Of course, even per my proposal, no church would be prevented from having gay marriage ceremonies, nor would any gay person be prohibited from self-describing himself as “married.” All that really changes is the title on some dry legal documents.
The dry legal document being a marriage certificate for hetro couples, and something other than a marriage certificate for gay couples. Separate but equal. Sorry, but I can’t buy into this. Anything other than full equality just does not cut it.
I think you’re deliberately using the phrase “separate but equal” to imply similarity to the situation blacks faced post-Plessy. And I’m sorry, but if you think the title printed on a legal certificate is the same thing as being shunted to different schools, lunch counters and water fountains, then you need to grow a little perspective. Saying (as Scylla does) that using different terms relegates gays to the back of the bus does a real disservice to the blacks who actually had to sit at the back of buses.
Who are you to speak on this? Have you experienced any social ostracism and inequality because of your heterosexuality? Have you been denied visiting rights to your life partner in the hospital because you love the wrong gender? Rather presumptious of you to say one form of discrimination is not as bad as another.
The solution I proposed would not, for example, prevent the “denial of visiting rights” of a life partner – indeed, it would specifically vindicate on behalf of gays all the substantive civil privileges of married people. The only difference is the label.
And no, I’m neither black nor gay, but that doesn’t prevent me from correctly observing that being shoved to the back of the bus and having a different label attached civic recognition of your particular relationship are two remarkably different things, and that drawing comparisons between the two is in many ways morally absurd.
If, as you submit, “The only difference is the label,” then there should be no difficulty in both hetros and gays using the same label: marriage.
The radical right pretty much controls the Republican Party. Do you honestly believe that there are enough “moderate” Republicans in, say, the United States Congress to pass a national domestic partnership bill? The selfsame Congress that just seven years ago passed DOMA with no such partnership provision? The selfsame Congress whose sole recognition of same-sex partnerships was to extend survivor benefits to the partners of WTC victims (but only if they filed ahead of blood relatives)? Do you think that our “compassionate conservative” president would be able to buck his base to sign such a bill?
And I’m not saying that any protection for non-marital partners that can be extracted from friendly legislators isn’t a good thing. What I am saying is that since the likelihood that thousands of legislative bodies across the country will do away with the word “marriage” in their statutes is so remote as to be impossible, pushing for full and equal marital rights under the rubric of marriage remains the ultimate goal.
I would hotly dispute that notion, assuming by “radical right” you mean religious conservatives. They are one voice in the party; they win some things and lose others, just like any other faction. **
The definition of marriage is not the buisiness of the federal government and such a bill would exceed the scope of its constitutinoally-designated authority. This is an issue for the statehouses. That will obviously vary from state to state. It will be an easier task in California than it will be in, say, Mississippi.
**
I like the way you totally discount any evidence which suggests the mood on this issue is changing. Do you think a Congress of, say, ten years ago would have done this? **
I haven’t suggested the abolition of the term “marriage.” Indeed, I think that would be politically impossible, and I’ve said so in this very thread.
As I’ve noted, the term “marriage” carries with it some religious baggage. Therein lies the difficulty. That is why a better tactic is to seek the same substantive privileges associated with marriage while sidestepping the association that term has with religious belief.
Name three things that were included in the last Republican Party platform over the objections of the radical right.
So you believe DOMA is unconstitutional? Also, did SCOTUS err in decide Loving v Virginia, Turner v Safley and Zablocki v Redhail, all of which curtailed the power of the states to regulate and restrict marriage? Besides, I said “domestic partnership bill.” Are you saying that Congress has no power to authorize domestic partnerships?
Would a Congress of 1992-93 authorize survivor benefits after a tragedy on the scale of 9/11? No way of knowing. It wouldn’t have been beyond the realm of the possible.
We already have proof then of the untenability of your suggestion. Vermont civil unions are not recognized in Texas for purposes of Texas divorce laws. Do you really think that there would not be enormous battles across the entire country were some parallel system of civil unions somehow implemented (state-by-state apparently since you claim the feds are not allowed to dictate marriage rules and presumably the same prohibition applies to civil unions)?
“Oh, you can’t file a joint return. Only married couples can do that!”
“But we’re in a civil union.”
“That’s not a marriage, is it?”
“Only a family member can make this medical decision for an incapacitated person.”
“She’s my legally civilly united partner.”
“State law defines family members as blood relations and legally married spouses. No marriage, no spouse.”
“Yes, you lived in this house for 30 years but you have no standing under intestacy laws.”
“But my partner in civil union owned the house so I should inherit it.”
“State law says that only a spouse automatically inherits. Spouse is a husband or wife and you’re not.”
And so on.
Dewey, you at least have company. I understand your point about the word “marriage,” and agree that civil equality comes first, but not only would it make things infinitely easier for the state and federal governments to just call it a marriage and be done with it (noting, of course, that governments rarely do things just because they’re easy), but it’s the very “baggage” you’re talking about that makes turning “civil unions” into “marriages” worth making that fight round two, after getting civil unions in the first place.
Yes, we’re all arguing semantics, but we also all know how important words can be, yes?
Esprix
I believe it is redundant insofar as it purports to tell the states that they do not have to recognize gay unions sanctioned by other states.
Although you’re right in that there is a federal issue here, namely the extension of federal benefits. But of course the DOMA argues against you on this one – Congress elected to refrain from extending federal benefits to gay couples even if their union was termed a “marriage.” Which supports my contention that the label is, legally speaking, unimportant – it only holds symbolic value. **
The actions of a state are always subject to the restrictions of the federal constitution. Unless you’re prepared to construct an argument by which the federal constitution mandates that the states recognize gay marriages (a notion explicitly disclaimed in the Lawrence decision), your point is irrelevant.
FTR, I believe Loving to be a correct application of the equal protection clause. I am considerably more skeptical of Turner and Zablocki. **
Yes, that is exactly what I am saying.
Read the 10th amendment. Now find me where the constitution delegates to the federal government the power to recognize domestic partnerships (or to define any facet of family law, for that matter). **
Again, your entire argument is premised on the notion that somehow the label is what compels a state to recognize domestic arrangements favored by sister states. It is not.
Even if Vermont termed its recognition of gay relationships as “marriage,” Texas would not be compelled to to honor that designation for purposes of its own divorce laws, any more than it is required to honor other states’ laws governing legitimacy as per the Olmstead case I cited earlier.
Would there – will there, more likely – be epic battles across the country as these issues are sorted out? Of course. That’s life in a federal democracy for you. But such interstate inconsistencies are part of state-level policy choices across a broad spectrum of topics. They are eventually resolved. Their mere existence is not a reason to discount legislative action.
No, the court said Lawrence did not address the issue. That is not the same as dismissing the issue. This is precisely the logic behind Canada’s decision and will, eventually, be the prevailing notion in the United States. The question is when, not if.
Well, fine. Frankly, I think round one is hard enough and it’s getting ahead of yourself to start talking round two, but hey, whatever floats your boat. I just think you’re going to meet up with a lot more resistance if you use the same term. **
I wish more people got hung up on labels; it’d make my life easier. Let me tell you a story.
I was working on a fairly large merger. Our client was, by far, the larger of the two parties involved. The ordinary expectation (barring tax or regulatory reasons for doing it another way) would be that our client would swallow the other side’s client. The other side resisted this method strongly. They never gave a really satisfactory reason for why, but to them it was important that the deal be done as a “merger of equals” – where both companies are merged into a newly-created third company.
The only real rationale we could figure (though the other side would certainly deny it if asked) was that it was an ego thing. The other side’s CEO, known for having an exaggerated sense of importance, just didn’t like the idea of having his company swallowed by a larger enterprise – it made him feel lower in the food chain or something.
You can imagine what happened. The form the merger took wasn’t a terribly important issue for us – the end economic product would be the same. But we used that point to extract more generous substantive concessions for our side. In that case, fixation on a label cost the other side real money and expanded the amount of liability they had to take on.
In such situations, it’s important to keep your eyes on the prize and not get bogged down on nonsubstantive matters. I’ll trade meaningless labels for subtantive concessions every day and twice on Sunday.
Which is interesting, since you’ve been arguing that the word “marriage” does, indeed, have a lot of worth invested in it. 
Surely you see that what is meaningless to one person is substantive to another.
Esprix
Seeing how that is exactly what I said, I can only assume that you do not know the meaning of the word “disclaim.”
Here is the language from the Lawrence case I am referring to:
The underlined language is a pretty clear disclaimer that the court does not intend this opinion to apply to gay marriages. I would go farther and suggest that it also signals that the court is not prepared to recognize gay marriage as a constitutional requirement – otherwise, why include the underlined language?**
It’s a mistake to compare the two, because they rest on a very different set of precedents. Here is the Ontario court’s decision, and here is the Canadian Charter of Rights and Freedoms upon which it was based.
I’m not a Canadian lawyer, so a lot of this is unfamiliar to me. But as near as I can glean from a quick scan of the opinion, it appears that the Canadian analog of the equal protection clause (Section 15(1) of the CCRF) has been interpreted in the past to include sexual orientation as a protected class, to which some heightened level of scrutiny is appropriate. Apparently the CCRF is read as creating such heightened scrutiny for many groups for which such scrutiny is unavailalbe in the US. Anything is possible, I suppose, but such an expansion in the US would be a dramatic departure from existing equal protection jurisprudence.
Well, yeah. That’s pretty much my whole point. Don’t be the ego-driven CEO, be the economics-driven CEO.
Because DOMA is on the books and hasn’t been struck down; they could have simply been clarifying that this case is not meant to address the constitutionality of DOMA, since, for the moment, it’s law, but rather just addressing this particular case.
Just a thought.
But what you fail to see is that, sometimes (or, rather, sometimes in addition to being the “economics-driven CEO”), being the “ego-driven CEO” is more preferable. Unfortunately, you can’t know what is or isn’t the better deal for that CEO - maybe satisfying his ego was more important than making the “better deal” for him.
Realize that life isn’t all about the particular “economics” you’re referring to. There are larger issues at stake, IMHO.
Esprix
Whether you believe DOMA to be redundant is irrelevant to the question of whether you believe it passes constitutional muster. Please answer the question as asked. Thank you.
I can’t believe that you’re actually arguing against the constitutionality of every federal law ever passed which relates to marriage, marital rights, marital privileges, etc. And yet you hesitate to state whether you believe DOMA is constitutional.
Um, well, yeah, that’s exactly what the Texas case hinged on. A judge granted a civilly united couple a divorce. The state attorney general intervened, stating that there could be no divorce because under Texas law a Vermont domestic partnership was not recognized. Would the AG have intervened had the Vermont couple been a couple joined in “marriage”?
I contend that there is a much stronger argument in favor of requiring states under the federal constitution to recognize out-of-state marriages than there is to requiring recognition of legitimacy (um, by the way, isn’t legitimacy given strict scrutiny under the Equal Protection clause?) because the rights and responsibilities of marriage are extremely more critical as one travels from state to state than are those related to legitimacy. They are not strictly analogous, in fact I don’t think they’re even that close. There is also a tradition, dating back before the founding of the nation, of recognizing marriages performed outside the boundaries of the colony/state, and even if subjected to rational review, failing to recognize SSM while recognizing mixed-sex marriage fails against equal protection.
In part to answer the lunatics…sorry, the Santorum/Frist Republicans who have been frothing for however long about the Parade of Horribles that the decision would unleash, and in part to address the Parade of Horribles raised in the briefs of idiots like AG Pryor. I don’t read the language as stating that the logic of the case does not and may not apply to SSM cases, merely that the issue of SSM was not before the Court.
I really don’t understand your position at all, I guess. You seem to be arguing both sides of the issue and when called on one side or the other taking refuge in the opposite side.
Unlikely, given the context in which the quoted carveout was presented. The court is basically saying “look, none of this due process sexual privacy stuff we’re writing about should be imputed to stuff involving kids, or coercive acts, or prostitution, or gay marriage.” Your interpretation also makes little sense given that Lawrence involved a state’s wholly internal policy and not, as per the DOMA, the degree to which one state is required to recognize another state’s policy choices. **
I’m sure his shareholders would be interested in hearing why stroking the CEO’s ego is the “better deal.” But I digress.
The “civil unions yes, marriage no” position is held by a lot of people who are not a part of the religious right, including as diverse a bunch as Hillary Clinton, Jesse Ventura and Rudy Giuliani. You can fight a fairly marginal group like the hard-core religious right or you can fight the entire political establishment to the right of Ralph Nader. I think the latter is a dumb choice.
IANAL, so I’m sure your analysis of the Court’s opinion is much more accurate than mine. It was just a passing thought.
Well, I was speaking from a personal/emotional metaphorical viewpoint, not an actual CEO (as you used the example to make your point).
Again, I, personally view this particular issue as “round two” - it’s fairly obvious at this point that civil unions are round one, and I will be happy to have them - it’s just that my fight won’t end there. One step at a time…
Esprix