I advocated replacing the term “marriage” with “civil union” ONLY AS IT APPLIES TO THE LEGAL ASPECT.
The basis for most objections to gay marriage are religious, social, and emotional.
Therefore, my changing the name to “civil union,” you are isolating the legal aspect from the religious, social, and emotional.
You seem to agree that the state only has jurisdiction over the legal aspect.
[Betcha 5 bucks Billdo’s gonna respond with some legal-speak here, showing that some legal aspects overlap with social aspects.]
I am proposing changing legal “marriage” to legal “civil union,” because it eliminates a word with some strong connotations.
I believe strongly in separation of church and state, and making this change would bring us closer to this goal.
-Bean
p.s. Don’t you be calling me politically correct, bucko! I might just have to take you to the pit and slap you silly.
You say: “The basis for most objections to gay marriage are religious, social, and emotional.” I’ll accept that for this discussion. However, I believe that he social and emotional (and religious, if you feel that way) aspects of marriage are inextricably intertwined with the relationship of marriage, and to separate out the legal relationship would leave the “civil union” a pale and unworkable shadow of marriage.
I think that the purpose of those who seek single sex marriage is to have a “marriage,” with all that includes – a social, emotional, and legal (and religious, if desired) relationship. Scaling “marriage” back to a “civil union” would be a loss to all who want to participate in this institution, gay and straight.
Ummmm . . . can you explain to me what is the difference between political correctness and changing the term for something “because it eliminates a word with some strong connotations.”
– Bill
(P.S. No “some legal-speak here, showing that some legal aspects overlap with social aspects”, bub. You owe me five bucks.)
You do not understand. Or I am not making myself clear…
Marriage is marriage, and will still be marriage under my proposal.
But the state has NO BUSINESS messing around in people’s emotional and religious lives.
To change the legal contract that is now called marriage to a legal contract that is called civil union will not change the realities of what marriage is. It will be a step toward further separation of church and state–because the usual American view of what constitutes a marriage is based on a religious view of marriage.
[and I KNOW you don’t want me to give you a history of the changes in and development of colonial/American attitudes toward marriage, religious and otherwise]
You say “…to separate out the legal relationship would leave the “civil union” a pale and unworkable shadow of marriage.”
This is not so. As it is now, the state only has jurisdiction in the legal area, so it is the EXACT same thing, under a different name.
Unless, of course, you want the state to define “marriage” for you–and they ain’t doing such a good job of defining “family.”
You also say, “I think that the purpose of those who seek single sex marriage is to have a “marriage,” with all that includes – a social, emotional, and legal (and religious, if desired) relationship.”
Yes, of course. I agree with you 100%. BUT–whether they are allowed legal marriage and whether the majority of Americans accept gay marriage as analagous to heterosexual marriage are two different issues. These are different fronts of the same war.
Compare it to the Civil Rights Movement. Blacks fought for 2 things–legal equality and social equality. It was only after 1954 (Brown v. Board of Ed) that they had the law on their side. Once they had the legal part settled (at least partially) they could really go out and fight the good fight.
I think that the same strategy is the most promising one for gay marriage. They are far more likely to convince the state and the people that they should be allowed to have civil unions than they are to convince the populace that gay marriage is “good.”
A lot of whites supported the Civil Rights movement–they thought it should be illegal to discriminate on the basis of race. But, that does not mean that they would want to have a black family over for dinner. Point is–it is easier to change the law than to change people’s deep seated religiously-based ideas about how things “ought to be.”
From what I have heard (an admittedly unscientific method of determining the facts) gays primarily want RIGHTS. Sure, they would like everyone else to treat their marriages with the same respect that they treat hetero marriages with, but they are more concerned with rights. For the sake of argument, let’s call gay life-partners “spouses.”
These are some of the things gays want (some serious, some mundane)
They want to be considered “next of kin” when their spouse is rushed to the hospital.
They want to have the same employment benefits (like health insurance coverage) that hetero spouses get.
They want to be be the legal parents of their own children, without going through weird legal machinations (double adoptions, etc.)
They want to be eligible for “family memberships,” or other things where married couples get a discount.
(That’s a small and imperfect sampling off the top of my head)
Point is, gays want the rights and priveleges that hetero couples have.
In my personal opinion, homosexuality is not a choice, and thus, people should not be discriminated against on the basis of their homosexuality.
And I am not going to explain what “political correctness” is right now, because my fingers are getting tired of typing.
I don’t see how. The presumption would be that the child born to a “united” woman is the child of her partner in union.
I don’t see that changing legal marriage to legal union would have any effect on this presumption. The USSC has already established (in Turner) that procreation is not what makes marriage a fundamental right, and each state court which has ruled on the issue has determined that the state’s interest in procreation and child-rearing is not compelling enough to deny same-sex couples marital rights.
More broadly, I don’t believe that the existence in Vermont of civil unions is going to change how society feels about marriage. Not a single bride is going to any less blushing, not a single groom is going to be any less nervous, and not a single family is going to be any less excited at the wedding. No one’s going to believe that their own marriage is any less wonderful and meaningful because there are same-sex couples united under the law. The argument is bullshit, and if it’s not bullshit, if people really believe their marriages would become less valid or important or sacred, then the people who advance it are the ones who need to think about what their own marriages mean to them.
I think it’s telling that the lead Senate sponsor of DOMA has been married to three different women and the lead House sponsor served divorce papers on his wife in her hospital bed (and is now divorced from his second wife).
I’m going to go back and address the OP’s constitutional question, which has more to it than seems on the surface. Besides, I’m starved for a good constitutional question lately that doesn’t deal with the Second Amendment.
Let’s put the words “separate but equal” in context, then see how they apply to the concept of creating a legal relationship that has many of the attributes of marriage, but isn’t a marriage.
Prior to the Civil War, the Bill of Rights did not apply to the states (Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833)). Thus, the states were free to engage in all manner of discriminatory acts unless their state constitutions prohibited them from so doing. They could, for instance, establish laws that treated slaves and descendents of slaves differently from those with European ancestry.
Following the War, Congress passed the 13th Amendment, which called for the abolition of the institution of slavery, or anything that was substantially like slavery. Southern states reacted by passing so called “Black Codes”, laws that substantially restricted the rights of the former slaves to participate in society. In response, Congress passed the 14th Amendment, with its relevant language:
Just what this language meant was soon tested in the Supreme Court. In Strauder v. West Virginia, 100 U.S. 303 (1879), the Court invalidated a statute preventing blacks from serving on juries. Such a blatant example of treating blacks differently than whites would no longer be allowed. However, in Pace v. Alabama, 106 U.S. 583 (1882), the Court allowed Alabama to differentiate punishment for adultery on the basis of whether or not the adultery involved an inter-racial relationship. This was felt to treat blacks and whites equally, since it didn’t matter on the face of it whether it was a black or a white person who was being punished (the Court didn’t look into the issue of how the law was applied). Thus, for approximately 25 years, the law prevented explicit discrimination, but allowed certain examples of social legislation that impacted blacks differently.
The issue of how much blacks could be burdened was squarely faced finally in Plessy v. Ferguson, 163 U.S. 537 (1896). Louisiana had passed a statute that required railway companies to provide “equal but separate” accomodations for blacks and whites. The USSC, in upholding the constitutionality of the statute, rejected claims that it violated the 13th Amendment (by creating a status similar to that of slave) or the 14th Amendment. The Court emphatically rejected the notion that the 14th Amendment’s equal protection clause had been intended to force a social integration of the races; equality did not require commingling, and separateness did not imply inferiority. The reasoning in this decision remained the law of the land for almost 60 years. Interestingly, the origination of the doctrine came not from the South, but from the Massachusetts Supreme Court (Roberts b. City of Boston, 59 Mass. (5 Cush.) 198 (1850)).
Today, of course, this doctrine has been set aside. Whenever state action treats members of a ‘suspect’ class differently from others, it will be stricken unless it can be demonstrated that there is a compelling need for such a classification, and the Court agrees that the classification is neccessary to solve that need. Rarely does this ever happen, especially when the classification involves race. As a result, starting with Brown v. Board of Education, 347 U.S. 483 (1954), the Court has refused to accept as constitutional laws which purport to treat blacks equally while separating them from the rest of society. Most notably for our purposes, in Loving v. Virginia, 388 U.S. 1 (1967), the Court invalidated so-called anti-miscegenation statutes (laws that prohibited interracial marriage).
How, then do we approach the law passed in Vermont?
We start by noting what classification it draws. By statute, Vermont now also limits the legal relationship of marriage to a man and a woman. I don’t know the actual wording of the Vermont statute passed, but one presumes this means that the new marriage lookalike applies to those who wish their relationship legally acknowledged where the couple is of the same sex. Presumably, the courts would have little trouble identifying the fact this means that a classification has been drawn treating homosexual people differently from heterosexual people.
Having identified this class, we have to ask whether it is considered a ‘suspect’ classification. To date, the Supreme Court has not considered classification by sexual orientation to be ‘suspect’. This means that ‘strict scrutiny’ is not applied to statutes making such classifications. Presumably, something more than a ‘rational relationship’ between the classification and an articulated ‘legitimate’ need will have to be shown, although it isn’t clear that even this is true of sexual orientation classifications. Assuming that the Court applies a middle-level (similar to gender classifications), the issue will be whether the classification is substantially related to an important legitimate governmental objective. Under such an examination, the Court imposes its own judgment as to whether the law in question is needed and does what is needed.
Now, we get to the “separate but equal” concept. The reason the idea of separating out blacks was found to be unconstitutional was that such separation was not in fact a way of treating them equally. Instead, it imposed on blacks a number of substantial hardships. Thus, the rejection of such laws differentiating between blacks and whites was required to truly treat blacks equally.
But, clearly, under relevant case law, the states are allowed to treat people differently on the basis of gender, age, socio-economic status, etc. (citations omitted; ask and ye shall receive ). Similarly, sexual orientation classifications can be considered constitutional. Does creating a classification based on sexual orientation regarding marriage address an important governmental objective? If so, is the classification by sexual orientation substantially related to the solution of that objective? If the Court finds the answers to both questions to be yes, it won’t hesitate to validate the Vermont law, even though it provides a “separate but equal” status to homosexuals in re: marriage. Putting it another way: if Vermont (or any state) can deny the status of ‘marriage’ to homosexuals, clearly it can give them a similar status as a substitute.
Does this mean that homosexuals can be segregated constitutionally? The answer is a typically lawyer-like “yes and no”. If a statute bore no resonable relationship to an important governmental interest, then it would be improper to treat someone who was homosexual differently than someone not. For example, a separate train station and passenger car would be unconstitutional; there is no important governmental interest in keeping someone homosexual from riding a train next to someone not. But if an important governmental interest is found to exist, then the statute likely will be found constitutional.
Why would this differ from treatment of blacks constitutionally? The answer is simple: while we have reached the point where our legal society does not believe that there is any valid reason to treat someone black differently
FTR, I voted against California’s proposition to ban gay marriages. I don’t care how gay people relate to each other, just as I don’t care how straight people do.
Green Bean writes:
That all sounds reasonable to me.
According to Webster’s New Collefiate Dictionary (1981 edition) (hey, it still works well enough), marriage is “the institution whereby men and women are joined in a special kind of social and legal dependence for the purpost of founding and maintaining a family”. Based on this definition, only men and women can be married; so a union of two men or two women would have to be called something else. All other aspects would be the same (unless you happen to belong to a religious order that forbids it), but the name would be different. Is that “seperate but equal”, just because the name is different?
Again, I think that legal relationships between gay people should be recognized, with all of the rights and responsibilities that come with being married. I just wanted to throw out a definition of “marriage”.
“I must leave this planet, if only for an hour.” – Antoine de St. Exupéry
That is more or less what I have been arguing, Johnny. I am saying that the legal aspect of marriage is separate from the other aspects. The state should only be involved in the legal aspect. Therefore, a new name should be given to that legal arrangement. (“Civil union” has been used.)
So, both gays and straights would be eligible to form civil unions. That would not be separate, so the question of “separate but equal” would be eliminated.
It is up to the individual whether he or she wants to call a gay civil union a “marriage” or not. If you want to stick to the 1981 Webster’s definition, then a gay civil union would not be a marriage. If you disagree with the Webster’s definition, then you might call a gay civil union a marriage.
I object to the 1981 Webster’s definition on more than one point, anyway…But thanks for including it.
It’ll never happen. Like you said, the word “marriage” brings up so many implied meanings that society is well attached to that they are certainly not going to give it up, as evidenced by the fact that they don’t even want same-sex couples to use it, even if “civil unions” are exactly the same thing.
You said it yourself - “marriage” is much more than just a “civil union.” I understand your argument is that the government has no business in anything but the legal aspect of a marriage, but since that’s all they have anyway, I don’t see any conflict, and potentially see a detrimental effect to the other aspects of a marriage.
That’s what I want. “Civil union” just sounds so… cold.
No, but it will change the implication of a very powerful word - “marriage.”
Done and done, at least in Vermont. The compromise was “civil union,” but that’s really not enough for some (see below).
But as you say, rights are the first step. With legal rights secured, then we can go out and fight, as you put it, the good fight. (Sadly, this is what the radical right accuses us of doing, and one of their attacks against gay marriages, but it’s the truth, and would be true of any disenfranchised group seeking social equality.)
Defense of Marriage Act, passed in 1996(?), which defines marriage as between a man and a woman and proactively illegalizes same-sex marriages that may someday be legalized in a state (which, of course, hasn’t been done yet - we’re passing laws against laws that don’t even exist).
There are state-sponsored DoMA siblings in various states, including the infamous Proposition 22 in California.
They’re all wholly unconstitutional, according to every constitutional expert I’ve heard.
One question - what is the USSC’s views on discrimination, and how does that figure in? Or didn’t I read your post closely enough (as if my eyes don’t hurt enough as it is)? I was under the impression that, simplistically, one of the things the USSC found was that “seperate but equal” implied an inherently discriminatory “second-class” citizenship. True or false? And how would that apply here?
I am firmly in favor of gay marriage being legalized. I also think that it would be better to preserve the word “marriage,” thus conveying that gay marriages are analagous to hetero marriages.
I just think that there would be a better chance of real, lasting success if the word “marriage” was not used. This seems to be one way to fight some of the main opposition to gay marriage.
You guys bring up some very good reasons that the word “marriage” should be preserved.
-Bean, who thinks that Billdo really ought to get married sometime.
It is better, IMHO, to raise SSM’s “up” to the many implications of the word “marriage” than to “lower” traditional marriages to the phrase “civil union.”
I firmly believe this will happen, if not sooner, then later.
