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Old 04-25-2014, 01:17 PM   #41
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Why are violations of the 14th amendment done so by laws that deny only inalienable rights, and not just the abridgment of privileges, or liberty, or equal protection under the law?

For example, the CO Constitution states that use of pot is a legal, "individual freedom".

Article IV, II suggests that a CO resident should be able to at least travel to OH, with pot, and consume it there, correct?

But does not OH's ban on it violate the 14th because CO finds the use of pot as an "individual freedom" and that they hold that citizens have certain "inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties"?
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Old 04-25-2014, 04:33 PM   #42
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Another thing to keep in mind is the concept of incorporation.

I would say that your Colorado example is not a violation of the 14th unless you got the supreme court to say so.
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Old 04-25-2014, 05:33 PM   #43
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Originally Posted by Braineack View Post
Article IV, II suggests that a CO resident should be able to at least travel to OH, with pot, and consume it there, correct?
No.

It is important to appreciate the scope and context of state laws. They generally apply within their own borders, and to all people.

So, looking specifically at the Colorado example. The law in Colorado, enacted by Amendment 64, is (in brief) that anyone 21 years of age or older may possess and consume marijuana while in Colorado.

It does not apply only to residents of Colorado.

It does not govern the possession or use of marijuana outside of Colorado.


So, far from implying that "a CO resident should be able to at least travel to OH, with pot, and consume it there", quite the opposite is true. In fact, such an interpretation would encroach on Ohio's sovereignty with regard to the right to regulate the consumption of marijuana inside Ohio.


The laws of a state are binding within that state, and nowhere else.


One might as well suggest that so long as I claim California residency, have a California drivers license (with motorcycle endorsement) and am riding a motorcycle registered in California, I should be able to lane-split on any road in any state. But this is not the case. As soon as I cross over into Arizona, I am bound by the traffic laws of Arizona, and may no longer ride between traffic lanes.

No fundamental rights or liberties are violated by this, nor by different states having different laws governing the possession and consumption of regulated or controlled substances.
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Old 04-25-2014, 05:43 PM   #44
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Article IV, II suggests that a CO resident should be able to at least travel to OH, with pot, and consume it there, correct?
I think it's more that an Ohio resident can travel to CO, smoke some CO pot, then go back to OH and not be arrested for having smoked in CO because it's against the law in OH.
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Old 04-25-2014, 06:03 PM   #45
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No fundamental rights or liberties are violated by this, nor by different states having different laws governing the possession and consumption of regulated or controlled substances.

So what you're suggesting here is that the moment the supreme court struck down the defense of marriage act due to its violation to the 14th, it should have struck down gay marriage in all states?
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Old 04-25-2014, 06:26 PM   #46
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So what you're suggesting here is that the moment the supreme court struck down the defense of marriage act due to its violation to the 14th, it should have struck down gay marriage in all states?
The court did not strike down the Defense of Marriage Act, regardless of what FOX News (and, for that matter, most other news agencies) initially reported. In US v. Windsor, they invalidated only one specific section of law (1 U.S. Code 7) on the grounds that it violated the the Due Process clause of the 5th Amendment. The rest of DOMA still stands, and the 14th had nothing to do with it. (The 14th amendment briefly touches on due process at the state level, which is not relevant as DOMA is a federal law. Its function was principally to apportion civil liberties to former slaves who had just been freed as a result of the 13th amendment after the civil war.)

Specifically, 28 U.S. Code 1738C states:
No State (...) shall be required to give effect to any public act, record, or judicial proceeding of any other State (...) respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, (...) or a right or claim arising from such relationship.

(full, unabridged text here)
In other words, US Federal Law, as it stands today, says that marriages between two people of the same sex in one state are exempt from the Full Faith and Credit Clause, and that other states are not required to recognize them.


You might then say "Well, isn't that in direct conflict with the recent Ohio ruling in Henry v. Himes?" And you would be correct. The Common Law is built upon the process of resolving conflicting opinions and differing interpretations. It's part of what makes the study of law in the US so interesting.


We can and should expect that there will be future cases which continue to explore this topic, and we should not expect that there will never be any conflict between different laws at different levels of government. It's been 41 years since Roe v. Wade, and we're still arguing about abortion.

Last edited by Joe Perez; 04-26-2014 at 11:42 AM. Reason: Abridged 28 USC 1738C for clarity
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Old 04-26-2014, 10:13 AM   #47
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Also, you are forgetting one thing Joe.

Federal laws/statutes cannot trump the constitution.
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Old 04-26-2014, 11:54 AM   #48
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Also, you are forgetting one thing Joe.

Federal laws/statutes cannot trump the constitution.
We already talked about that. See posts # 16, 18 and 36 in this thread. What's required, before that determination can be made, is for a case to go before the US Supreme Court, for them to determine whether a Federal or State law is attempting to trump the US Constitution. That's what happened in US v. Windsor that resulted in section 3 of DOMA being nullified and 1 U.S. Code 7 (which defined marriage, at a FEDERAL level, as being between a man and a woman) being struck. You (or I, or a lawyer) cannot simply stand up and say "This is in violation of the Constitution" and let that be that. Only the highest court can make that determination.

It hasn't yet happened here.



Also, remember that Henry v. Himes was a US District Court ruling, not a Supreme Court ruling, so even if it's upheld at appeal it won't be binding outside of the 6th Circuit.

There's also some other case-law on the books which demonstrates previous findings that support 28 USC 1738C, even though they predate it. For instance, in The Matter of the Estate of Fanny Mae (305 N.Y. 486), the court in New York deceided that they would recognize the validity of an out-of-state marriage between an uncle and a niece, while specifically acknowledging that they were not bound to do so. In particular, the Lexis-Nexus headnotes make clear for us that:
2. The legality of a marriage between persons sui juris is determined by the law of the place where the marriage is solemnized. Our Legislature could have regulated within the State the marriages of its domiciliaries solemnized in another State, or it could have declared that marriages contracted in another State which would be void if contracted here should have no force here; but it did not do so, and hence it cannot be said that there is any positive law in this State interdicting this marriage which was valid in Rhode Island.

3. Nor can it be said that this marriage was inhibited by natural law. It was solemnized in accord with the ritual of the parties' faith in a State whose legislative body has declared such a marriage to be "good and valid in law". It cannot be said that such a marriage was offensive to the public sense of morality to a degree regarded generally with abhorrence.

source


This is all a very tricky business, and in law, there is typically no one correct answer.
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Old 04-26-2014, 01:45 PM   #49
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Short of a Supreme Court decision, I fail to see how a lower court could make a ruling supporting the OH law, Joe, regardless of DOMA.

To most analysts I've read, as well as myself, all felt that the OH ruling was a foregone conclusion. In order to rule otherwise, the OH Supreme Court would have had to rule against something like ~20 supreme court decisions. This is based solely on the Supreme Court's ~20 cases declaring marriage a fundamental right, and of the 14th. A lower court cannot override something so well defined by the Supreme Court, as you well know.

Of course, when it gets to the Supreme Court, they may make a decision overriding previous decisions. This court in particular is exceptionally bad with respect to that, but then again this court also has justices that have done things that, just 20 years ago, would force the justice to resign or be impeached.

In order for the lower court to bring in DOMA in support of a decision affirming the OH law (Well, constitutional amendment), they would have to ignore numerous supreme court decisions on the subject. Something that lower courts are forbidden to do.
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