MARRIAGE EQUALITY NATIONWIDE

[robvalue]

That's almost like the Assassin's Creed.

[Dystopia]

That's a fair explanation, thanks. Striking down unconstitutional laws is a common practice in Europe as well - What isn't is a court legalizing something - That is what says in the OP, how does this work? There's always a natural and required intersection and contact between the three branches of power - My interest is investigating what's the optimal point to avoid compromising too much each branch.

Same-sex marriage was legalized by virtue of striking down all of the laws that prohibited it.  In the United States, if the law is silent on a topic, it is allowed.  Anything not prohibited is permitted.

This explanation really makes sense, thank you. In the legal/civil law system based on Roman influences it doesn't work that way - Sometimes silence means permission, but other times it doesn't - In particular regarding gay marriage, in most European States the most upper courts can do is strike bans that openly discriminate against same-sex people (but not implicitly) but marriage itself must be approved by democratic process and then there's a law about marriage saying how you do it, so you gotta' change that according to the new law allowing gays to marry. Marriage is 99% of the time codified on a law so you can't do what's not there.

[Dystopia]

That's almost like the Assassin's Creed.

Thanks for making my morning funny Rob.

[robvalue]

My pleasure! Beats the cold stares and inevitable violence I get when I try humour at home.

[Anima]

Stop asking stupid questions then.

Is it stupid to wonder how a judicial institution can legalize something when that prerogative belongs to the legislative branch of government? Since when is being curious stupid?

I asked the same question in another thread as follows:

RE: Supreme Court Same Sex Marriage Argumet
14th July 2015, 11:08

TRJF;

I am not sure if you are still reading this thread but I have a legal question for you. Something I read in Chief Justices Roberts dissent caught my attention. He said:

"Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition."

It is my understanding the federal government may only compel the states in two ways:
1. By means of the Commerce Clause
2. By means of the Supremacy Clause

The issue of same sex is a domesticity issue under the 10th Amendment and thus does not fall under the Commerce Clause. As such it would require the Supremacy Clause to compel the States to change their definitions, but the Supremacy Clause requires a federal law passed by congress which is to override the States. Saying same sex persons have a right to dignity and security that compels the states to permit their marriage does not follow as it is not compelled by the Commerce or Supremacy Clauses. Perhaps you are seeing something I missed?

[Cato]

The above only makes sense if we all pretend the Fourteenth Amendment doesn't exist, particularly Equal Protection rulings since Brown.   Further reading: Romer v. Evans

[Anima]

The above only makes sense if we all pretend the Fourteenth Amendment doesn't exist, particularly Equal Protection rulings since Brown.   Further reading: Romer v. Evans

I doubt Chief Justice John Roberts is acting as if the 14th Amendment does not exist. Rather he is saying

"Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition."

In keeping with the line of questioning by Distopia the negation of a rule does not inherently imply the opposite of the rule. The courts may invalidate a law as unconstitutional in which case the situation is to go to revert to the status quo prior to the law. Not necessarily to say the opposite of the rule is right.

[Dystopia]

Keep in mind that I'm not American and I was just asking an academic question because I was confused about how stuff works. It's not like I'm questioning if America should legalize gay marriage. My country legalized it trough democratic means, and I think that was a good call, but whatever people prefer, I guess..

[Cato]

I doubt Chief Justice John Roberts is acting as if the 14th Amendment does not exist.  Rather he is saying

I didn't bring up the 14th amendment for Roberts' elucidation or consideration, but as counterpoint to your argument centered on the Commerce and Supremacy clauses. Your previous post came off as if Obergefell didn't even warrant standing.

I think Roberts' invoking "it's always been this way" is a poor defense for his concern. I don't think we really need to unpack the various other traditions whose gaping wounds have been closed by the courts in order that they may heal, some leaving significant scars. I think Roberts' biggest concern was the conference of fundamental right via due process meaning any future law will have to pass strict scrutiny requirements. This combined with changed public opinion on the matter definitively settles the matter.

Is now a good time to again state the obvious in that Roberts' was writing for the minority?

Jesus will have to make a personal appearance if this bit of religiously motivated prohibition is to be resurrected and I have my doubts he would show much interest.

[Anima]

Keep in mind that I'm not American and I was just asking an academic question because I was confused about how stuff works. It's not like I'm questioning if America should legalize gay marriage. My country legalized it trough democratic means, and I think that was a good call, but whatever people prefer, I guess..

Understood. As you can see even justices in our Supreme Court of Law are not sure how it works. Generally the constitution states anything not held by the Federal government is to be done by the States, and if not by the States than by the people.

This may only be overridden by the Commerce (Art 1, Sec 8, Cl 3) or Supremacy (Art 6, Cl 2) clauses of constitution

By the SCOTUS ruling the state bans on same sex marriage are unconstitutional. This does not mean the Federal government cannot amend the constitution to override the SCOTUS (2/3 Congress, 2/3 of the States to ratify), that the States may not create new bans which satisfy strict scrutiny (and would then be constitutional) or that the States need to marry anyone at all.

In either case you can be certain we did not do it democratically.