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US: Human rights group sues Michigan over refusal to recognise same-sex marriages

  • Maryland Kid

    I am very concerned about this. It’s not that I don’t want people to be able to get married; I would like to see same-sex marriage made legal throughout every state in this nation as soon as possible. However, people need to understand that the issuing of a stay by the Federal Courts is not an arbitrary or unreasonable decision. It is done to avoid conflict between Common Law established on different judicial levels. This is done precisely to avoid situations like this, where laws are recognized or interpreted differently by the State and Federal governments. If anything, the stay ought to have been issued earlier. I believe in equal dignity for all Americans, but I also respect our Constitutional Process. We can and ought to tackle this conflict with renewed vigor if the Sixth Circuit Court of Appeals votes against marriage equality. Until then, however, let’s not overcomplicate the judicial process and overburden the courts by challenging a temporary provision that will almost certainly be swept away, along with anti-LGBT laws throughout the Sixth Circuit, when the appeals court makes it’s ruling.

    • David H

      Respectfully, I think a lot of non-Americans (myself included) struggle to understand why it’s so convoluted. As with many countries, here in the UK, some decisions are made by local government, some by national government. Issues regarding human rights, which effectively this is, should only realistically be taken at a national level. The United States merely looks ridiculous in the eyes of the world by being a country which partially supports gay marriage dependent upon where you live. Given the whole “One nation…” ethos it borders on farce.

      Forgive my ignorance of your history and also for using such a cliched comparison that has been somewhat overused in this debate, but did the US have to abolish slavery state by state? If I recall correctly, I seem to remember mixed race marriage having to be addressed on a state by state basis.

      It’s almost as though the US clings to its centuries old constitution because it’s terrified of moving into the 21st century where decisions need to be taken on a much larger scale.

      • Bluespiral58

        The US is a federation of 50 states each with their own laws. It’s more fair to compare the US to the EU where not all countries recognize same sex marriage. The US Supreme Court will likely rule for all 50 states before the EU does. Actually slavery in the US was abolished state by state until 1865 when it was finally settled nationally by war.

      • Maryland Kid

        I can appreciate your confusion. It’s actually a lot easier to understand once you’ve gotten a grasp on it! I’ll try to explain as best as I can. Also, I don’t think that it’s completely fair to criticize the U.S. by upholding the U.K. as an example. After all, under the devolution model that your country uses, you’ve been left with a similar patchwork legality for marriage equality .

        What you have to understand is that the United States isn’t a unitary nation-state in the sense that many European countries are. We are a Federation of politically and culturally independent States that retain their individual sovereignty but are subject to the Constitution. Think of it more as the European Union on steroids.

        Under the Constitution, a Federal Government was formed to regulate trade, maintain a standing army and handle diplomatic relations with Foreign Nations. Over the years, these powers have been expanded, leaving us with the system that we have today.

        What you have to understand is that we’re not clinging to a centuries old constitution, as you say, because the constitution is not centuries old. It is what we call, “a living document.” It continually evolves as new amendments are added and judicial interpretations of the text change.

        You also have to understand that unlike Britain, the United States allows it’s laws to be shaped by a process called Judicial Review. The Federal Court System is actually able to change policy by creating what is called Common Law through it’s interpretation of the Constitution. An example; the fourteenth amendment to the Constitution forbids the Federal and State governments from creating or enforcing any law that does not protect all citizens equally. In response, the South created the Jim Crow doctrine, where Blacks and Whites used segregated facilities that were “separate but equal”. In a court case called Brown vs. the Board of Education, the Supreme Court declared all Jim Crow laws to be unconstitutional because separate is inherently unequal. That Common Law continues to be upheld today, though it was also strongly reinforced by the Civil Rights Act passed through Congress.

        It’s interesting that you bring up slavery. Under the original Constitution, the individual States are explicitly given the right to keep slavery legal, and the Federal Government was forbidden from interfering. The United States would have had to abolish slavery state by state, except in 1865 the Thirteenth Amendment was passed, which abolished slavery and involuntary employment. This was helped largely in part by the fact that the Southern States were in open rebellion at the time, which left the Federal Government under Northern control. So slavery was ended by changing the text of the Constitution itself, which is an excellent example of what we mean by, “a living document”.

        Fortunately, an action as drastic as amending the Constitution is not necessary to enact Marriage Equality. Under the Equal Protection Doctrine established in the Fourteenth Amendment, no law can be created in the United States that does not protect all citizens equally. This means that no law can single out or target any particular class of citizen. This very clearly means that either State or Federal bans on same-sex marriage are clearly Unconstitutional. In fact, if you want to get technical about it, you could argue that same-sex marriage has been legal in the United States since 1868, and that all this time the government has been breaking it’s own laws! So as you can see, the same-sex marriage issue really is being handled at a more Federal level.

        This is where Judicial Review comes in. Recently, in a court case called The United States vs. Windsor, the Supreme Court determined that it was unconstitutional for the Federal Government to refuse to recognize legally married same-sex couples. This has triggered a series of Constitutional Challenges all throughout the country, including the one we were just talking about up in Michigan.

        The United States maintains Federal Courts in each of the fifty States whose job it is to ensure that the Constitution is being upheld. What has happened in Michigan is that the Federal Court there has ruled that the State’s ban on same-sex marriage violates the Constitution. Doing so would establish Common Law that would bring Michigan’s statutes into line with Federal policy, which is to recognize same-sex marriage.

        However, as you so aptly point out, it would be absurd to repeat this process for each of the fifty states. Fortunately, the U.S. judiciary was specifically structured so that this would not be necessary. Each Federal Court operates on one of eleven circuits, which standardize Common Law for a different region of the country. Inconsistencies between Circuits is resolved by the Supreme Court, which is the only body that can establish Common Law for the entire nation.

        The Michigan Federal Court decision striking down bans on same-sex marriage creates a problem for that Circuit. Right now, several Courts on the same Circuit have established different Common Law on Same-Sex Marriage. In some States, the bans remain unchallenged. In others, the bans remain in place but the State has been ordered to recognize same-sex marriages performed elsewhere. And in Michigan, of course, the ban has been outright struck down. To fix this, the Circuit Court will have to deliver a decision on the legality of Same-Sex Marriage that will establish Common Law for all of it’s constituent States.

        Right now, five different Circuits are hearing appeals of cases that overturned bans on Same-Sex Marriage. A further three Circuits have not heard or issued a ruling on this issue but recognize Same-Sex Marriages because all of their constituent States struck down their bans individually. That means that there will potentially be eight different Circuits that will recognize Same-Sex Marriage by the end of this year. Challenges have already been introduced into the remaining three circuits, though they have not been heard yet. It is extremely likely that all State bans will be struck down, either by a Supreme Court decision or by the unanimous decision of all Eleven Circuits.

        Of course, the issue with this system is that while inconsistencies on and between the circuits are still being worked out, the differences in common law between the States pose some practical problems. That’s where the Stay comes in. Basically, a Stay is a temporary halt on the enforcement or execution of a lower court decision. They are granted when there are inconsistencies in how different Courts on that Circuit have decided the same legal question. This avoids the problem of individual States creating and enforcing conflicting Common Law. So as you can see, what’s going on in Michigan is actually about standardizing law across the nation instead of making decisions on a State by State basis. From what you say in your comment, it seems like you would support the Federal Judiciary process and the Issuing of a Stay, but you just don’t understand how the government functions in the United States.

        Personally, I think that the Federation model used by us Americans is a lot less complicated and more efficient than the Devolution model in Britain. I also think that a Common Law Judiciary works very well. It is a lot more functional than the House of Lords, which theoretically is supposed to fulfill the same role in the UK (but doesn’t really). I also like the idea of the Constitution as a living document; written but modifiable. To be honest, I’d be very alarmed by the prospect of having an unwritten Constitution. In my eyes, that causes all kinds of problems. Look at what happened back in 1936. The Church of England decided that it didn’t like the Monarch’s fiancee, and as a result the entire government almost collapsed. So I have to admit that I have certain reservations about how the British do things. It seems to work well enough for you, though, so I guess there’s nothing wrong with that. I guess the truth is, all systems of government are complicated, and all of them have their flaws, but we all manage to scrape through somehow!

        Sorry for the *extremely* long post. In fairness, there are entire University courses that teach what I just tried to explain. I hope that it managed to clear things up for you.

        • David H

          Thanks for taking the time to explain. In a lot of ways the US system resembles the old feudal system used through much of Europe, including the UK, in the Middle Ages (although, obviously, on a more democratic basis).

          The devolution model in the UK is in place because of the union comprising seperate countries rather than individual counties (our equivalent of yout states) having any kind of autonomy beyond setting local budgets and repairing roads. Obviously, as with Scotland right now, individual coutnries have the choice to leave the Union if they prefer.

          Similarly, Parliament as well as the Church of England objected to Wallis Simpson, for many of the same reasons why Prince Charles was prevented from marrying Camilla the first time around (thankfully, we’ve evolved a long way since then).

          I guess we all cling, in many ways, to what we are used to. Just as you feel “safer” (for want of a better term) by having the constitution, my perception is that it becomes too restrictive. It’s probably a case as to how things are reported (all countries like to show themselves in a better light to their own public :-)). To us the “freedom of speech” is used time and again as an excuse to circumvent what would, in any other country, fall foul of hate laws; and, of course, I’m sure most people could write entire books on the right to bear arms one!

          Don’t apologise for the lengthy post. It’s always a pleasure to obtain an insight into a viewpoint which, despite how close our cultures are in many ways, can be somewhat alien in others.

          • Maryland Kid

            That is also a very interesting perspective. In many ways, the government of the United States was deliberately structured to avoid being similar to the feudal system. After all, the nation was formed following nearly two centuries of absolute rule by an imperial monarchy (no hard feelings), so people were feeling a bit averse to dynastic power systems. The Legislature was created to introduce a republican form of democracy to the government, and to prevent the Executive from becoming a dictator or king. The Judiciary was then established to prevent the democracy of the Legislature from becoming the justice of the mob.

            I’m not denying that there are certain similarities though. I actually think that it’s kind of interesting that despite our best efforts to the contrary, feudal characteristics still managed to worm their way into our system. It reminds of the issue with income inequality, which is a very serious, potentially the most serious, problem facing this country. We’ve adopted a power structure which is practically old-school European in that the wealthy have a hugely disproportionate amount of control. Meanwhile, Europe has gotten a lot more equitable, with an expansion of social welfare and the abolishment of some dynastic power structures. Things have practically done a 180.

            So that was a very interesting observation, and it made me look at things in a way I hadn’t thought of before. Thanks for that.

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