Gay Marriage/Civil Unions in 10 years

[True Federalist (진정한 연방 주의자)]

So Maine is the fifth state to allow gay marriages

No, it is the second to choose to allow gay marriages.  The other three had it imposed on them by judges.  As I've said before, I favor states recognizing gay marriages, so long as it comes to pass via a legislation and not judicial dictatorship.

[True Federalist (진정한 연방 주의자)]

5 down. 45 to go.

Not gonna happen unless you plan on overturning constitutional amendments somehow.

That's what the Supreme Court is for. There's this thing called the 14th Amendment. It says something about "equal protection under the law".

But they already have it.  Homosexuals are allowed to marry in all 50 states, it's just that only in five of them can they marry someone of the same gender and have it recognized by a state government.  If the equal protection clause were used to overturn state laws that do not recognize gay marriage, how could it logically not be extended to polygamy?   I can't see the Supreme Court wanting to get anywhere close to that issue, not when it would have to overturn existing precedent in Baker v. Nelson.

It's not judicial dictatorship. Current constitutional law mandates gay marriage. That constutitional law is not being recognized by the authorities at this current moment, but that does not mean it is not there. Gay marriage has been legal since the 14th Amendment was passed.

Incorrect.  This issue has already been ruled upon by the Supremes as I noted above, and they ruled that gay marriage was not a Federal question.  They might consider a "full faith and credit" argument under Article IV Section 1 to require a gay marriage entered into in one state to enjoy some degree of recognition in another since unlike 1972 when the Supremes issued their opinion, there now are states that do provide recognition to gay marriages, but I can't see them ever directly overturning Baker v. Nelson.

We have two contrasting definitions of marriage at work here.  One is that it is a union between two people, and the other is that it is a union between a man and a woman.  (I'll leave aside the issue of whether a marriage can only involve two parties.) Deciding which definition is to be used by a State is a decision that should be left to legislatures since there is no objective means for determining which is the correct definition.  A judiciary that involves itself in deciding subjective issues that legislatures exist to decide undermines both the rule of law and the democratic values we cherish in this country.

[True Federalist (진정한 연방 주의자)]

So Maine is the fifth state to allow gay marriages

No, it is the second to choose to allow gay marriages.  The other three had it imposed on them by judges.  As I've said before, I favor states recognizing gay marriages, so long as it comes to pass via a legislation and not judicial dictatorship.

Quite frankly, I don't give a damn about the courts "imposing" proper civil rights protection and equal values on the population. What travesty! Of course we should have taken our good time in getting rid of segregation and allowing mixed marriages!

We did take our good time with those.  Assuming that events proceed at anything like the pace of those issues, there may well be some states that don't recognize gay marriage until the 22nd century.  The question of which definition of marriage is the "correct" definition is a subjective one.  When the courts involve themselves in subjective questions best left to legislatures, it almost always makes the situation worse.

I simply do not see whether or not a State recognizes a same-sex marriage as being a civil rights issue.  Note that if there were laws that criminalized same-sex marriage such as those that criminalized interracial marriage and were overturned by Loving v. Virginia it would be a civil rights issue, but that isn't the case in any State.  Non-recognition is not even remotely comparable to criminalization.

[True Federalist (진정한 연방 주의자)]

First off, I assume you also disapproved of the court decision to recognize the legalization of interracial marriage. (If not, you're inconsistent, but I can imagine you might.) Because the same extrapolation to polygamy can be drawn there.

Wrong.  I support Loving v. Virgina.   There are significant differences between Loving and Baker.  The first is that there is considerable difference between criminalization and non-recognition.  The second is that even under the miscegenation laws, they did not consider a marriage between a White and a non-White to not be marriage.  The miscegenation laws prohibited certain forms of marriage, but did not consider those forms to not be a marriage.  (Indeed that's why those laws were passed in the first place to keep those marriages from happening.)  In contrast, the advocates of same-sex marriage are calling for a fundamental change in the definition of what constitutes a civil marriage.

Secondly, equal protection means equal legal treatment. Equal legal treatment is not about being able to enter a contract, it's about being able to enter a legal contract with whom you wish. Polygamy, unlike same-sex marriage, creates additional legal tensions that strain or break the validity of that contract.

Take, for example, a loan. You can enter into a loan with whom you wish; it would be a violation of equal protection to say you can only enter into a loan with some banks. (Well, maybe not, since marriage is a governmental institution while loans are not, but run with it. Say the banks are all nationalized or something.) But it would not be a violation of equal protection to say that you cannot enter into the same loan with two banks at once--because what would that even mean? It's not clear at all. In order to allow polygamy, you would need a new sort of contract that can legitimately be between three or more partners, just as to have a three-way loan you would need a new sort of contract.

To use your loan argument, would you consider laws that place limits on interest rates (such as those being passed in a number of states these days to combat payday lenders), or other loan terms to be unconstitutional?  We live in a republic, not an anarchy, there is no unfettered right of contract.  Government places limits on the types of contracts that it will recognize and bring the power of state to bear in their enforcement all the time based upon the decision as to whether doing so is beneficial to society.  Just because you have a subjective opinion as to whether a same-sex marriage is a type of contract that it is desirable for the government to support is not objective fact.

As I stated above, there is an objective definition--that mandated under equal protection.  You don't have any argument against it except that it leads, by slippery slope, to polygamy. Except that it doesn't; the sheer nature of polygamy makes it a different sort of contract entirely. Same-sex marriage is barely different at all.

Same-sex is a fundamental change in what has been the traditional definition of marriage.  As far as the law is concerned, I see no degree in difference between changing the legal definition of marriage to allow for a spouse to be of the same sex, and changing the legal definition to allow a person to have multiple spouses.  There may well be a considerable societal difference, but legally the only difference is which clause of the traditional marriage contract is altered.

Just because you subjectively consider the same-sex and opposite-sex marriage to be equivalent, does not make it objectively so.  The most obvious and insurmountable objective difference between the two is that unlike an opposite-sex marriage, a same-sex marriage can never have as one of its objectives the provision of support for the joint biological progeny of the couple.  Whether that objective should be central to the decision of what forms of marriage, if any, the government chooses to recognize is a subjective decision.

Subjectively, I don't consider the arguments against state recognition of same-sex marriage to be as compelling as those in favor of such recognition, but I don't see the arguments made by either side as being objective.

[True Federalist (진정한 연방 주의자)]

But was it not a fundamental change in the definition of marriage then? There have been no arrest over same-sex marriage, but there have been threats. Remember that part of why Jason West, the mayor of New Paltz, NY who started issuing marriage licenses to same-sex couples a few years ago, was threatened with arrest unless he stopped. (It would have been interesting had he not done so as the New Paltz police had said that they would not arrest him.)

That's no different than if he had been issuing any other license in contravention of state law.  The offense is related entirely to misconduct in office and the particular circumstance has nothing to do with the couples issued the licenses, assuming that they didn't offer Mr. West a bribe or other illegal persuasion to break the law.

It's the same issue. A same-sex couple that is issued a marriage license by a "rogue" clerk in, say, Wisconsin, where same-sex marriage is illegal, has indeed performed a criminal act, a form of felony. Now, the clerk is more likely to get into legal trouble than the couple, who would more likely just have their marriage forcibly annulled, but the criminalization is there. And that criminalization is the same as the criminalization of interracial marriage.

Not at all.  The crime you present here has nothing to do with same-sex marriage, since the exact same crime can be done with other types of licenses.

There are huge additional legal consequences to multiple spouses. Entire sections of marriage law would have to scrapped, other enormous sections would have to be rewritten, and new sections would have to be added. That's not a form of the same contract, that's a different contract. Same-sex marriage, by contrast, doesn't actually have to change anything about marriage law at all, or at most has to change the words "husband" and "wife to "spouse" (although since the gender definitions of "husband" and "wife" are not legal definitions, even that technically would not have to go).

I'll grant that there is an impact of multiple spouses on marriage law if polygamy were to gain legal recognition, but not anywhere near as insurmountably as you allege.  In no other type of legal partnership is the law for a two person partnership substantially different from that for a partnership involving three or more persons.

First off, there is some biology that has allowed for the creation of genetically identical sperm from eggs, which would allow lesbian couples to be just as capable of produce progeny as straight couples.

Speaking as a male of the species, a process that would only allow female children is not something I would consider equivalent to the natural process, and I believe that process is still experimental at best.

Secondly, there are same-sex couples in which one partner is transgender and the couple has children who are biologically theirs.

In which case they are biologically man and woman and thus should have no problem getting a marriage license.

Third, it is perfectly legal for post-menopausal women or other people who are also incapable of producing joint biological progeny to marry. That is no objective argument at all.

No, all your argument shows is that the government has generally chosen to limit the scope of its inquiry into parenthood capability to that the spouses be of different sexes, which is a necessary requirement for them have a child that is biologically both theirs.  Additional tests or requirements would both raise the cost of getting married and be an intrusion into personal privacy.  Indeed while they are no longer common, at one time most states required blood tests to check for diseases that might be passed on to kids as a condition of marriage. (Those laws largely predated the availability of penicillin to treat syphilis.)  That a State has failed to implement or require every conceivable test into biological aptitude for parenthood does not render the position that marriage should be defined in a way to secure the well-being of biological progeny unconstitutional. It is a purely subjective position however.

[True Federalist (진정한 연방 주의자)]

There are huge additional legal consequences to multiple spouses. Entire sections of marriage law would have to scrapped, other enormous sections would have to be rewritten, and new sections would have to be added. That's not a form of the same contract, that's a different contract. Same-sex marriage, by contrast, doesn't actually have to change anything about marriage law at all, or at most has to change the words "husband" and "wife to "spouse" (although since the gender definitions of "husband" and "wife" are not legal definitions, even that technically would not have to go).

I'll grant that there is an impact of multiple spouses on marriage law if polygamy were to gain legal recognition, but not anywhere near as insurmountably as you allege.  In no other type of legal partnership is the law for a two person partnership substantially different from that for a partnership involving three or more persons.

Sure there are. You have to change the laws which deal with divorce, for one, because you need to be able for one member of the union to leave without the marriage falling apart entirely. You also need to change the laws relating to rights of decision so as to avoid competing equal claims, etc.

And how is that any different form dealing with what happens when a business partnership has a partner leave it?

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Speaking as a male of the species, a process that would only allow female children is not something I would consider equivalent to the natural process, and I believe that process is still experimental at best.[/quote]

I don't see why. Biologically, they'd be the same as if a male version of one of the women happened to pass on his X chromosome instead of his Y chromosome. There's no data stored with regards to the parent except the genes.
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Maybe you see no difference between a process that has a roughly 50-50 chance of male or female children and one in which there is a 100 percent chance of female children. but I most emphatically do.

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No, all your argument shows is that the government has generally chosen to limit the scope of its inquiry into parenthood capability to that the spouses be of different sexes, which is a necessary requirement for them have a child that is biologically both theirs.  Additional tests or requirements would both raise the cost of getting married and be an intrusion into personal privacy.  Indeed while they are no longer common, at one time most states required blood tests to check for diseases that might be passed on to kids as a condition of marriage. (Those laws largely predated the availability of penicillin to treat syphilis.)  That a State has failed to implement or require every conceivable test into biological aptitude for parenthood does not render the position that marriage should be defined in a way to secure the well-being of biological progeny unconstitutional. It is a purely subjective position however.

Why is an inquiry into the gender not an intrusion into personal privacy? You don't have to disclose gender on census forms or other legal documents, only marriage licenses. Your line is completely arbitrary.
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Where do you live?  Gender most certainly is a question on the census, and is information I gave for my driver's license, and my voter registration card.  If you want to get technical, a name is personal information too.  You also won;t be likely to get too far with a job or loan application if you fail to fll out the gender box either.  Any line on how far to inquire into person information will be arbitrary and subjective, even if the line is set to make no inquiry at all, and subjective questions are for legislatures to set.  All a constitution is in this respect is a more firmly established set of answers to subjective questions, and the established answer is that same-sex marriage is not a federal question.

It may become a "full faith and credit" question since that issue for obvious reasons could not be addressed in 1972 when the Supremes ruled on the issue since no state then recognized gay marriage.  However, I don't think the gay-marriage movement would care to have the current court decide that issue.  For one thing, in reaching the decision they would want the court would have to overturn decades of repeated precedent on the scope of the full faith and credit clause, such as in Pacific Employers Insurance Co. v. Industrial Accident Commission (1939).  They'd need a solidly liberal court that was looking for a fig leaf to cover their attempt to legislate from the bench for that to even have a chance to happen.

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[True Federalist (진정한 연방 주의자)]

So, how's the gay marriage movement going in South Carolina?  We got the first two primary states out of the way.

That'll take a long time given we have a constitutional amendment that not only bans recognizing gay marriage, but any form of gay civil union.  Our amendment process requires two different General Assemblies approve the amendment, with a referendum approving it as well in between them.  Even if magically everyone in this state suddenly became in favor if it, it couldn't happen before 2013 at the earliest, and 2031 would be optimistic, and 3102 would not be impossible.

However, this issue has been nailed down so tight here, the GOP can't use it as a wedge issue.

[True Federalist (진정한 연방 주의자)]

So, how's the gay marriage movement going in South Carolina?  We got the first two primary states out of the way.

That'll take a long time given we have a constitutional amendment that not only bans recognizing gay marriage, but any form of gay civil union.  Our amendment process requires two different General Assemblies approve the amendment, with a referendum approving it as well in between them.  Even if magically everyone in this state suddenly became in favor if it, it couldn't happen before 2013 at the earliest, and 2031 would be optimistic, and 3102 would not be impossible.

However, this issue has been nailed down so tight here, the GOP can't use it as a wedge issue.

OK, I was wrong.  They actually found a new way to wedge.

(link to full article)

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[True Federalist (진정한 연방 주의자)]

The opinion goes to great lengths to make explicitly clear that the only thing Proposition 8 affected was the use of the word "marriage" by the State of California and that save for that an "officially recognized family relationship" must be the same whether it is a same-sex or opposite-sex relationship under the Constitution of California.

Looks like California is in for a good bit of "sound and fury, signifying nothing" as the idiots on both sides get ready for more initiatives in 2010.

[True Federalist (진정한 연방 주의자)]

I think Sen. Leach would have greater success of accomplishing something on this issue if he went for the more achievable goal of some sort of civil union that Pennsylvania would recognize.  Of course, if he does find that to be an acceptable interim goal, introducing a same-sex marriage bill might be intended to allow him to get a civil union as a compromise.  I'll leave it to the Pennsylvanians to debate whether a civil union bill has any chance of passage in their State.

[True Federalist (진정한 연방 주의자)]

I'll be generous and attribute Mike's last statement to trollity instead of stupidity, altho I suspect there are far better uses for my generosity than that.

[True Federalist (진정한 연방 주의자)]

I like what Bill O said about this in that its going to happen the liberals states will pass it, and the conservative states wont. End result you turn more people against gay rights then before.

Great a Country divided.

No, a tipping point will be reached, and eventually, even if it takes 20 years, the Federal Government will intervene based on the "full faith and credit clause" and require that all states recognize Gay marriages performed in Gay marriage states. So, Jane and Jill in Montgomery might have to fly to Vegas to get hitched, but Alabama has to recognize it.

Sorry to burst your bubble, but that flies in the face of how that clause has been interpreted for over two centuries now.  All the full faith and credit clause does is if Nevada and Alabama both have gay marriage statutes, a couple can get married in Nevada, move to Alabama and not have to get remarried in Alabama to remain married.  If Alabama does not recognize gay marriage, then the full faith and credit clause does not force it to do so.

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(emphasis added by me)

To the extent that the full faith and credit clause operates with respect to gay marriages, it will be that ancillary rights such as inheritance and child custody that are created by a gay marriage in another State will be required to be respected in those States that do not recognize gay marriages.  However, forcing Alabama to give gay couples tax benefits available only to married people is beyond the scope of the full faith and credit clause.

[True Federalist (진정한 연방 주의자)]

Besides, this issue is the hot one in the culture wars right now.  Abortion's been largely static for close to two decades now, with little chance of any change, especially with Obama making the Supreme Court nominations.

[True Federalist (진정한 연방 주의자)]

*Gutsiest thing I've heard of any significant politician doing in support of gay marriage. It's part of what makes Bloomberg great, the gutsiness.

It's only gutsy if you think he has aspirations for higher office.  Can't see where it would hurt him  for reëlection to his current office.

[True Federalist (진정한 연방 주의자)]

Whether one agrees or disagrees with the desirability of DOMA has not one whit to do with the constitutionality of DOMA.  Federal benefits are not civil rights.  And if they were, why should single people be discriminated against?