Legal Scholars vs. Supreme Court on Homosexual Marriage

Discussion in 'News / Current Events' started by shodan, Oct 12, 2015.

  1. shodan

    shodan
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    This is big, led by Prof. Robert. P. George of Princeton. If you care, sign and share. . https://campaignforamericanprinciples.com/scholars-statement/


    " A group of legal scholars, most of them university professors, have declared that the Supreme Court's redefinition of marriage this past June 26 is not "the law of the land," and they are calling on all office holders, together with all presidential candidates, to join them in rejecting the Court's decision. Make no mistake about it: This is really big news" http://www.charismanews.com/opinion...gainst-the-supreme-court-s-judicial-despotism
     
  2. Zaac

    Zaac
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    This is foolhardy. It IS the law of the land. And if folks don't like it, then follow the legal steps to fix it.
     
  3. TCassidy

    TCassidy
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    No, Zaac, it is not the law of the land. There is no federal statute defining marriage since SCOTUS declared DOMA to be unconstitutional. As there is no federal statute the supremacy clause, Article Six, Clause 2 of the United States Constitution, cannot be invoked to override state law. Therefore the 10th amendment makes the state law supreme until either Congress passes a law defining marriage or the Kentucky law is challenged regarding its constitutionality.

    As Obergefell v. Hodges only addressed an Ohio law which forbade Ohio from recognizing a legal marriage between two same gender people performed in another state the Kentucky statute (402.020) was not taken under judicial notice and thus was not declared to be unconstitutional and therefore remains in effect.

    So, issuing a marriage license to a same gender couple remains a criminal act in Kentucky, and the Kentucky Constitution still declares marriage is between one man and one woman which has not been addressed by SCOTUS.

    Just for your information:

    Kentucky Statutes, Chapter 402.020 Other prohibited marriages.
    (1) Marriage is prohibited and void:
    (a) With a person who has been adjudged mentally disabled by a court of
    competent jurisdiction;
    (b) Where there is a husband or wife living, from whom the person marrying has
    not been divorced;
    (c) When not solemnized or contracted in the presence of an authorized person or
    society;
    (d) Between members of the same sex;
    (e) Between more than two (2) persons;

    That law is still in effect and is the law of the land in Kentucky. QED
     
    #3 TCassidy, Oct 12, 2015
    Last edited: Oct 12, 2015
  4. Zaac

    Zaac
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    Y'all can mince words all you want. But the reason we have a SCOTUS is for them to decide the Constitutionality of such state laws. Such laws were deemed unconstitutional and left states with no recourse but to allow what they were not previously allowing

    Kentucky doesn't have to like it,but the legal precedent has been set. And they need to be fined for every instance they do not comply.
     
  5. TCassidy

    TCassidy
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    I didn't mince any words, Zaac, you must have confused me with someone else.
    Exactly! And they never considered the Kentucky statute. Their decision was about an Ohio law.
    No, Zaac. The only law that was declared unconstitutional in Obergefell v. Hodges, 576 U.S. (2015) was Section 15.11 of the Ohio Constitution.
    Actually it wasn't. In fact in Richard John Baker v. Gerald R. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971) the Minnesota Supreme Court ruled that a state law limiting marriage to persons of the opposite sex did not violate the U.S. Constitution. Baker appealed, and on October 10, 1972, the United States Supreme Court dismissed the appeal "for want of a substantial federal question." (In other words there was no federal law defining marriage so it was left up to the states.) Because the case came to the U.S. Supreme Court through mandatory appellate review (not certiorari), the dismissal constituted a decision on the merits and established Baker v. Nelson as precedent. And, in Obergefell v. Hodges, the Sixth Circuit ruled that it was bound by Baker v. Nelson and found anti-gay marriage laws to be constitutional.

    Obergefell v. Hodges overturned Baker at the Supreme Court level, but never addressed any other state's laws. So Obergefell v. Hodges only applies to Minnesota, which already passed a law allowing gay marriage, and Ohio, whose law was declared unconstitutional.

    I have some friendly advice for you. Before you post a legal opinion I suggest you get a JD from Harvard Law School, become McCormick Professor of Jurisprudence at Princeton, lecture on constitutional interpretation, civil liberties and philosophy of law and serve as director of the James Madison Program in American Ideals and Institutions. Then be a Herbert W. Vaughan senior fellow of the Witherspoon Institute, a senior fellow at the Hoover Institution, and a Visiting Professor at Harvard Law School.

    Then, maybe, I will take your uninformed opinions seriously. By the way, the above CV is for the guy who wrote the article saying Obergefell v. Hodges is not binding on any states (other than Minnesota and Ohio). :)
     
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  6. Zaac

    Zaac
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    They didn't have to consider the Ohio law or any of the others. The law they did consider covered the Constitutionality of denying same sex couples the right to get married and denying them the right to have those marriages recognized outside a state.

    Again, it didn't have to address the many state laws or their many demands. The crux of the case was the Constitutionality of denying same sex couples the right to get married and denying them the right to have those marriages recognized by other states as legal.

    Sorry to disappoint, but I graduated with a JD/MBA from Harvard back in 1996. And those degrees are collecting dust just like the other five. So though I do not hold the rank of the folks you mentioned, i do know a little bit about the law. And there have been just as many distinguished legal scholars to refute what the ones you listed say. I'm not sure why you think their scholarship should carry any more weight than would the scholarship of the five Supreme Court Justices.

    Ruling also supported by :
    • Harold Hongju Koh, Sterling Professor of International Law at Yale Law School
    • Thomas Buergenthal, the Lobingier Professor of Comparative Law and Jurisprudence at George Washington University Law School
    • Sarah H. Cleveland, the Louis Henkin Professor of Human and Constitutional Rights at Columbia Law School and the U.S. Member of the European
    • Commission for Democracy through Law.
    • Laurence R. Helfer, the Harry R. Chadwick,Sr. Professor of Law at Duke University School of Law and the Co-director of Duke’s Center for Interna-
    • tional and Comparative Law

    Gosh I don't care if your smugness prevents you from taking anything I say seriously.
     
  7. TCassidy

    TCassidy
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    DUH! The Ohio law was the ONLY law before the court in Obergefell v. Hodges!
    Wrong again! The ONLY codified law before the court was Section 15.11 of the Ohio Constitution.
     
  8. shodan

    shodan
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    Thank you T Cassidy for setting us all an example of patience and diligence. (It is a sad day when other Christians label fellows such as Robert George "foolhardy")
     

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