03-27-2009, 07:33 AM
Jon, Hawaii has clouded the issue over rights and privilege because in 1997 they didn't leave issues of marriage in legislation; they moved a provision of marriage to the Bill of Rights which pertains to the rights of citizens. In doing so, right or wrong, they changed Hawaii’s recognition of marriage to something that requires a Constitutional mention under individual rights versus a legislative action which pertains to privileges. Had they not done that, marriage in Hawaii would squarely be a privilege subject to legislative action, and a question of a “rights” (not to be confused with the constitutionality of applying any restrictions) would never be an issue.
Now, let’s say this never happened and marriage is solely a states rights regulated matter. That still does not give blanket immunity to the state to impose illegal restrictions. So they could never say only males can get a drivers licensee. They can never say that only females can be electrical contractors. They can never say that only people between 30 - 40 can be licensed as dentist. They can never say that blacks and whites can never get married in Hawaii. They can never say that a person of Asian decent can't marry a person of European descent. They can never say a Catholic can't marry an Episcopalian. They can never say that a female can not buy a house with another female. All these will be illegal because they are protected by the US Constitution against discrimination. So by denying marriage to two females, the reason is based on their sex which makes it unconstitutional. The DOM further turned it into a circus because it allowed states to impose such a restriction, which means that without it, denying same sex marriages would have been unconstitutional under federal law. We'll have to wait until the cases wind themselves through the court system and the DOM is challenged on pure constitutional issues.
Even if a person does not agree with same sex marriages or civil unions, the danger of letting it stand would be the same as allowing Hawaii to ban home ownership because a person is white.
Now, let’s say this never happened and marriage is solely a states rights regulated matter. That still does not give blanket immunity to the state to impose illegal restrictions. So they could never say only males can get a drivers licensee. They can never say that only females can be electrical contractors. They can never say that only people between 30 - 40 can be licensed as dentist. They can never say that blacks and whites can never get married in Hawaii. They can never say that a person of Asian decent can't marry a person of European descent. They can never say a Catholic can't marry an Episcopalian. They can never say that a female can not buy a house with another female. All these will be illegal because they are protected by the US Constitution against discrimination. So by denying marriage to two females, the reason is based on their sex which makes it unconstitutional. The DOM further turned it into a circus because it allowed states to impose such a restriction, which means that without it, denying same sex marriages would have been unconstitutional under federal law. We'll have to wait until the cases wind themselves through the court system and the DOM is challenged on pure constitutional issues.
Even if a person does not agree with same sex marriages or civil unions, the danger of letting it stand would be the same as allowing Hawaii to ban home ownership because a person is white.