same-sex marriage

 

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Aspects of Same-Sex Marriage

October 12, 2017 by pgd1

In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the issue before the Supreme Court is whether a Christian baker has the right to refuse to create a wedding cake for two men.

Since the Supreme Court of the United States has recognized same-sex marriage, the nuances of this new constitutional protection need to be worked out.  As a family law attorney in Clearwater, Florida, dealing with all types of divorces, including same-sex marriage divorces, I welcome the Supreme Court’s clarification.

In the case before the Court, the couple says Colorado Civil Rights Laws requires businesses to serve gays and straights alike, while Jack Phillips, the baker, complains that this rule forces him to endorse what he believes to be sinful behavior and to express a message he reviles.

If the Court finds for Mr. Phillips, calligraphers, florists, photographers, and tailors who reject gay marriage, may earn a license to discriminate as well.1

In an opinion written in 2015 extending constitutional protections to same-sex marriage, Justice Anthony Kennedy wrote that “Those who adhere to religious doctrines, may continue to advocate with upmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” and they are protected in this mission by the first amendment.

by Patrick Gaffney

by Patrick Gaffney


1 This blog was taken from “Anthony Kennedy’s Camelot”.  The Economist.  September 30th, 2017.

MERRICK GARLAND’S PATH TO THE SUPREME COURT

April 1, 2016 by pgd1

It is a curious fact that what occurs in the Supreme Court of the United States affects the private practice of family law in Pinellas County, Florida.  This became clear last year when the court legalized same-sex marriage throughout the country.

With the untimely death of Justice Antonin Scalia, President Obama has nominated Merrick Garland to the Supreme Court.  This has caused both politicians and political pundits to percolate.  Republican senators have refused to hold a hearing on Garland’s nomination.  “Garland, now chief judge of the federal appeals court in Washington . . . has deftly navigated the capital’s high-powered legal circles for decades.1

From his days in high school, Garland has accumulated friends and seemingly made few enemies.  Yet, even someone with the résumé of Merrick Garland has difficulty in the current political climate of Washington.

During Chief Justice John Roberts’ confirmation proceedings, he uttered the following famous/infamous lines:

Judges are like umpires.  Umpires don’t make rules, they apply them.  The role of an umpire and a judge is critical.  They make sure everybody plays by the rules.  But it is a limited role.  No one ever went to a ballgame to see the umpire . . . I will remember that it’s my job to call balls and strikes and not to pitch or bat.2 

One could argue that Justice Roberts has done more than call balls and strikes.  The Supreme Court has had the final word on certain politically volatile issues.   It might be remembered that Justice Roberts served as the swing vote in the 5-4 ruling that upheld President Obama’s healthcare law.  We also remember the Supreme Court’s role in partisan politics in the 2000 Bush v. Gore decision.  Therefore, the nomination of Merrick Garland to the Supreme Court is no small matter.

by Patrick Gaffney

by Patrick Gaffney


1 March 27, 2016. “Garland is a deft navigator of capital legal circles” New York Times in the Tampa Bay Times.

2 Cilliza, C. June 28, 2012. “John Roberts:  umpire” The Washington Post.

HUCKABEE’S CONSTITUTION

November 19, 2015 by pgd1

Former Arkansas Governor Mike Huckabee thinks that state officials can ignore the Supreme Court’s ruling that states must recognize and provide marriage for same-sex couples.

Speaking prior to the Supreme Court’s decision, the former Governor had this to say:

Constitutionally, the Courts cannot make a law.  They can interpret one . . .  This idea that a judge makes rulings on Friday afternoon and Saturday morning same-sex marriage licenses are being given out, that’s utter nonsense, because there’s not been any agreement with the other branches of government. . .[1]

According to Gabriel Malor, Huckabee speaks “gobbledygook”.  The issue upon which Huckabee gives an opinion was settled in the case of Marbury v. Madison.  It is not the case as Huckabee suggests that all three branches of the federal government must first agree on what the law is for it to be the law of the land.

It would appear that Huckabee is urging a repeat of the confrontation that existed in school desegregation between federal judges and state authorities.  Most interestingly, Huckabee is not alone in his understanding of how the constitution should work.[2]  Paul DeHart points out that Huckabee understands the Constitution like Thomas Jefferson did.  DeHart quotes Jefferson:

. . . But the opinion which gives to the Judges the right to decide what Law are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislative and Executive also in their spheres, would make the Judiciary a despotic branch.

Unfortunately for Jefferson, his cousin, John Marshall, saw things differently and the Marbury v. Madison decision has resolved the question.  Notwithstanding Marbury, various presidents throughout history have disagreed with the Supreme Court as the final decision maker on what the law is.  In other words, these presidents have a similar understanding of the Constitution as Huckabee does.  These presidents include:  Andrew Jackson, Abraham Lincoln, and Franklin D. Roosevelt.

by Patrick Gaffney

by Patrick Gaffney


[1] (January 28, 2015).  Malor, Gabriel. Mike Huckabee Urges A Constitutional Crisis Over Marriage.  The Federalist.  Retrieved from http://www.thefederalist.com.

[2] (February 5, 2015). DeHart, Paul. Huckabee Understands The Constitution Like Those Who Wrote It.  The Federalist.  Retrieved from http://www.thefederalist.com.

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