http://twitter.com/Camerus/status/8209307418
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?
http://twitter.com/Camerus/status/8208540360
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.
http://twitter.com/Camerus/status/8213622086
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.
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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.]
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8/7/2010
http://twitter.com/Davest010/status/20557623506
http://twitter.com/Davest010/status/20557723381
http://twitter.com/Davest010/status/20557917177
>>”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.
Comments
3 responses to “Twitter Discussion on Gay Marriage – A Reply”
I love you to pieces 🙂 Thanks for throwing some legal precedent & theory into the mix.
I didn’t mean to “reinterpret” what you said. If the state is removed from the institution of marriage, does it not follow that marriage would be, at that point, only a religious matter? Perhaps a marriage certificate is only a piece of paper (and I know as well as anyone that that piece of paper doesn’t mean much to a lot of people these days), but that piece of paper still, to many, represents a commitment that two people have made to each other. In this day and age, when so many children are being raised without fathers, do we really want to water down the family institution even further by declaring non-religious marriage meaningless?
Further, if the state removes itself from marriage, what then of divorce? How will the disollution of a family be delt with when there is no state interest in the family as a unit?
>>does it not follow that marriage would be, at that point, only a religious matter?>>
No. Because many societies have marriage that are not religious. Thus, anyone can get married. The only difference would be that it doesn’t matter to the government. This would be for both straight and gay couples, religious and non-religious couples.
Hence, agreements between the individuals themselves regarding their rights would govern when it comes to state enforcement. What you call your commitment is your decision, not the government’s.
Why is a marriage certificate important? Because it is the piece of paper you file with the state that gives you all these rights and obligations under the law. If the state no longer is involved with marriage, then the marriage certificate loses its importance. You can still have the commitment without the certificate.
The government should not be the thing you look towards to validate your relationship. Isn’t this what same-sex marriage proponents argue? “You can’t tell me who I can love and who I can marry.” Well, then fine. If no one’s marriage is recognized, then the state can’t tell you who you can marry because it won’t care.
Which goes into the next point that you can still be a family without the government recognizes the “foundation” of the family (i.e. “married parents”). Parents will still be responsible for the welfare of their children, as it ought to be.
Can’t answer your question about meaningless “non-religious marriages” because it’s based on an assumption I didn’t make.
Divorce? Again, that should be dealt with by individual agreement. It happens now even with marriages, for example – prenups and other agreements made during marriage.
The family as a unit is more than just whether the mom and dad are married. The state has an interest in protecting the welfare of the children that can be separated from “divorce” proceedings. This is obvious by the fact that there are many procedures already in place regarding the children of unmarried couples now. So, not much would change.
I don’t need the government to validate my relationships. And there are mechanisms available to me to ensure that the people I care about are taken care of without having to rely on things outside contract, trust, and wills law.
I am not saying that my way is the “right” way, but it’s the clearest way, to me, of getting everyone the same rights and obligations under the law, as is meant by equal protection.