Latest Congressional ploy

[RealGun]

Unless I missed it, I am surprised that no one else picked up on the gun ownership implications of the House passage of the Marriage Protection Act within the last couple weeks.

This prevents a Court from allowing challenges of same sex marriage bans based upon the First Amendment.

The same could be done for short circuiting the Second Amendment or any other provision of the US Constitution. Instead of being held to the need to amend the Constitution and the fight that would involve, Congress can just blithely waive off any Constitutional right or interpretation thereof, removing the role of the Supreme Court.

It would not be my intent for responses to get mired in the same sex marriage question. I am ONLY talking about the potential impact on gun owners. If you insist upon talking about gay marriages, the thread will surely be shut down for being off topic.

This is just as relevant as our association with the Patriot Act and the McCain Feingold Campaign Finance Reform Act. It should be on our hit list of most hated, most Constitution undermining legislation.

Note that the bill has yet to be addressed by the Senate. Reviewing the House votes will show disappointing votes from those usually pro gun in their position.

 

[HankB]

This prevents a Court from allowing challenges of same sex marriage bans based upon the First Amendment.

Hmmm . . . I haven't read the 1st Amendment lately, but I don't recall it mentioning marriage, sex, or homosexuality. I don't see how it would be relevant to same-sex marriage bans unless the case arrives before a judge who sees things that aren't there.

Of course, IIRC, the 1st Amendment also said that the " . . . Congress shall make no law regarding establishment of religion . . . " and this was used to order Judge Moore to remove the 10 Commandments plaque from his State (not Federal) courthouse, though he was not the Congress, he did not make a law, and he did not establish a religion. It seems that unless the Feds were paying for somethng, they wouldn't even have jurisdiction . . . but then, not being a lawyer or judge, I can only see what's actually there . . .

In terms of implications for the 2nd Amendment, this would be kind of like Congress prohibiting lawsuits against the manufacturer of, say, Firestone Tires based on 2nd Amendment arguments . . . something irrelevant and unconnected.

 

[Cool Hand Luke 22:36]

Congress can just blithely waive off any Constitutional right or interpretation thereof, removing the role of the Supreme Court.

It looks to me like it's the smug, arrogant Grandees on SCOTUS that are blithely waving off Constitutional rights (refused to uphold a challenge to the Campaign Finance Reform Act, use of Foreign law in reviewing lower court rulings, etc.)

As for the Congress, if only they would exercise their check on the Court. See United States Constitution, Article III, Section 2[2].

Anything that takes the extremists like Ginzberg out of the picture is a step in the right direction.

BTW- How is somebody going to challenge a Federal ban on same sex marriages based on the 2nd Amendment?

 

[RealGun]

My reference to the First Amendment is not correct. Here is a quote from another discussion on the Bill:

"represents an attack on our very system of government because it deprives <> access to federal courts and violates fundamental due process and separation of powers principles.

Passage of this dangerous and misguided bill would also set an extremely dangerous precedent: whenever a majority of Congress backs a particular position on a controversial issue -- especially one involving the legal rights of a minority group -- Congress could strip the federal courts of their jurisdiction over the issue."

 

[Henry Bowman]

Congress cannot strip the Sup. Ct. of any jurisdiction. The Sup. Ct. has original jurisdiction (as opposed to appellate jurisdiction) in some cases. Congress also cannot strip state courts of jurisdiction (unless it gives federal courts exclusive juridiction). In other words, these cases could still be brought in state court based on US Constitution claims and may be appealable from the state supreme court to the US Sup. Ct.. The theory here is that state court judges are either elected or more accountable to the people than rouge federal judges with a lifetime appointment and an "activist" agenda.

 

[Evil_Ed]

If the congress and senate pass this marriage amendment they will effectively be violating the first amendment restrictions in regards to religous laws. Look at it this way: they effectively are banning people from doing something due to a belief held by a particular religion (and not even everyone of that religion at that). The first amendment was to allow free speech and keep the government neutral on religous matters...marriage is a religous matter and restricing it is imposing religous restrictions on citizens of our country and violating the constitution even further than has already happened.

 

[HankB]

If the congress and senate pass this marriage amendment they will effectively be violating the first amendment restrictions in regards to religous laws . . . marriage is a religous matter and restricing it is imposing religous restrictions on citizens of our country

[devil's advocate mode]Really? If marriage is a religious matter the state has no business requiring marriage licenses (licensing religion) and should not distinguish between married and unmarried persons in the tax code, (discriminating based on religion) and having judges marry people (practicing religion) or requiring companies to pay benefits based on marital status (imposing religion) and should not become involved in divorces and subsequent property divisions (practicing and/or imposing religion again.)

On the other hand, if there are secular aspects to marriage, the state, exercising the will of the people through their elected representatives, has the power to determine what qualifications and/or limitations apply to marriage. The question is, what are those limitations?

For example, SCOTUS has ruled that the 1st Amendment doesn't allow one to shout "FIRE" in a crowded theater unless there actually is a fire. (Though I don't agree with their take on the Campaign Finance Reform act.) And few would argue that the 2nd Amendment means backpack nukes, weaponized anthrax, and nerve gas should be freely available over the counter. (I have profound disagreement with Sarah Brady, John Kerry, Chuck Schumer, etc., on where the line should be drawn.)

Before I digress into argument on homosexual marriage . . . I'll just finish up by saying that I'm just not seeing a connection between 1st Amendment arguments on homosexual marriage and similar arguments impacting the 2nd Amendment.

 

[RealGun]

I'll just finish up by saying that I'm just not seeing a connection between 1st Amendment arguments on homosexual marriage and similar arguments impacting the 2nd Amendment. - HankB

Don't get hung up on that, because I didn't draw any parallel. The strategy around any Constitutional provision is the point.

"The same could be done for short circuiting the Second Amendment or any other provision of the US Constitution."

 

[CentralTexas]

Hypocrites

If our elected officials really cared about the "Sanctity of Marriage, they would cut their own divorce & cheating rates....
CT

 

[Evil_Ed]

Sorry, I've been busy and din't get a chance to get back to this thread right away.

HankB said:

[devil's advocate mode]Really? If marriage is a religious matter the state has no business requiring marriage licenses (licensing religion) and should not distinguish between married and unmarried persons in the tax code, (discriminating based on religion) and having judges marry people (practicing religion) or requiring companies to pay benefits based on marital status (imposing religion) and should not become involved in divorces and subsequent property divisions (practicing and/or imposing religion again.)

HA!!! EXACTLY my point. Marriage, secularly, is a contract and could be taken care of with a simple contract under EXISTING contract law. Marriage licenses are another way for the government to seperate you from your money. There should be no difference between married and unmarried people in the tax code, [libertarian mode] neither should pay any income tax. Thank you for making a large part of my argument for me.

On the other hand, if there are secular aspects to marriage, the state, exercising the will of the people through their elected representatives, has the power to determine what qualifications and/or limitations apply to marriage. The question is, what are those limitations?

As above, covered by contract law rules and should have nothing to do with restricting to people in sound mind deciding to contract themselves together. The only time the court should come into it is if there is a breach of contract and that would proceed a sa civil suit under contract law in a civil court.

In closing I find that attempting to add an amendment that places a limit on a persons freedom to control their own person into a document that is supposed to GUARANTEE and RECOGNIZE our INALIENABLE rights is reprehensible and anathema to a free society.

 

[White Horseradish]

I think this may become clearer if we generalize a bit and don't use the "trigger words".

Legislation that restricts court challenges based on one amendment creates precedent to restrict court challenges based on other amendments, and, in fact, any challenges on the basis of constitutionality . If one cannot challenge a law on constitutional grounds, the Constitution is effectively suspended. That means it's dead. It's passed on. It has ceased to be.

See? If you take out the word "homosexual", this becomes less emotional and more scary.

 

[Aguila Blanca]

Marriage may be a religious matter, a secular matter, or both. The Congress can't meddle into the purely religious aspect (i.e. they can't tell the ___Church not to "marry" two persons of the same gender), but they CAN decide whether or not a union between two persons of the same gender will be recognized under secular law.

A great many marriages are performed by justices of the peace and other secular officials. Those are clearly not religious in any way, they are civil unions, recognized under the law as "marriages." When a minister performs a marriage, in order for it to be legally valid he/she must end with the pronouncement "By the power vested in me by the State of ___, I now declare you to be husband and wife." So in a traditional church wedding, it is both religious and secular, because the role of the officiant to join people in legal marriage is established in statutes. However, if the state's statutes don't allow for persons of the same gender to marry, then a religious officiant can't use that legally binding closing phrase, because the state has not vested in him/her any authority to marry persons of the same gender.

None of which, as I see it, pertains at all to the 1st Amendment. Defining marriage as a union between two persons of opposing genders does not in any way establish a religion, and therefore does not violate the 1st Amendment. The laws don't say that churches can't bless, consecrate, or otherwise recognize such unions, it just says that the civil authority doesn't recognize them.

Our church marriages are a shortcut. In many countries, couples have to marry twice -- literally. Once in the church, if they want the religious union, and again before a magistrate to make it legal for their gummint. Perhaps if the United States did it that way some of these arguments could be avoided.

 

[White Horseradish]

Marriage may be a religious matter, a secular matter, or both. The Congress can't meddle into the purely religious aspect (i.e. they can't tell the ___Church not to "marry" two persons of the same gender), but they CAN decide whether or not a union between two persons of the same gender will be recognized under secular law.

That's all well and good, and I could come up with a few arguments against your reasoning. However, this is not about marriage. This is about Congress creating a law that in effect suspends the Constitution.

It does not matter what the pretext is. This will create a precedent and the next time they may limit challenges to government actions based on some other part of the Constitution. I'd bet money that will be in addition to this.

This is about the Legislative branch overextending its reach and seriously infringing on the Judicial turf. That is why I say we should discuss this in more generic terms.

 

[flatrock]

Hawkmoon,

You bring up some excellent points, but I guess I approach the subject from a slightly different point of view.

The religious sacrament of marriage has been around much longer than our country. I agree that when you are maried the priest / minister / justice of the peace, is acting in a representative of the state as well, and I think that's where the real problem resides.

I don't think the government has any business deciding who can marry. They shouldn't be telling people who can and cannot marry or issuing marriage licenses.

On the other hand, the government shouldn't be restricting who can gain the civil benefits of what is currently limited to married couples.

My personal belief is that marriage is a sacrament between a man, a woman, and God. That's something outside the jurisdiction of the government.

At the same time I believe that one of the most important founding principles is that all people should be treated equally. I'm not sure that limiting the civil benefits of marriage to a man and a wife satifies that principle.

Strong families are the cornerstone to a strong community, and I believe that traditional marriages are important to the welfare of the community. I'm just not sure that the government has the right or the responsibility to dictate what a marriage is.

Therefore I wouldn't support a constitutional ammendment to specify a marriage as being between 1 man and 1 woman. Without such an ammendment, I don't think that a law stipulating a marriage as being between a man and a woman is constitutional.

Maybe the only solution is for the government to quit using the term marriage to describe the civil aspects of the union between two people.

Of course this will also bring up the issue of pologamy...

 

[RealGun]

This thread will be most useful if we avoid the urge to debate the marriage issue and stick to the gun related potential. It will be hijacked otherwise, perhaps closed as off topic. You know how we get

 

[Waitone]

Article III, Section 2 of the constitution give congress the right to remove appelate jurisdiction from the Supreme Court.

Congress is paranoid of the thought of using their power to check SCOTUS. If they do so the next question is, "So you people all along could have shut down the supreme court on <insert your fav>?

Legislation to replace DOMA and other semi-kestered legislation is in the hopper and it uses constitutional judicial override.

 

[White Horseradish]

This thread will be most useful if we avoid the urge to debate the marriage issue and stick to the gun related potential.

That's what I keep talking about. This goes way beyond marriage, and even beyond gun rights. This is about creating a mechanism by which the Legislative branch of our government will be able to effectively remove the Constitution and any rights granted therein. That would be ANY rights, including RKBA, free speech and everything else.

 

[another okie]

The original post does not describe the proposed bill accurately.

Congress has no power to keep the Supreme Court from reviewing any law to determine whether the law is constitutional or not.

Congress does have the power to keep the lower federal courts from doing this, but the cases can either be brought in state court or filed as an original case with the Supreme Court.

 

[RealGun]

Story that was the basis of my original post

H.R. 3313 - Marriage Protection Act of 2004