Five

You know the five here represents, I’d wager. My understanding is that six might happen very soon as well.

That said, I think this is the time and place for supporters of same-sex marriage to remember that they’d not be smart in assuming there’s now runaway momentum for their side of things. First, without minimizing the achievements to date, New England is easy, the rest of the US is going to be hard. Second, what’s given can be taken away. California is certainly an example of this, and in Maine, there’s almost certainly going to be a referendum fight about the law that just passed, just as there was a constitutional amendment in California. California isn’t Maine, nor Maine California, but anyone who doesn’t believe this is going to be a huge fight regardless isn’t paying attention.

I strongly believe we are moving toward nationwide same-sex marriage rights. I also believe the people who are against it are going to fight like hell all the way to the end. The easy part, such as it is, is pretty much over. It’s one thing to convince Maine, or even Iowa. Convincing Ohio (much less Mississippi) is whole other ball of wax.

156 thoughts on “Five

  1. Easy part, perhaps, but the state-by-state approach has a major advantage over judicial fiat: the legislatures can cite public support for their actions, and the changes do tend to stick.

    The poster child for doing it the hard way is Roe vs. Wade, where the Supreme Court pulled a ruling out of their… anyway, they ruled as they chose, with consequences that have ranged from shouting matches to murder.

    Building a widespread consensus is never easy, but it’s the only way to make things stick, peacefully, in the long run.

  2. What I like in particular about the Maine legislation is that they make explicit that this will not require any churches to perform gay weddings (unless they want to); that the change is only on the civil side of things. Naming the statute what they did was particularly savvy.

    Given the amount of disinformation regarding that very issue spread by the Prop 8 proponents last fall, I’m glad to see Maine’s legislators got ahead of the ball on that.

  3. And once again, this was the right way to do it. Convince enough people that it’s the right thing to do that the legislature will pass it and the governor will sign it.

    Of course, my preferred solution to all this is to get the government out of the business of recognizing marriage at all, since it is, at its root, a religious convention. But I recognize that that is a far more radical item than gay marriage itself.

    One thing is going to be interesting, though. I expect there to soon be lawsuits working their way through the Federal court system about marriages recognized in one state but not in another, if they aren’t already there. And there’s a large body of existing precedent on how to handle this, mostly in terms of various forms of cousin-marriage or non-blood-related marriage (step-whatever) that are legal in some states and not in others, and to a lesser extent interracial marriages back when that was illegal in some states and not in others. The short story basically is that existing precedent says states don’t have to recognize marriages that are not allowable within their own borders. I’m going to be curious whether or not this existing precedent gets overturned once these cases hit the Supreme Court.

  4. cofax@4, that’s a good point, but there are some related ones. If a church, in general, will allow non-members to use the premises for weddings in exchange for a fee, will excluding these types of weddings open them to an unlawful discrimination suit? If a private business that supports weddings (photographer, wedding cake baker, etc.) doesn’t want this business, does it do the same? If the answer is no, under the statute, then we’re ok, if it’s not, then we have a problem, and lawsuits for these things have been filed in other states.

  5. Skip @5:

    Marriage is not, at root, a religious convention; it’s a human near-universal. Not all religions have sacramental marriage – mine does not, for example. The involvement of the Church in English-speaking marriages between ordinary people started creeping in around 1200, which is explicitly not time immemorial.

    Please don’t perpetuate the misinformation that the anti-marriage-rights crowd is depending on to make their arguments.

  6. California will repeal Prop. 8 at some point.

    The discussion that’s going on right now is about whether the pro-SSM forces should target 2010 – when there is a gubernatorial election in which the democrat will support SSM and the republican will likely be a social liberal who doesn’t care – or 2012, when more time will have passed but the top-ticket race will be a presidential candidate who wants nothing to do with it.

    It will be a close fight.

    But we *can* win.

  7. I still don’t understand how the Gubment got into the marriage regulation business in the first place. I mean, I understand the How of it, but the lack of hordes of people roaring in rage and disgust at having a dude in a cheap suit with a clipboard in their gorram bedroom in the first place has be perplexed.

  8. Skip, I’m not sure how many churches regularly rent out their facilities to non-members. To the extent that they do, they’re not acting as churches. In that case they’d be governed by state anti-discrimination law.

    Race is a decent analogy here. An openly racist church would be within their limits not to marry a racially mixed couple. That’s despicable, but protected freedom of religon. But if they decide to rent out their facilities as a public accomodation, (rather than part of their religious mission) they can’t choose to discriminate based on race.

    Other services (photographer, baker, etc) are even more clearly in the same boat. It doesn’t matter if you’re having a baker make you a wedding cake or a birthday cake. If existing law prohibits discrimination based on sexual orientation, that’s the law. If not, wedding cake has no special privilege.

    Regarding states recognizing marriages performed in other states, that’s what DOMA was about. We may see it tested in the courts, but I suspect it’ll hold up.

  9. @Skip #7

    My understanding is that private actors (churches, businesses, private citizens) cannot be sued for discrimination for those kinds of instances, *unless* they’ve taken state money. The only case I can remember where a private actor was found liable involved a pavilion which was on a religious organization’s grounds, but had been partially funded by the state with stipulations that the pavilion would be available for use by the public at large. IANAL, however.

  10. Much less Utah. It’ll be a big day indeed when they convert to SSM, and I hope I live to see it. But my guess is that the rest of the country (or most of it) will have to pass it first.

  11. I am both happy and depressed by the Maine legalization. I am really tired of religious zealotry running my government, and yes, unfortunately, I have to put President Obama’s administration in that group still, because they can’t take the position they should take. I accept that they can’t, but I hate it. The hatred that exists in this country, I’ve been dealing with and witnessing all my life, and while things are better, it is so slow to get that hatred out of the law, and to have the law be truly secular and the constitutional law truly adhered to regarding civil rights.

    Skip, for me, you’re dead wrong. My neighbors should not get to decide legally on a vote whether I or my gay fellow citizens should have our civil rights or not on the basis of their approval or disapproval of my beliefs, my race or my gender. Marriage is a legal contract that should be run only by the secular government. Religions have no right to control who gets married in this country, only who gets married in their church. They already have that right, protected by law, and that we had to restate it in the Maine law just shows what an utterly wasted amount of time has to be spent on pacifying people who claim rights they don’t have to control their neighbors’ lives. The millions of dollars spent on this and that will be spent on this –we could do so many other things with that money, but no, we have to keep spending it on fighting these battles over whether people really have inalienable rights. Gays have to fight for their rights while being called pedophiles and deviants, not only by people who are ignorant, but by lawmakers who are supposed to be representing gays as well as straights.

    This isn’t a matter that should be put to a vote, legislative or otherwise, or have to be the result of a court decision. It should already be done. We should be better than this. But we never are. The truth is that the gay rights movement, while tenacious, may not win enough states. If we cannot get a federal amendment — to say what the Constitution already says — well, I don’t like to think about it. At least the hate law legislation went through.

  12. I still don’t understand how the Gubment got into the marriage regulation business in the first place. I mean, I understand the How of it, but the lack of hordes of people roaring in rage and disgust at having a dude in a cheap suit with a clipboard in their gorram bedroom in the first place has be perplexed.

    the government has been in the marriage business since before the foundation of the American republic.

    I think that there was a marked absence of people roaring in rage and disgust at such things at the time the government got involved in the marriage business. Perhaps it’s because the clipboard had yet to be invented. :)

  13. @cofax: It may be politically smart, but in other ways it’s annoyingly stupid. It was a legally unnecessary addendum designed to respond to a dishonest and manipulative talking point. There is no way that churches could be legally required to perform same-sex marriages, any more than churches have been legally prevented from from performing same. (Certain churches have been performing same-sex marriages since long before even Massachusetts stumbled into the 21st century.)

    *Civil* marriage and *religious* marriage are two separate things, even though plenty of people don’t realize that … and same-sex marriage opponents are only to happy to take advantage of that confusion.

  14. It was a legally unnecessary addendum designed to respond to a dishonest and manipulative talking point

    In which case it’s a good thing: it’s harmless and it appeases people, turning them from opponents into neutrals.

    Seems like the best kind of political compromise to me.

  15. @ Jon Marcus #13: re DOMA:

    I think DOMA is vulnerable to a number of solid arguments, starting with “full faith and credit”. But much will depend on the who’s on the Supreme Court by the time the issue reaches that level.

    (That was part of why I supported Obama, even though his specific (public) views on this issue weren’t much different than McCain’s. Not that I didn’t have plenty of other reasons …)

  16. Bearpaw: I think DOMA gets more and more vulnerable the more states enact gay marriage.

  17. @ aphrael:

    Like I said, it was *politically* smart. But I have a visceral dislike of choosing to respond to manipulation with more manipulation, instead with education.

    The *result* is most definitely a good thing, but that doesn’t make the means used to achieve that result good.

  18. Progression of marriage for ordinary people under English law as I understand it (I’m afraid I’ve lost my link that I used to use as a reference):

    – prior to about 1200: common law was the norm, sacramental marriage a bonus option
    – about 1200: church pressure increased on involvement in marriage, eventually demanding oathing on church steps (but NOT involvement by a priest necessarily) for witnesses and imposing the posting of the banns
    – 1753: Lord Hardwicke’s Act bans common-law marriage (this did not apply to Scotland or the Colonies) and requires all people to have marriages solemnised in a church (except for Jews and Quakers)
    – I want to say 1830something or 1840something, but I could be wrong: civil registry of marriage established in England

    So most of the colonial US was established when common law was still an option, which explains why it used to be widespread. Puritan Massachusetts explicitly established marriage as non-religious in its laws when it was founded, in part because they found the creeping religiosity in the treatment of marriage unBiblical. (This was referenced in the Goodridge decision, a matter which probably makes my ancestors spin in their graves a bit, thereby, at least if they are properly aligned, gyroscopically stabilising the planet.)

    I’m of the opinion that the “natural” state of marriage is common-law, but that in the absence of common law marriage with appropriate legal protections for the families thus formed, it is utterly inappropriate for religious entities to claim ownership of it. If the people don’t get it by their own power, the government is at least less inappropriate than something as partisan, nonrepresentative, and factionalised as those religious entities who happen to incorrectly believe they have legitimate control over marriage.

  19. Skip et al: Jon Marcus seems to have this right. Marriage laws are not the same thing as anti-discrimination laws, and in general personal rights are rights against government action and not the actions of other persons. While there’s no solid constitutional grounds against most forms of private discrimination, there’s also no bar to legislation on it, so states can propagate whatever such laws they wish. So can the federal government, for that matter, to the extent that the regulated activities can be connected in some way to interstate commerce. This is what happened with the Civil Rights Act of 1964, and as the cases arising out of that law show, almost anything can be connected to interstate commerce. So yes, we could have laws preventing photographers and bakers from discriminating against gay weddings, but getting down to this level of commerce may be harder to justify on constitutional grounds than guarantees of access to public places (restaurants, hotels, etc.), which are considered more closely related to the fundamental rights of the discriminated-against party.

    I’d also like to remind the crowd that Iowa’s flip was a supreme court decision (a very well written one, at that–a good blueprint for 14th Amendment challenges to any state law explicitly barring gay marriage), so it’s no indicator of popular change. They have a nice and slow constitutional amendment process, though, so it should stand for at least three years, IIRC. It’s worthwhile to distinguish between states following legislative and judicial paths on this issue.

    John, do the missing words in your post spell out a secret message? Because I’m stumped so far, and there are definitely, like, four. Perhaps it’s the start of some gay marriage ARG…

  20. Skip – that’s a good point, but there are some related ones. If a church, in general, will allow non-members to use the premises for weddings in exchange for a fee, will excluding these types of weddings open them to an unlawful discrimination suit?

    If a church that rented it’s hall out to the general public decided that Muslims were terrorists, and weren’t allowed to rent space, they’d certainly face a discrimination suit. If you don’t like discrimination laws, that’s a different argument.

  21. Also, while I am cautious, I’m also celebrating. I hope at some point we can overturn DOMA. That’d be a huge step. With near on 60 votes in the Senate, it’s getting close to possible that Democrats can do it. If the 2010 elections hold with the trend of republican defeat, I have hope.

  22. Correct me if I”m wrong, and I think # 3 made a point along this line; but isn’t the diffference between Maine’s law and Cali’s Prop 8 is that Maine’s state legislature passed a law allwoing same-sex unions, but in California the judges imposed, for lack of a better term, same-sex marriages on a populace that did not favor them in a majority sufficent to make a law?

    If so, if the people through their elected reps want it, by all means let it be law.

    Some will not like applying the term marriage, in any case, if a same-sex couple have shared assets, income, etc, there is no reason they should have the legal protections, IMO, as a heterosexual couple, especially in the case of death of one partner.

  23. Skip @ 5 —

    “Of course, my preferred solution to all this is to get the government out of the business of recognizing marriage at all, since it is, at its root, a religious convention.”

    I was under the impression — perhaps an incorrect one? — that marriage was a legal institution, in which two people formed a union under the auspices of the state. Thus: the marriage license. I was under the impression that an engagement was a legally enforceable contract.

    My OSC books were put away a while ago, but he had a wonderful line about marriage … it was in Children of the Mind, IIRC. Wish I could find it now, because I’d post it.

  24. MH, I wouldn’t put much faith in Nate Silver’s “models” on this issue, as he also has Utah voting AGAINST a gay marriage ban by 2013. As anyone who has lived or spent time in Utah knows, that’s about as likely as stepping outside NOW and expecting to get hit by a meteorite.

  25. Rob: the history of same sex marriage is a bit more complex than that.

    The voters of the state passed a statutory initiative prohibiting gay marriage.

    The legislature susbequently, on two different occasions, enacted gay marriage, only to have the governor veto it.

    The Supreme Court then said the state constitution required gay marriage.

    At which point the voters then passed a constitutional amendment banning it again.

  26. Rob@28

    IIRC The California legislature did pass a law recognizing same sex marriage – it was vetoed by Governor Ahnald who then explicitly said that his reasoning was that he felt that this was a matter for the courts. Then the courts ruled in favor of same sex marriage and in reaction we got Prop 8, with all the associated misleading campaigning and out of state funding.

    So that’s a case where claims that judges “imposed” something on an unwilling populace are particularly irritating.

  27. Thanks for the shot at Mississippi, lol! There are a lot of us here that DO know what the right thing to do is for our gay friends. :)

    But, alas, you are right. Gay couples can’t even adopt children here through state agencies. The tide will turn. We aren’t as backward here as many think. Just a stubborn outspoken majority that will eventually give way to a new generation.

  28. Yes, it’ll be a fight. Yes, we have to be wary. But I wonder if we’ve reached a tipping point, a bit like the climate: the fundamentalist wingnut ice shelf has broken off, the ocean conveyor has abruptly restarted. Here’s an interesting article this morning in the Seattle Times: http://tinyurl.com/chb3g4. Yes, it’s about the PNW, but it’s good to feel hopeful every now and again. Just for a little while.

  29. Some states will probably never accept it (e.g. Utah), and all the states that are currently rushing to enact laws and state constitutional amendments asserting their soverignty are simply planning for the day the federal government tries to force this and other far right issues.

    Some of them may even be willing to secede from the union so they won’t have to. And I’m fine with that – I see no reason not to let the people in a state decide whether to secede or not. Indeed, I’m quite in favour of the idea of states that want to secede actually succeeding in seceding. Good riddance.

    The states that have the biggest problems with this are, of course, the ‘red states,’ which are, by and large, guilty of the things the red staters don’t like – they generally have the highest rates of welfare receipients, taking more federal money than they bring in, divorce, illiteracy, poverty, etc. Letting them secede and instantly create a new third world nation is fine by me. Like Jon Stewart, I’d probably rethink my position on a border fence. Oh, and no foreign aid. :)

  30. Everyone should read Nine Nations of North America and Albion’s Seed, in my opinion. Once things like marriage aren’t recognized across these “national” borders, what happens to the country as a whole? We’ll work something out, but I’m not so sure that it’s going to be same-sex marriage spreading from sea to shining sea. Interesting times.

  31. Once you start saying that one part of the country can break ranks an form another country, what’s to stop someone else from inside of that new country from doing the same?

    I’d give the most rabid red-staters (Alabama, for example) about 3 months of USA free life before they start turning on each other and killing each other. Libertarians vs. Evangelicals would be first. Some very red state would ban something a Libertarian wanted to keep, and there’d be a shootout. Then there’d be an in state secession movement in Alabama. More shootouts. Then the a chunk of more conservative Mormons would succeed from Utah. More shootings. And so on.

  32. Josh @37

    That is jsut too stupid and scary to not be true. I do so wish Chrsitians would actually act like, well, Christ – y’know?

  33. I’m just hoping the nutjobs fork up their referendum petition efforts so we don’t have to go through the whole special election thing. What a pain.

  34. The case against same-sex marriage is pure and simple bigotry, religious or not.
    I am puzzled by “conservatives” claiming to be agains it due to “conservative” values. “Conservative” values suggest that same-sex marriages have no effect what-so-ever on any other person’s marriage, and the state shoud not be permitted to use its pervasive powers to infringe on an individual’s right to marriage any consenting adult they may wish to marry. To “tolerate” such marriages does not go far enough, there needs to be an acceptance their right to equal protection before the law.
    We really do not need a Christian Taleban telling everyone how to live and worship. The muslim taleban is bad enough.

  35. Josh # 37 –

    Between those two, I’m quite sure the Libertarians would come out on top pretty quickly. They tend to know how to actually use their guns, whereas the Evangelicals would shoot and pray that the bullets would find their targets.

  36. Don’t be so sure, Tumbleweed, there’s plenty of evangelicals in the armed forces.

  37. Well, mark this dyed-in-the-wool Republican massively in favor of this result and, especially, this approach. The result is just in all events, but this approach — doing it through the legislature — is ultimately both the stickiest as well as the one that does the most to advance the cause. Go, Maine!

  38. Josh: that’s true … and yet my brother (ex-paratrooper) tells me that for the most part, nobody cares about homosexuality in the armed forces.

  39. No church in the history of the US has been forced to perform any marriage that they disapproved of. Other buildings, not churches, but owned by churches, can be a different story depending on situations. Whether there is any fee for marriages is immaterial. The catholic church will not perform a marriage between two non-catholics, or between a catholic and a non-catholic, unless the participants agree and promise to raise any children in the catholic faith. That has not been challenged. During all the decades when the mormon church refused to allow blacks to marry in its temples, whether or not they were members, there were no lawsuits attempting to force them to do otherwise. No church that disapproves of interracial marriage to this day is ever forced to allow an interracial marriage to be performed within hts churches. Etc, etc.

    If any church had ever been forced to perform a marriage it didn’t like, or been sued even unsuccessfully to perform such a marriage, you may be assured that the anti-gay marriage folks would have been shouting it from the rooftops. Instead, they just claim it will happen. It won’t. No guarantee that it won’t happen is necessary. Such a guarantee already exists as the protection of religious freedom in the first amendment.

  40. That said, I think this is the time and place for supporters of same-sex marriage to remember that assuming there’s now runaway momentum for their side of things.

    English was not my best subject but that sentence really looks incomplete to me. What are we supposed to remember about assuming again?

  41. @ 3 sehlat

    Abortion is categorically different from gay marriage. Though women are also a suspect class, they’re rather of a different sort.

    As a would be gay-marrier, I’m owed the equal activity of the Warren Court on my behalf, at the federal level. Given that the current composition would oppose it without grounding in federal statute or the Constitution’s original intention; a DOMA challenge hasn’t come up even though it’s blatantly unconstitutional, because the less Conservative arm of the court knows that the Scalia would so enjoy writing that majority decision, and that it’d be creepy.

    The five states that had court hearings leading to gay marriage in each case used scrutiny (though no one, less CT, maybe, used the strictest case) to establish gays as a suspect class. Judicial review is a fairly standard way for vulnerable/oppressed minorities to seek protection, it’s part of why the court is there.

    I understand your argument is largely premised on the idea that judicial review in this sort of case leads to backlash, producing net negative results (“The Hollow Hope” Rosenburg). While Blackmun could’ve built a better decision than on the penumbra of Griswold, he can’t be held responsible the second largest campaign of domestic terrorism.

    Put another way, would you have preferred that the decisions clustered around Brown forward to Swann or Loving have been voted on over the course of 40 years state-by-state, because no one wanted hurt Bull Connor’s feelings?

    Furthermore, there’s already an established line of judicial reasoning at the federal level that suggests that gay rights should/will move forward under the protection of the Courts (Kennedy has skid marks right in front of making gays a /Federal/ suspect class, though O’Connor’s concurrence is much better reasoned and written, she couldn’t carry the votes). The comparison to Roe is silly on its face, and you have to know that; though it’s a social issue, the Jerry Falwell side is attempting to abrogate the rights of private citizens to make private contracts, where there’s no legitimate state interest to abrogate the rights of a certain group. Whereas Griswold led to Roe, Roe generated Casey/Carhart which had fairly specious legal reasoning (Carhart II’s premise seems to be “Women are delicate and flighty creatures”), whereas gay marriage is (now with several states recognizing gay marriage within their own borders and among each other, as well as marriages contracted abroad) is more firmly rooted in the line of reasoning from Loving, and more broadly, the Bill of Rights. I’m of a mind to get married and move to Virginia and demand full faith and credit, if only out of spite for their churlishness.

    Being told by someone else to, again, to wait, that the time isn’t right now, til everyone feels good about whatever special begging it is this time is too much, and too rich. Everyone else got judicial fiat; either I’m less a citizen and my rights are less valuable. Plus, this way or that, some large part of us will be beaten or killed, or kill themselves, or living in mute despair and self-denial (Hey Larry Craig). Let us at least get adoption and insurance and hospital visits, and protection from bigoted, crazed blood kin in death.

    What is at the end of a federal judicial fiat is not abortion clinics for all, but the truly terrifying prospect for the Holy Rollers that Gay Wedding announcements in Omaha or Provo is what everyone else already knows–we’re everywhere, we’re normal–and they’re bigots.

  42. W00T!!!! Seriously, you’d think they’d see that the sky hasn’t fallen in Massachusetts yet.

  43. CA used strict scrutiny when it established sexual orientation as a suspect classification.

    Better yet, that part of the decision was not overturned by Prop 8. So sexual orientation remains a suspect classification in California … for everything except marriage.

  44. I quite like how we’ve done it here in the UK. The government created civil partnerships and then said that while they have exactly the same status as marriages, the general populace should on no account whatsoever call it a marriage. As a result virtually the entire population (including a large proportion of the CofE despite what the Arch-Bishop of Canterbury would have you believe) said “blow that for a lark, we aren’t having that lot in Westminster telling us what to call things” and now everyone except the government calls civil partnerships marriages. Even those few who still violently oppose the idea still use the term marriage, even if they do call it “gay marriage” and emphasise the “gay” part.

    And virtually everyone else now wonders what all the fuss was about. All in all it was a shrewd move using the country’s own bloody mindedness against it.

  45. CrypticMirrow # 52.

    Unfortunately, “separate but equal” rarely is. Would the UK government and people be OK with haveing a Searate but equal” status for Muslims? Given that they are non-Christians, perhaps you could use Muslim partnerships?
    I just find it hard to believe separate is equal.

  46. As you can tell from some of my other posts, I am a conservative Republican on most issues. When it comes to same-sex marraige, I belive that if gay people want to get married they shoiuld be allowed to do so. I do not understand why people get so uptight about gays. I teach at a high school in the metro New Orleans area and the students are mostly live and let live except when it comes to gay issues. I just don’t get it.

  47. @53 Doug
    I’m sorry, I’m being a bit dim here, but I don’t understand the question. Could you rephrase for me please? I’m sure it is entirely me being rather thick and not yourself but I can’t quite grasp what you are asking. Sorry.

  48. I don’t think the government should be in the marriage business at all. Let people marry however they want (such as by church or by the equivalent of common law), and also create a partnership contract similar to other contracts.

    We don’t need marriage for alimony nor for child support even without such contracts.

    And if an unmarried person chooses to have his social security insurance beneficiary his mother, his disabled brother, or the guy down the street – why not? It’s his money.

  49. @ ytimynona: Please note that using the phrase “the sky hasn’t fallen” with respect to this issue is starting to get on the nerves of some folks in Massachusetts. I have not yet heard of any incidents of actual violence, but it *has* gotten to the level of threats of same.

    Creative alternatives such as “nobody has been turned to salt” are encouraged.

    Just so you know.

  50. @Bearpaw: Oh thanks for the heads-up. Haha “nobody’s yet turned into salt” shall be the new phrase then.

    I actually haven’t been to Massachusetts since they legalized gay marriage, but I figured I would have heard about the sky falling. I mean, the physics of the thing! ;-)

  51. Currently, the federal government gives tax breaks through laws about heterosexual marriage to opposite sex couples who’re married, and have children. It gves court a legal status that’s been worked through for as long as we’ve had courts. Ever hear of spousal privilege? . Should we abolish that, because if we “get government out of the marriage business”, that’s exactly what we’ll do. Same sex couples do not enjoy spousal privilege in most states, or in federal court because of DOMA.

    All of the “get government out of the marriage business” crowd is proposing to do is strip these people of the tax breaks, rather than take the simple step of extending them to same sex couples.

    Eliminating marriage as a legal status would hurt people, heterosexual and homosexual. It’s a stupid idea. Sure you can say “Oh, just get a contract written up”. Oh, great, so now the richer you are, the more rights you have. Libertarian paradise. Your civil rights are there only as long as you pay for them. Move to another state? They’re not bound to honor that contract. Instead of a United States, you get 50 small nations fighting over who’s contract is valid.

    Government can’t “get out of the marriage business” because those contracts are a part of the way we do business, and regulating the way we do business is, in fact, the government’s job. If government stops regulating anything, they’re not a government. A Stitch In Haste blog describes it better than I can.

  52. I didn’t know there was such a crowd. I only have seen me advocate this.

    I’m married, but I see no reason that should give me special tax breaks. I also don’t see why I should have spousal privilege which is denied by say, my mother, children, or grandchildren.

    Allow for legal (marriage like) partnerships between two people without requiring them to have sex with each other. Allow them to even be related to each other. If my brother is the person who needs me to be a caregiver – I shouldn’t need to lobby to recognize us as “married” in order to receive the same benefits that a spouse should.

    I don’t want to have special rights or benefits because I’m married. I want to have rights because I’m human.

  53. I live in Maine, and I was sad, but not surprized, to hear all the bluster on the news about how the ‘grass roots’ groups were going to get a referendum on the ballot to shoot down gay marriage. The northern part of the state in particular is very conservative about certain issues like abortion and gay marriage.

  54. And yet, Howard, you got married. You didn’t simply stand up and utter a vow in front of friends and family, nor did you opt for a religious ceremony in the absence of a marriage license. You could have done that, you know, if you didn’t think the government ought to be involved in the marriage business.

    The short story basically is that existing precedent says states don’t have to recognize marriages that are not allowable within their own borders.

    You mean the Full Faith and Credit clause of the US Constitution was abolished?

    Yes, there have been a handful of cases about the ‘public policy’ exemption – but it doesn’t come up often, because as a practice, states DO recognize other states’ marriages, even those that could never be underaken in their own borders. e.g., Nebraska, which recognized a run-for-the-border marriage between a 20-year-old and his pregnant 12-year-old girlfriend, even as the state’s Attorney General prosecuted him for child rape.

    I’d love to see Nebraska try to argue that homosexual relationships are against its public policy, but child rape isn’t.

  55. I got married legally because the state *is* in the marriage business. That doesn’t mean I believe it should be in that business. Just because I believe the financial benefits of marriage should be extended to partnerships that haven’t been specifically defined by the state as marriage doesn’t mean I am willing to suffer.

    My son got a friend to marry him. It’s not hard to get a license to marry one – provided we fit in with a definition of marriage that the state has previously defined. Then they got the benefits that the state has decided married people should get but unmarried people should not get.

    Why? Let everybody have the same rights and benefits.

  56. The rights and benefits package of marriage comes with responsibilities. Some people don’t want those responsibilities, and accept a lesser level of rights and benefits in return.

  57. I agree. Create a standard partnership contract that people can choose to accept for their partnership. But don’t set up criteria such as gender, or non-celibacy, or not being related or whatever that have to be redefined one case at a time.

    This means, social security has to be treated as other insurances. It means any partnership has the same tax benefits. It means partners can be forced to testify against you the same way as parents can. And it may mean that one can’t get out of rape charges just because one is married (as in that Nebraska case posted earlier).

    We have palimony and child support responsibilities outside of marriage now. And we have pre-nupital agreements modifying the marriage contract now.

  58. Then you don’t really want the state out of the marriage business (who do you think is going to recognize or enforce those contracts?), you just want it to be a more inclusive franchise.

    Oh, missed this before:

    Rob@28 – “imposed” is not something you use for want of a better term. (Oh, that limited English language and its tiny handful of words!) Anyone who claims a court “imposed” same-sex marriage on The People either doesn’t understand the function of the courts, or doesn’t want to understand because it’s so much easier to beat the queers up by accusing them of the vile sin of judicial activism.

  59. The expanded contract is that “marriage” isn’t a necessary part of partnerships recognized as valid by the state, including insurance provided by the state (social security).

    We can call our partnerships anything we want. (If we are religious, we may be subject to limitations of our church or religion). But the legal responsibilities and benefits should be part of contractual law, not social engineering.

    An interesting aspect of this may be with divorce. Who gets the “spousal” benefit of someone’s social security? The spouse who supported one’s career, or the one who took over when that career was over? Maybe that should be part of the divorce agreement.

  60. Howard –

    I didn’t know there was such a crowd. I only have seen me advocate this.

    People have been making that stupid argument for years.

    I’m married, but I see no reason that should give me special tax breaks. I also don’t see why I should have spousal privilege which is denied by say, my mother, children, or grandchildren.

    This is because you’ve never had to actually think about things. You were handed a bundle of rights and you’re not even interested in what they are, or why they’re given to you.

    Allow for legal (marriage like) partnerships between two people without requiring them to have sex with each other.

    There is such a right, but it’s only granted to heterosexuals, and it’s called marriage. There’s no law requiring married people have to have sex. You can marry a person, remain a virgin all your life, and still be married.

    I don’t want to have special rights or benefits because I’m married. I want to have rights because I’m human.

    You already get those. If you’ve got a problem with the state creating *ANY* class of law that’s not exactly the same as any other, you’re talking bout something that’s no longer a government. It’s as stupid as asking why the police shouldn’t have any more or less right to arrest you as I do. You and the police have the same baseline rights, as humans. What they have is *extra* rights above the base line, and we’re better off because we have police. Just like we’re better off because we have judges, soldiers, tax collectors, building inspectors, etc. All of whom, in certain categories, have more rights than you do. Just like a marred couple will have more rights than a father and son, or two close friends. These rights are designed around the functioning of a married couple – things like power of attorney, spousal privilege, the expectation that finances will be entangled, and that one person will probably support the other if they’re a homemaker or ill, etc…

    If you want to be able to extend rights granted by marriage to any one person of any one other person’s choice, you’re not talking about getting government *out* of the marriage business, you’re talking about creating even more government, because then you’ll have marriages *and* people using those rights just because it’s economically useful. And there’d be a ton of problems in the courts and in state governments, because you’d have to require all states to recognize this new mega-rights-bundle you’re granting to anyone. And then there’s divorce. What would you call that, if all rights were granted to all comers. Would states be required to modify divorce law?

    You really haven’t actually thought about this, have you?

  61. @McDevite: Thanks for the mini lesson. After reading your comment I wiki-dived for more information, and now feel like I have a better understanding of how Roe works (or doesn’t work, depending on how one reads the decision). I’m sure I’ve read the same information elsewhere, but I have a feeling that both my secondary and undergraduate educations shoved it, like the other major developments in the final third of the twentieth century, into that springtime pre-finals period during which it is impossible for any knowledge to stick. (A shame, as those landmark decisions shape the everyday life of my and future generations in ways I can’t begin to count.) This also prompted me to check out my chosen country’s history on the matter, which led me to this little gem from Pierre Trudeau, in which (regarding homosexuality) he says: “There’s no room for the state in the bedrooms of the nation.”

    Anyway, I wouldn’t have found half of this without your comment. So thank you. (And go Maine!)

  62. Howard @68 – you don’t have to get married to have most of those ‘contractual relationships’. You and your wife could have refrained from marrying, but filled out powers of attorney, wills, and so forth to get many of the same benefits. Nobody stops unmarried people from commingling finances. Everybody files taxes as Single.

    The nice thing about this solution as an alternative to same-sex marriage is that it is hugely unpopular and will probably never happen. In other words, it’s a way to block SSM while pretending that the problem isn’t the SS but the M.

    It reminds me of all those fairy tales where the king doesn’t want the poor, commoner hero marrying his daughter, so he agrees to the marriage, but only after the hero has gone on a quest that killed everyone else who tried it before and returned with proof of his success. The king doesn’t really want the Apples of Youth or the cloak of the West Wind; he just wants this upstart youth to go occupy himself with something that will keep him away from the princess, preferably forever.

  63. mythago 67 is being ironic when she says (Oh, that limited English language and its tiny handful of words!) for those of you who are unfamiliar with her style of discourse. English has the largest vocabulary of any modern language, and the second-largest of any language in history (Classical Greek beats it there).

  64. How do we quote in this forum?

    I have thought about it considerably. I shouldn’t have special rights because I am married heterosexually.

    The state already enforces contracts. It already enforces implied contracts such as palimony and child support for unmarried people. I am not talking about it increasing its contracts.

    And the best solution isn’t to make this special rights group of married people more inclusive one piece at a time. It is to get rid of the special benefits it recognizes for married people. Then it won’t matter what kind of marriage I have. Then it won’t matter if I want my brother go be my social security insurance beneficiary while my spouse’s beneficiary is his/her mother.

    If you recognize your marriage, or if your church, or your peers, or whomever recognizes it. It shouldn’t matter to the state. It should accept your partnership the same way as it accepts a partnership between two people starting a business together.

    Your gender, or race, or you are related shouldn’t make any difference to this contract!!

  65. Classical Greek isn’t expanding, and English is. Soon, we will be supreme! Muahaha!

  66. The Supreme Court then said the state constitution required gay marriage.

    No. The California Supreme Court said that the law discriminated based on sexual orientation, AND that the State of California did not offer a good reason that justified the law anyway.

    It’s a little hard for a state to say ‘traditional partnerships and OMFG TEH CHILDREN!!!!!!’ when it is already permitting same-sex couples to have partnerships, to adopt, and to be legal parents of their same-sex SO’s children.

  67. Quoting: English has the largest vocabulary of any modern language, and the second-largest of any language in history (Classical Greek beats it there).

    I didn’t know about Classical Greek. How large is it’s vocabulary compared to English? Of course, “vocabulary” isn’t completely defined when languages have different concepts for what a word is.

  68. Quote: The nice thing about this solution as an alternative to same-sex marriage is that it is hugely unpopular and will probably never happen. In other words, it’s a way to block SSM while pretending that the problem isn’t the SS but the M.

    I don’t want it as an alternative to same-sex marriage.

    What I want is for the state to stop giving special benefits for people who fit its definition of married.

  69. Quote: Howard – child support is not a “contractual obligation”.

    If I didn’t say “implied contractual obligation” I meant to. The state does treat it as such.

  70. What I want is for the state to stop giving special benefits for people who fit its definition of married.

    You availed yourself of the benefits of marriage even though you think marriage should not exist. You “are not willing to suffer” but you are willing to make same-sex couples suffer? Why shouldn’t same-sex couples get to marry, yet still work toward the happy, utopian state of No Marriage – just as you have?

    And no, child support is not a contractual obligation. It is an obligation, period. You do not have to agree to it. You do not receive anything in return for child support. It is an obligation, period. It sounds as if you’re trying to fit every law into some kind of pseudo-Randian framework.

  71. I took advantage of the system as it is, yes. The fix of having a standard contract that is available to any partnership which is recognized by social security and other government agencies is not yet available.

    Does this mean I’m a hypocrite for arguing that these benefits should be disassociated from marriage?

    Is my choice either to make my family suffer, or to stop fighting for equality? Or can I work for what is right while making sure my family benefits from my social security taxes at the same time?

  72. So, again: why aren’t you willing to allow same-sex couples to take advantage of the system, to keep their families from suffering, and to make sure they benefit from Social Security, until the day when those benefits are disassociated from marriage – just as you have?

  73. Quote: So, again: why aren’t you willing to allow same-sex couples to take advantage of the system, to keep their families from suffering, and to make sure they benefit from Social Security, until the day when those benefits are disassociated from marriage – just as you have?

    Who said I’m not? I never implied anything like that.

    My argument is solely to get the state out of the marriage business. If that had been the solution to inter-race marriages (IMO, Jim Crow was more disgusting than slavery), gay marriages and straight marriages would be on equal footing today. I’ve read that in the U.S., state control of marriages were primarily pushed to counter LDS polygamy. Social engineering.

    Instead of defining what is right, therefore everything else is wrong, the state should work that everything not defined as wrong is right.

  74. Howard, if you don’t see getting the state out of the marriage business as the solution to marriage inequality, why bring it up here at all? It’s irrelevant. mythago was making a very reasonable assumption, given the context, that you were arguing that dissociating the state from marriage was the solution to marriage inequality. And she’s right, that’s a hypocritical argument if you’re married yourself.

    As of 83 what you’re claiming is that you brought in an only-vaguely-related side issue, in a context where it was likely to be mistaken for a solution to the problem of marriage inequality. That would have been a fairly stupid move, and that’s at odds with the coherence of your posts.

    I don’t buy it. I think you’re backpedaling furiously, and should just admit that you’ve changed your mind.

  75. Where “changed your mind” means “been convinced by mythago’s arguments that, while getting the state entirely out of the marriage business may be a laudable goal, it’s not a practical solution to marriage inequality, nor is it morally defensible to propose it as such.”

    A discussion is not a debate on the senate floor. It’s OK to admit that someone convinced you of something you didn’t understand before.

  76. Xopher:

    I find that people bring up the issue of the government getting out of the marriage business in these particular threads because I never write a piece on whether the government should get out of the marriage business, so there’s nowhere else to put such a statement.

    The reason I never bring it up, incidentally, is that I see the government getting out of the marriage business as likely as it getting out of the taxation business, which is to say so unlikely it’s not worth discussing.

    I’m also wary of accusing of hypocrisy someone who is married but wishes the government would get out of the marriage business. I suspect Mr. Brazee wants to be married, just not to have the government be the organization which sanctions it. That’s different from being opposed to marriage as a concept, even if the practical aspect of it is that the government is the sanctioning body.

  77. I do see it as the correct solution to marriage inequality. But I don’t see it happening any time soon. People want the state to solve perceived social problems, and the state is glad to oblige by grabbing more power.

    The right says they don’t want Big Government – but when it comes to passing laws to support their beliefs and to put down others’ beliefs, they want Big Government too.

    As long as we see the “solution” to argue about definitions of marriage, we won’t have equality for all.

    If we are fighting about including ourselves as part of the privileged, we are like the pigs in Animal Farm. Inviting others (one group at a time) to participate in extra benefits is nice for them. Getting rid of special benefits altogether, allowing everybody equal rights is better.

    I’ve been arguing this for years – mainly against people who don’t like gay rights. It seems odd to have to argue against people in favor of gays getting the same benefits that straights have. I don’t want to limit equality to straights and gays. I want to include people with no interest in sex, I want to include people who want to be caregivers rather than spouses, I want to include *everybody*.

  78. Howard – basic HTML is how to put things either in blockquotes or italics

    I’ve read that in the U.S., state control of marriages were primarily pushed to counter LDS polygamy.

    Twaddle. Courts were adjudicating rights based on marriage before Joseph Smith, Jr. was a glint in his parent’s eyes. Just because there’s case law that’s associated with polygamy doesn’t mean that previous case law never happened. States have been issuing laws based on marriage since the code of Hammurabi. Alexander Hamilton wrote laws about divorce. State regulation of marriage is part of the US legal code, and has been since we’ve had a legal code.

  79. Quote: I’m also wary of accusing of hypocrisy someone who is married but wishes the government would get out of the marriage business. I suspect Mr. Brazee wants to be married, just not to have the government be the organization which sanctions it. That’s different from being opposed to marriage as a concept, even if the practical aspect of it is that the government is the sanctioning body.

    You suspect correctly.

    I have a friend who will not get married because he is Roman Catholic and his church won’t support him marrying his male partner. That’s his choice. He should be able to select his partner has his social security insurance beneficiary, but Social Security says that benefit only applies to people who are legally married.

  80. Howard, what you’re missing here is that you – a person who not only has the right to marry, but has availed himself of that right – are lecturing a bunch of people who can’t make that choice, who can’t elect to “protect their families” as you have.

    And you compare them to pigs. You wonder why you’re getting flak, truly?

  81. Quote: And you compare them to pigs. You wonder why you’re getting flak, truly?

    Umm, I assumed everybody was familiar with _Animal Farm_. The pigs were the rulers/establishment, who proclaimed themselves more equal than everybody else.

    I think most of us in this thread are fighting the establishment.

  82. John – I’m also wary of accusing of hypocrisy someone who is married but wishes the government would get out of the marriage business. I suspect Mr. Brazee wants to be married, just not to have the government be the organization which sanctions it.

    In which case you’d have to either file a contract for each right marriage grants and *hope* that the state is OK with granting them, which is absurdly expensive, or you’d have to have a system in which anyone pair or people (why a pair? Who knows?) can get those rights just because they sign up, which what Howard seems to be (I say seems, because he’s pretty confused about a lot of things) to be suggesting.

    He wants the rights granted by marriage to exist, but wants the “State” out of them (whatever that means) and wants any two people to get them just by signing up.

    Statements like this (by Howard) are confused – I do see it as the correct solution to marriage inequality. But I don’t see it happening any time soon. People want the state to solve perceived social problems, and the state is glad to oblige by grabbing more power.

    Which is wrong. Marriage grants rights and responsibilities to the people who get married, not to the state. The state isn’t “grabbing” anything by regulating contracts. If we had no contract regulation, we’d have no civil society.

  83. Howard – I think most of us in this thread are fighting the establishment.

    Nope. Creating marriages for same sex couples *joins* the establishment. The problem is, the religious right, and other forms of social conservatives don’t want same sex couples joining that establishment, and are trying to keep them *out*.

    If you want people who’re fighting the establishment, I suggest you talk to some anarchists. Most of us in this thread aren’t anarchists. I’m not sure what you are, other than deeply confused about the history of marriage law in American society.

  84. Howard – the pigs in Animal Farm are not a flattering comparison. But you knew that.

    You obsess about Social Security? That’s an easy fix; change the rules so that unmarried people may designate a beneficiary, who can receive their benefits just like a spouse would. See, you didn’t have to get The Man out of the marriage business at all.

    Since you admit that you thought you were the only one to think up the Abolish Marriage plan, you’re probably not all that informed on same-sex marriage, so let me explain that the Abolish Marriage argument is not new, and it really is a rhetorical tactic to divert same-sex marriage, by proposing an unworkable and unpopular argument instead of SSM.

  85. Quote: You obsess about Social Security? That’s an easy fix; change the rules so that unmarried people may designate a beneficiary, who can receive their benefits just like a spouse would. See, you didn’t have to get The Man out of the marriage business at all

    Change *all* the rules which the state has that grant special privileges to people it deems to be married (why should married couples pay less tax than unmarried couples?). Then it only cares about contracts.

    And contract law is established and working already.

  86. Okay, Howard, you would prefer that the state get out of the marriage business. That’s fine, but it’s not going to happen, because of a myriad of reason, not least of which is that most people want the state to stay in the marriage business. So, since it’s a huge social engineering experiment that is extraordinarily unlikely at best, and would require decades if not centuries of prep to achieve buy-in from the people, what do you propose we do about anti-gay discrimination in marriage right now?

  87. And also, it wasn’t “the pigs” in Animal Farm that declared themselves more equal. The whole thing was an analogy for the Russian Revolution, with Snowball as an analogous figure to Trotsky, and Napoleon as an analogy to Stalin. The “more equal than others” line was added in by Napoleon at the end of the book, when he essentially became human, and abandoned the animal (worker) revolution.

    So I’m not sure if Howard had any idea about his comparison, as he only partially remembers anythign about the book.

    Howard – Change *all* the rules which the state has that grant special privileges to people it deems to be married (why should married couples pay less tax than unmarried couples?). Then it only cares about contracts.

    And contract law is established and working already.

    In relationship to the rights granted by marriage it’s *not* working and established. And you’re really not educated enough on the topic to give legal advice, even as a non-lawyer.

    What you’re proposing would mean that rights normally granted by marriage would have to be handle by (expensive) lawyers, and could be easily blocked by states that have a bigoted majority. Alabama could very easily decide to discriminate against contracts between same sex citizens. They already do. Changing the law to remove “marriage” and making it into a set of expensive contracts won’t fix anything.

  88. The California Supreme Court said that the law discriminated based on sexual orientation, AND that the State of California did not offer a good reason that justified the law anyway.

    And that the state constitution prohibited such discrimination, and that absent a good reason, gay marriage must be recognized by the state. I left out a few steps because I was being short and flippant. :)

    It’s a little hard for a state to say ‘traditional partnerships and OMFG TEH CHILDREN!!!!!!’ when it is already permitting same-sex couples to have partnerships, to adopt, and to be legal parents of their same-sex SO’s children.

    On the one hand, I recognize that this is true.

    On the other hand, the argument bugs me, because it’s easy for opponents of SSM to turn it around and say “we shouldn’t permit same-sex couples to have partnerships or adopt or be legal parents of their SO’s children because if we do, it will lead to gay marriage” … and the truth of the statement makes it hard to argue “no it won’t”, thereby forcing people like me who support gay marriage to fight that more difficult fight up front, rather than working up to it through smaller steps.

  89. Changing the law to remove “marriage” and making it into a set of expensive contracts won’t fix anything.

    It will make things much, much worse, by making people go through a surprisingly difficult, cumbersome, and expensive process to get something which is close to – but not exactly the same – as what they have now. (Why not exactly the same? Because the protection against being forced to testify against your spouse can’t be handled on a contract basis, even if all of the property/tax implications can be. Note that they can’t be without significant changes to property and tax law.)

    What’s the benefit to taking a relatively easy process and making it more difficult? There’s something to be said for the convenience of state-supported marriage … and I don’t see the social benefit in stripping that convenience away and making it harder for everyone to get the benefits which the majority can get under the current system.

  90. And contract law is established and working already.

    Sorta yes, sorta no.

    The big problem with contract law as a means of handling marriages is that contracts aren’t binding on third parties. Marriages aren’t, either, but the overwhelming majority of third parties will defer to them automatically.

    Now, society could change, and that contract could be elevated to the same place in the hearts and minds of the public as the marriage is now … but that’s an enormous social change, and simply getting the government out of the marriage business is unlikely to cause it to happen.

  91. Howard, there is no gentle way to tell you this. Marriage is not simply about ‘contractual obligations’, and you do not appear to understand what a contract is.

  92. You mean the Full Faith and Credit clause of the US Constitution was abolished?

    Sorta.

    There’s a body of precedent from the Jim Crow era which says that states in which interracial marriages are against public policy do not have to recognize interracial marriages from other states.

    It’s really not clear that this remains good law after Loving and Zablocki. Not just because a state can no longer decline to recognize interracial marriages, but because marriage has been deemed a fundamental right.

  93. Mythago: the marriage-is-just-a-contract argument is actually more frightening if you consider the possibility that the person making it does understand contract theory. I mean, what’s the consideration in a marriage, in that worldview?

  94. aphrael:

    Is there a compelling reason you can’t make all your comments in a single post? I’m guessing not. Please try to. I get annoyed by multiple sequential comments from the same person.

  95. aphrael – true, but Howard has already described child support obligations as a ‘contract’, which suggests cluelessness rather than what you’re alluding to.

    re @102, exactly; but Skip was claiming that there was a huge body of good precedent that makes it easy for any state to say “nah, we don’t like those marriages”, and that’s hardly the case.

  96. John: my apologies; this is a cultural thing. Some sites prefer to have multiple small comments addressing each point rather than one long comment addressing multiple points; others prefer one long comment. I come from a small-comment culture; I was cluelessly unaware that this was a long-comment culture.

    I will work to remember that in the future. :)

  97. Quote: Howard, there is no gentle way to tell you this. Marriage is not simply about ‘contractual obligations’,

    Certainly. But that’s all the state should be concerned with.

    Quote: and you do not appear to understand what a contract is.

    How so?

    =========================

    I have heard bigots who wanted gays to only be able to have the contractual advantages of marriage. But I haven’t heard that they were willing to extend that to straights as well. I wonder what they think would happen if *all* marriages were equal under the law.

    I suspect it wouldn’t work out the way they hope.

    I think more gay marriages would be accepted, not fewer, once they didn’t have to meet government definitions. My wife’s church has a lesbian couple who have been married by that church – but in a state that limits marriage to straights. Get rid of that limit, and they are simply a married couple. Certainly in the absence of state defined marriages, marrying alternatives will expand beyond willing churches.

  98. Quote: The big problem with contract law as a means of handling marriages is that contracts aren’t binding on third parties. Marriages aren’t, either, but the overwhelming majority of third parties will defer to them automatically.

    What would this mean? That a bigot doesn’t have to call a gay couple married? I suppose there are people who call a divorced person who remarries a bigamist, but what they call one doesn’t mean much.

    If my friends recognize me as married, if my church (if I were religious), recognizes me as married, if my family recognize me as married, and the state doesn’t care, what kind of enforcement do I want to be recognized by bigots?

  99. Howard, again: You are proposing that same-sex couples stop fighting for the same rights you have. And do you really think that the state should not recognize you as having any obligations to your children, since you didn’t contract with them?

  100. Quote: Howard, again: You are proposing that same-sex couples stop fighting for the same rights you have. And do you really think that the state should not recognize you as having any obligations to your children, since you didn’t contract with them?

    Mythago, again: No, I’m not. I’m not even implying that. I am wanting us to also fight to make *everybody* equal by getting rid of the state defining marriage altogether. We can fight two battles at once in a war such as this.

    I have pointed out that the state already recognizes such obligations to children – whether or not the parents are married.

  101. Howard: I think you’ll have a very difficult time convincing married couples to give up the rights they already have under the law.

    Or are you proposing that existing marriages be grandfathered in, but that the state get out of the business of recognizing future marriages?

    If so, then I think you’ll have a very difficult time convincing most people that their children shouldn’t have just as easy a time obtaining the rights that they have obtained.

  102. Quote: Howard: I think you’ll have a very difficult time convincing married couples to give up the rights they already have under the law.

    Quote: Or are you proposing that existing marriages be grandfathered in, but that the state get out of the business of recognizing future marriages?

    Make the state recognizing marriages irrelevant first. Other organizations and people will still recognize existing & future marriages, no matter how they occurred.

    Persuading the voters is the hard part. I don’t think it would be impossible to remove the Marriage part of social security, especially if it allowed for some of aspects of divorce. Call it “insurance” over and over again.

    Lots of people will fight against losing their tax breaks for being married. But as we have more unmarried people, that population along with those who don’t believe “fair” means “give me everything”, can work towards a less unfair tax.

    Once the benefits are no longer part of law, what is there to fight about? Religious people can be told that marriage is a sacrament. (I would expect most of the objections would be from the right – the same people who are upset with gay marriages – so they might not fight as hard in the future as they would now. I fully expect the current trend towards recognition to continue).

  103. Howard, you seem to either have missed or ignored my question: given that your idea of getting the state our of the marriage business is unlikely and best and would, if possible, require decades to get passed, what do you propose we do about anti-gay discrimination in marriage right now? Because, that’s where we are and we need to fix it.

  104. I could be extremely obtuse here, but I thought the whole point of marriage was to give special privilege to your spouse. Your spouse gets first crack at your assets if you die in absence of a will (in Colorado), your spouse is the one who usually gets to make medical decisions if you are incapacitated, your spouse is the one with whom you merge your assets. Why don’t we want married couples to have these “special privileges” again?

    This is hardly new; pretty much since there has been marriage the point has been control of assets and allowing inheritance of said assets. What’s wrong with giving these privileges to the person of your choice? How is that unfair?

  105. @ Ms. Ashby

    Oh, sure. It’s always good to educate one person per gay marriage thread. For more stuff, I’d suggest “The Liberal Hour” as something to poke around, or Linda Greenhouse’s “Justice Blackmun.” Roe is “right answer, wrong methods” but it is there; a future hypothetical marriage case, say McDevit v. Virginia, would be linked to Loving v. Virginia and other things that are far more reasonable (though Scalia would would be certain to get temperamental about whether or not the Commerce Clause would apply). You’re also totally welcome to email me if you want other recommendations or whatever.

    Canada’s decisions on abortion and gay marriage are much better in their reading of the law and in their application. Mind, Canada’s Conservative Party is still to the left of America’s Democratic Party.

  106. Me @ 113 Or, you know instead of: our of the marriage business is unlikely and best maybe _out_ of the marriage business is unlikely _at_ best would make more sense. Sigh. Sometimes it’s very hard to tell that I write for a living.

  107. Howard — The government has to regulate marriages just as they have to regulate other contracts and implied contracts and have to regulate businesses — because people screw each other over. Dads don’t pay child support, whether they are married or not, unless compelled by the government. Spouses refuse to give their partners financial assets they are owed under the law, etc. The government courts are people’s courts of redress, and the courts must act by a set of standardized laws about what is legal and what is not.

    People who marry are forming a legal entity; people who don’t marry are not, even if they have children together, even if they make a contract together. If the government recognizes gay marriages, then others can’t legally deny them. If the government says it’s none of our business, then people can actively deny and discriminate against gay marriages, interracial marriages, interreligious marriages, religious marriages in faiths or sects of which they don’t approve, etc. The government has to regulate marriage in order for us to have marriage. Even if you got rid of marriage, you’d still need government legal protection for people living together, especially people of different races, religions and gender orientations. Because people will attack each other if the government doesn’t regulate it.

    You seem to want to give your Social Security benefits to your brother instead of your wife, and you feel that the government should stay out of it, even though your decision may be a cruel act that leaves your wife destitute and ill after years of faithful marriage to you. If that’s not your intent, talk it over with your wife and a lawyer about how you can arrange things for your brother, but the government can’t trust that you are just a good-hearted guy who is trying to help out his brother. More likely, you’re someone who wants to hurt his wife. So the law protects her. (You understand I’m not accusing you of actually trying to hurt your wife; it’s just an example based on what you brought up.)

    Government is the law. If you remove government from marriage contracts, they aren’t legal contracts and they can’t be enforced. There is no law that protects the rights of anyone, gay or straight, unless government provides the law and enforces it. My civil rights may be inalienable, but I only get to keep them because the U.S. government says I do. So I don’t need the U.S. government to absent itself and leave me to fend for my civil rights on my own, including my civil right to legal marriage. I just need the U.S. government to enforce the actual law and give equal civil rights to all citizens, gay and straight. We have to do this fight so that the law is followed and the illegal laws are overturned.

    If you think that this isn’t necessary, I’ll refer you to a story in the New Yorker, which talks about resolutions passed in Georgia’s Senate, and also in South Dakota and Oklahoma, though the governor in Oklahoma rightly vetoed the thing. Pay particular attention to these phrases:

    the states “retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom.”

    the states have a right to suppress “libels, falsehood, and defamation, equally with heresy and false religion”

    http://www.newyorker.com/online/blogs/hendrikhertzberg/2009/05/bonkers-in-georgia.html

    In other words, these states are saying that states have the right to nullify any action of the federal government they don’t like, and to nullify the U.S. itself and its Constitution (secede) unilaterally. These motions are primarily concerned with arms control, but can easily be applied to gay marriage, to Muslims and to ignoring the Civil Rights amendment itself. They’re probably not going to be enforced, but that they were even proposed and passed shows what happens if you take away government regulation to enforce rights — including the rights of marriage — you get people declaring that they decide what the law will be by which you live.

    As they are now trying to do in Maine. Even before the legislation to ensure gays the right to marry was passed and signed by the governor, gay haters have mounted a legal challenge. They need to get 10% of the Maine voting populace to sign on for a referendum that will then be put to a popular vote about overturning the law.

  108. As to the whole ‘getting states to recognize marriages that happened in another state’ thing

    When my friends Liz and Henae got married in California last summer, they had actually already spent a great deal of money replicating legally as many of the rights and ties that marriage gives to a couple — medical powerof attorney, rights of survivorship, etc.

    so at the post wedding brunch we were talking about the ways they could challenge Arizona to recognize their marriage when they have already handled so much of it.

    they are practically down to the ‘if you buy a fishing license, your spouse can get one for free’ level.

    I suggested they file for divorce in Arizona.

    this suggestion fell rather flat. as you can imagine. Good thing they love me, right?

  109. Quote: I suggested they file for divorce in Arizona.

    this suggestion fell rather flat. as you can imagine. Good thing they love me, right?

    That’s funny. Although it is the same kind of thing that causes people to condemn me for taking the advantages that the state gives to married people while I am arguing to remove those advantages.

    But it is worth thinking about when a gay couple’s marriage ends – where will the divorce do good for the cause?

  110. Howard@119,

    If a same-sex couple can divorce as well as marry, it will demonstrate that they are the same as any other couple, and have the same right to dissolve a legal relationship as does an opposite-sex couple.

  111. If NY didn’t actually recognize out of state same sex marriages, I might just engage in some bisexual bigamy just to create a really interesting protest. That said, there’s still the federal government, who’s obligated not to recognize same sex marriages. So technically, I could marry a man in one state, a woman in another, and see if I could get a charge of bigamy escalated to a federal court.

    The state with same sex marriage would probably try to nullify that marriage, though.

  112. Why not nullify whichever marriage was 2nd?

    I can see cases where a mono-sexual (is that a word) person would marry someone of the opposite sex for social or religious reasons.

    On the other hand procreation could put different pressures on things.

  113. Because if the government has a law saying they’re not allowed to recognize same sex unions, that means they can’t nullify them. Nullifying a marriage recognizes it. And it’s also nullifying a marriage that another state recognizes as valid. With opposite sex bigamy, it’s not a problem, because marriages are transferable state-to-state. If I’m married to a woman in one state, go to another, marry a second woman, and the state where I married the second woman finds out about it, they bust me for bigamy because that out of state marriage is recognizes in state.

    But if I marry a man out of state, how can that invalidate me marrying a woman in state? After all, as far as the state with the constitution prohibiting same sex marriage is concerned, the same sex marriage was never valid in state. They can’t invalidate the opposite sex marriage, because as far as they’re concerned, it doesn’t exist once I set foot in their state.

  114. 116 Kelly: that’s because people who write for a living tend to be able to call on people who proof for a living.
    Everyone makes miskates.

    (ObPKB: when I was a full-time developer, I had people who proofed my code (of course, I proofed theirs, it’s not quite the same relationship). For exactly the same reasons.)

  115. What happens when a Sheik visits our country with his wives? What *could* happen with an ambitious DA?

  116. There’s already law dealing that. Mormon polygamists get tried all the time, in and out of Utah. People visiting the US with multiple wives simply don’t claim them all as wives, and life goes on. It’s not like by landing in the US, they’re suddenly arrested. It’s only when they try and do something in regards to the marriages that there’s an issue.

    There’s no law that says a mormon polygamist can’t have one legally recognized wife, and a dozen who’re not seeking legal recognition. No one is restricting what goes on in people’s bedrooms or how they talk about each other. The law deals with actual legal issues, not who’s having sex with who, or what names they call each other.

  117. My immediate gut reaction to gay marriage in general is complete disinterest. If two people I don’t know want to get married I don’t care. It’s not going to affect me so why should I concern myself about it.

    If it’s two people I do know then any opinions I would have would be based on who they are, not how some people or group define or label them.

    However there is one thing that DOES get me angry: People telling other people they can’t do something when it doesn’t affect them in the first place. The kindest thing I can call that is meddling.

    No one has the right to apply their religious morality to others: especially to others who do not follow that religion. The state does not exist to create laws to ram one’s moral code down the throats of those who do not share your religion.

    Whether gay people get married or not is no big deal:

    People trying to prevent them from doing it because they think it’s “wrong” is a very big deal: and the kind of thing the US was founded to get away from.

    If I were to start a religion the very first commandment would be: Thou Shalt Not Abrogate The Rights Of Others.

  118. Most of the evil done in this world today is done by Righteous people. It isn’t just “self-righteous”, bin Laden has millions of people who agree with his definition.

    One can live Righteously – but just because I’m right doesn’t mean you’re wrong.

    What’s funny is when someone claims to be good while being comfortable with the vast majority of mankind being tortured beyond all understanding forever and ever without hope of parole – for the crime of being fooled.

    (actually for the crime of being different).

  119. I wish people would stop giving Howard such a hard time, even if he didn’t phrase himself clearly. It seems like a lot of folks are implying motivations to him that I think are unfair.

    I say this as someone in an unmarried heterosexual child-rearing partnership of 17 years; we’re largely unmarried because we don’t want to a) take advantage of rights that aren’t available to gay couples (it would feel ickily like belonging to a social club that didn’t allow black folks to join), but also b) because we wish that so much of the state-approved-marriage bundle weren’t a package deal. [insert obligatory rant about ‘tool of the patriarchy here’ too]

    Sure, the state has a reasonable economic and social investment in certain elements of partnership. Partnership tends to lead to economic stability in households, etc., which the state wants to encourage. And once you throw child-rearing into the mix, which historically-speaking, most romantic partnerships do, if only because birth control isn’t as effective as we might like, then you often have one partner working and the other not, for some years, at least, and so you get a tax system designed to help support that. All of that makes sense for the state to support.

    But some of the rest of the rights that come with marriage are historical anachronisms that are becoming less and less relevant. (Some are downright evil, like the right of husbands to have sex with their wives whether their wives want to or not, or the right of husbands to beat their wives — both still common in many state-sanctioned marriages throughout the world.) And some of the other rights, such as designating someone as a social security recipient, are ones that a majority of Americans might well prefer to be something you could fill in on a standard form, rather than an automatic and inviolable default once you got married.

    I don’t actually think we need to fight for the dissolution of marriage as a state construct, though — it’s already happening. In England, Australia, in much of the first world, many couples are choosing not to bother to get married, in part because in those countries, the state extends them many of the significant rights as domestic partners. ‘Marriage’ may be becoming primarily a religious ceremony.

    Anecdote: An American friend of mine married a Swiss girl, and asked his sister-in-law at someone point if she and her partner (raising two kids together) ever planned to get married. She, bewildered, asked, “But why would we? We’re not religious.”

    Anecdote Two: At one point, we were considering a move to England, and we were very pleased to find that England extends domestic partners (of whatever gender) the same immigration rights as married folks. So if, for example, Kevin got a job at Oxford, he could bring me as his partner, without our having to get married first.

    If your parents and all their friends didn’t bother to get married, and didn’t care if you did, but were delighted to welcome your partner into their home for Christmas and cooed over the baby, would that affect your desire to get married? It’s hard to imagine a world where that social pressure is removed, but it does seem to be lessening.

    State-recognized partnership is where I think we may be heading, barring a massive conservative and/or religious swing. And I think it’ll be simpler and fairer all around. But I don’t see any need to fight for it right now; I think inertia may well take care of the process all on its own, and I do think that end result is many years if not decades away.

    In the meantime, I’ll ardently fight for gay marriage rights. And refrain from taking advantage of my own right to be heterosexually married.

    Even though, god, I do love the romance of weddings. Commitment ceremonies just don’t have the same ring to them, y’know? Hopefully in my utopian non-state-marriage future, we’ll come up with a more satisfying replacement for weddings. :-)

  120. Mary Anne…*bows* Thank you for that. All of it.

    I heard a gay African-American comedian say recently that his women friends always want him to be their date for their cousin (or whatever)’s wedding. He said “Hell no, I’m not going to your damn wedding. I wonder if back before civil rights white folks invited their black friends to come watch them vote!”

  121. And some of the other rights, such as designating someone as a social security recipient, are ones that a majority of Americans might well prefer to be something you could fill in on a standard form, rather than an automatic and inviolable default once you got married.

    “Oh, I’m sorry to hear about your husband, ma’am. No, you aren’t entitled to any Social Security death benefits. Apparently he filled out a form directing his beneficiary to be a Miss Honeybun Bazoom?”

    The tax system, contrary to popular belief, is not set up to encourage stay-at-home wifedom. The ‘marriage penalty’ is more evident in the US than it used to be because there are more women with earned income close to their husbands’, but the tax system is designed to prevent income-shifting to an unpaid spouse.

    I’m all for extending rights to unmarried people who want them – Mr. Mythago and I were domestic partners for years before we decided marriage was a more secure package – but I spend a lot of time around other LGBT folks who want the social recognition of marriage, who would love to have the option of “hmmmm, marriage or no?”, who can’t get all the benefits and obligations of marriage…..

    And it is really goddamn tiresome to be in a discussion about the rights of same-sex couples to marry, and to listen to heterosexuals who already have that right, if they want it, to come waltzing in and blabber about how marriage is a sham and we should get rid of it anyway.

    That is why people went after Howard with both barrels. Not because there is an argument against marriage (there is within the LGBT community too, as I’m sure you know) or because only married people should have any rights at all. Because it’s pathetic and galling for a person who not only has the right to marry, but is married, to tell the people who don’t have that right and want it “Oh, sillies, you don’t want that. It’s oppressive.”

  122. Quote: “Oh, I’m sorry to hear about your husband, ma’am. No, you aren’t entitled to any Social Security death benefits. Apparently he filled out a form directing his beneficiary to be a Miss Honeybun Bazoom?”

    Just like all of the other life insurance. People sometimes make their grandchildren’s education fund the recipient of life insurance. Couples should be able to decide instead of having Big Brother decide for them (especially based upon Big Brother’s definition of “marriage”).

    I’m sorry, maam, we don’t recognize the Church of John Doe’s marriage as being valid – you don’t get any insurance money – even though your “spouse” paid as much in as the guy down the street did.

  123. Mythago, I do understand why it was a trigger, in especially this kind of conversation. I totally know how often the ‘let’s do away with marriage’ argument gets used to derail the fight for gays’ right to get married. Of course.

    I didn’t mind the initial calling Howard out, especially given that history. But I did find all the pounding on him, as he clearly tried over and over and over again to clarify his position, and even saying that he was willing to support gay marriage rights in the interim, to be a bit much. Mostly I hate internet pile-ons, especially when they ignore the interesting parts of the argument in favor of beating on the easily mocked sections.

    Re: your first two points — I imagine if social security designation became the norm, you would no longer expect to get benefits just because you happened to be partnered with someone. Which would be okay with me, personally. If Kevin wanted to designate someone else as his beneficiary, I imagine he’d have good reasons for it, which we’d discuss. Maybe another family member, like his mother or sister, is in more financial need, for example. I’d actually even be okay with it defaulting to your registered domestic partner, especially if 99.9% of the time, that’s what people would want to do, but it’d be nice to have the option of signing it over to somebody else, possibly with said partner’s co-signature. Seems fairly simple to implement, if we have the social will for it.

    I may be misinformed on the tax system and stay-at-home-wifedom. We’ve never filed jointly, even when Kev made four times what I did, because it just didn’t make sense financially, so my knowledge is limited. Gods know I’m not a tax expert.

  124. As a separate note, I’m bisexual, and had a female partner for three years, live-together, meet-the-parents, etc., so I do have a personal stake in the fight for gay marriage rights too, even if it’s not so personally relevant to my life right now.

  125. Mary Anne -You’re right, there’s been some dog-piling, and Howard, I’m sorry of you feel ganged up on, but the argument, not the person is what I have a problem with. I think it’s a red herring, and is frequently used to derail the discussion.

    I don’t think the solution is to totally dissolve legal recognition of marriages, but for the institution to evolve, because that’s how our laws operate – they can evolve over time. If something works part of the time, but has problems, chucking it and building something new form the ground up is not going to help (IMO)

    State-recognized partnership is where I think we may be heading, barring a massive conservative and/or religious swing. And I think it’ll be simpler and fairer all around.

    Do you mean state as US states, or state as in national government?

    If it’s the first, I think It’ll be less fair, as allowing states to discriminate against same sex couples

  126. State as in national government(s).

    I agree that the argument re: marriage-going-away often functions as a red herring in the gay-marriage-rights discussion, which is a problem, and is why I tend not to bring it up in those conversations myself.

    But I also think the question of how marriage/partnership should be defined is an interesting conversation to have in and of itself (and it’s not so surprising that it tends to pop up in gay-marriage rights discussions). Of course, I would think that, as someone who’s chosen not to marry for political reasons.

    As I said above, I don’t want to actively try to persuade people to chuck marriage, as you say. But imagine for a moment, if you will, that the following things happen:

    – gay marriage becomes universally legal, which I devoutly hope happens, providing all the rights and responsibilities of traditional heterosexual marriage

    – concurrently and consequently, domestic partnership / civil union becomes a real and viable option for couples of whatever gender, one that doesn’t come with all the historical baggage of marriage, but offers simply the useful legal rights that serve both the partners in those unions, and the interests of the state; I see this happening in certain European countries, at least, and possibly in some American states

    – and hopefully, we develop a rich and romantic cultural ceremony (or set of ceremonies) for celebrating partnership in front of your parents, your friends, and the community at large, because I do think there’s a social value in that (even if I also think there’s a corresponding social danger in terms of cultural pressure)

    – while ‘marriage’ becomes primarily a religious institution, defined by the churches and applicable only to the members of said churches

    That’s sort of where I think things are heading, and I personally think it’s a good way to go.

  127. I want the same things that Mary Anne Mohanraj wants. Not only gays benefit but anybody whose relationships don’t fit the right wing Big Brother’s desire to control.

    I still wonder what bigots think they would gain by having the state out of the marriage business. What kind of a red herring is it that proposes something that would undermine their desire to define marriage for everybody? It doesn’t make sense to me.

  128. Even though, god, I do love the romance of weddings. Commitment ceremonies just don’t have the same ring to them, y’know?

    No need to give up the romance of weddings. My husband and I had a wedding, even though we are not religious and the state doesn’t recognize our marriage. :)

  129. Howard@138
    I still wonder what bigots think they would gain by having the state out of the marriage business. What kind of a red herring is it that proposes something that would undermine their desire to define marriage for everybody? It doesn’t make sense to me.

    Most people will have a hard time getting excited about something that doesn’t affect them and will therefore ignore it. OTOH if you can tell people that you want to take away a privilege that they currently enjoy, they’ll get upset. It’s a tactic for getting people to think that something that doesn’t actually affect them is a threat to them. It’s the same motivation as the people who keep repeating the lies that legalizing SSM will force their churches to marry same sex couples – if people thought about it for five minutes and actually knew their own Constitution, they’d know that it’s a big lie, but in the mean time they feel their privileges threatened and lash out. It’s also a big distraction. The bigots don’t actually want the state to get out of the Marriage business – they just want to hijack the conversation and upset people – divide and conquer.

    In following this thread I don’t particularly think this is your motivation – I’m fairly certain it’s not. But you asked why – presumably in an attempt to understand why some might misinterpret what you’ve been doing. It’s also similar to a different but also really common thing in any conversation – someone in a position of privilege swans in and hijacks the conversation away from the discussion at hand by making it all about them and and their issues, instead about the people who are at an actual disadvantage. Experience of and impatience with that sort of thing may explain the dog-piling a bit.

  130. #138: I still wonder what bigots think they would gain by having the state out of the marriage business.

    In the case of some of them, it would mean that there is no major social counterweight to the total lie that marriage belongs to religions in the first place.

    I mean, there aren’t enough people who know the facts of the matter to correct for people spouting off with “leave it to the churches!” now ….

  131. Mary Anne — it would be very difficult for you to file taxes jointly with your partner unless you’re married. You essentially don’t have all the rights that you think you do.

    And that’s really what we’re “piling” on Howard about. It’s all very well to say that the government should stay out of it, but the government and its courts are the first entity to which people come crying when there’s a problem. You have a happy relationship with your partner and in child rearing, but many people don’t. Say your partner becomes a drug addict. Good luck getting your rights upheld if he decides to do certain things like cleaning out all bank accounts, refusing to give you money for your child, changes his will, challenges for custody, etc. As a married person, you’d also have some trouble, but you’d have a much better legal position as a married person than as a partnership.

    So let’s change it, is what you are suggesting, so that partnerships are just like marriages legally. If it’s going to be just like marriage, why do we have to get rid of marriage just because you don’t like the word? That’s like the people who say that gays can have a marriage legally, but they just can’t call it that. Maybe marriage law will morph and we’ll just have partnerships, but the legal arrangement will be the same and the government will still have to regulate it.

    It still comes down to the government giving domestic partnerships, common-law marriages, the rights that you now enjoy (many of which didn’t exist not that long ago.) And those rights can be taken away and changed. You right now have certain rights because you share a child with your partner, have made wills, etc., but those rights can be taken away by the government just as easily as Prop 8 took away the rights of married gay couples in California. Which is why the issue of gay marriage matters for straight marriages as well — gay marriage isn’t going to just benefit the gays.

    If the government allowed you to designate whoever you want for Social Security benefits, they’d be swamped in lawsuits by people who were screwed over by their spouses and sue those spouses and the government. The government is not playing Big Brother — it’s protecting itself legally and abused spouses legally.

    A marriage is a legal entity — the wife or husband is financially part of the spouse’s earnings for the length of the marriage, the same as a business partnership. If a business gets government benefits for one of its owners, that owner can’t then just screw his partner and give the money to whomever the owner wants. It goes into the business — the marriage — and the other owner — the spouse — gets their share, whether the owner/spouse getting the benefits likes it or not. Because you entered into being a legal entity with that person. You agreed what’s mine is yours and what’s yours is mine.

    Whereas you and your partner aren’t a legal entity. You’re two independent contractors who have engaged in legal agreements with each other — legal agreements which are much more easily challenged. The government gives you the rights assigned to those legal agreements but does not treat the two of you as a legal entity/unit. You don’t have the legal rights that you would get with marriage.

    And you may not need them in your life, and that’s fine. But that’s your personal choice, not the government’s. Whereas gay people are having their choices about what sort of legal arrangement they have in their lives, what rights they have with their partners, made by the government. People continually confuse the sociological aspects of marriage — female oppression, religion, acceptance of lifestyle in society, etc. — with the far more important and separate LEGAL aspects of marriage. It’s the legal aspects that are being fought for. Get those, and the social aspects will follow.

  132. Mary Anne – especially in community-property states, income during the marriage is (for the most part) a joint asset. Social Security comes from earned income. That’s why I can’t simply leave my Social Security to Miss Bazoom and leave my spouse out of it. There’s also the fact that as a society, we want people to get protections out of marriage; you don’t necessarily want your taxpayer dollars to go to supporting Mr. Mythago because I decided to leave all my money to a go-go dancer at Club Westlake.

    I agree that the expansion of rights is an interesting conversation. But it’s a very difficult one to have in the context of its use as an excuse to keep marriage away from same-sex couples.

    Howard @138 – but the bigots don’t really want the state out of the marriage business, any more than the fairy-tale king really wants the peasant boy to return with the Dragon’s Eye and marry his daughter. “Why don’t you just abolish marriage instead?” is a diversion for the bigots.

  133. KatG, I think you seriously misunderstand me. I agree that those legal protections are important, and I’m very aware that by choosing not to take advantage of our right to marry, we’re putting ourselves at serious risk. Sometimes you have to pay a price for your principles; this is the price we choose to pay. It’s already cost us several thousand dollars in health coverage.

    (Just to clarify on the tax thing — I’m very aware of how few rights we have. I didn’t get into all the details, but more specifically, Kevin could have claimed me as a dependent when filing as Head of Household, and didn’t, because it would have cost us money. But that’s a side note, and irrelevant, I think.)

    What I’m saying is that what I’d like to see happen is that the *entire set* of useful legal protections that people find of benefit in managing partnerships be available to those who become registered domestic partners — as is already the case in some countries and some states. Certainly domestic partner rights can be taken away — so can marriage rights. (Some marriage rights *should* be taken away, I think. Some have been, thank god.) The more established domestic partnership becomes, the less likely it is that such rights will be removed lightly — especially if it becomes the partnership of choice for heterosexual couples.

    And if that actually became the case, then I expect that what would happen is that many couples would then choose not to bother to also marry, unless they had a religious reason to do so.

    I think this addresses Mythago’s comment too, but if not, please clarify for me. Thanks! I don’t think so well when it’s late. :-)

  134. Okay, wait, now I think I was really confused about the tax thing. I think what I meant to say was that at one point we wondered whether it would dramatically save us money to get married and file jointly. We probably wouldn’t have done it regardless, but it was interesting to find out that given our respective incomes, it wouldn’t have saved us anything consequential.

    Again, I reiterate for the record one more time:

    a) I’m entirely in favor of fighting for gay marriage rights, given the current situation; anything else is horribly unfair

    b) I predict that ‘civil union’, ‘civil marriage’, ‘domestic partnership’ or some such may become the partnership of choice for both heterosexual and homosexual couples in the future, with all the good and helpful rights that currently come with marriage, but dropping some of the cultural/historical baggage and religious elements; it’s already happening effectively in some places

    c) I wouldn’t normally bring up this whole question in a gay marriage thread, for fear of derailing, but y’all had allowed the conversation to get thoroughly derailed long before I got here.

    In future, I might recommend a response to Howard and folks like him that went more like this:

    “Yes, it’s interesting to consider whether marriage will continue to be a useful construct in the future, but please be aware that anti-gay activists tend to bring that possibility up as a distracting straw man to attempt to derail current conversations about the fight for gay marriage rights. So let’s get back to [celebrating Maine / strategizing New Hampshire / etc.] now, and save the question of what legal partnership will look like in the future for another conversation.”

  135. Mary Anne – I predict that ‘civil union’, ‘civil marriage’, ‘domestic partnership’ or some such may become the partnership of choice for both heterosexual and homosexual couples in the future, with all the good and helpful rights that currently come with marriage, but dropping some of the cultural/historical baggage and religious elements; it’s already happening effectively in some places

    So you’re ether proposing that the licensing procedure for marriage get re-named by the government, or some sort of separate but equal status be granted (“This counter for marriage licenses, next one over for civil unions”). Or am I missing some third option?

  136. As I said, Josh, this seems to be happening in a bunch of European countries, already, that ‘civil union’ is becoming a viable option for heterosexual *and* homosexual couples, that provides the legal rights of partnership, without the cultural weight of baggage. It allows the government to handle the part of investing in partnership that it makes sense for the government to be engaged with — and perhaps in the long run, it’ll mean that governments stop registering ‘marriages’ at all.

    So I think what may happen is that when people decide they want to partner, they go to the state office and register their partnership. And then if they also want to get married in their church, or have a celebration in their community, they can do that. And many won’t bother with one or the other or both.

    This happens already; it’ll be interesting to see if it happens a lot more widely in the future.

  137. Heh. I meant ‘cultural weight of marriage’, not ‘baggage’ of course. :-)

    I should note that I think this trend is in part a *result* of gay folks fighting for domestic partner agreements, back when we didn’t think fighting for gay marriage was a viable option. I remember when I was in college in ’93, we fought for domestic partnership agreements for gay folks and straight folks — the university gave us the partnerships for gay folks, but wouldn’t give it to the straights, saying that straights had the option to get married, so it wasn’t necessary. We took what we could get back then, and tried to be happy.

    That was a common response fifteen years ago — but now, fairly often I’m seeing what I see at my current university — that if you register as domestic partners, the university doesn’t care a) what your gender is, or b) whether you’re legally married. The domestic partner registry is sufficient to get you all the rights that the university was previously willing to give married folks.

  138. One more note — a conservative religious Southern friend of mine going through a difficult heterosexual divorce with children recently said that if she partnered with someone again, she’d prefer to have a church ceremony, but *not* the legal marriage. Because she’s finding that there’s a ton of stuff she agreed to when she signed up for a legal marriage that she a) didn’t realize, and b) didn’t want. Which is now making her life hell.

    I thought that was fascinating.

  139. Mary Anne, I couldn’t agree with the final paragraph of @145 more.

    And I’m all for partnerships having more rights; the problem, as your conservative friend found out, is that marriage is not just about rights, but about responsibilities–not in small part because your rights limit your partner’s. If you extend those rights and responsibilities to all domestic partners, then you end up with people like your conservative friend, who signed up for a lot of stuff they didn’t really know about, didn’t want and perhaps avoided marriage so they wouldn’t get. (People’s ignorance about the legal implications of marriage is a whole nuther discussion.)

    I suspect Europeans may be a little more laissez-faire about marriage in part because they have more extensive social supports than we do. Putting your spouse on your health insurance is not an issue in a country where everyone is entitled to health care.

  140. Mary Anne – I’m confused. It sounds like you’re saying that marriage still exists as a legal status in Europe and it’s separate from, but equal to civil unions, which don’t have the cultural baggage of marriage, just the rights. Is that correct? It might sound like a minor sticking point, but I think clarity on the issue is really important.

    If so, I’m still leery about separate but equal status. I find it to be a common red herring in US debates (not that you’re using it) that states like CA already had full rights for civil unions. CA Civil unions are only good in CA. That’s separate and unequal, which is how things usually work out when people (again, not you) claim that there’s a separate but equal status. It’s never really equal.

    Even if the Federal government created a “civil union” status and mandated that states accepted it as fully equal to marriage, it’d still reserve marriage as a “hets only” club. Mind you, if they also started accepting marriages performed by churches who recognize same sex unions, then I’d be happy. Or they could stop recognizing anything to do with churches, and only accept civil unions, which means the same thing, in the end.

    All of the same sex marriages I’ve been to have been religious ceremonies. Unless they get counted by the government as actual marriages, it’s not just the couple, but also the church that’s being discriminated against.

  141. Mythago, I think you’re right about the socialist elements of European culture making that transition a lot simpler. Healthcare is just one element of having a stronger general social network for individuals — which makes it less important that partnerships are as strongly supported as they are here. Paid parental leave is another obvious element — I get two weeks paid leave with the birth of my next child, in October. Whereas in some European countries, both I and the father would get two years of paid leave. Regardless of our marital state. It is to weep.

    Josh, I don’t think anywhere is actually to where I think we might be heading yet, just to be clear. But I see a trend towards much stronger rights and responsibilities for ‘civil unions’, ‘civil marriages’, etc. in some European countries. If that continues, and if heterosexuals and homosexuals don’t bother formally get married, even when they have the right to do so, then I could picture a future where governments stop addressing “marriage” at all. So it’s not a question of ‘separate but equal’ really, except as perhaps a transition point. There could be a period of time when ‘civil unions’ and ‘marriages’ are legally equivalent in the eyes of the state. But if that actually happened, then I think the next step might well be that the state stopped bothering to do marriages at all, because it’s just an added expense that doesn’t help the government any.

    Think of it this way — the state doesn’t actually care if you love your partner and write your own romantic vows, or if you’re married in a church, or if your parents come to the ceremony. They have no investment in any of that ‘marriage’ stuff. They just want to know how to treat you, legally — as an individual, or as a couple. And they want to know what rights/responsibilities society expects of legal couples (which changes over time).

  142. I didn’t address the church stuff you brought up, because in my future, it’s irrelevant. :-) The government pays no attention to what churches think about this archaic ‘marriage’ idea. And if in the future you (straight or gay or whatever) get married in a church, it’s not legally binding until the officiant is also a legal official.

    Which is actually the case right now, but religious marriage and civil marriage gets so conflated that people are mostly not aware of that.

  143. Quote: All of the same sex marriages I’ve been to have been religious ceremonies. Unless they get counted by the government as actual marriages, it’s not just the couple, but also the church that’s being discriminated against.

    I agree (although my experience of is limited to one such wedding). Separation of Church and State should be sufficient here. (In many churches, marriage is a sacrament).

    If your church or other organization says you’re married, you’re married. Here in Colorado, a heterosexual couple is common-law married (in the eyes of the state) by putting themselves forward as married. Why should “in the eyes of the state” be subject to its own definitions?

    It’s funny about those people who say they don’t want the word “marriage” changed. It’s been changed many times already. Why are they more threatened by gay marriages than by divorce? Which impacted marriages and families the most?

  144. Howard: common-law marriage is a little more complicated than that, but it is marriage. And your argument about discrimination against churches is incorrect – churches do not have free rein to trump civil law.

  145. Nor do we want churches to have that right, to tell people they are married or not married in the eyes of the law. Thank you, but no.

    Mary Ann — marriage isn’t going to go away any time soon, anymore than it did when people started living together more frequently. If you change domestic partnerships so that legally they work like marriages, you’re just giving marriages a different name, and many people will just call them marriages because they don’t have your aversion to the word. It’s the joining of two individuals into a legal unit that makes marriage, the unjoining of them that makes divorce. If you make domestic partnerships in effect legal marriages, you’ll have a whole other group that wants a different sort of partnership that isn’t so marriage-like in rights and responsibilities because they don’t want such an arrangement, and on and on. Which is fine.

    The university, corporations, etc., are better about domestic partnerships — a change only brought about in the last ten years or so — for two reasons: attracting and keeping employees and fear of lawsuits. It’s got nothing to do with thinking domestic partnerships are better, and everything to do with treating partnerships like marriages so that they don’t run into trouble.

    That is a sociological shift and a good one, but again, it resulted because of legal issues, not just social ones. Partnerships will undeniably get more popular as they become legally more and more like marriages. But it is unlikely that they will replace marriage as a legal arrangement until far down the road, when they’ve simply become the new word for marriages. (Although my suspicion is that they’ll just come up with a new word entirely.)

    In Rhode Island, legislation to pursue gay marriage was blocked again. The state is 45% Catholic, the politicians are scared of riling their constituents, and the Catholic bishops there are saying that gay marriage isn’t a matter of civil rights because being gay is a moral wrong. See, if you don’t live your life according to the Catholic Church’s dictates, even if you aren’t Catholic, you don’t get your civil rights in the secular U.S. democracy. Aren’t we just a beautiful land of equality and freedom?

    Sorry if I seemed grumpy to Howard or anyone else. I’m just tired of 30% of the country, who aren’t even supposedly in power anymore, running everything on the basis that they are my liege lords. There’s been an enormous increase in media, politicians, etc., in discriminatory speech of all kinds. I support the right of them to say such things, but I don’t have to like it. The gays are fighting for my rights, not just their own, as in every civil rights battle, and I’m heartsick for them.

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