't figure out how a civil union was different than a marriage in practice, but since the State of New Jersey had given them different nomenclatures the insurance company felt it had the legal right to deny the civil unioned couple heath insurance.
Similar situation if you work for the City of New York. If you're married the City will cover your spouse's health insurance. If you're in a domestic partnership (which is somehow different or the same as a civil union - I can't tell ) the employee has the partner's health insurance costs added to their income. So much for separate but equal. |
5th April 2009, 08:00 PM | #99 |
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There oughtta be a law that says that a law called the "Defense of Marriage Act" can't be used to invalidate a legal marriage. Oh well.
On a more serious note, this is one reason I hate referring to marriage as a contract. Yes, it's like a contract in some respects. Yes, it is sometimes treated like a contract. But there are several reasons why it doesn't make sense to call it a contract. And in this case, if you treat marriage as a contract, you eliminate any constitutional problem with giving full faith and credit to another state's marriage, since there is no constitutional problem in general with a state refusing to give effect to a contract or contract provision that would be valid in another state. |
5th April 2009, 08:14 PM | #100 |
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6th April 2009, 07:31 AM | #101 |
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Thanks! I didn't even notice.
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I'm actually taking a class right now on this very subject. A typical case involves A and B who make a contract in state X, and then there's a suit in state Y, and the contract, or a provision thereof, is illegal in state Y. So the Y court has to decide whether to apply X's law or Y's law, and thus whether to validate or invalidate the contract or provision. If the Constitution required Full Faith & Credit to contracts, this would be a much shorter and easier class. |
6th April 2009, 10:05 AM | #102 |
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Gunter Haas, the 'leading British expert,' was a graphologist who advised couples, based on their handwriting characteristics, if they were compatible for marriage. I would submit that couples idiotic enough to do this are probably quite suitable for each other. It's nice when stupid people find love. - Ludovic Kennedy |
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6th April 2009, 10:08 AM | #103 |
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My favorite part of the decision
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Gunter Haas, the 'leading British expert,' was a graphologist who advised couples, based on their handwriting characteristics, if they were compatible for marriage. I would submit that couples idiotic enough to do this are probably quite suitable for each other. It's nice when stupid people find love. - Ludovic Kennedy |
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6th April 2009, 10:26 AM | #104 |
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"Political correctness is a doctrine,...,which holds forth the proposition that it is entirely possible to pick up a turd by the clean end." "I pointed out that his argument was wrong in every particular, but he rightfully took me to task for attacking only the weak points." Myriad http://forums.randi.org/showthread.php?postid=6853275#post6853275 |
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6th April 2009, 10:31 AM | #105 |
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The argument against gay marriage basically boils down to, "I don't want gays to get married because I think it's icky." Logically, they have nothing.
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6th April 2009, 12:19 PM | #106 |
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And yet, you cited the reason, Dr A.
Lets review that again: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.It's not going to be a pretty case, shall we say. Congress has proscribed a manner (not at all) and an effect (absolutely none). This may not seem fully within the spirit of the law, and it's really just not, but it's hardly cut and dried. Believe me, there are, at this very moment, people who in their spare time are researching the intent of every Founding father, as expressed in all letters, official communication, unofficial communication, and private writings, as to the point of that particular clause, and whether this would fall under 'their intent' or not. |
6th April 2009, 04:15 PM | #107 |
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As I have mentioned previously, Iowans in modern times resisted efforts to amend the Iowa Constitution to provide equal rights for women. In part, this resistance was grounded in mistrust of trial lawyers who would use such a constitutional amendment to upset the apple cart of Iowa's jurisprudence.
In part, the concern was that women ought to be kept in their place. No kidding. Some of the propaganda used to defeat the State ERA was premised upon maintaining "traditional" and perceived Biblical sexual roles. In other words, some people in the second half of the Twentieth Century actually argued that women should not be awarded equal rights because women were not really equal to men as human beings. God said so, they said. There were also a few bat-spit crazy folks who said (yelled, would be more like it) that an ERA would give legal rights (gasp!) to those God-cursed sodomites. After all, the amendments said, in effect, that there should be no discrimination on account of "sex" (in one version) or "gender" (in another version). The fear was that such language in the Constitution could encompass sexual orientation. What a conventional ERA would PROBABLY have done is to convert the Court's standard of scrutiny in gender-based discrimination cases from "intermediate" to "strict." A few years back, Iowans adopted a more laid-back ERA, recognizing that "All men and women are, by nature, free and equal...." The words "and women" were added. That was the extent of the amendment. Now Justice Cady quotes that very language as part of the opinion (page 19). He does not rub anyone's face in it, of course, nor does he mention any constitutional amendment to add "and women." But oh, how the bat-spit crazies are wailing and gnashing their teeth. Even many in the so-called "mainstream" religions are showing a stunning ignorance about the law of the State and what the opinion actually said. According to the Des Moines Register (and other sources), Catholic leaders are upset and say that the decision will grievously harm children. From my standpoint, I don't think the Catholic Church has any moral authority to lecture anyone about hurting children. |
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Klaatu: I'm impatient with stupidity. My people have learned to live without it. Mr. Harley: I'm afraid my people haven't. I am very sorry. I wish it were otherwise. -- The Day The Earth Stood Still, screenplay by Edmund H. North "Don't you get me wrong. I only want to know." -- Judas in Jesus Christ Superstar, lyrics by Tim Rice |
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7th April 2009, 03:21 AM | #108 |
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Sufficiently advanced Woo is indistinguishable from Parody "There shall be no *poofing* in science" Paul C. Anagnostopoulos Force ***** on reasons back" Ben Franklin |
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7th April 2009, 12:32 PM | #109 |
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Yes. Now the question is can Congress "by general Laws prescribe" that no "Faith and Credit" shall be given whatsoever, and that "the Effect thereof" should be zip?
--- Oh, and here's a puzzle. If "Full Faith and Credit" doesn't apply to gay marriage, is there anything to stop someone from marrying one man in Iowa and another man in Vermont? It would be amusing if DOMA made gay bigamy legal ... |
7th April 2009, 12:44 PM | #110 |
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As I already laid out, that's exactly the dilemma. It does not appear to be fitting exactly within the spirit of the wording, but it does appear to be fitting exactly within the most ambiguous interpretations of the wording.
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The DOMA only said that states do not have to recognize gay marriage, not that they MUST NOT. |
7th April 2009, 02:56 PM | #111 |
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-never mind, figured it out myself-
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If people needed video games to live, a national single payer plan to fund those purchases would be a great idea. |
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7th April 2009, 04:07 PM | #112 |
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7th April 2009, 04:26 PM | #113 |
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Remember: Separate, but equal! Separate, but equal!
I've really never understood that position on the issue, since I'm really having a hard time coming up with an example from history where parallel programs instituted to deal with the thing for two different groups ended up NOT diverging significantly. Hell even male/female sports programs have issues, and there's really really good reasons to keep them separate (as opposed to really non-existent reasons to keep a gay 'not-marriage marriage' and a 'real marriage' separate (and in the language I used, I think we can see where I see THAT going). |
7th April 2009, 04:29 PM | #114 |
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oh he got the mango sentinel |
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7th April 2009, 08:17 PM | #115 |
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HA! Well this should amuse you...maybe...
Where I work(in Iowa) we had a M to F transexual patient. He was married to a woman when he was a man, and then became a woman and is now married to a man. The thing is he is still pre-op when he got married and was still technically a man. The state however recognized him as a woman because he was in the preparation to become a fully converted male to female. What I wonder is why the anti-gay lobby doesn't attack situations like that? Why is just the straight up homosexuals? |
8th April 2009, 03:13 AM | #116 |
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Sufficiently advanced Woo is indistinguishable from Parody "There shall be no *poofing* in science" Paul C. Anagnostopoulos Force ***** on reasons back" Ben Franklin |
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8th April 2009, 05:27 AM | #117 |
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8th April 2009, 05:48 AM | #118 |
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My dad voted to ban gay marriage in Georgia while I voted against banning it, but his reasoning was allowing gays to marry would hurt the social security system.
Just to point out someone that doesn't seem to fit into any of the categories all ready listed. |
8th April 2009, 06:16 AM | #119 |
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Sufficiently advanced Woo is indistinguishable from Parody "There shall be no *poofing* in science" Paul C. Anagnostopoulos Force ***** on reasons back" Ben Franklin |
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10th April 2009, 04:18 PM | #120 |
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Well, the wagons are circling.
Iowa Family Policy center(send hate/love mail here) http://www.ifpc.org/ and it's off shoot- http://www.letusvoteiowa.com/ Gay right opponents issue warning http://content.usatoday.net/dist/cus...30519257.story |
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