Free «Federalism and the Defense of Marriage Act» Essay Sample
Federalism is a federal principles advocacy for dividing powers between common institutional units. In federal states sovereignty is constitutional and non- centralized but mostly two parties have to be involved so that authority and self governance is achieved at each level. This fact allows citizens to enjoy their political rights obligations. The division of powers between those in a common unit varies. Naturally the defense and foreign policy defense powers are based at the central authority while the other members of the society are allowed to participate in central decision making (Millar, 2004). This essay precisely addresses the objections held by federalism according to section 3 of the defense of Marriage Act ( DOMA).
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The federal government accepts the determinations each state has when considering couple to be married or rather the terms and types of marriages considered to be legal in each state. Recently, In the U.S there have been a great number of movements fighting for equality for those couples in the same sex marriages. Most people are supporting the marriage for people of the same sex to be legalized. States like Hampshire, Connecticut, the district of Columbia, lowa amongst many other nations have legalized same sex marriages (DiClerico, 2009).
All the same, this jurisdictions faces a great barrier and subjection from the defense of marriage Acts which was adopted in 1966 by the congress . This defense act contains two provisions which are mainly used in the federal states, Sections two of the act purports and section three. Section two, normally recognizes marriages of same genders from the other states but same sex marriages remain a great offence to the law in these federal states while section three defines marriage as a legal union between a man and a woman while the word spouse is taken to mean / refer to a person from the opposite sex who is a wife or a husband.
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DOMA has remained unknown and more so unconstitutional amongst most of the scholars. Mostly for section two, which fails to recognize the interstate authorization of same sex marriages is argued out to be very hard on the citizens and going to an extent of being above the congress power. It fails and goes against the congress power of ensuring that the credit of the clauses of the constitution is enjoyed by all states (Darity, 2008). The states or rather the congress is considered to be misusing its powers and trying to purport the authority by trying to deny effect of same sex marriages in other states in a manner that brings about disunity amongst the member states. Section three as well faces opposition from the tenth amendment on the constitutional federal grounds. Both sections have been reported to be going against the equal protection rights and principles offered in the federal constitution. As a result, organization have formed coalitions and tried to fight against the DOMA.
A wide concern about the centralized nation state has been noted mostly amongst the philosophers and mostly those specializing in the political and world. The drive has highly brought about various historical achievements and in the philosophy of federalism. In the 17th and 18thcenturies, the early federalist contributors carried out several , Researches on the weaknesses of the centralized states. Johannes Althusius is commonly referred to as the father of modern thought of federalist due to his famous arguments that he made in the Politica Methodice Digesta concerning his city Emden. His main argument was directed to the Lutheran provincial Lord and The catholic Emperor.
Johannes had become influenced by the Calvinism as well as the French Huguenots. Calvinism being a minority group in the states, they had started to development resistance principles to be their way of and duty to resist tyranny. They termed themselves as the natural leaders who would not be influenced by current changes but as people who were out to follow the right thing and the word of God. The Orthodox Calvinists advocated for Gods laws. Huguenots developed the legitimacy theory which was later presented in 1579 by Junius Brutus in Vindiciae Contra Tyrannos. He termed a group of people as the corporate body in the hierarchical communities and believed that those people had a right to resist what their rulers said . He also claimed that god had given them the power and mandate to oppose rules. A non-religious theory came into being due to the principles presented by Althusius. The theory prohibited the state from intervening or even from any activity that would promote the right faith to the people thus resulting to the accommodation of the diverse subordinating political powers. An example of a case filed in the federal courts that might soon find it way in the supreme courts is that whereby citizens from the New York were seeking for equal rights and recognition of the to Gays. A court panel involved in the case process actually admitted that the Defense of marriage act was actually unfair on the lesbian and gay citizens. A federal appeals court ruled that the American citizens who are gay deserve constitutional protection like any other victim of discrimination. A panel, from New York stated out that the federal law was not being fair by not recognizing the same sex marriages thus a 2-1 ruling was involved for the first time in the history of the federal courts. This case is now being considered by various scholars as the leading candidate in the review of the same sex marriages in the supreme courts (DiClerico, 2009). After a second hearing done in one of the Thursdays, by a federal court, the defense of marriage Act was stricken down . This paved way for the Windsor V. United states case which will now have a chance to be heard by the Supreme Court or other cases like the early decision that the first circuit had made in Boston and that other made by the ninth circuit that was overturning the ban on same sex in California.
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This case had been filed in memory of Edith Windsor and her partner Thea Clara Spyer sake from the New York . Edith was forced to pay a bill of $363,053 for her wedding to be recognized. According to One associate professor of law At Loyola School In Los Angeles, the supreme courts would most likely take up the case since the supreme court now has various disagreements with various circuits due to the major issue and contrasting issue of The Defense Of Marriage Act.
Of late there have been various cases reported in courts and most of them involve the DOMA challenges. Another example of such cases, include the proposition 8 from California. Most of these cases are fighting for the equal rights of the American citizens who are gays and lesbians. The domestic law of the United States has already been accepted thus allowing the different definition of marriage from different states not considering the uniformity factor but the federal purpose. Probably the Supreme Court will be listening to the case by June next year, the proposition 8. This is due to the increase of disagreements between it and the circuits over the DOMA act (DiClerico, 2009). There is also a very high possibility of having the DOMA act being termed as unconstitutional thus collapsing by next year.
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I think and contend that the issue affecting Edith was quite unfair and above all uncouth. How could one be asked to pay so as to have her marriage recognized by the state while the constitution recognizes and gives a go ahead to the same sex marriages? I think that the state should actual pay back the whole amount that she had to account for. Secondly, her marriage should also be legally considered. It is very unfair actually to be in a country yet your rights are just verbally recognized but ones is not allowed to enjoy the rights fully. The DOMA should also be termed as unconstitutional and all its principle termed as inactive. The federal law should let people be free and have self governance over their lives. The Supreme Court should consider the fact that under the federal law, there have to be two parties coming together thus forming a coalition which must involve various agreements (Millar, 2004).
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As a result they ought to come into terms with the citizens and honor the constitution thus allow the citizens to enjoy their constitutional rights. The Supreme Court should ensure that it solves its differences with the circuits so as to ensure the court system in the state runs normally and that people are not discriminated upon by the DOMA law which of late has found a lot of objections from the people.