Same-sex marriage

Cecil's Columns/Staff Reports
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(From Jill, the Moderator: This thread started when the column appeared in the newspaper, before it was posted online. I am adding the link back to the first post here: http://www.straightdope.com/columns/000128.html )

Some points regarding Cecil’s recent column on same-sex marriage:

  1. He states “No one disputes that the original purpose of marriage laws was to facilitate procreation.” Human procreation preceded the codification of marriage laws by several million years. Marriage’s original purpose was to facilitate the acquisition, consolidation and transfer of property.

  2. He has mischaracterized the Vermont Supreme Court ruling. The court did not rule that “marital rights should be extended to homosexual couples.” The court unanimously found that the state must extend all the rights and privileges of marriage to same-sex couples. The state’s failure to do so violates the state constitution’s Common Benefits clause. The Hawaii Supreme Court made a similar ruling, that although a later constitutional amendment made the state’s refusal to issue marriage licenses to same-sex couples legal, failure to extend “marital rights” to same-sex couples violated the state’s equal rights amendment.

  3. Marriage is a fundamental right in the United States, and denial of that right is precisely on par with miscegenation laws.

  4. He cited no source for his 167,000 American same-sex households raising children, but a visit to the Lambda Legal Defense and Education Fund website finds a 1997 estimate of six to 14 million children with lesbian or gay parents. Even if you don’t accept that figure, simple math would seem to dictate that in a country with a gay population estimated at anywhere from 10 to 30 million, more than 167,000 same-sex couples are raising children. Still, how many children have to be deprived of legally married parents before it’s an injustice, and since marriage is not limited to mixed-sex couples based on their ability to procreate, what do children really have to do with the discussion anyway? Which leads me to…

  5. He states that “the state’s chief motivation in promoting marriage remains the orderly propagation of the species.” In three different state supreme courts (Alaska, Hawaii and Vermont) the argument that child-rearing issues justified denying same-sex couples the right to marry was advanced, and in each of those courts the argument was rejected. To my knowledge, no court in the land has upheld a ban on same-sex marriage on the basis of procreation.

  6. He wonders at the “problem” of “wiseacre straight roommates waltz[ing] into city hall and demanding a marriage license.” So what if they do? Mixed-sex couples marry for reasons of convenience all the time and they are not questioned by the State. And the last I heard, having sex was not a requirement for married couples.

  7. Finally, he claims that same-sex marriage is a matter for legislatures rather than courts. Denial of marriage to same-sex couples is a denial of a fundamental right. Congress and the several states are unwilling to rectify this denial, thus the courts are the appropriate venue in which to pursue the securing of that fundamental right.
    [Note: This message has been edited by JillGat]

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And this would be in regards to which column? Post a link, so the rest of us can follow you. (Or is this another one that hasn’t been posted on the board yet?)

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I look forward to reading Cecil’s column, but I have to say that I don’t agree that the issue is at clear as Otto does, who says:

The idea of “property” didn’t exist several million years ago. Property is something that’s created by a non-nomadic farming society. In the last several centuries, marriage as a state-recognized entity is largely for the purpose of property. But for thousands of years before, marriage was a requirement of society, for the purpose of raising kids. It’s still largely viewed this way - that’s why marriages are mostly conducted in public and not just a form to file with the state. Also:

What are and are not rights are decided by a consensus of people who draw up constitutions. If they say that marriage is a fundamental right guaranteed to all without regard to sex, then legislatures are not allowed to decide the issue, and it’s up to the courts. But the constitutions don’t say that. At best, there is an argument that other things the constitutions do say, imply that the state can’t prevent same-sex marriages. This is the issue the courts decide, and if the constitutions are not explicit enough, then it’s an issue for legislatures.

I struggle with the issue, because I can’t think of reasons why the state should not allow property-passing rights to same-sex couples, but then again I can’t think of reasons why groups of 20 people should not be afforded these same rights, and I’m not at all comfortable with the idea of group marriages.

As for the societal side of marriage, I still think that the ideal home for raising children is with a mother and a father. Others say that a same-sex couple that is loving is better than an abusive opposite-sex couple, which I think acknowledges my point.

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“And this would be in regards to which column? Post a link, so the rest of us can follow you. (Or is this another one that hasn’t been posted on the board yet?)”

Sorry, I’m new and zealous and didn’t know the convention for posting links. Forgive my ignorance. I don’t think the column is on the board yet; I read it in my local alt-weekly which hit the streets yesterday.

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Someone’s gonna have to teach me how to do this neat quoting thing…

Curt “The idea of “property” didn’t exist several million years ago.”

Well, it existed to the extent of “my spear, my mammoth flank” but agreed, property LAW ddn’t exist then.

“But for thousands of years before, marriage was a requirement of society, for the purpose of raising kids.”

That largely depends on what culture you’re discussing.

“It’s still largely viewed this way - that’s why marriages are mostly conducted in public and not just a form to file with the state.”

I think you’re conflating the religious/social ceremony of marriage with legal/civil marriage. Pretty much all that’s required for civil marriage is the filing of a marriage license with the appropriate county clerk. The public ceremony/affirmation is not, legally, necessary. The drive for legal SSM would not affect the perogative of any church to decline to perform weddings for same-sex couples.

“What are and are not rights are decided by a consensus of people who draw up constitutions. If they say that marriage is a fundamental right guaranteed to all without regard to sex, then legislatures are not allowed to decide the issue, and it’s up to the courts. But the constitutions don’t say that. At best, there is an argument that other things the constitutions do say, imply that the state can’t prevent same-sex marriages. This is the issue the courts decide, and if the constitutions are not explicit enough, then it’s an issue for legislatures.”

The US Supreme Court in a string of decisions has ruled that marriage is a fundamental right. These cases include Loving v Virginia (which invalidated anti-miscegenation laws) and (if I’m remembering the name correctly) the Zabloski case (striking down a law barring “deadbeat dads” from marrying). The Court has protected the fundamental right to marriage for rapists, thieves and murderers; surely law-abiding same-sex couples deserve the same protections!

In the various state courts which have addressed the issue, Vermont ruled denial of marital rights is a violation of that state’s Common Benefits clause. Hawaii ruled failure to extend marital rights to same-sex couples ran afoul of their equal rights amendment. Alaska ruled the denial was an impingement on the fundamental right to marry.

“I struggle with the issue, because I can’t think of reasons why the state should not allow property-passing rights to same-sex couples, but then again I can’t think of reasons why groups of 20 people should not be afforded these same rights, and I’m not at all comfortable with the idea of group marriages.”

I believe that polygamy should be legal, despite my personal comfort level around the issue. If pro-polygamy forces can marshall the support to have their marriages recognized, more power to them. The issue is really independent of SSM, though.

“As for the societal side of marriage, I still think that the ideal home for raising children is with a mother and a father.”

Probably because that’s the one you’re most used to. But since procreation is not a requirement for marriage, children aren’t truly germane to the discussion beyond the hardships deprivation of legal marriage to their parents would cause.

Sorry, I hope I’m not being too long-winded for the board.

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This column just appeared in the newspaper and will be posted on the site next week. We can add a link then.
Jill

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… Until then, good points, Otto, and you can find out about quoting and other neat stuff on the technical questions page or by clicking the UBB Code/Smilies links on the posting page.

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Otto writes:

Not so. The [original] purpose of marriage laws is to lend some system to the process of procreation. No question property transfer is an important part of this process, but it doesn’t constitute the whole of it. An important function of marriage is to establish paternity, so that fathers can be held responsible for the support of their children.

Your complaint is that I said “should” rather than “must”? Please, let’s not waste time on this.

As a general proposition, no one can argue with this. The question is whether this right ought to be extended to same-sex marriages. 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.

The 167,000 figure is an estimate from the U.S. census bureau for 1998.

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.

Sure it is. It’s just not a requirement enforced by the police power. If you marry someone and your spouse refuses to consummate the marriage, you can obtain an annulment in virtually any jurisdiction. 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. 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.

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. The potential for abuse isn’t a compelling reason to oppose gay marriage but it’s an issue that has to be addressed.

You’re entitled to your opinion, but I think you misunderstand the issue. High courts in Vermont and Canada have held that same-sex couples are entitled to the same rights and privileges as married opposite-sex couples. 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. 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. The Vermont court felt the legislature was the appropriate place to decide such things, and I agree. That said, if I were a state legislator and I were asked to vote on gay marriage, I would cheerfully say “aye.”

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Heck, Otto. Someone ought to teach you to do this neat thing called “Citing your references.” Your original post was, essentially, bluster since it had exactly zero references. On this board, folks tend to get very testy if you announce your opinion and call it fact.

Here’s an example of posting an assertion with a citation after it:

The Emancipation Proclamation did not end Slavery in the United States of America; that required an amendment to the Constitution. Please check: Amendment 13, United States Constitution.

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Lest you think, Otto, that my previous posting was a flame, I shall now post a flame to show you the difference:

[flame]
You traipsed in here and with your very first post uttered nonsense you didn’t even have the guts to defend by giving even ONE measly grain of support to your OPINION and, to top it all off, you aimed it at Cecil! Exactly how stupid do you think the Teeming Millions are that they should just take your unsupported and uneducated word that you are correct and Cecil is wrong? Now, admittedly, you may have pursued an education, but that doesn’t necessarily mean you actually got an educattion; therefore, uneducated. Evidently, from your very first post, you didn’t get educated. Sad. Sure glad I didn’t pay for that waste of time and energy. Sometimes I feel sorry for teachers.
[/flame]

Now, that’s a flame. Please feel free to:

(1) Compare that with the previous post.
(2) Learn the “culture” of the board, any board, to which you plan on posting prior to posting to it.
(3) Finally, if in doubt about what’s cool (you will note the avoidance of the moronic spelling of that word as “kewl”) and what’s not, just ask one of your friendly Teeming Millions.

Seriously, we’re here to help stamp out ignorance. Please don’t make the job any harder than it has to be.

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Now, now Monty. I thought Otto had some good points, and I also don’t always cite my references (though I can produce em if I have to, usually). Most people don’t, though. Anyway, this is a good place to discuss/debate content of the columns, including opinions of them, and it’s always a treat when Cecil chimes in. Any REAL flaming should occur in the BBQ pit.

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Aw, shucks, Jill. 'Twas just an example; nothing personal.

(Guess I better run to the BBQ Pit to see if I got flamed for this!)

13

I’m surprised by this statement, if it is true in the U.S. It’s certainly not the case in Canada or England. Whether you have a civil or a religious ceremeony, it must be in public, before witnesses, such as in a registry office in England.

The reason for the publicity is that a marriage is a change in your civil status that should be made publicly.

and the stars o’erhead were dancing heel to toe

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“I’m surprised by this statement, if it is true in the U.S. It’s certainly not the case in Canada or England. Whether you have a civil or a religious ceremeony, it must be in public, before witnesses, such as in a registry office in England.”

It’s not the ceremony that makes the marriage. It’s the filing of the proper legal paperwork. There must generally be a witness to this in the same way there must generally be a witness to the signing of many legal documents (wills, powers of attorney, etc.). But the actual signing of the papers may be done in a private setting with no attendant ceremony whatsoever.

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otto registers on january 28, and within two days Cecil replies to him?

otto, do you realise how close you have been to greatness?

and the stars o’erhead were dancing heel to toe

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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

couples."

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.

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Monty: "Heck, Otto. Someone ought to teach you to do this neat thing called “Citing your references.” Your original post was, essentially, bluster since it had exactly zero references. On this board, folks tend to get very testy if you announce your opinion and call it fact. Here’s an example of posting an assertion with a citation after it:

The Emancipation Proclamation did not end Slavery in the United States of America; that required an amendment to the Constitution. Please check: Amendment 13, United States Constitution."

(followed by)

“Lest you think, Otto, that my previous posting was a flame, I shall now post a flame to show you the difference:”

Boy, I’m sure glad you posted that second message. Otherwise I might have been tempted to respond to your first message with a flame. Lest you think, Monty, that my previous sentence was a flame, I shall now post a flame to show you the difference: Jesus Christ, are you ever a pompous ass! Here’s someone who acknowledges he’s new to the board and even apologized for not knowing all the conventions, and rather than address his points in any way you choose instead to slam him for not living up to your pisant standards. Piss off, you wretched gasbag!

Now then, regarding your assertion of my lack of citation: In fact, I cited exactly as half as many sources as Cecil did in his original article (one to his two) and it so happens it was the same source (the Lambda legal Defense and Education Fund website) that Cecil cited. If you’d like additional sourcing for one or more of my points, please feel free to ask. Like a gentleman.

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"otto registers on january 28, and within two days Cecil replies to him?

otto, do you realise how close you have been to greatness?"

Shucks, folks, I’m speechless. (yeah right, like that’ll ever happen)

19

That’s a good one, Otto. It is incumbent on you, as the party who walked in and started making assertions, to provide proof of those assertions. Or don’t “gentleman” in your realm adhere to that concept?

As to your being new: clearly identified on the site is a FAQ. There’s also a little discussion on UBB coding.

Stick with the practice, though. One day, you’ll get the hang of the quoting and bolding.

(repaired a small misspelling at the request of the pompous author)
[Note: This message has been edited by JillGat]

20

well, the column in question appears to be up now. hope this works… http://www.straightdope.com/columns/000128.html

speaking from the state of vt, my impression from all the news coverage was that the court had turned the ruling on the issue over to the state legislature, with the requirement that same-sex couples be extended the same legal rights as opposite-sex married couples.
i don't, however, recall any mention of the court insinuating that the legislature had to rule same-sex **marriages** legal. and, knowing my local alt-weekly, i think they would have mentioned it were such a thing true.
admittedly, i haven't done any research on this issue, other than being a citizen of the state in question who pays attention to the news. but the local feeling seems to be that SSM should be legalized, and i think it'll swing that way.

-ellis