Cecil “The [original] purpose of marriage laws is to lend some system to the process of procreation.”
Upon what are you basing this?
Cecil “No question property transfer is an important part of this process, but it doesn’t constitute the whole of it.”
Nor I trust you’ll agree does procreation constitute the whole of it, since non-procreative marriages are not dissolved by state power.
Cecil “An important function of marriage is to establish paternity, so that fathers can be held responsible for the support of their children.”
Paternity can be and is established separate from marriage. Fathers who do not marry, or who divorce, the mothers of their children are still held responsible for child support.
Cecil: "Your complaint is that I said “should” rather than “must”? Please, let’s
not waste time on this."
It’s not a “complaint,” jsut a statement. And the difference between “should” and “must” is more important than you allow. For example, the Wisconsin state supreme court ruled in 1994 In re Angel Grinkey that Wisconsin “should” allow for second-parent adoptions but did not order the state to permit them. This is different from the Vermont case in which the legislature has no choice but to extend all marital rights to same-sex couples. “Should” allows for refusal. “Must” does not. But you’re right, it’s not that important in the grander scheme.
Cecil “As a general proposition, no one can argue with this. The question is whether this right ought to be extended to same-sex marriages.”
Of course the answer is “yes,” but anyway…
Cecil: "Several courts have held that a distinction can be drawn between same-sex
marriage and interracial marriage in this respect. See Hastings Law Journal, vol. 30, pp.799-955, March 1979, for a fuller if somewhat dated discussion of this topic."
A discussion from 20 years ago falls necessarily prior to the US Supreme Court’s Romer v Evans decision which subjects differential treatment on the basis of sexual orientation to equal protection scrutiny.
Cecil: “The 167,000 figure is an estimate from the U.S. census bureau for 1998.”
I would question that figure on several bases, not the least of which is a legitimate concern on the part of same-sex couples raising children to report that fact to an agency of the federal government.
Cecil: “See Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971). The court characterized the institution of marriage “as a marriage of man and woman, uniquely involving the procreation and rearing of children.” I should clarify that the court did not “uphold a ban”; the law in question did not forbid same-sex marriages. Rather, the court held that the state statute governing marriage did not authorize same-sex marriages.”
Thank you for the cite. IMHO the more recent court decisions, while of course not binding outside their jurisdictions, are the more relevant ones.
Cecil: “If you marry someone and your spouse refuses to consummate the marriage, you can obtain an annulment in virtually any jurisdiction.”
But there is no requirement by the state that the marriage include sex to be legally valid. Sure, one party or the other may seek an annulment based on refusal (or inability) to consumate, usually within a statutory timeframe. But the state does not require that sex be included in marriage to make the marriage legal.
Cecil: "Will the courts annul a gay marriage because one man refuses to have sex with
another man? Many courts are likely to say it’s none of their business."
If the marriage laws are applied equally, then certainly a same-sex marriage may be annulled based on the same legal foundation as a mixed-sex one. If the court states it’s none of their business, then the court is not doing its job.
Cecil: "But if the notion that sex involves marriage goes away, the possibility of mischief is greatly increased. Sham marriage among heterosexuals, for example to evade immigration restrictions, is currently a persistent but minor problem. Sham marriage among same-sex couples could become a much
larger problem if people use it to obtain family insurance coverage or more favorable tax treatment. Already one hears anecdotal accounts of gay guys filling out the “domestic partner” paperwork to qualify for air travel discounts."
Oh please. Like I couldn’t walk into city hall with any woman I met on the street and get married without an eyebrow being raised. Most domestic partnership statutes and policies require adherence to standards which, if violated, are grounds for dissolution of the partnership. If an employer finds his empployees are defrauding the company through the domestic partnership program, then the employer is free to terminate the employee and instigate criminal or civil proceedings. That someone might abuse a situation is not an argument for denying everyone access to the situation, any more than the possibility that someone will abuse alcohol is a legitimate argument for Prohibition.
Cecil: “You don’t think straight roommates would get “married”? Like hell. There’s a million frat guys who’d do it just for a goof.”
So what? Unless you’re advocating some sort of legitimacy test for all marriages, so what if ome frat boys marry each other?
Cecil: “The potential for abuse isn’t a compelling reason to oppose gay marriage but it’s an issue that has to be addressed.”
Again, unless you’re advocating state examination of every marriage for “abuse” then there’s no
Cecil: "High courts in Vermont and Canada have held that same-sex couples are entitled to the same rights and privileges as married opposite-sex
I believe the Canada ruling dealt specifically with common-law spouses.
Cecil: "The courts did NOT say same-sex couples are entitled to marriage as such. The Vermont supreme court explicitly referred the
question of marriage to the legislature."
The court also retained jurisdiction, so if the legislative solution does not pass constitutional muster the court can (and I feel based on reading the decisions will) order the state to open civil marriage to same-sex couples.
Cecil: "You may argue that calling a same-sex union a “domestic partnership” rather than a “marriage” is merely a semantic distinction, but it’s a distinction that rouses fierce
passions on both sides."
Oh, I don’t think at all that “marriage” vs “domestic partnership” is merely semantics. The only way IMHO for the legislature to fulfill the court’s mandate is to open marriage to same-sex couples. “Domestic partnership” is not portable across state lines, for one thing, whereas “marriage” is. Approving DP will put Vermont couples in the postion of being legally joined or not as they travel from state to state.
Cecil: “The Vermont court felt the legislature was the appropriate place to decide such things, and I agree.”
Again, if the court finds that the scheme put in place by the legislature is unconstitutional, it may order the state to open up marriage.
Cecil: “That said, if I were a state legislator and I were asked to vote on gay marriage, I would cheerfully say “aye.””
Glad to hear it. The vibe coming from Vermont seems to be leading in that direction as well.