Monday, April 20, 2009

The law and same sex marriage-- Part One

The present controversy over the so-called same-sex marriage, has various jurisdictions in the United States implementing a variety of solutions. Some of the states have passed constitution amendments limiting the recognition of marriage to unions between men and women. Other jurisdictions' legislatures have passed laws recognizing same-sex marriage. In some states, the courts have ruled in favor of same-sex marriage and the legislatures have taken no action. There are at least a couple of states where neither the courts nor the legislatures have passed on the legality of same-sex marriage. In the next few posts, I hope to review the status of the law in general and indicate my own concerns.

The current Federal law is the Defense of Marriage Act. As cited in Wikipedia:

The Defense of Marriage Act, or DOMA, is the short title of a federal law of the United States passed on September 21, 1996 as Public Law No. 104-199, 110 Stat. 2419. Its provisions are codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. The law has two effects:

1. No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
2. The federal government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states. The bill was passed by Congress by a vote of 85-14 in the Senate and a vote of 342-67 in the House of Representatives, and was signed into law by President Bill Clinton on September 21, 1996.

The present administration has indicated that it will attempt to repeal the law in the near future.
In the United States what is called the "law" arises from various sources. Since we have three major divisions in our government, the legislative, executive and judicial, all three of these divisions can create laws. However, ultimately, the power over the laws of our country lies with the people themselves. The people elect the government officers and the legislators who make the laws. In some jurisdictions, the people also vote for their judges, but some judges are appointed by the executive branches subject to the consent of the legislative branch.

The ultimate authorities for law in the United States and each of the individual states are the various constitutions. When there is a disagreement about the interpretation of the provisions of those various constitutions, the provisions are interpreted by the courts.

In the common law system such as that in the United States and Great Britain, controversies or cases are decided by judges who base their decisions on precedents, that is, following how prior cases have been decided. This method of deciding cases is called stare decisis; lower courts follow the rulings of higher courts. When a court has ruled on on specific legal issue, the decision is said to be controlling and therefore must be followed by courts deciding similar cases. If there is no case law "on point" then the judges are free to follow other authority or make "new law."

If a lower court rules against precedent or if a party disagrees with the ruling, then the party opposing the ruling can appeal to a higher court and ultimately to a State Supreme Court or, in some cases to the United States Supreme Court. In the United States, the Supreme Court Judges are nominated by the Executive Branch (the President) and their appointment confirmed by the Legislative Branch, the Senate has the authority to consent or reject the appointees.

The United States and each of the individual states, also have legislatures. The legislatures can pass laws but if someone claims that the law is not consistent with the state or Federal constitution, then the law can be challenged in the courts. In some states, the people of the state have the right to initiate laws,

Not only can the courts and the legislatures make new laws, the executive branches our our state and Federal governments can make new rules and regulations at any time. Usually, these rules and regulations have the force of law.

Because all of these entities have input into the drafting of laws and the interpretation of the existing laws, the entire legal process is always in a state of flux or change. State and Federal Statutes may be repealed at any time. Long standing case law can be overturned with the next court decision that comes along. Changes in the political administration may result in significant changes to the executive regulations and orders.

Historically, people have always tried to use the courts to make new law, especially when they became frustrated with the actions or inactions of the various legislative bodies. The present status of the same-sex marriage laws reflects the diversity of opinion as well. As of April 20, 2009, the most current status of the laws is shown in the Wikipedia as follows:

Two states (Massachusetts and Connecticut) currently allow same-sex marriage, five states recognize some alternative form of same-sex union, twelve states ban any recognition of any form of same-sex unions including civil union, twenty-eight
states have adopted amendments to their state constitution prohibiting same sex
marriage, and another twenty states have enacted statutory DOMAs. On April 27,
2009, same-sex marriage will become available in Iowa because of a ruling by that state's Supreme Court. On September 1, 2009, an act of the Vermont Legislature becomes effective and Vermont will start offering same-sex marriage as well.

More to come.

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