Same-sex marriage

Cecil's Columns/Staff Reports
21

It is my fervent hope that soon the more enlightened among our citizenry will put the issue of same-sex marriage to rest for good. My God . . . this is the 21st Century. We need to forge ahead to the next frontier in the fight for hominid rights.

I speak on behalf of APE – the Association for Primate Empowerment – an advocacy group pressing the case for the official recognition of marriage between humans and their nearest relatives – Jane Goodall’s highly publicized anti-APE rants notwithstanding.

I call upon all of the high-minded among you to join in breaching the ramparts to righfully acknowledging this love that for far too long has dared not speak its name.

22

If gay marriage is OK, then polygamous marriage must also be OK, for all the same reasons. After all, if 3 (or 5 or 15) people want to build a stable life together, why should the state stop them?

23

Monty “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?”

I provided almost as much documentation as appeared in the original column. Some of my points were opinion; others were not. Again, if you would like more specific references for any point, please feel free to ask. Or don’t, because it’s so much more helpful to the free exchange of ideas to refrain from asking for information in favor of repeating complaints about a lack of information.
As to your being new: clearly identified on the site is a FAQ. There’s also a little discussion on UBB coding.

24

“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.”

The court ruled that the state must extend through legislation all the rights, benefits and privileges of marriage. You’re correct that the court did not mandate marriage as the solution; however, IMHO either the legislature or the court (which retained jurisdiction) will come to realize that a “separate but equal” domestic partnership arrangement will not fulfill that mandate. One of the justices wrote in a concurring opinion that the court should have ordered the state to start issuing marriage licenses. From that I get the impression (as an outsider) that the court is not going to brook a lot of nonsense from the legislature, which from what I have read of the proceedings is conducting itself in a very thoughtful manner. It may be that the legislature will go ahead and pass a marriage statute without any further prompting from the court.

25

Jomo “I speak on behalf of APE – the Association for Primate Empowerment – an advocacy group pressing the case for the official recognition of marriage between humans and their nearest relatives – Jane Goodall’s highly publicized anti-APE rants notwithstanding.”

Such restraint. We got three whole days into the topic before someone compared the love and commitment of two consenting adult human beings to his desire to rut with a chimp. Jomo honey, if you want to marry a chimp, you go right ahead. I guess, like the old song, you want a gal just like the gal who married dear old dad.

26

KenP “If gay marriage is OK, then polygamous marriage must also be OK, for all the same reasons. After all, if 3 (or 5 or 15) people want to build a stable life together, why should the state stop them?”

There is IMHO a somewhat more compelling argument for banning multiple marriage. Marriage laws deal in large measure with property transfer, multiple spouses complicate that transfer. For example, states establish the distribution of property for the survivors of those who die intestate. Usually the spouse gets most or all. With multiple spouses, which spouse gets how much of what? However, I don’t find this all that compelling a reason either, and I believe multiple marriage should be legal. Now its proponents need to find themselves a sympathetic judge.

27

Irishman:

Sorry, didn’t mean to bite your head off (and on your first post, too.) It’s just that many people forget to link to the article, and it’s kinda important everyone get the chance to read what was said before. This is especially important if it’s an old article that someone dug up. It only dawned on me after I started the post that maybe the article wasn’t posted on the web yet.

Regarding quoting and links - read the FAQ. There’s nifty instructions on quoting and other font tricks to help emphasize points.

I thought you raised some good points. Apparently Cecil did to, or he wouldn’t have responded.

Otto:

Cross-culturally, a major part of marriage is to provide for the welfare of the children. This was often accomplished via establishment of paternity - yeah, like marriage establishes paternity. Another provision is inheritance. I think that’s what is meant by facilitating procreation. Not so much making the act of sex easier, but promoting social structures to assist in raising children.

However, marriage often takes on other functions, such as marriage for status or political gain, or marriage for love. And as stated, not all married couples plan to have children. Since our cultural shift, the issue of marriage and children have become somewhat independent.

Monty, chill out. You’re getting awfully testy against a newbie. If you want to instruct, start off politely - if you start pissing on his head first thing, he’s going to be much less likely to listen to you.

Otto: “Like a gentleman.”
Monty:

Come on Monty, who posts a cite for every statement they make? Yes, it’s good form to back up your assertions with references, but many people don’t unless asked to. And some don’t then. If you want his references, ask. If he doesn’t post them, then take him to the pit.

As far as multiple marriage, when you get in the business of defining marriage as a social contract for legal purposes, then I don’t see how separating polygamy from monogamy really has any basis. If marriage serves the purpose of providing for children, what is to keep a household of three or four adults from providing a more stable household (with pooled income) and shared responsibilities? There just isn’t a good argument to prevent multiple party marriages. As for arguing over ownership of property et al, those are legal hurdles that should be solvable. Given the problems with ownership currently faced with serial marriages and divorces, it can’t be that much more complicated. Just means we need a better system of prenups. :wink:

28

Couple of additions,

Otto
in my experience, purely annecdotal of course, some posters play the “cite your reference” card as a rhetorical attack on a poster or their opinion.

Cecil
I am skeptical of your statement that the original purpose of marriage laws is procreation, surely people were boinking successfully long before they were writing laws about it. Are you suggesting that the responsibility for rearing offspring is not a property issue? I would disagree.
Also, while adultery, refusal to put out, and (I think) refusal to cohabitate may be legitimate grounds to dissolve a marriage, it does not follow that they are requirements of a marriage. If two people publicly announced their celibacy, would ones’ employer be able to refuse partner benefits, I don’t think so,
Larry

29

A god reason for using marriage in early societies is that tribes were generally quite small. While thye had little direct knowledge of genetics, our ancestors had some notion that mixing bloodlines too readily was not good for the tribes. (CITE: I believe that “The Naked APe” by Desmond Morris is one of many cites for this. Also, “The Cartoon Guide to Genetics.”) Marriage also enforces that a male has a female with whom to attempt procreation while keeping her as essentially her family’s property before marriage. Marriages without issue could be broken up in many eraly societies, because, after all, the purpose was for procreation.

That doesn’t mean that’s what it’s for now, just what it was.

As a single male who thinks it unlikely he will get married, I’ll weigh in with the thought that, honestly, I don’t think that same sex partners are entitled to benefits. I don’t think that room-mates are entitled to benefits. also don’t think that wives, husbands, kids, etc. are entitled to benefits.

You’re straight and married? Great. Your spouse wants medical coverage, let her or him get a job. You have kids? Terrific. Don’t ask me to pay for their insurance if you can afford it. Can’t? Maybe you should have thought about that. My room-mate can’t afford insurance. i would put him on my coverage if I could, even though we’re both straight. But if he can’t be on my insurance, I don’t want your dependents to also become my dependents.

Bucky

Oh, well. We can always make more killbots.

30

I weigh in only to deal with the erroneous legal interpretations posted to date in this thread, specifically regarding the constitutionality of not recognizing same-sex marriages.

Quote from Otto:

This quote shows ignorance of what happened in the Romer case, as well as ignorance of how the equal protection clause of the Fourteeth Amendment is applied during review of state actions. All methods of discriminating between groups of people are subject to ‘equal protection scrutiny’. The question that usually determines the issue presented is the level of scrutiny which will be applied. When a law burdens a ‘fundamental right’ or targets a ‘suspect class’, the USSC will impose a strict scrutiny, rarely allowing such laws to pass muster. Otherwise, a law which does not burden such a right, or target such a class, will be allowed if it is rationally related to a legitimate legislative end. Within this rationale, I cannot keep blacks from going to my public school (Brown v. Board of Education, 347 U.S. 483 (1954)) , but I can be required as an illigitimate child to obtain a court-order of paternity while my parent is alive in order to take as an heir (Lalli v. Lalli, 439 U. S. 259 (1978)). Similarly, I cannot as a state prevent married persons from using contraception devices, which would burden the fundamental right to privacy (Griswold v. Connecticut, 381 U.S. 479 (1965)), but I can limit the number of children for which parents can receive AFDC payments, because there is no fundamental right to receive welfare (Dandridge v. Williams, 397 U.S. 471 (1970)).

In Romer v. Evans, __ U.S. __ (1996), the USSC held Colorado’s Amendment 2, passed by voter referendum in 1992, to be unconstitutional. Amendment 2 had attempted to add to the Constitution of the State of Colorado a provision which precluded all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” In striking down the amendment, the USSC held that the amendment was overbroad, and served no legitimate government interest. It should be noted what the decision did NOT do: it did not hold that homosexuals were a ‘suspect class’ entitled to strict protection, nor did it hold that the amendment infringed a fundamental right. This is important, because the Colorado Supreme Court *had held that the Amendment infringed the fundamental right of gays to be involved in the political process (Evans v. Romer, 854 P.2d 1270 (Colo. 1993).

This should be no surprise. The 6-3 majority opinion was written by Justice Kennedy and signed onto by Justice O’Connor. The conservative Justices Scalia, Rhenquist and Thomas dissented. Had the liberals held out for a strict scrutiny, the moderately conservative Kennedy and O’Connor would have bolted the opinion.

Where does this leave us? The USSC did on at least two occaisions determine that there is a right to marry or un-marry (Boddie v. Connecticut, 401 U.S. 371 (1971); Zablocki v. Redhail, 434 U.S. 374 (1978)). However, where there is minimal infringement of the right to marry, statutes can use marital status as a classification, as in Califano v. Jobst, 434 U.S. 47 (1977), where it affected the ability to continue receiving SS disability benefits as a disable child of a deceased beneficiary after the surviving parent remarried. No recent decisions have addressed the status of marriage as a ‘fundamental’ right.

Romer is not an open invitation to bring to the USSC laws that discriminate homosexuals from heterosexuals. It is clear that the Court will review such laws with their ever-increasingly apparent substantive review, a willingness to second-guess legislatures as to what they attempt to do, be it protective of minorities or majorities. In light of the refusal this term to strictly scrutinize age-discrimination, it is doubtful that the Court would strictly scrutinize gay-discrimination. Under the rational relationship test, it is not clear whether a law preventing same-sex marriage would be found to be unconstitutional. Presumably, the issue will be further developed at the state level, in front of more liberally minded tribunals.

31

I might also point out for Otto’s edification that Jomolungma’s post is an example of his tendency to post with tongue well implanted in cheek. Satire is so often misunderstood… :slight_smile:

32

Irish “Cross-culturally, a major part of marriage is to provide for the welfare of the children.”

Oh, no question, but Cecil’s statement was about the original purpose of marriage. Also, remember that wives and children until very recently in many (most?) Western cultures were legally the property of the husband. The idea of children as independent people with legal rights separate from their parents is pretty new.

“Since our cultural shift, the issue of marriage and children have become somewhat independent.”

Absolutely. Which is reflected in the several recent state court decisions slapping down state arguments that SSM should be barred because of the supposed state interest in child-rearing.

33

Otto:

My point was that the statements about original purpose of marriage could be interpreted to mean what Cecil said. Read “facilitate procreation” to mean “provide and care for raising heirs/offspring”. It’s all in the interpretation.

34

“I might also point out for Otto’s edification that Jomolungma’s post is an example of his tendency to post with tongue well implanted in cheek. Satire is so often misunderstood…”

I need to re-read Romer before I respond to your longer post, but yes, my wording was quite sloppy in my original comment. As to where Jomo may choose to lodge his tongue, that’s no concern of mine so long as he lodges it where he has permission. I confess I don’t have much of a sense of “satire” when it comes to comparing homosexuality with bestiality, as that comparison is used on a daily basis by those who would deny me my rights as a human being and a citizen. But as I learn the mechanics of the board (where the hell is that edit icon?) I’ll try to learn the mechanics of the posters too.

35

I stand by my statement, “If gay marriage is OK, then polygamous marriage must also be OK.” Otto’s stab at counter-argument (basically, “too messy”) actually FAVORS the legalization of poly-marriage. That poly-marriage might be messy is a good reason for recognizing it and allowing the law to bring a little order to the situation.

36

Otto wrote:

and

I think this needs a little clarification. The mere issuance of a marriage license is not sufficient to create a marriage. An Internet search under “marriage license” produced many sites for different jurisdictions in North America. Some specifically stated that merely obtaining a license did not constitute a marriage. All of them indicated the license was valid only for a limited time (30 days was the shortest found; 1 year the longest), thus clearly indicating further steps were necessary.

As I understand it from my experience as a wedding witness in the State of NY, a valid marriage does require a public ceremony- but the requirements for a “public ceremony” are so minimal as to almost be equivalent to the private filing contention quoted above. Basically, what is needed is an affirmation of intention by the two parties in front of two witnesses and an official authorized to perform marriages. In many cases the Clerks who issue licenses are also authorized to perform marriages, so it is possible to take out a marriage license and at the same time have the “public” ceremony in front of 3 people.

37

“In Romer v. Evans, __ U.S. __ (1996),”

517 U.S. 620 (1996), for those playing along at home.

"the USSC held Colorado’s Amendment 2, passed by voter referendum in 1992, to be unconstitutional. Amendment 2 had attempted to add to the Constitution of the State of Colorado a provision which precluded all legislative, executive, or judicial action

at any level of state or local government designed to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” In striking down the amendment, the USSC held that the amendment was overbroad, and served no legitimate

government interest. It should be noted what the decision did NOT do: it did not hold that homosexuals were a ‘suspect class’ entitled to strict protection, nor did it hold that the amendment infringed a fundamental

right. This is important, because the Colorado Supreme Court had

held that the Amendment infringed the fundamental right of gays to be involved in the political process (Evans v. Romer, 854 P.2d 1270 (Colo. 1993)."

This case was the first time that the US Supreme Court extended Fourteenth Amendment protections in any form to sexual orientation (a note of clarification on “suspect classes”: the term refers to the category rather than to a manifestaion of the category. Thus “race” is a suspect class whereas “black” is not). The majority decision, while not elevating sexual orientation to “suspect” status, did invalidate Amendment 2 on equal protection grounds. Quoting from the majority opinion: “We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.”

So again, I apologize for my clumsy phrasing earlier.

Anyway, the denial of SSM, when one state or another legalizes it, will be vulnerable on any number of Constitutional fronts besides the Fourteenth Amendment. The right of intimate association. The right to travel. The right to privacy. the Full Faith and Credit clause. First Amendment guarantees of speech and religion. Add to that the various decisions declaring marriage to be a fundamental right and, unless the Supreme Court just flat-out declines its mandate, SSM will be the law of the land. I’m predicting within 15 years.

38

My feeling was the original poster was mixing the religious/civil ceremony with the legal “ceremony” which, as you correctly note, can be very minimal. By “private setting” I was meaning, for example, a judge’s chambers or a private home where the “ceremony” or signing of papers or what have you may be done out of the “public eye” but still for the presence of the requisite witnesses be “public.”

I really should drink more before posting…

39

OK, a point needs to be made here:
Defining ‘marriage’ as a male/female relationship, thus denying SSM legal recognition as ‘marriage’ is not the same as denying the right to ‘marry’ to people of homosexual orientation.

‘Marriage,’ as conventionally understood, is the legally binding union of a man and a woman with not only ‘intimate association’ but* full familial rights.* Such an arrangement is open to any homosexual in this country. No one has the right to test prospective husbands for the ‘gay gene’, or to deny a man the right to marry a woman based on that gene or on past homosexual behavior. If the law prohibited homosexuals from ‘marrying’ as defined above (i.e., a person of the opposite sex) that would be a violation of full protection of the laws. But the law does not prohibit that.

Put it another way. Every citizen (well, every rational free citizen of age, or something) has the right to vote, even to vote for a pig (e.g., Pigasus) if they so choose. But that pig doesn’t have the right or capacity to hold office. (Somewhat) similarly, every man has the right to take a wife. But only a woman can be a wife.

Before you cry “unfair!”, let me go back to that ‘full familial rights’ bit. This thing we call ‘marriage’ is intertwined with the concept of ‘family.’ No offense to a couple of homosexuals in a faithful loving relationship, but…

While there are people I love, hold as close as family, would die for; while I may have been physically intimate with some of them on various levels; while I may live with a person for years, even for the rest of my life; none of that entitles me to claim any of them as ‘family’ or as ‘spouse’. Do I think that friends, housemates, and longtime companions deserve some socially recognized rights and considerations? Yes! (I would add, even in the absence of sexual relations.)

But ‘marriage’ isn’t just about physical intimacy; it’s about ‘blood.’ It’s about genes. What a lot of think of as heterosexual intercourse isn’t just a demonstration of affection. And affection, or love, isn’t why marriage is legally enforced (lot of spouses that aren’t so affectionate in the world). Coitus is the natural procreative act of the human animal. It’s tied up in the heavy magical stuff of life itself. And that can’t be said of any homosexual act. Even sodomy. And that’s what’s different.

40

[[Coitus is the natural procreative act of the human animal. It’s tied up
in the heavy magical stuff of life itself. And that can’t be said of any
homosexual act.]]

It may not be procreative, but hopefully neither is the heterosexual sex I have!

My take on this topic - history aside - is this. If we acknowledge that the etiology of homosexuality is biological and not a matter of choice, and we agree that there are social, political, and economic benefits to marriage even unrelated to the rearing of children, then we are denying a minority population their civil rights by not legalizing this option.