California Supreme Court overturns gay-marriage ban

Great Debates
21

[QUOTE=beowulff]
Whenever anyone starts a debate on gay marriage, I always ask “Why is the government in the ‘Marriage Business’ in the first place?”
As far as I’m concerned, Marriage is a religious function, and any legal issues should be taken care of with a “civil union” type of contract.
[/QUOTE]

Let’s leave aside gay marriage for a minute. Only devoutly religious people get married? Even athiests that I know still get married to each other.

The state by recognizing the institution of marriage is simply accepting what is a large part of society and is serving that interest by allowing this institution as a function of law.

Sure, marriage has its roots in religion. No doubt about that. And if it was strictly a religious institution, then I could see your argument and agree with it. It would be like the government recognizing and regulating Baptisms or Bar Mitzvahs.

But since marriage serves a secular function, and the state allows secular marriages to proceed, then what is the problem? Imagine how silly it would be if my wife and I consider ourselves married, our family does, the neighbors do, etc., but the law wants to have a stubborn resistence to the idea so that we have to continue to act as separate entities.

Now, gay marriage. Historically homosexual sodomy has been frowned upon and in this country it has largely been illegal. In the latter half of the last century, it has gained more acceptance to the point where it is today.

Has it become an accepted practice like heterosexual marriage? Should the government redefine marriage? That’s why we have this thread and this debate. It is not a settled issue.

It’s very possible that it should be allowed, but this is a matter for the legislatures, not the courts.

22

[QUOTE=jtgain]
Let’s leave aside gay marriage for a minute. Only devoutly religious people get married? Even athiests that I know still get married to each other.

The state by recognizing the institution of marriage is simply accepting what is a large part of society and is serving that interest by allowing this institution as a function of law.

Sure, marriage has its roots in religion. No doubt about that. And if it was strictly a religious institution, then I could see your argument and agree with it. It would be like the government recognizing and regulating Baptisms or Bar Mitzvahs.

But since marriage serves a secular function, and the state allows secular marriages to proceed, then what is the problem? Imagine how silly it would be if my wife and I consider ourselves married, our family does, the neighbors do, etc., but the law wants to have a stubborn resistence to the idea so that we have to continue to act as separate entities.

Now, gay marriage. Historically homosexual sodomy has been frowned upon and in this country it has largely been illegal. In the latter half of the last century, it has gained more acceptance to the point where it is today.

Has it become an accepted practice like heterosexual marriage? Should the government redefine marriage? That’s why we have this thread and this debate. It is not a settled issue.

It’s very possible that it should be allowed, but this is a matter for the legislatures, not the courts.
[/QUOTE]

Sorry, but I don’t see it.
I my perfect world, you go to the Religious Officiant of your choice to “Get Married.”
You go to the Government to get whatever legal document that provides marriage benefits (of which their should be few to none). So, that way a couple who doesn’t want to get married, can still have insurance and health benefits.
I’m not a scholar on marriage, but I suspect that the govenments involvment comes from the time when there was little (or no) separation between Church and State. As we move farther and farther away from those times, I think it’s only natural that the government should “divorce” itself from Marriage.

23

[QUOTE=jtgain]
But since marriage serves a secular function, and the state allows secular marriages to proceed, then what is the problem? Imagine how silly it would be if my wife and I consider ourselves married, our family does, the neighbors do, etc., but the law wants to have a stubborn resistence to the idea so that we have to continue to act as separate entities.
[/quote]
That is precisely the situation many homosexual couples find themselves in.

There’s a *reason * we have a Constitution - to protect fundamental rights from being ignored or voted into nonexistence by temporary or basely-motivated political or social tides. There’s a *reason * laws are subject to review for constitutionality by courts with as much insulation as practicable from those tides.

We’re having this discussion because of the growing realization that those social tides have violated those fundamental rights. It’s never easy to admit having been badly wrong about something, and ISTM that’s what underlies the strength of the backlash - but the realization and adjustment can be made, and quickly, as we’ve seen in MA already.

24

[QUOTE=jtgain]
Sure, marriage has its roots in religion. No doubt about that.

[/QUOTE]

Cite?

Marriage as a social institution predates most if not all extant religions.

25

[QUOTE=beowulff]

You go to the Government to get whatever legal document that provides marriage benefits (of which their should be few to none).
[/QUOTE]
Inheritance, medical decisions, child guardianship … how would those get resolved without anybody in particular having a presumed legal standing to do so?
I am always bemused by the argument that recognizing gays’ right to legal marriage is improperly “redefining” the institution, so to end that problem it should be eliminated altogether.

26

[QUOTE=ElvisL1ves]
Inheritance, medical decisions, child guardianship … how would those get resolved without anybody in particular having a presumed legal standing to do so?
I am always bemused by the argument that recognizing gays’ right to legal marriage is improperly “redefining” the institution, so to end that problem it should be eliminated altogether.
[/QUOTE]

Huh?
What happens if you don’t have a will? A court will decide.
If you want to make sure that your spouse gets whatever benefits are available, than you file a form 339 stroke 86 zed double X and that wish is recorded. I don’t see any reason why an UNMARRIED person can’t bestow upon a friend all of the rights that a married person can to their spouse.

Everyone is just caught up in “old think.” Just because it’s always been done this way, that doesn’t mean that there isn’t a better, fairer way to do things…

27

Active discussion already going on in this GD thread. from just a few days ago.

28

[QUOTE=jtgain]
It’s very possible that it should be allowed, but this is a matter for the legislatures, not the courts.
[/QUOTE]

That raises two issues. One, the California legislature DID pass a bill making marriage gender neutral. Twice. It was vetoed by the Governor.

Second, it became an issue for the courts because the law that was passed specifically making marriage only between a man and a woman was determined to violate the California state constitution. That makes it a matter for the court, since it is their job to review laws and determine if they are constitutional or not.

29

[QUOTE=Polycarp]

  1. “…unless doing so would be against that state’s public policy” has the distinct character of Carrie Nation’s sister Emma’s secondary shadow. In other words, it’s found nowhere in the Constitution’s text but is a convenient way for a state to refuse to do its constitutional duty. I find it less implied by the trext than the “Right to Privacy,” which one can infer from the Fourth and Fifth Amendments. (Or, in other words, people advocating the “public policy exception” are simply saying, “I’ll be a Textualist or Originalist until it’s inconvenient.”’
    [/QUOTE]

It may be a bad idea, but it’s a well established idea in law. You can find cases supporting the public policy exception dating back to at least the mid 19th century, with the public policy exception argument being made, and given some consideration, at least as early as 1810 (Greenwood v Curtis, 6 Mass 358, with the question as to whether or not Mass. is obligated to compel payment of a debt that the contract said would be paid in slaves).

Please keep in mind that my opinion that DOMA is probably constitutional has nothing to do with my opinion of the moral rightness of the law itself. Law isn’t the same thing as equity.

30

[QUOTE=Antinor01]
That raises two issues. One, the California legislature DID pass a bill making marriage gender neutral. Twice. It was vetoed by the Governor.
[/quote]

Correct. I should have specified that I meant the legislative process. Obviously the Governor could veto a gay marriage bill like any other.

[/quote=Antinor01]

Second, it became an issue for the courts because the law that was passed specifically making marriage only between a man and a woman was determined to violate the California state constitution. That makes it a matter for the court, since it is their job to review laws and determine if they are constitutional or not.
[/QUOTE]

I’ll continue this one over at the GD thread..

31

[QUOTE=jtgain]
I’ll continue this one over at the GD thread..
[/QUOTE]

This is the GD thread.

32

Getting rid of “marriages” as a civil institution is naive. It would require writing or rewriting a staggering body of legislation. And what do you replace marriage with? A legal contract? You then create the risk that a significant percentage of the population is deprived of the ability to have a “spouse.”

33

[QUOTE=Cerowyn]
Getting rid of “marriages” as a civil institution is naive. It would require writing or rewriting a staggering body of legislation. And what do you replace marriage with? A legal contract? You then create the risk that a significant percentage of the population is deprived of the ability to have a “spouse.”
[/QUOTE]

It’s also a staggeringly bad move from a strategic point of view. The favorite drumbeat of the anti-marriage movement is that gay marriage is somehow a threat to traditional marriage. Trying to achieve equality by advocating the total destruction of marriage would be a validation of the anti-marriage camp’s propaganda.

34

[QUOTE=BrainGlutton]

  1. But does that mean other states, under the “full faith and credit” clause of the Constitution, must recognize as married gay couples who got married in CA? If they refuse, that would present a federal issue, and then what?

[/QUOTE]

This has been a potential issue for quite a while, even before states legalized SSM, and has not to my knowledge been decided. The potential issue in the past has been on the recognition of gender reassignment surgery - I believe some states consider a person to be the gender on their birth certificate for life (Texas springs to mind). This has come up in the instance of assignment to prisons, for example, but it also poses a marriage problem. If a person born male, now female, marries a male in a state that recognizes GRS, and the couple move to a state that does not recognize it, is the marriage valid in that state? As far as I know, there hasn’t been a decision on this, and this situation has been around a lot longer than SSM.

35

[QUOTE=Cerowyn]
Getting rid of “marriages” as a civil institution is naive. It would require writing or rewriting a staggering body of legislation. And what do you replace marriage with? A legal contract? You then create the risk that a significant percentage of the population is deprived of the ability to have a “spouse.”
[/QUOTE]
This is a good point I never considered. But I don’t understand the last line. How would having marriage as a “legal contract” prevent a significant portion of the population from having a “spouse.”

36

[QUOTE=beowulff]
Huh?
What happens if you don’t have a will? A court will decide.
[/quote]
On what basis?

And if you don’t? Who gets to say?

You just can’t make yourself call it “marriage”, can you?