Freedom is the distance between Church and State

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FEBRUARY 7, 2013 12:54AM

UK Marriage Bill Could Never Pass Legal Muster in U.S.

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Many of us are excited that the British House of Commons recently passed a marriage equality bill. Wonderful! But there are a few big buts.

We in the U.S. must take any victory as we it; but while we celebrate the 'evolution' of dinosaurs, Americans should understand why any similar law would fail to pass muster under the American Constitution.

For Americans, the essential key to this superb report by John F. Burns and Alan Cowell is that this legislation will exempt the Church of England and other faiths from an obligation to perform such ceremonies. Once again, Religion Poisons Everything . The problem is what that report does not tell: that the British law will allow clerics to not only deny civil rights but retain civil authority at the same time. That is a law “respecting the establishment of religion” that could not pass muster under the U.S. Constitution.

I have said it before and will say it again: This faux debate is no more about marriage than the Monkey Trial was about monkeys. It is not about law but about religion insinuating itself into secular affairs. Yes, the House of Commons took a step in the right direction; however the law will also have to pass the House of Lords and herein lies the rub.

Democracy? Fuggetaboutit! Unlike the U.S. Senate it is the British mandate that 26 bishops of the state established Church of England sit in the House of Lords. They are not elected in the democratic process of We The People. Just imagine if the U.S. Constitution mandated that 26 Catholic Bishops have seats in the senate and we have no say! Call that what you want but do not call it Democracy?

Still there is something quite remarkable here. Despite its state established religion England (unlike the U.S.) is not an especially religious nation. The vast majority are not church goers and, as we all know, going to church no more proves one a Christian than getting married proves one is straight. Indeed, in early 2004, it was announced that atheism would be taught during religious education classes in England! Imagine that happening in the U.S.!

While House of Lords religious faction is small it is still powerful and the churches of England and Wales will be exempted from the law demanding equal rights. That, of course is, by definition, a “law respecting the establishment of religion”. Applying the requisite 'strict scrutiny' test, such laws can not pass constitutional muster in America and for all the reasons I have stated here and here , the similar New York state exemption is a First Amendment case just waiting for the right fact pattern. I predict it will eventually come down. Indeed, I suspect it was just a device by which the tub-thumpers were able to save face. ('See we tried but it's those damned activist courts enforcing the Bill of Rights.') Sad to say there are still some ignoramuses who believe that the 'free exercise' of religion means that,

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.

The reason the British bill would fail in a U.S. federal court is because, unlike the U.S., England has an 'established religion' and a no written constitution. We, however, do not have an established religion (our Constitution forbids it) and we did take the trouble to write our Constitution down. That Congress “shall make no law respecting the establishment of religion ...” is first in our Constitution, first in our Bill or Rights, and first in our First Amendment, because it was first and foremost on our founding fathers' minds. They witnessed first hand the blood-soaked histories of England and France fueled by the religious poison that controlled secular affairs.

Understand what is really going on here. Respecting religion? No! It is the same old story of Religion being given the proverbial inch and taking the infamous mile. It is religion refusing to respect the secular social contact upon which IT intrudes as it demands exemption from the social contract.

Unless the Church of England appeals to Greek or Roman paganism as its precedent (and even that is a dubious defense at best ) marriage was always a secular, civil, contract governed by the state for epochs before Christianity was even born. Indeed, the church had absolutely nothing to do with marriage until the 9th century when, after a civil ceremony, couples began to appear at the church steps to ask the priest to come out and give them his blessing. Marriage did not even become a sacrament until the 11th century by which time religion subsumed the state and held it captive.

Under our Constitution no such religious exception could survive 'strict scrutiny' and pass constitutional muster. “Equal protection” says what it means and means what it says. When a cleric in America performs a marriage they act in a dual capacity: as clerics who are provisionally granted the privilege of also solemnizing a civil, secular, contract and who act as civil magistrates thus killing two birds with one stone. It is the grant of 'state action'. Like any state granted accommodation, a church may retain that civil authority only as long as it follows the law or it will be striped of both its tax except status and its civil authority.

For instance, if it wanted to the Mormon Church could arguably (under the First Amendment) marry one husband to ten wives or refuse to marry an inter-racial couple even if one spouse is a member in good standing of that faith. Arguably the government can not dictate otherwise. But there is a flip-side to that choice: nor, must the state respect that denial of rights and place the state's seal of approval on it! That refusal would come with a price for, by the practice of denying equal civil rights, the church would be stripped of it's tax exempt status and civil authority such that no further marriages would be recognized by the state and no marital rights or privileges and immunities attach. Go ahead and exercise your religion as your dogma demands but tax exempt status? Gone. Civil authority? Striped. The government will not condone or support it nor attach legal validity to it. Churches can not simply pick and choose which civil rights they will grant or deny.

This is not like the Catholic church refusing to marry a divorced Catholic where the law permits it but does not require it. That is not mere 'religious conviction' but a centuries old command in order to be or remain a Catholic. Sorry, but you don't just get to invent 'religious conviction' as a convenience to disobey the Constitution and refuse to marry an inter-racial couple who are members of your faith. Most obvious, a church may insist that it marry only members in good standing of it's own faith but a divorced Catholic is not a member in good standing. Mixed marriage okay; but the Catholic Church has a legal right to not marry one of it's own heretics and apostates. That first marriage can never be dissolved except by death – unless, of course, you are a rich Kennedy or Kerry with enough pelf to buy a “Catholic divorce” (annulment) such that it never happened. Children? Not to worry for Cannon Law has a convenient loophole to save them from bastardy. Money talks. Every brick of St. Peters was paid for by sale of indulgences. Annulment is just new wine in an old bottle. But dare to refuse marriage to an inter-racial and never divorced Catholic couple? BANG! Our laws will revoke tax exempt status and stip that church and cleric of all civil authority unless it treats all equally before the law.

This is not my opinion. This is not editorial but report. It is the law! Why do you think Mormons may not legally practice bigamy even tough it was an original and essential part of Mormon teaching? Such clerics have no tax exemption and none of their marriages, of any color or stripe, are recognized by the government. (See “DOMA: Separation of Church State the Inevitable Battleground” and see “New York Marriage Equality Law Violates Federal Constitution.”)

I have said it before and will say it again: This faux debate is no more about marriage than the Monkey Trial was about monkeys. It is about religion insinuating itself into secular affairs. The unwritten Constitution of England may permit that but our Bill of Rights forbids it. That is why religious exceptions from the Constitution ultimately fail in the high court. The churches may marry or refuse to marry whomever they please but violate the Fourteenth Amendment to deny fundamental civil rights and equal protection, and they will loose their tax exempt status and be stripped of civil authority. They simply can not have it both ways.

If they must wear two hats (religious cleric and civil functionary) their ultimate legal fealty must be to their constitution and not their religion. Otherwise follow your conscience but the civil hat comes off and the secular authority is forfeited. In America no cleric can ascend to civil authority while denying civil rights to one class of persons who are members of their religion. So, yes, religious freedom demands churches may refuse to marry whomever they want and the government can not order otherwise. However, the church my not do so while acting on behalf of the state, as an agent of the state. Their own Bible tells them: they may not serve two masters. So when they perform a secular act their fealty must be to the Constitution.

Still, all that said, isn't it interesting that from abolition of  slavery and the slave trade, to ending racial discrimination, to marriage and civil unions, each advanced significantly faster in England which does have an established religion but much slower in the United States which unequivocally forbids any law respecting the establishment of religion.

Francois Arouet

Copyright © February 2013

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Many of us are excited that the British House of Commons recently passed a marriage equality bill. Wonderful! But there are a few big buts.

There's more than "a few big" butts in the British House of Commons!

Just say'in.

and you are right. It has nothing to do with equality to THEM. To THEM its all about the power struggle and control. Its only about equality to those of us who don't have it.
And totally aligned with these arguments see Slate When Did God Get Into the Wedding Business? by John Witte Jr. of Emory University School of Law, author of From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition.

But John Witte gets it wrong in his title. It was not From Sacrament to Contract but from contract to sacrament which he does concede in the end of the article so I don't get the misleading title of his book.        
@ al loomis: You are entirely correct. And that is the essence of Ketman.

But here is where I think you may be missing the issue: “however, a religious organization may stipulate who is eligible for their blessing, by the same separation law.” As I pointed out, THEY ALREADY HAVE THAT ABILITY and we are not going to change the way things are. We must deal the Constitution as it is.

I can only presume you mean that clerics would have no civil authority to perform any marriage as a legal, civil, secular, matter. This is the law in some nations where no church marriage is recognized by the state and, for legal status to attach, a separate civil ceremony must take place. E.g. No cleric has civil authority.

That is not going to happen in the U.S. and we must live under the law as it is.

The legal question here is whether a cleric, acting as a civil magistrate (wearing two hats they do), can refuse their civil duty to solemnize the 'fundamental' right of secular marriage, and deny one class of persons the legal status that attaches to it and yet still retain their civil authority as to any marriage.

The argument here is “No they can't!” Once the church is authorized to perform a civil act they must obey civil law and can not hide behind religion to refuse that legal duty. They may not refuse to marry an inter-racial couple for religious reasons and still retain civil authority to perform any marriage. That is the law as it is. No one gets to vote in it.

So, if SCOTUS holds that same-sex couples have the same 'fundamental' civil rights as inter-racial couples then it follows that no cleric can refuse to perform that civil duty on that basis without forfeiting their tax exempt statues and their civil, legal, authority. That is THE inescapable legal issue Obama is dodging. That IS the source of his Ketman. He knows the court will decide and he dare not say what he surely knows the law is. Ergo, Ketman.

Churches and clerics can do as the please under the First Amendment “free exercise” clause and the government, generally (no right is absolute) , may not intrude. The SOLE question here is whether they can, AS agents of the state, refuse that duty to this class of persons. 'Equal protection' principals say NO. They must exercise their secular duty to all equally under law or they loose their CIVIL authority. They may refuse marriage all they wish for 'religious' reasons but they may not do so AS agents of the state. THAT is the legal question: not what they may do as clerics but what they may not refuse to do state actors and agents of the government. We can not give churches the secular, legal, authority to deny civil rights.

Indeed, what they want is to BE agents of the state, to act with the power and authority OF the state, to deny a fundamental right to one class of persons where the state determines that class is entitled to equal civil rights. That is the issue– right there!

No one may don civil authority and refuse 'due process' for unconstitutional reasons. That is why the English law can not pass Constitutional muster as a solution here. It is not an alterative our Bill of Rights can tolerate. It offends the very essence of separation of church and state. No cleric has the power to, AS AN AGENT OF THE STATE, deny a civil right. The Constitution does not grant any cleric the right to act as AN AGENT OF THE STATE to deny a civil right. They must obey the law or they forfeit all civil authority. That is the issue and it is why Obama speaks Ketman.

This may be cynical realpolitik (appease the tub-thumpers) but it is a disgrace for a so-called civil rights lawyer and professor of equal protection. He has abjured education in favor of propaganda and the exploitation of ignorance. He holds his finger to the wind to see which way it blows and then proposes to dole out civil rights piecemeal and state by state. In fact, as a matter of law, had he been subjected to his own rationale his parents would have remained criminals in many states and he'd be drinking out of a separate water fountain until the majority of Americans evolved from bigotry to humanity and voted on his equal rights.

In that world America would have no need of an independent judiciary to protect him, or any minority, from majority tyranny and Brown v. Board of Education would never have happened. But the very reason we have a Bill of Rights. Exactly where do you think Barack Hussein Obama would have wound up if America subjected him and his parents to his RULES OF LAW?

Speaking of which how very clever! Now that the majority is coming around anyway isn't all this 'debate' a perfect way to keep LGBT activists silent on the issue of his continuance of Bush's drone policy, silent on his selection of a CIA director, silent on his capitulation to Wall Street, silent on his failure to close Gitmo, silent on his expansion of Bush's faith-based initiatives. By appeasing minorities one can argue that he has silenced all dissent on the left.
[r] very interesting. i never knew the annulment deal was all about showing them the money. hmmm. explains a lot re some relatives of mine. as for our bill of rights and constitution, it is disappearing fast. seriously. best, libby
Francois, I so very much agree with this brilliant paragraph in particular:

"Speaking of which how very clever! Now that the majority is coming around anyway isn't all this 'debate' a perfect way to keep LGBT activists silent on the issue of his continuance of Bush's drone policy, silent on his selection of a CIA director, silent on his capitulation to Wall Street, silent on his failure to close Gitmo, silent on his expansion of Bush's faith-based initiatives. By appeasing minorities one can argue that he has silenced all dissent on the left."

end of your quote

Obama wants the "truthiness" brigade to focus on his "magnanimous" epiphany regarding LGBT rights and also his posturing on gun control SUDDENLY now that the media is full of it to, as you say, distract from the horrors he is perpetrating. Let those attacks on democracy go unhighlighted morally and legally which Team Dem and media cronyism will pull out all the smoke and mirrors it needs to ensure will stay the case. best, libby
Have you accounted for the difference due to the US federal system and the absense of it in the UK?
Yes, blanket laws from central government like this would be challenged immediately in the US in a way they cannot possibly be challenged in the UK (but can be in France.) 'Parliamentary Supremacy/Sovereignty' is still the constitutional heart of the British Crown State. Parliament, in effect, can make or unmake any law it so wishes to un/make, and no parliament can bind another to the previous parliament's strictures. At best, such a law could be challenged as a contravention of the European Convention on Human Rights, if such a contravention existed. For the purposes of the marriage equality bill, no such contravention exists.
how do you feel about doing all the legal 'partnering' in a civil ceremony down at the courthouse?

ideally, religious ceremonies should have no legal force at all, and be exempt from civil constraints simply because only believers participate.
Al: You still miss the issue and beg the question. Such discussions do not contribute to the debate. They are idle banter. It's not a matter of how I or you “feel” about it. We do not get to vote on it. Civil unions are not marriage and 'separate is not equal'. We must deal with the law as.

AS THE LAW IS in the U.S. no cleric may don civil authority to act as AN AGENT OF THE STATE and refuse to perform their secular duty to deny that performance to one class of persons merely on the basis of race or they will loose tax exempt status, be stripped of all civil authority, and can perform NO legal marriage at all. IT'S THE LAW.

The exact same result ensues (as a matter of law) if the courts determine same-sex couples have the same rights as inter-racial couples. The legal consequence is inescapable and, like it or not, that IS the issue no one wants to talk about or admit. All the rest is red-herring. They can refuse to marry whomever they please under the 1st amendment but the state will not and can not give its authority to that kind of discrimination. They will be stripped of tax exempt status and all state authority. End of discussion. Not a debatable legal issue. Don't like it? Go amend the Constitution. Sorry but we do not get to vote on it.

One might as well argue that, under the 'free exercise' clause, Mormon and Muslim clerics have the 1st amendment right to wed one man to more than one wife and the government must attach legal status to it. No way! Rubbish. Go ahead and to it if it is a religious mandate (which it is not btw but which it must be in order to even merit 'free exercise' protection) but the government will not attach legal status to it and that cleric/church be stripped of ALL secular authority if they do not obey the law.

Next thing ya know some nincompoop will argue that the 'free exercise' gives them the right to toss virgins into a volcano to please an angry god or fly airplanes into skyscrapers for their share of virgins in heaven.

Amy Safebet gets it right. This is about money and power NOT marriage- which has always (let me spell that out: A.L.W.A.Y.S.) been state regulated and a privilege or accommodation the State has always granted to Church AS LONG as Church respects the laws of the State.

Given the proverbial inch BY the State the Church now greedily grabs for the infamous mile. THAT is the issue: Separation of Church and State. It is about Church acting ON BEHALF OF THE STATE, AS THE STATE, to deny secular rights for religious reasons. Okay in England perhaps but a no-brainer no go in the U.S. Deal with it as it is. Sorry but you do not get to vote on it.
@ René Christian Moya: Not entirely correct. A law like this can not be challenged immediately in the US for it must wait for a 'case in controversy' to reach the federal courts (this is why the New York statue has not yet been challenged). But are you saying that is not necessary in France and that such law could be attacked in mere principal? E.g., as an advisory opinion?

But your comment that British law provides no appeal, no judicial review, to any law passed by Parliament is correct. Unlike the United States the English doctrine of parliamentary supremacy means that the primary legislation passed by the Parliament of the United Kingdom can not be subjected to judicial review. As I recall I think Peter Tatchell once reminded me of that.

How fortunate we Americans are so protected! The Bill of Rights and review by an INDEPENDENT judiciary (separation of powers) is the only protection minorities really have against majority tyranny since any elected legislature itself is subject to majority tyranny. Here the law is what the Court says it is. See Marbury v. Madison. However, even in the U.S. judicial review is not immune from legislative attack. Since it's not a constitutional mandate it is subject to legislation. Google” “The Threat to Judicial Independence” by Sandra Day O'Connor. Nevertheless it's here for now.

But, as you point out there is, in England, an exception by which primary legislation may be challenged if it is contrary to the law of the European Union and a person wronged by an Act of Parliament can apply for judicial review in those cases. You argue (with much merit) that “for the purposes of the marriage equality bill, no such contravention exists.”

Also correct but don't concede so easily. Article 12 of the European Convention on Human Rights defines marriage as a “human right” (not just a mere civil right) and provides a right for women and men of marriageable age to marry and establish a family. I understand that, thus far, despite a number of invitations, the Court has refused to apply the protections of this article to same-sex marriage; but that's only because the Court fudged by claiming Article 12 was intended to apply only to different-sex marriage, and that a wide margin of appreciation must be granted to parties in this area.

But legislative intent is a very slippery issue. In Goodwin v United Kingdom the Court ruled that a law which still classified post-operative transsexual persons under their pre-operative sex, violated article 12 as it meant that transsexual persons were unable to marry individuals of their post-operative opposite sex. This reversed an earlier ruling in Rees v United Kingdom. This did not, however, alter the Court's understanding that Article 12 protects only different-sex couples but you see how precedent chisels away at ossified orthodoxy? If legislative intent is the defense can one really argue that the Article 12 was not intended to cover a sex change or transsexuals? Really? Show me where that intent was expressed. By the argument of legislative intent one must show (not merely assert) where the drafters of Article 12 intended to include protection for transsexual persons wishing to marry individuals of their post-operative opposite sex? After all that burden of proof as to legislative intent rests on the one proffering the defense and obviously the court did not agree that Article 12 intended to exclude them. So, from whence did the court conclude the intent to include post operative transsexuals in Article 12?

For now, of course, you are correct but only because the Court has refused to take up the issue. That is not at all the same as ruling against the argument. Indeed the precedents stated above suggest the court is moving in the direction of Enlightenment.

But that too begs the question does it not? For the real issue (and my entire argument) is whether Church trumps State under the U.S. Constitution and I will further argue, under Human Rights Convention. I'd argue no it does not since the drafters of Human Rights Convention surely did not intend that religious dogma permits any nation to enslave and/or mutilate women and children merely because it's so writ in a law book of nomadic Bronze age desert yokels. You see how the court painted itself into a corner with the legislative intent issue? You are correct– but only for now. The day will come when the Human Rights Convention will be interpreted as “intending” to include same-genrered couples.

To the rest of the endarkened world I submit it's much easier to ride a horse in the direction it's going. As stated by Mark Twain (my favorite Connecticut Yankee who, they say, had a pen warmed up in hell), "... if man continues on the direction of Enlightenment, his religious practice may, in the end, attain some semblance of human decency."
@F_Arouette: I think you took my 'immediately' too literally; I was speaking throughout in the broadest strokes, obviously.

I didn't mean to imply that US courts can offer advisory opinions (like certain international courts) or that unripe cases, or those without reasonably harmed applicants can saunter towards review lol. Rather, I was merely trying to lay out the difference between the right to judicial review in the US (within limits) and the near-lack of it in the UK.

I say near-lack because in practice, it's not entirely true judicial review doesn't exist. The Human Rights Act, which incorporated the European Convention on Human Rights as domestic law in the UK, allows senior courts to issue declarations of incompatibility where primary legislation can't be interpreted as working within the framework of ECHR rights. This has no bearing in law, nor does it even effect cases in question; but it serves as a useful expedient for changing incompatible laws and does, therefore, serve as a political statement of sorts.

There's a further wrinkle here: if the European Court of Human Rights finds UK law incompatible with its Convention obligations, then that ruling *does* have an effect on the parties in question--and places the onus on parliaments, again, to change domestic law in the spirit of the Convention. With the EU as with the ECHR, both European courts can effect parties to litigation where primary law is challenged. Again, it is still up to Parliament to then act on said incompatible legislation, but the political ramifications of not acting can be damaging. (Witness here the recent impasse regarding the ECHR's decision that some prisoners should have the right to vote, and the political uproar this decision caused among UK eurosceptics.)

I'd add one final caveat here. Parliamentary sovereignty itself is a jurisprudential convention. It is the consequence of the common law itself, not of any binding, written constitution. There have been exceptional moments where people in the judiciary have warned parliament not to pass laws which would be considered grave & obvious violations of human rights and/or civil liberties. In such exceptional circumstances, judges have warned they would not uphold parliamentary acts. Even parliamentary sovereignty, I guess, has its limits.

On legislative intent & what I said about a contravention of the ECHR, I'll work backwards. I was only stating that moves *towards* marriage equality by a signatory of the ECHR wouldn't be blocked by the Court under any reasonable interpretation of the latter. If the ECHR is an ultimate backstop for specific rights--and even if we/they interpret Article 12 of the ECHR to mean *only* heterosexual marriage is protected under the Convention--that does not mean the Convention prevents marriage to be extended at the discretion of national legislatures. The Court is quite clear on this. This isn't just the underpinning logic of the Goodwin case, but also of subsequent cases (Schalk and Kopf v Austria, for example, which directly engaged Goodwin's reading of Article 12.)

Of course intent can change. The Court stakes a pretty unique view on intent, because of the international nature of the ECHR--the evolutive, or 'European consensus' approach to emerging rights. In fact, unlike the US system, the Court quite openly avows its preference for such a principle if it doesn't completely run roughshod over 'legislative intent.' (Extreme e.g.: applying ECHR rights to, say, non-human animals.) But nothing I said before, or above, presupposes anything different! Nevertheless, that this approach NEED or WILL be applied vis-à-vis marriage (it doesn't and/or might not) isn't written up above--it's entirely up to the Court's discretion, which irks a lot of English lawyers (and some judges). In any event, it is a reasonable recognition that judicial interpretation by any European court kind runs a high risk of breaking the system undergirding it.

Perhaps the European approach, then, finds it strength in not treating its founding document as some mythical, untouchable work of geniuses, one beyond the approach of modern day interpreters. Basically, it cuts the mystifying bull shit out. And thank hell for it!

All of this is a hearty recognition that the law at its nub is still a political creature--whatever jurisprudential, well-nigh platonic-idealist airs of importance its practicants might sometimes dress it up with. :)
And, um, thanks for your message. No offence, but I didn't need to be 'armed by' your response. That smacked a bit condescending to me, buddy.

I'm not entirely lacking in knowledge of (European/UK) law...given I kind of spent a lot of time studying it--in England. ;)
* '...even effect...' meant to read, 'even affect.' Sorry for any and all other errors or typos--I got caught up in the quick typing! :P
Rene: With all due respect, as far as what you claim you "obviously meant" I take one's words at face value. Since you wrote with a voice obviously not entirely lacking in educated knowledge of the law I reasonably presumed you wrote what you meant and meant what you wrote. I don't not see how it could be "obvious” to your readers that you didn't really mean legislation could subjected to 'immediate appeal' unless you were suggesting an advisory opinion. I merely pointed out that was generally not possible in the U.S. (at least in the federal courts for it's clearly permitted (sometimes required) under state law) and I just asked if (1) that was your inference and (2) if such attack was viable in France (since you mentioned it) where marriage legislation in currently in the pipeline. Come on, if you can be so precise as to distinguish between 'effect' and 'affect' your readers I can reasonably presume you meant “immediately appeal”.

But you take umbrage too easily. My apologies if my response seemed “condescending” but you read too much in for, by and large, I fully agreed with your analysis and I think my response demonstrated a collegial respect for a commentator with essential knowledge of his subject matter. I was merely cautioning against the absolutism of your position that there is no judicial recourse to this UK marriage legislation unless it contravenes the ECHR which you claimed is not implicated. I again agreed as a practical matter but merely pointed out that it does, arguably, contravene EU Charter of Fundamental Rights and, in particular Article 12 (just as all segregation (Jim Crow) laws contravened the plain language of the 14th Amendment, just as DOMA and all state anti-marriage laws contravene the 14th Amendment) this giving the court further jurisdiction.

I don't disagree with you but urge you to be better armed. Distinguish a holding from obiter dicta. The narrow holding of Schalk and Kopf merely clarifies that the ECHR does not oblige member states to legislate for or legally recognize same-sex marriages. Nor does require a nation state to change its existing law. The Court held that the Convention does not currently recognize a right to same-sex marriage and reasoned that the debate on marriage equality is still an active political question and should be left to each member state to apply its “own visions.” (The European counterpart to a 'state's argument' that would not pass muster here.) Arguably the Court effectively removed itself as an arbiter in this particular battle for LGBT rights at least for now but it left a huge open door.

First, don't confuse apples with oranges or legislative intent with the spirit of the law. No, legislative intent does not change. When we speak of “legislative intent” we mean simply: what did the drafters of THIS legislation understand THESE words to mean AT THE TIME they enacted THIS law. What did THEY INTEND THEN? That can never change. For instance, in Schalk and Kopf, the applicants argued that the wording did not necessarily imply that a man could only marry a woman and vice versa; but the court looked to legislative intent and concluded that in the 1950s (when it was drafted) marriage was clearly understood in the traditional sense of being a union between partners of different sex. This is the classic 'original intent” argument.

This sophistry was a cheap device and surely the judges knew it. Really? Did they actually mean (in 1950) that a transvestite could undergo a medical procedure and fall within the article? What a silly and disingenuous argument. As disingenuous as our Court arguing (see Plessey) that the drafters of the Civil War Amendments 'intended' to endorse 'separate but equal'. Yesterdays dissent is tomorrow law. Cf. Brown v, Board.

Indeed Schalk and Kopf it was not without loud dissent. Judges Rozakis, Spielmann and Tulkens dissented that “differences based on sexual orientation require particularly serious reasons by way of justification”(our 'strict scrutiny' counterpart) and, aside from mincing words on Article 12 so as to beg the question, the Court should have found a violation of Article 14 taken in conjunction with Article 8 of the Convention because the respondent Government did not advance any argument to justify the difference of treatment (the Classic equal protection argument!).

Without delivering a treatise, just know that 'original intent' can be a red-herring. Just consider the obvious: when the founding fathers drafted the 2nd Amendment did they REALLY intend we all have the right to bear bazookas? Waht, exactly did the mean by “arms” but they clearly only intended it for the “necessity of a well regulated Militia.” No brainer? When they mandated that the government “shall make no law respecting the ... free exercise of religion” did they really mean Congress could not forbid bigamy as some religions allow? Did they really mean one can freely exercise religion by tossing children in to a volcano to please and angry god (which at least one religion did for over 500 years)? After all “shall make no law” is about as unequivocal as language of intent can get. Does it mean what it says? Does it say what they meant? Such absolutism is the last resort of an ignoramus and only gets one laughed out of court.

What I think you are talking about is not 'legislative intent' (thought that (as opposed to 'original intent) is a more valid argument) but rather the spirit of the law. But even legislative intent get's one no where if the legislature indented an unconstitutional consequence (e.g., Jim Crow laws.) These are distinctions with a very real legal differences but all that may be just academic here. I just encourage you to not muddy the water when it comes to legal terms of art.

Perhaps in response to the dissent the Court in Schalk and Kopf, explicitly stated "It is unnecessary IN THE INSTANT CASE TO EXAMINE whether, and in which areas, the law unjustifiably discriminates against same-sex relationships by providing for special rules for married couples." And the court explicitly stated it would not issue an advisory opinion on that question which was apparently not properly before the court and left for another day. In other words it found a way begged the question.

Now that DOMA and Prop 8 find their way to SCOTUS it will be interesting to where Justice Kennedy goes. Lawrence v Texas is surely one of the most important federal court decisions for the LGBT rights and in his majority opinion, Justice Kennedy struck down Texas' same-sex sodomy law as violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment. A major criticism of Lawrence was that it relied too heavily on foreign precedent, particularly the decisions of the European Court of Human Rights. In his decision, Justice Kennedy makes reference to cases such as Dudgeon v United Kingdom, both to question public attitudes towards homosexuality in 1986 and to show how Western Thought had evolved in the intervening years. Kennedy was clearly abjuring the "legislative intent" argument for the Constitution as living document view.

So it will be interesting to see whether he makes reference to Schalk and Kopf. In "Invoking Foreign Precedent: A Dead End for Marriage Equality?" Peter Dunne argued, in Harvard Law Review, that given the emphasis he placed upon Dudgeon in Lawrence, it will be interesting to see whether Justice Kennedy makes reference to Schalk and Kopf. Dunne argues Kennedy has little choice if he wants to avoid the charge of inconsistency and that given the rational he argued in Lawrence on changing attitudes towards anti-sodomy laws suggests a general consensus that the marriage question is best left to the political process.

I disagree and think the argument a bit silly. A foolish inconsistency is the hobgoblin of little minds and no one can accuse Kennedy of a little mind plagued by hobgoblins. Kennedy was merely making a point and not committing himself or SCOTUS to recognizing the ECHR as valid precedent. Kennedy's point was also obiter dicta and he was surely not suggesting the court should endorse majority tyranny if the ECHR fails to 'evolve' and he can not buy into the Schalk and Kopf Court's argument of majority tyranny. This judicial safeguard is the very reason we have judicial review and he might, indeed, side with the dissent in Schalk and Kopf who were concerned with the equal protection issue that court dodged.

All this goes to my consistent complaint that the propagandists and spin doctors on the left have done an abysmal job of educating people for it does not matter if the majority agrees one class of persons gets a separate water fountain if the Constitution say otherwise they just don't get to vote on it. The late Justice Jackson said it most famously and perfectly,

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, ... and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

Finally, while the UK does provide judicial review for executive decisions but not legislative actions many judges in he UK Supreme Court are getting very concerned that the Parliamentary exception is being used as an end-run to totally castrate the court; but that's another issue. I only mention it because the concept of an independent judiciary (the best protection again faction and majority tyranny) is very much threatened in the U.S. and the U.K. Surely if the legislative branch in the UK was as subject to judicial review as the executive branch is then there would be no free-from-democracy cult of bishops permanently installed in the House of Lords — which brings us right back the the central issue raised in my post. Et des boyaux du dernier prêtre Serrons le cou du dernier roi. Ecrasez l'infame.
Oh sweet Jesus...just saw that response.