The Domestic Partners thread made me think of an issue that I hadn’t really thought about before. Separate but equal is unconstitutional and even though I really want to have the option to marry someone and believe that Vermont is doing the right thing, I can’t shake the feeling that it is going to be overturned because it falls within the separate but equal clause. It is basically a marriage with a different name and this is the part that saddens me the most. They may be able to get around it by renaming whatever their marriage laws are into the heterosexual equivalent of such but it really makes me sad and angry to think about such a worthy legislation that has passed all the hurdles will probably die in the Supreme Court (either VT or US) because it is Separate but Equal.
“Seperate but equal” is not unconstitutional; In Plessy vs. Fergusson the Supreme Court ruled that “seperate but equal” was, by its very nature, discriminatory, and that that discrimination was unconstitutional (violated the 14th amendment). Since there are no constitutional barriers to discriminating against homosexuals, this should not be an issue as things currently stand.
Sqrl, I’ve been saying this all along and have stated it several times in a couple of threads. You don’t read my posts?
My take on it is this: Vermont legalizes Civil Unions; it gets to the Supreme Court under the “seperate but equal” platform; the Supreme Court rules it discriminatory, and demands that it be made into “marriage;” someone gets married in Vermont and moves to another state; that challenge also goes to the Supreme Court against the Defense of Marriage Act; the SC quickly strikes down DoMA as unconstitutional (as everybody I’ve read has said it is); all of DoMA’s little siblings in all the states that have passed them (i.e., Prop. 22 in California) are also struck down; same-sex marriages are legal.
I wrote this like six hours ago and then the damn BOARD went down again…
You reference the 14th Amendment in your post and still believe there is no constitutional bar to discrimination based in sexual orientation?!? Does Romer v Evans ring any bells?
As Esprix touched on briefly, Cub, I think you have a misconception of what a “separate but equal” ruling would mean in the Vermont case. In Baker, the VTSC ruled that the state is required to extend all of the rights and privileges of marriage to same-sex couples. The court gave the state two choices; expand the marriage statutes or create a DP. If the court should find at a later date that these “civil unions” do not extend all of the rights and privileges of marriage then the court will mandate full marriage access for same-sex couples. They will not strike down the legislation and leave couples with nothing.
The term “marriage” has been living with a split personality. There is civil marriage, which (in the eyes of the law) is an enforceable (by governmental organizations) contract of domestic partnership. There is also the religious institution (or “sacrament”) of marriage, which, in the eyes of the (particular) Church that blesses it, a holy union, bonding two individuals, in the eyes of God, as one flesh, such that sexual relations between the two do not constitute a sin.
(Complicating the entire issue is the facet of marriage which holds one of the partners to be chattel. This facet has historical relevance to both civil marriage and religious marriage. I like to think that this facet is primarily vestigial with marriage as it is practiced today, at least in Western culture.)
It is in the relatively recent practice of eschewing the notion of one spouse being the property of the other, that civil marriage has evolved into nothing more than an enforceable contract of domestic partnership (there is still, to be sure some lingering attitude that civil marriage somehow “legitimizes” sexual activity, but IMO the very concept that sexual activity between consenting adults is subject to the constraints of legitimacy/illegitimacy is not long for this world, and in fact, in the courtroom, the argument could be made that it is already gone). The notion of chattel is still evident in marriage as a religious institution (although, admittedly, you usually have to be looking real hard to find it), and in some instances may even be getting stronger (Southern Baptists, please look to your own house before you attack me for the preceding).
All in all, in this context, there is very little to justify keeping the word “marriage” attached to the civil institution, and with a little imagination, luck, and wisdom from some supreme court justices both in Vermont, and in Washington D.C., this will be recognized, and confirmed as the law of the land.
And then churches that wish to do so will make their own choices as to whether to bless the relationships of same-sex couples, and call it “marriage.”
Plessy v. Ferguson (1896) ruled that the doctrine of “separate but equal” WAS constitutional. Justice Billings, writing for the majority, said that the 14th Amendment “could not have been intended to abolish distinctions based on color, or to enforce social, as distinguished from political equality…” In other words, Plessy v. Ferguson established a legal basis for segregation.
This interperetation was overturned in 1954 in Brown v. Board of Education, where Justice Warren wrote that separate but equal facilities were “inherently unequal.”
Thus it was Brown v. Board of Ed that said that “separate but equal” was unconstitutional.
[Cites from Ayers, et. al. American Passages: A History of the United States. pp. 657 and 972)
Sodomy laws are still on the books in about a dozen states. Adultery is a felony in a number of states. Unfortunately we’re still quite a ways from this point.
Not so hard. “Who gives this woman” and the wife taking the husband’s name, for two.
Um, I’m not sure about this but I don’t think the phrase “separate but equal” applies to constitutional law in general at all. “seperate but equal” was a policy some southern states used to attempt to weasel around the 14th amendment. It was a specific policy that was found unconstitutional. I don’t think it applies to gay marriage at all, pro or con.
For those interested, here’s a website leading to a number of state documents relating to Vermont’s civil unions case, including the text of the bill as passed by the state house (currently pending in the state senate).
Otto, thank you for the arguments to my statements. I concede that I may have overstated the case for the demise of the notion that sexual activity can have a “legitimate/illegitimate” property in the civil context. Still, because the trend in the past century has been in that direction, I remain, like Esprix, optimistic.
As to the chattel issue, the giving away of the bride I see as largely ceremonial/ritualistic, and the taking of the spouse’s name mostly a cultural habit. Vestigial, as I said.
Otto said, “I think you have a misconception of what a “separate but equal” ruling would mean in the Vermont case. In Baker, the VTSC ruled that the state is required to extend all of the rights and privileges of marriage to same-sex couples. The court gave the state two choices; expand the marriage statutes or create a DP.”
That was my point. It is essentially the same thing but a DP is still separate from marriage. Also, DP’s are not necessarily upheld in different states like marriages are. I believe this still falls into the separate but equal category. The nice thing about it, like you said later in the same posting, is that it won’t be upheld as being the same and marriage should be able to come out of it. I will keep my fingers crossed.
This brings up an interesting ethical question. Maybe civil unions ought to be what we should have, rather than insisting it be called a ‘marriage.’ After all, if we do get equal rights under the law through civil unions, what right do we have to insist that churches recognize it as a marriage? Isn’t that an infringement of their religious freedom, to continue to believe that homosexuality is wrong?
What were churches’ reactions when interracial marriages were allowed?
I think I’ll revive my “what will churches do” thread.
I’ll also agree with Otto - once we get the rights, ain’t nobody gonna take 'em away easy. The inroad to equality has already been established. (And, Otto, didn’t the bill already pass the Senate in VT?)
The way I see it, “marriage” as we generally think of it has 4 components:
–Legal: You are legally married, and subject to the privileges and constraints of marriage as per the law.
–Religious: You are married in a way that your church recognizes, and you consider yourself “spiritually united under God.”
–Social: Other people acknowledge that you are married and treat you as a couple.
–Emotional: You love each other and see each other as life partners.
“Marriage” can exist absent any one of those categories. Examples:
–Legal: Many gay couples meet the other criteria, but cannot be legally married.
–Religious: You can be married by a judge.
–Social: You can have a secret marriage.
–Emotional: You can have a marriage of convenience.
The way I see it, the ONLY one of the four components that the U.S. government should have ANY say in is the legal aspect. The government should not be involved in our religious, social, and emotional lives.
Furthermore, most objections to gay marriage that I have heard are based on religious and social criteria.
The key lies in the term “marriage.” If many Americans’ conception of “marriage” can not include gay marriage, that is fine.
Therefore, I propose abolishing “legal marriage.” Change it to “civil unions” or something.
When a typical man/woman couple gets married now, they have to take care of the legal end of it–I think that the clergyperson is authorized to “approve” the legal aspect of the marriage. This would not change. Man/woman couples could still get married in the same old way, but instead of a marriage certificate, they would get a civil union certificate.
Ultimately, my point is that the word “marriage” is burdened with all sorts of religious and cultural baggage. Many opponents of gay marriage are unable to mentally separate the legal aspect from the religious and social aspect.
If we change ALL legal marriage to legal “civil union,” then many of the objections to gay marriage will be rendered irrelevant.
Bean, who is happily married in all 4 ways.
This has been posted before. An interesting notion, but it’ll never happen. That said, should we settle for “civil union” or go for “marriage?”
My point, by the way, was more on religious freedom grounds, i.e., making religious institutions recognize something they are legally required to but morally opposed to.
(Oh, and I did revive my “What will churches do” thread with this very question.)
And I apologize for not sticking to your point. But your point, as I understand it, is irrelevant. Why would we even want to force religious institutions to “recognize something they are legally required to but morally opposed to.” Why is that important?
GreenBean and Esprix, I have actually posted changing all marriages to “civil unions” or some such. Also, along the same lines, I believe that marriage should be a renewable contract where you have to take new vows say every 3-5 years. You will also have penalties if you don’t renew the contract (like in a divorce) that both parties agree to beforehand. It would make so many things easier.
Do you really believe people would agree to removing all civil ramifications from the religious marriage ceremony, and vice-versa? Jeez, you think same-sex marriages are causing a fervor…
I didn’t say we wanted to, I’m just posing it as a question. Do churches who once stood against interracial marriages now perform them? Did legalizing them legitimize them enough for those churches to change their doctrine? Over time? Immediately?
Esprix said: “Do you really believe people would agree to removing all civil ramifications from the religious marriage ceremony, and vice-versa?”
That is not at all what I was proposing. Under my proposal, man/woman religious marriages would be exactly the same as they are now. IIRC, when I was married, the Rabbi had to fill out and mail in the legal documents to make it a legal marriage. Under my proposal, it would not be a legal marriage, but a “legal civil union.” Different name, same thing.
A gay religious marriage would work the same way.
In a civil ceremony, the officiant (judge, etc.) would fill out the forms. Whether there was religious content in the ceremony would be up to the participants.
The difference would be that under the law, a “civil union” had taken place. If you (or the church) wants to call it a “marriage,” then it is up to you or them.
I imagine that the new legal forms would not have a space for “bride” and a space for “groom,” but would have 2 spaces for “participant 1” and participant 2," and a space to indicate the gender of each party.
As to whether this change could ever happen–it doesn’t seem likely now, who knows? In 1856, virtually nobody thought slavery would be gone within a decade.
-Bean
p.s. Sorry for covering ground you have already covered, SqrlCub. I will do an archive search, because I would like to see what you said.
OK Bean, I have a serious quibble about your proposal. “Marriage” as we know it (at least in the U.S.) is already a “Civil Union”, and under law, not much else.
You argue that “marriage” has four components, legal, religous, social and emmotional. (I would argue that there is a fifth, sexual/reproductive, but that’s not really relevant to – and actually may cut against – my point).
Now every American state recognizes marriage. But of the four components you mention, the only one that the states have anything to do with is legal. For instance, New York’s Domestic Relations Law defines marriage as follows:
All of the rights and responsibilities of marriage are contained within your legal definitions, and the law has nothing to do with the other three components.
Religious: The law controls the legal aspects of marriage, but not the religious. Although the law of each state permits a clergy member to officiate at a wedding, that’s the only connection. There are plenty of examples where someone may be considered married under law but not under their religious beliefs and vice versa. For instance, a couple may be married by a justice of the peace, and then later have a religious ceremony. A couple may be divorced under civil law, but not under religious law (examples include the Roman Catholic non-recognition of divorce and the Orthodox Jewish refusal to recognize a divorce unless it is granted by the husband). In any case where a party is legally divorced but not under religious law, the parties can get remarried by a civil official or by a clergy member from a different denomination, though the original religion may would on this, but they have no rights under law (other than to exclude you from their religion). On the other hand, some clergy members who unite gay couples in committment ceremonies may feel that it is the religious equivalent of marriage.
Social: Although the state imposes mutual obligations of support on spouses, it imposes on them no social responsibilities.
Emotionial: Likewise, there are no emotional obligations within Marriage that the state can impose on you.
(Sexual/reproductive: Other than the legal relationships, I think the sexual and reproductive aspect of marriage is the one in which the state is the most intertwined. I also think it is the area in which people have the most issues with gay marriage. But I digress.)
Now, as I understand your proposal, you seek to rename “marriage” (or at least the civil law aspects of it) as “civil union” for all couples, straight or gay (where permitted). The reason that you give is:
Now can see some of your reasoning, but my conclusion is that this is simply creating a politically correct euphemism for a concept that has served us usefully for millenia – marriage.
I suppose that using the term civil union to describe the legal relation of marriage between two people of whatever gender may make the concept of same sex marriage more acceptable to some people (and the use of the term to describe same sex “marriage” under the new Vermont scheme may be a politically necessary and effective compromise). However, I don’t think that renaming something will change most people’s perception of the core issue.
More important, I think that renaming marriage as a civil union will further weaken this already diminished institution. I think that it is very important to the institution of marriage that your four (or my five) components be there, at least in some measure. To use a term that implies that marriage is no more than a civil relationship is to deny the important bonds that I think are inherent in the marital (or quasi-marital) relationship (whatever the genders of the participants). More important, it detracts from the particpant’s recognition of the obligations of mutual support contained in the legal obligations. Put more directly, because some people would merely think of it as a civil contract, it would implicitly encourage those people not to support their spouses.
This would become particularly difficult with the issues of reproduction and child support. Under current law, there is a presumption that any child born to a married woman the child of the husband. With a concept that marriage is merely a civil union, this concept, which is intended for the benefit of the children of the marriage would be substantially weakened. More broadly, the concept that one purpose of marriage (though clearly not the only one) is to raise children would be diminished, to the detriment of society.
Anyway, I think that marriage should still be called marriage. Although it may now be politically necessary to refer to what is in effect same sex marriage as a “civil union,” that does not mean that the concept or term “marriage” should be abandoned.
If the social experiement of same sex “civil unions” are successful (which is something that I would like to see), I expect that future development of the law and societal attitudes will bring the relationship to what its advocates want it to be – marriage.
