Though a couple is not required to have kids in order to get married or be married, procreation is still a big deal in marriage. You can get an entire marriage annuled (as if it never happened legally), even after 30 years if you find out that your spouse lied about their ability to have children and you married them thinking that you’ll have kids eventually. Furthermore, if procreation was NOT a big deal when it comes to marriage, then why do we prohibit brothers and sisters from marrying each other?
From a legal standpoint, interracial marriage is completely different from gay marriage. There is something called strict scrutiny applied to constitutional issues of laws that discriminate or treat differently by race. The government has to have a compelling reason for the law and the law must be narrowly tailored. It’s a high bar to meet. However, issues of discrimination against sexual orientation are given the rational basis test; if the government has a rational basis for the law and the law is designed to support that, then usually the law passes constitutional muster. It’s the lowest bar to meet. This is the same test given to bigamy, and we all know how that turned out. The first hurdle that the lawyers in the Prop 8 federal trial are going to have to do is either (1) say there is NO rational basis or (2) say that a higher scrutiny should govern discrimination against sexual orientation. IMO, either is a tough sell.
[BTW, a line from Lawerence v. Texas which invalidate criminal laws against sodomy: “That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage.” So, in essence, the Court is implying that protecting the institution of marriage IS a rational basis. ]
Also, I understand that a lot of people quote to Loving v. Virginia, the Supreme Court decision that banned prohibition against interracial marriages. Yes, there are many instances in that case where you can just substitute in a gay couple. BUT, the history going into that case is also important to keep in mind. By the time Loving was decided, only 16 states had laws like this, and most of those laws were dormant. That means that the majority of the states had already decided that the prohibition was asinine. Currently, only FIVE states recognize gay marriage and less than 20 have civil unions/domestic partnerships. This is definitely not the track record you want to confront the Supreme Court with, IMO.
I completely agree that the state should get out of the marriage business and only enforce what are, essentially, contracts between people. BUT, that’s not going to happen any time soon. If people are having this many issues just letting go of the word “marriage”, I don’t think they’re going to give it up completely.
My thoughts on the current Prop 8 trial is that it’s going to fail in the end run. The California federal court and probably the Ninth Circuit court of appeals will say that it unconstitutional to ban gay marriage. But, the Supreme Court is known for overruling the 9th Circuit AND it doesn’t like being backed into a corner like this. Heck, the federal government didn’t want to touch the issue back in the day (remember the time Clinton signed the Defense of Marriage Act?).
I understand what the proponents are trying to do, but I think they’re trying for too much too soon. I would rather see them go state by state and get equal rights and obligations. Call it whatever but just not marriage; get most of the states on board to actually treating same-sex couples the same. THEN start going for the word “marriage” or, maybe by that time, the word doesn’t mean anything. [I don’t get why people want to buy into an institution that discriminates against you, why not just get another institution established? I have a far more eloquent explanation of that, but I just woke up from a nap.]
>>”But I think it would be a tragedy for our society if only those with a religious affiliation were permitted to form the family unit that the idea of marriage represents. Marriage represents a committment. Do you really feel that we’d be better off if only the religious were permitted that commitment?”>>
I see what you did there. I said, “I’m of the belief that government should get out of marriage completely” and you reinterpreted as me feeling “that we’d be better off if only the religious were permitted that commitment [of marriage].”
I never said same-sex couples cannot marry. I said government should get out of marriage, meaning that there should be no legal consequences and benefits attached to the status. If marriage had NO consequences or benefits, like tax breaks or rights of inheritance, would this debate still happen?
The Jewish faith’s bar mitzvahs establish a 13-year-old male to be a man, but under the laws of many states, they are still considered to be minors. This is what I am talking about.
I’ve known people who have gone through a religious marriage ceremony without filing with the state. I have known people who just went to the courthouse without all the hoopla of a wedding. There are people who start families and remain together without ever getting legal recognition of their relationship. It is possible to separate the two.
In California, you can opt out of intestacy laws by having a will or putting everything into trusts. You can opt out of the community property system by premarital agreement. Why not just have everyone opt in by agreement rather than opt out? If a person dies without a will or an agreement, then all their stuff goes to their kids or parents and nothing for their partner. Then it’s up to you to make sure you provide for your family, as it should be.
Why let the government define your committment to a person?
so, I’m not going to answer your question because I feel that it misconstrued my belief.