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 10 th Amendment Falls under the 10 th 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 1 st – “ 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 2 nd – “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?

SAME SEX MARRIAGE Is there a Constitutional Right to get married? Be careful here!

THE CONSTITUTION 1 st Amendment 4 th Amendment 5 th Amendment Due Process – Life, Liberty and Property 9 th Amendment – Power to the Peeps 10 th Amendment – Reserved Powers 14 th 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!

SAME SEX MARRIAGE 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

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: video-olson-and-boies-qa-on-prop-8/ video-olson-and-boies-qa-on-prop-8/