I don’t know off the top of my head. But that’s a different issue. My point to Miller was solely that when the idea was discussed, suddenly the usual cry for all the equal stuff took a back seat. as puddlegum had asserted.
If I recall correctly, part of their legal strategy was to not argue the case that way. They were trying to place all the burden on the other side. I didn’t/don’t fully understand it, but I gather it’s not an uncommon legal strategy.
Heck, as long as you’re here, what are your thoughts regarding post #77, megellan?
Those two things aren’t at all comparable. We don’t have a system where men “vote” and women “X”; men and women vote. They go to the same places, vote for the same people, and their votes go to the same place. Women have the vote, not some ghetto version of voting.
Civil unions aren’t the same thing as marriage; they aren’t recognized as such, and they exist for the purpose of enforcing bigotry. They are the modern equivalent of segregation. We’ve done this before, and the result isn’t equality. Even if they were created to be identical to marriage (which would never happen, since making them inferior is the point) they wouldn’t stay the same; if they are two different legal entities, then they can be changed without changing the other. And naturally, all the changes would be to cement civil unions as inferior.
I’m definitely pro gay-marriage, but the OP’s argument doesn’t work.
By analogy: “Why is someone who once got a DUI allowed to buy beer, but not my 13-year old son?”
Even if there were some hypocracy here (and there isn’t), it’s not immediately obvious why we should allow everyone to marry, and not instead deny former criminals the right to marry.
Again, I’m pro gay-marriage but let’s not resort to arguments like this.
Right. And that’s precisely the opposite of what you’re proposing for the gay marriage debate.
Well, that’s not really accurate, is it? When the idea was discussed, it was pointed out that your solution does not, in fact, treat both groups equally. It treats them differently, with different bodies of law governing each group.
You’re wrong, Miller. That is precisely what I advocate and have argued for: let heteros have marriage, let gays have civil unions (or whatever other distinguishing term we can come up with), and have both separate groups access the same single set of laws. THAT is my position, regardless of what you think you remember.
Wrong again. 100% wrong. See above. Maybe you’re confusing me with someone else. My idea is precisely what I just described.
When you say “single set of laws”, do you mean that “marriage” and “civil union” will, for all purposes, be interchangeable? I’m not sure how it could work otherwise.
But it’s not. What you’re describing is not a situation in which one set of laws governs everyone. The situation you’re describing is of two different sets of laws. You keep saying it’s one set of laws, but that’s simply, objectively, and inarguably incorrect. And you keep analogizing it situations (like voting laws) that are set up in precisely the opposite way of what you’re arguing. It’s mind-boggling to me that you can’t see this, because it’s hardly an abstruse or esoteric point. It’s literally as simple as 1 +1 = 2. Marriage + civil unions = 2 sets of laws.
So will there be something like:
Civil Code Section 103.1. The definition of “marriage” is…
Civil Code Section 108.1 The definition of “civil union” is…
… with all the text in 108.1 being identical to 103.1, except “marriage” is replaced by “civil union”? And if not identical, what differences will be necessary? 103.1 describing the participants as “a man and a woman” while 108.1 says “two adults” ?
This will go nowhere. Again. I sense that you are being genuine in your confusion, but I assure you that I am genuinely befuddled by by both what I perceive to be your honest confusion and/or your insisting to argue from make-beleive land. It’s as if I’m holding one balloon, I tell you I’m holding one balloon, yet you simply insist I’m holding two. 
While offering zero evidence. and you can’t, because the fact is, I’m holding ONE balloon.
And your response will be, “No. You’re holding two balloons.”
Somewhat, but the crucial part is something like this:
"Those couples that have been joined by Marriage and those couples that have been joined by Civil Union shall both be governed by the set of laws outlining the benefits and privileges described below. Both groups are to enjoy these benefits equally and fully, with no disparity between the two groups. If any change is made to any item on the list, the change must apply to both groups—those joined by Marriage and those joined by Civil Union.
<set of laws outlining benefits and privileges goes here>
*By the way, you still owe me an apology. If you disagree, we needn’t converse further.
*
I could have written exactly the same thing, word for word, except swapping around the ones and twos.
Fucking weird, isn’t it?
[sub]Why can’t I let this go?[/sub]
The problem with that is that there’s no barrier against someone coming in after the fact and amending that part of the law to say, “Except for X, Y, and Z, which will pertain only to marriages, and not to civil unions.” That’s why I’m saying they’re two different sets of laws - as long as you can amend one without amending the other, then they’re two separate things, even if their content starts out identically.
Here’s an example of what I’m talking about:
And bam: we’re back to inequality. Because as long as the two relationships are defined differently under the law, then they are in effect governed by two separate bodies of law, even if the two bodies are initially identical.
On the other hand, if the law just says:
Well, that’s a hell of a lot harder to come in and amend in such a way that it only applies to one kind of relationship, because the law doesn’t recognize a difference between the two. In order to exclude homosexual relationships, you’d first have to pass a law that recognized the two relationships as separate, and then pass a second law altering the rights of one group over the other. It is, unfortunately, not an insurmountable barrier, but it’s a much firmer protection than what you’re suggesting.
As an added bonus, it’s a much shorter law, which could potentially save us dozens of dollars in government ink.
This seems unnecessarily complex for the benefits offered, such benefits continuing to remain elusive at best, and there is more than adequate precedent that numerous states wouldn’t accept Civil Unions and have, in fact, moved to outlaw Civil-Union-like structures.
I’d guess that some states will never accept Civil Unions as an acceptable gay marriage substitute (or at least not within, say, 30 years, a political eternity) while a slowly-increasing number of states will. I’m mildly curious what the tally will be when SSM reaches its tenth anniversary in Canada, and its fifteenth, and its twentieth… with no social cataclysm evident. At what point will enough Americans realize that resistance to the idea is pointless?
And also look at it on an international level - it makes it easier for the US to accept other countries discriminating against US citizens. If the other country opposes gay marriage, it is a greater step for them to say they will refuse to recognize the marriages of some US citizens in their country, rather than to say they will recognize all marriages of US citizens, but not civil unions.
The idea that some heterosexual couples cannot or choose not to have children is somehow a fatal flaw in the public policy argument of marriage as a legal institution to encourage procreation is patently ridiculous. We in the US, and humanity as a whole, have never required a public policy or legislation based on such a policy to be 100% effective or applicable in every situation. That would be stupid.
As for equal protection, the fact that a law may discriminate does not make it per se unconstitutional on EP grounds. All laws are discriminatory and even a law that discriminates based on race or religion, among the most protected classes, can be upheld if it meets the relevant standard. Sexual orientation has never received such a high level of protection as a class and numerous courts have held that such discrimination was not violative of the EP clause because of the public policy considerations and the facts of biology. Others courts have held differently or have based their rulings on state constitutional provisions.
Personally I don’t think anyone in the US has a constitutional right to marriage though I’m in all likelihood in the minority. If all 50 states repealed their relevant statutes (eliminating full faith and credit considerations) I don’t believe anyone could assert a constitutional claim to compel states to create a secular institution of marriage or recognize a religious marriage. If marriage disappeared would that prevent anyone from having the intimate personal relationship of their choice? If every state extended marriage to same-sex couples through statute or finds it necessitated by the state constitution they are free to do so but to pretend that to recognize the marriage of a childless heterosexual couple logically demands that same-sex couples must get that same recognition is complete and utter fallacy
Sure, let it encourage procreation, whatever. But when was procreation ever a mandatory element, and if it is not, then what business is of the state to question whether a couple intends to procreate or not, and thus a lack of the ability to procreate is not a reason to throw up barriers.
In short, that some (most, arguably) couples marry as a precursor to reproducing has no obvious bearing on the couple that cannot or will not reproduce, including homosexual couples, so why bring it up at all?
“I want to do X. I see Johnny doing X and I want to do X, too.”
“You’re not allowed to do X. Johnny is allowed because he’s white/black/Christian/Jewish/male/land-owning/special/rich/whatever and you’re not.”
“Is being white/black/Christian/Jewish/male/land-owning/special/rich/whatever mandatory?”
“No.”
“Then why can’t I do X?”
I have to figure is something isn’t a mandatory element (even if it is a long standing traditional element), there’s no value in demanding it, or using it as a deal-breaker.
What is the value of making this distinction? I’m sure one can find various legal justifications pro or con, but what’s the point? Does American society actually need protection from gay marriages?
That’s not the argument, though. The best argument is that some citizens are enjoying a right, other citizens also want to exercise that right, and there is no societal benefit in blocking them from doing so. The procreation argument is a response position, as in the following:
“Gays can’t be allowed to marry. Marriage is about procreation.”
“Does marriage have to be about procreation?”
“No.”
“Is a straight couple who cannot or will not have children denied marriage?”
“No.”
“Then is fair to say that marriage is not always about procreation, right?”
“I guess.”
“Then a homosexual marriage should not be denied by using a procreation argument, since marriage is not always about procreation.”
Feel free to rewrite these hypothetical conversations if they seem too contrived.
Nobody should bother starting a pro-SSM argument talking about procreation. Rather, challenge anyone who tries to start an anti-SSM argument with one, because it’s not a sound position to take. It’s too easily defeated and made irrelevant.
Forgive me but I’m still learning the quote mechanism, especially on a phone. This is a response to Bryan Ekers.
I addressed the equal protection and childless couple arguments because I’ve seen them made by other posters. As for procreation being a mandatory element of marriage I never said that it was or meant to imply that it was. But as per my previous post it doesn’t need to be mandatory or present in any particular marriage. However, the public policy of simply encouraging marriage between heterosexual couples for procreation and to provide a stable environment for the raising of children is most certainly relevant as it was cited by numerous legislatures when promulgating marriage statutes and by numerous courts hearing cases on the subject. Marriage isn’t a right. It’s an institution created by gov’t pursuant to the stated public policy objective and extends a benefit to certain people to further that objective. Gov’ts can do that as long as its not constitutionally impermissable. Since same-sex couples cannot normally procreate extending that benefit to them does nothing or little to further that policy, so they are not eligible for its benefits, or at least can be logically excluded based on that fact if the legislature deems it so. Other benefits such as tax breaks are simply further benefits to encourage fulfillment of that policy objective. Benefits such as employer health benefits are mostly in the private realm and should be dealt with under private contractual negotiation.
I myself have a daughter born out of wedlock and in my home state of Illinois I don’t have the same rights or remedies available if her mother and I had been married and divorced. Sucks and I’m not happy about it but I understand the argument and it’s well established in jurisprudence. The reason I am in an inferior position is a law passed for the same public policy reasons.
My post wasn’t meant to be anti ssm but simply to address two arguments I saw as fallacious. I think your argument is much better and have no problem with courts ruling according to state constitutions or legislatures passing a statute creating ssm. However, the public policy argument has been addressed by the US Supreme Court, numerous federal courts, and centuries of common law and rarely, if ever, has it been labeled as utter bs. Its not the courts job to second guess such policies if they are not unconstitutional. Its the job of the legislature to enact policies it sees as wise and important or to reject them.
What I have trouble understanding about your position, and always have had trouble understanding, is that what you suggest seems so non-parsimonious that I don’t see its point. If the only difference between “marriage” and “civil union” is the gender of the two people involved, and assuming you don’t have any animus against gay people (which I believe you’ve said), then why is the fact that one couple entering into this thing is gay and the other straight important enough to have separate terms for the same thing? What’s the benefit? It seems like you must be drawing some sort of distinction, or else why the insistence on separate terms?
I think that’s the thing that people aren’t understanding, and I think if you could just say, “Legal relationships between gay couples shouldn’t be called marriage while legal relationships between straight ones are because of X”, I think you might go a long way towards clearing it up. People might still disagree with you, of course, but at least they’d understand you. Because I know that personally, when somebody says, “I’m ok with gay couples getting the same rights as straight ones as long as it’s not called marriage”, I tend to make the assumption (and maybe I shouldn’t be so hasty jumping to conclusions) that the person believes that gay relationships aren’t as important as straight ones, or that gays are somehow inferior to straight people. So I look forward to being proved wrong in my assumption.
I can understand the political difficulties of allowing same sex marriage in the US but here in Australia the majority of people are in favor of it, just as they are in favor of voluntary euthanasia. We even have an atheist Prime Minister but still the politicians oppose moves to change both laws.
And that is the problem. We have a pathetic two party political system like yours and the members of both parties stand for nothing except their continued re-election. All it would require to solve the whole problem would be a leader who, first day in office, announced that it was going to be enacted as law so learn to live with it. In a few years it would be the status quo and no-one would think to change it.