NationStates Jolt Archive

The New Jersey Supreme Court just ruled on the issue of gay marriage/civil unions declaring that it is against the NJ state constitution to deny rights to gay couples and grant them to straight couples. This does not necessarily create gay MARRIAGE in NJ, but the state is now required to at least offer same sex civil unions that would grant all equivalent rights to heterosexual marriages.

What makes this interesting is that while Massachussets (the only state to currently have full legal same sex marriage) has a law barring out-of-state couples from wedding there if their marriages would not be recognized in their home states....new jersey does not...

TRENTON, New Jersey (AP) -- New Jersey's Supreme Court ruled Wednesday that same-sex couples are entitled to the same rights as heterosexual couples.

But the court left it to hte legislature to determine whether the state will honor gay marriage or some other form of civil union.

The case was brought by seven gay couples who say the state constitution allows them to marry. (Opinion -- pdf)

New Jersey is one of only five U.S. states with neither a law nor a state constitutional amendment blocking same-sex marriage. As a result, the state is more likely than others to allow gays to wed, said advocacy groups on both sides.

Only Massachusetts -- by virtue of a 2003 ruling from that state's top court -- allows gay marriages.

Proponents and opponents from across the country are watching the case closely.

"New Jersey is a stepping stone," said Matt Daniels, president of the Virginia-based Alliance for Marriage, a group pushing for an amendment to the federal Constitution to outlaw same-sex marriage. "It's not about New Jersey."

From a practical standpoint, the Massachusetts court decision made little impact nationally because the state has a law barring out-of-state couples from wedding there if their marriages would not be recognized in their home states.

New Jersey has no such law.

People on both sides of the issue expect a victory for same-sex unions would make New Jersey a destination for gay couples from around the country who want to get married. Some of those couples could return home and sue to have their marriages recognized.

Daniels said gay-rights advocates are already looking ahead to such lawsuits. "Their game, of course, is they figure all they need to do is execute this maneuver in a half-dozen states and they'll have the momentum," he said.

David S. Buckel, the Lambda Legal lawyer who argued on behalf of the seven New Jersey couples, said he expects some couples would travel to the New Jersey to get married if his suit is successful. But, he said, "it won't be tidal."

Buckel said that there have been relatively few such lawsuits filed in the U.S. by couples who went to Canada to exchange vows.

And, he said, while many same-sex couples would prefer to be married, they are getting more legal protections for their relationships. Several states, including New Jersey, offer domestic partnerships or civil unions with some of the benefits of marriage. A growing number of employers are treating same-sex couples the same way they treat married couples.

Cases similar to New Jersey's are pending in California, Connecticut, Iowa and Maryland.

Conservatives watching the cases believe the best chance for gay marriage to be allowed would be in New Jersey, where the state Supreme Court has a history of extending civil rights protections.

Gay marriage supporters have had a two-year losing streak, striking out in state courts in New York and Washington state and in ballot boxes in 15 states where constitutions have been amended to ban same-sex unions.



http://www.cnn.com/2006/LAW/10/25/jersey.samesex.ap/index.html

Word up! Another endless appeal by right-wing christian fascists is approaching.

Good. Maybe the rest of the Northeast will follow this trend, and then the upper-Midwest, and then the Northwest, and then California.

If that happens, the "Deep South" legislators would almost be forced to go along with the times, lest they look like the dipshits they really are.

Forgive me for being a woefully ignorant Brit, but where you said:

while Massachusettes has a law saying it will not recognize out of state same sex marriages

Doesn't that violate the "Full faith and credit" clause of the constitution?

I don't want a full-on debate, but I'd like to know, out of interest. Otherwise, it's a good step forward.

Sweet. Common sense = goodness awesomeness. :)

Word up! Another endless appeal by right-wing christian fascists is approaching.

Don't forget the campaign ads that suggest if you don't vote Republican, you'll be ass-raped like Ned Beatty on Deliverance by newlywed gay couples.

I'm proud of my state. We're one of only five states that don't have laws or constitutional amendments banning gay marriage. I'm ashamed of the other 45.

Good. Maybe the rest of the Northeast will follow this trend, and then the upper-Midwest, and then the Northwest, and then California.

If that happens, the "Deep South" legislators would almost be forced to go along with the times, lest they look like the dipshits they really are.

It's a good step and not all the people in the south are against gay marriage. ;)

It's a good step and not all the people in the south are against gay marriage. ;)

Which is why I said legislators --- though the majority of the people in that area happen to be against gay marriage (and a whole slew of civil rights granted to us by the Constitution and its ammendments).

And Texas isn't the "Deep South". It's considered a Southwestern state.

Word up! Another endless appeal by right-wing christian fascists is approaching.

the best part of it is, there IS no appeal. State supreme court, no higher, unless to SCOTUS, which already said they're not touching these issues and leaving it up to the states.

In fact, the only thing SCOTUS COULD do is allow same sex marriage nation wide. SCOTUS CAN NOT invalidate this, as it is not against the federal constitution.

This is definitely a step in the right direction.

Which is why I said legislators --- though the majority of the people in that area happen to be against gay marriage (and a whole slew of civil rights granted to us by the Constitution and its ammendments).

And Texas isn't the "Deep South". It's considered a Southwestern state.

That's why I didn't say Deep South in my post. Just clarifying there. :)

Word up! Another endless appeal by right-wing christian fascists is approaching.

No appeal--this was the state supreme court. The feds have no jurisdiction over this. The real push will probably come in the form of an attempt to amend the state constitution.

Forgive me for being a woefully ignorant Brit, but where you said:



Doesn't that violate the "Full faith and credit" clause of the constitution?

I don't want a full-on debate, but I'd like to know, out of interest. Otherwise, it's a good step forward.

I am sorry, I mispoke, what I meant to say was Massachussets has a law barring out-of-state couples from wedding there if their marriages would not be recognized in their home states.

Will edit to fix.

Forgive me for being a woefully ignorant Brit, but where you said:



Doesn't that violate the "Full faith and credit" clause of the constitution?

I don't want a full-on debate, but I'd like to know, out of interest. Otherwise, it's a good step forward.

There are plenty of people who think it does--including me--and the same thing goes for DOMA (the Defense of Marriage Act passed in 1996 I think)--but it's never been successfully challenged.

That's why I didn't say Deep South in my post. Just clarifying there. :)

Touche...

There are plenty of people who think it does--including me--and the same thing goes for DOMA (the Defense of Marriage Act passed in 1996 I think)--but it's never been successfully challenged.

The only way it would be in violation of full faith and credit is in the other way.

Massachussets allows gay marriage, they will NOT allow gay marriage for citizens of states that do not also allow gay marriage. This is consistant with full faith and credit.

What happens is in the other direction, if a gay married couple from Massachussets move to say...Texas. Under full faith and credit Texas should have to honor their legal marriage...arguably.

The massachussets law does not violate full faith and credit as they give credit to states that would not recognize the marriage, however states that do not recognize legal massachusettes marriages might

Yay for NJ!

As for the Full Faith and Credit clause, I have often wondered why all these "defense of marriage" laws aren't being challenged under that. Especially the ones that say they won't recognize same-sex marriages from out of state.

the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution. With this State’s legislative and judicial commitment to eradicating sexual orientation discrimination as our backdrop, we now hold that denying rights and benefits to committed same-sex couples that are statutorily given to their
heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1.

To comply with this constitutional mandate, the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal
terms, the rights and benefits enjoyed and burdens and obligations borne by married couples. We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally
available to same-sex couples. The name to be given to the statutory scheme that provides full rights and benefits to samesex couples, whether marriage or some other term, is a matter left to the democratic process.

I now love the new jersey supreme court. The ruling does create a bit of a cop out since it allows the state to create "civil unions" for gays, while keeping the definition of marriage still defined as only a heterosexual institution. However as long as those unions are legally indistinguishable from marriage (which this ruling requires them to be) I have no issue. And hey, maybe the NJ legislature will do the right thing and just amend marriage to include gay couples.

So the gay rights folks are up to MA, CT, VT, NJ, and...help me out here...what's the other one...I want to say Rhode Island but I don't know...**kickz self in head**

All I know is that it makes my state look like the backwards hellhole run by idiots that it is. In 2004, 62% of my state voted to make same-sex marriage illegal and enshrine it in the state Constitution. And now, the man who is running on the GOP ticket for Governor here is an avowed backer of that amendment. And, despite being a country mile back in the polls, he's probably going to win, knowing how inept the Democrats are at winning.

I now love the new jersey supreme court. The ruling does create a bit of a cop out since it allows the state to create "civil unions" for gays, while keeping the definition of marriage still defined as only a heterosexual institution. However as long as those unions are legally indistinguishable from marriage (which this ruling requires them to be) I have no issue. And hey, maybe the NJ legislature will do the right thing and just amend marriage to include gay couples.
In most states, gay couples only get a civil union (the UK and France, with France having the PACS), and it'd piss off the religious right to call it a marriage.

I think they did the right thing on this one.

Excellent news! Now let's just hope that other states start following this example.

So the gay rights folks are up to MA, CT, VT, NJ, and...help me out here...what's the other one...I want to say Rhode Island but I don't know...**kickz self in head**

All I know is that it makes my state look like the backwards hellhole run by idiots that it is. In 2004, 62% of my state voted to make same-sex marriage illegal and enshrine it in the state Constitution. And now, the man who is running on the GOP ticket for Governor here is an avowed backer of that amendment. And, despite being a country mile back in the polls, he's probably going to win, knowing how inept the Democrats are at winning.


Issues marriage licenses to same-sex couples: Masschusetts (possibly New Jersey)

Allows civil unions, providing state-level spousal rights to same-sex couples: Connecticut, Vermont (possibly New Jersey)

Statewide law provides nearly all state-level spousal rights to unmarried couples: California

Statewide law provides some state-level spousal rights to unmarried couples: Hawaii, Maine,District of Columbia

States that have law specifically outlawing same sex marriage but grant no rights to same sex couples: New Mexico, New York, Rhode Island

New Jersey USED to be in the "statewide law provides some state-level spousal rights to unmarried couples". Now it will either fall into the first catagory along with Massachussets or the second with CT and Vermont.

So right now the big victories are Massachussets, with Connecticut and Vermont close behind. NJ will either be seen as a big win for gay rights, if it follows the CT/VT model, or a REALLY big win if it follow the MA model.

California is often seen as the next state to take the step to at least gay civil unions with equal rights.

In most states, gay couples only get a civil union (the UK and France, with France having the PACS), and it'd piss off the religious right to call it a marriage.

I think they did the right thing on this one.

meh, massachussetts has full gay MARRIAGE. Besides, in this case the NJ supreme court is leaving it up to the legislature to decide if they want to make marriage inclusive, or create same sex civil unions, that has not been settled.

So the gay rights folks are up to MA, CT, VT, NJ, and...help me out here...what's the other one...I want to say Rhode Island but I don't know...**kickz self in head**

All I know is that it makes my state look like the backwards hellhole run by idiots that it is. In 2004, 62% of my state voted to make same-sex marriage illegal and enshrine it in the state Constitution. And now, the man who is running on the GOP ticket for Governor here is an avowed backer of that amendment. And, despite being a country mile back in the polls, he's probably going to win, knowing how inept the Democrats are at winning.

Yeah, in my state we have a DOMA but this year there's an amendment to the state constitution up to define marriage as the union of a man and a woman only. Interestingly, there's also a referendum up that essentially establishes civil unions, too. We could see both pass, though I doubt it. The opponents of the civil unions referendum are running adds saying that gay people already have all the rights they're trying to get, just by entering into contracts and living wills with each other. That's not entirely true, however. You have to have those papers readily available in case you need to show someone that you actually have power of attorney or the power to make medicl decisions. For example, two gay men had such papers, but one had a heart attack and the papers were home in a lock-box, the ambulance drivers wouldn't let his partner ride to the hospital and the stricken man died. If that had been a man and a woman, there wouldn't have even been a question.

Heterosexual couples get all the rights, privileges and responsibilities of marriage just by getting a license, signing it in front of witnesses and mailing it in. I and my Lady have to jump through expensive legal hoops and we're still required to have our "papers" available. I don't care if you call it marriage or not. I just want the same rights as heterosexual citizens of my country. If I am not entitled to the same rights, in the same way, as heterosexual citizens, I want someone to have the courage to say that homosexuals are not full citizens of the United States because of their sexual orientation. Simple statement. Not very many big words. I'll make it easier: "Queers and dykes don't count."

as far as states without a particular law prohibiting gay marriage we have Connecticut
Massachusetts
New Jersey
New Mexico
New York
Rhode Island

Massachussets allows for full out gay marriage. NY might follow suit.
A few states like vermont denies gay marriage but allows similar (but not fully comprehensive) civil unions.

To my knowledge, if NJ decides to allow for gay marriage, it will be the second state to have them (after massachussetts). If it decides on fully equal civil unions, I believe it will be the first to have TRULY equal ones (CT has civil unions that come very close).

Actually, Connecticut is very weird with this. The law that enables civil unions simultaneously defines marriage is one man and one woman. As far as I can remember, however, it grants the same rights at the state level. There is currently a bill on the table to grant full marriage that has strong support.

So it seems to me that seven states at least do something for gay couples, plus the District of Columbia. I figured Hawaii did something, but I wasn't sure. From the looks of things, though, the other 43 states give varying degrees of the middle finger to gay couples, though if California and New York begin to allow gay marriage (well, probably civil unions) then it will give a lot more legitimacy to the whole gay marriage movement. At that point, if it appears to be working and not triggering the Apocalypse, more states will allow it, and by the time the Supreme Court rules that everyone has to do it, a bunch of states will already have done so.

That's IF it gets off the ground in CA and NY. Those states are the biggest ones needed.

Actually, Connecticut is very weird with this. The law that enables civil unions simultaneously defines marriage is one man and one woman. As far as I can remember, however, it grants the same rights at the state level. There is currently a bill on the table to grant full marriage that has strong support.

Yeah, I was in CT when it happened. You're right, the law creates gay civil unions that are in every way equal to marriage, yet at the same time defines marriage as man and woman.

I have a feeling, not one with any logical basis, but a feeling, that NJ will just go full out and allow for gay marriage. I think also that CT will pass that bill, so I think shortly we will go from one state allowing gay marriage (only MA at this point) to three (MA, CT, and NJ)

So it seems to me that seven states at least do something for gay couples, plus the District of Columbia. I figured Hawaii did something, but I wasn't sure. From the looks of things, though, the other 43 states give varying degrees of the middle finger to gay couples, though if California and New York begin to allow gay marriage (well, probably civil unions) then it will give a lot more legitimacy to the whole gay marriage movement. At that point, if it appears to be working and not triggering the Apocalypse, more states will allow it, and by the time the Supreme Court rules that everyone has to do it, a bunch of states will already have done so.

That's IF it gets off the ground in CA and NY. Those states are the biggest ones needed.

California has "civil union like" institutions that make it very SIMILAR to marriage, but with a few legal distinctions (I think they don't get tax credits and a few other things).

The way I see it falling is:

New Jersey takes this ruling as an opportunity to allow full on gay marriage
Connecticut modifies its civil union laws to create gay marriage
Vermont modifies its civil union laws to create gay marriage
California modifies its laws to create either totally equal civil unions (like in VT and CT now) or just allows marriage all together
New York passes legislation allowing for same sex civil unions with all equal rights of marriage

That's the order I see it happening in.

Yeah, I was in CT when it happened. You're right, the law creates gay civil unions that are in every way equal to marriage, yet at the same time defines marriage as man and woman.

I have a feeling, not one with any logical basis, but a feeling, that NJ will just go full out and allow for gay marriage. I think also that CT will pass that bill, so I think shortly we will go from one state allowing gay marriage (only MA at this point) to three (MA, CT, and NJ)

I was actually a bit upset that they defined marriage in the same bill to grant equal rights. I've called my reps several times to urge them to pass the new bill. Hopefully, they will.

I was actually a bit upset that they defined marriage in the same bill to grant equal rights. I've called my reps several times to urge them to pass the new bill. Hopefully, they will.

I was bothered by that too, it seemed a cop out.

But...ya know...baby steps...

So it seems to me that seven states at least do something for gay couples, plus the District of Columbia. I figured Hawaii did something, but I wasn't sure. From the looks of things, though, the other 43 states give varying degrees of the middle finger to gay couples, though if California and New York begin to allow gay marriage (well, probably civil unions) then it will give a lot more legitimacy to the whole gay marriage movement. At that point, if it appears to be working and not triggering the Apocalypse, more states will allow it, and by the time the Supreme Court rules that everyone has to do it, a bunch of states will already have done so.

That's IF it gets off the ground in CA and NY. Those states are the biggest ones needed.

I don't know I have a feeling some people will just try to paint it as those evil west/east cost liberal elites trying to force their values of the God fearing patriotic blue blooded Americans of the heartland.

California has "civil union like" institutions that make it very SIMILAR to marriage, but with a few legal distinctions (I think they don't get tax credits and a few other things).

The way I see it falling is:

New Jersey takes this ruling as an opportunity to allow full on gay marriage
Connecticut modifies its civil union laws to create gay marriage
Vermont modifies its civil union laws to create gay marriage
California modifies its laws to create either totally equal civil unions (like in VT and CT now) or just allows marriage all together
New York passes legislation allowing for same sex civil unions with all equal rights of marriage

That's the order I see it happening in.

We're going to need someone to challenge the Massachusetts clause that doesn't allow out of state folks to get married there.

I was bothered by that too, it seemed a cop out.

But...ya know...baby steps...
very true. But still, its like saying "Now don't you crazy queers get any ideas. You still aren't equal. But here, you can have some rights"

It came off as incredibly condescending to me.

I don't know I have a feeling some people will just try to paint it as those evil west/east cost liberal elites trying to force their values of the God fearing patriotic blue blooded Americans of the heartland.

And I imagine that some states will paint it that way. However, the New England states should be among the first to pass it across the board. If California and New York pass it, it would follow that Oregon, Washington, and Hawaii do the same, along with Minnesota, Illinois, and if they ever decide to overturn Proposal 2 from 2004, Michigan and maybe even Wisconsin. And even a token non-coastal and non-northern state may pass it as well. The Utahs, Kansases, and Mississippis of the world will try to paint it as an attack on Christian America, but in time, the U.S. Supreme Court will strike down any gay marriage ban the way they struck down interracial marriage bans in 1968. States will be cheesed off at it, but they won't have a choice but to comply.

the U.S. Supreme Court will strike down any gay marriage ban the way they struck down interracial marriage bans in 1968.

1967 :p

I wonder what idiot will start rambling on about 'activist judges'.

I wonder what idiot will start rambling on about 'activist judges'.

Oh I'm sure it will happen sooner or later.

probably by some folks in the south who somehow feel qualified to talk on the issue of the New Jersey constitution.

Oh I'm sure it will happen sooner or later.

probably by some folks in the south who somehow feel qualified to talk on the issue of the New Jersey constitution.

Where is MTAE, anyway?

Where is MTAE, anyway?

banned, if there's any justice in the universe.

Yeah, in my state we have a DOMA but this year there's an amendment to the state constitution up to define marriage as the union of a man and a woman only. Interestingly, there's also a referendum up that essentially establishes civil unions, too. We could see both pass, though I doubt it. The opponents of the civil unions referendum are running adds saying that gay people already have all the rights they're trying to get, just by entering into contracts and living wills with each other. That's not entirely true, however. You have to have those papers readily available in case you need to show someone that you actually have power of attorney or the power to make medicl decisions. For example, two gay men had such papers, but one had a heart attack and the papers were home in a lock-box, the ambulance drivers wouldn't let his partner ride to the hospital and the stricken man died. If that had been a man and a woman, there wouldn't have even been a question.

Heterosexual couples get all the rights, privileges and responsibilities of marriage just by getting a license, signing it in front of witnesses and mailing it in. I and my Lady have to jump through expensive legal hoops and we're still required to have our "papers" available. I don't care if you call it marriage or not. I just want the same rights as heterosexual citizens of my country. If I am not entitled to the same rights, in the same way, as heterosexual citizens, I want someone to have the courage to say that homosexuals are not full citizens of the United States because of their sexual orientation. Simple statement. Not very many big words. I'll make it easier: "Queers and dykes don't count."
Yeah, tell me about it. Those "Defend the Sanctity of Marriage and Families by voting no on I and yes on 43!" ads make me so FUCKING sick. Of course, most political ads in Colorado do these days. Though that one about Ed Perlmutter making government work for himself amuses me. Don't worry, Farmy, you can count on this Coloradian to vote yes on I for ya. That's not even a question. As far as I'm concerned, homosexuals are every bit citizens of this country as heterosexuals and deserve the same rights.

Oh GOD sometimes I wish I wasn't a heterosexual white male...so many things just GIVEN to me that I don't deserve...makes me sick...

Yeah, tell me about it. Those "Defend the Sanctity of Marriage and Families by voting no on I and yes on 43!" ads make me so FUCKING sick. Of course, most political ads in Colorado do these days. Though that one about Ed Perlmutter making government work for himself amuses me. Don't worry, Farmy, you can count on this Coloradian to vote yes on I for ya. That's not even a question. As far as I'm concerned, homosexuals are every bit citizens of this country as heterosexuals and deserve the same rights.

Oh GOD sometimes I wish I wasn't a heterosexual white male...so many things just GIVEN to me that I don't deserve...makes me sick...

You can't help it, I'm sure.

The one I really like is the one with the Bush-imitator answering all the questions about the war with a variation on "We have to protect marriage." It really is about changing the subject.

Rhode Island would legalize gay marriage if it ever came before the legislature, as voting against it would be political suicide. Which is probably why it hasn't come before the legislature yet.

Rhode Island would legalize gay marriage if it ever came before the legislature, as voting against it would be political suicide. Which is probably why it hasn't come before the legislature yet.

If there's a sure majority for it, why hasn't some legislator introduced a bill?

w00t! :)

Tis' good news. So long as this stays a state issue, it’s just a matter of baby step after baby step until someone sets a strong precedent for it. It'll take time, but it's coming.

If there's a sure majority for it, why hasn't some legislator introduced a bill?

Not necessarily a majority in the legislature. If it came up, they'd either lose their job or compromise their principles. As spineless wimps, they choose not to let a bill be introduced so they have to do neither. At least, that's what I'm guessing. I can't think of another reason why a bill wouldn't be introduced.

Not necessarily a majority in the legislature. If it came up, they'd either lose their job or compromise their principles. As spineless wimps, they choose not to let a bill be introduced so they have to do neither. At least, that's what I'm guessing. I can't think of another reason why a bill wouldn't be introduced.

Ah, the Spineless Wimp Factor, I understand. You should set up a bot to send your legislators e-mail twice a day calling for such a bill. Though you might get arrested for spamming.

Thank god for another triumph of reason and justice in this disgraceful debate.

The New Jersey Supreme Court just ruled on the issue of gay marriage/civil unions declaring that it is against the NJ state constitution to deny rights to gay couples and grant them to straight couples. This does not necessarily create gay MARRIAGE in NJ, but the state is now required to at least offer same sex civil unions that would grant all equivalent rights to heterosexual marriages.

The funny thing about that statement is that it is impossible for civil unions to truly have all the equivalent rights to legal marriage. That would involve changing federal law, as well as quite a few treaties. But it's a good first step.

What makes this interesting is that while Massachussets (the only state to currently have full legal same sex marriage) has a law barring out-of-state couples from wedding there if their marriages would not be recognized in their home states....new jersey does not...

On a side note, the law in Massachussets is actually a hold over from the days of anti-miscegenation laws. The fact that it is now being used on homosexual couples just further demonstrates the similarities between the two.

Yeehaw!

Yay for NJ!

As for the Full Faith and Credit clause, I have often wondered why all these "defense of marriage" laws aren't being challenged under that. Especially the ones that say they won't recognize same-sex marriages from out of state.

The case simply hasn't come up yet. The courts aren't going to hear such a case until someone is actually harmed by it, as cases like this can't be brought up on a "just in case status," and Mass. hasn't had same-sex marriage for very long. Once a married couple from Mass. moves from Mass. to another state, gets denied recognition in a way that harms them, and can get the money and backing to make it through the court systems, the case will be brought.

Good. Maybe the rest of the Northeast will follow this trend, and then the upper-Midwest, and then the Northwest, and then California.

If that happens, the "Deep South" legislators would almost be forced to go along with the times, lest they look like the dipshits they really are.

Or this (http://en.wikipedia.org/wiki/Image:New_map_WEB.jpg) will happen.

We're going to need someone to challenge the Massachusetts clause that doesn't allow out of state folks to get married there.

On what basis? Mass. could straight-up pass a law that said, "We won't grant a marriage license to any couple that does not reside in the state," and that would be perfectly legal. Each state can regulate what requirements a couple must meet to get married, as long as they don't do anything unconstitutional in so doing. While the Mass. law was meant to help enforce anti-miscegenation laws, and is now being used to help enforce anti-homosexual laws, the law itself is not in any way discriminatory.

As another example of how this could be used, some states allow marriage between an adult and a minor if the female in the relationship is pregnant. If Mass. is one of them, this law would mean that they would not grant a marriage license to an out-of-state couple in that situation unless their home state would also do so.

Welll we joke about the " Peoples republic of New jersey " all the time here in PA...

Maybe McGreevy got engaged ?:D

On what basis? Mass. could straight-up pass a law that said, "We won't grant a marriage license to any couple that does not reside in the state," and that would be perfectly legal. Each state can regulate what requirements a couple must meet to get married, as long as they don't do anything unconstitutional in so doing. While the Mass. law was meant to help enforce anti-miscegenation laws, and is now being used to help enforce anti-homosexual laws, the law itself is not in any way discriminatory.

As another example of how this could be used, some states allow marriage between an adult and a minor if the female in the relationship is pregnant. If Mass. is one of them, this law would mean that they would not grant a marriage license to an out-of-state couple in that situation unless their home state would also do so.


The law is perfectly legal, as you say. It would be good if the legislature would get rid of it however.

The law is perfectly legal, as you say. It would be good if the legislature would get rid of it however.

I won't argue there.

as I said, I have no reason to believe it, but I got a feeling NJ will just go all out and legalize gay marriage.

:cool: I'm happy to hear this!

i think everyone ought to have same-sex onions. discrimination of onions on the basis of sex should be banned!

i think everyone ought to have same-sex onions. discrimination of onions on the basis of sex should be banned!

If not we run out of onions and the cheese steaks will suck .


Hey civil unions and equal rights for , living toghether partners for life , gets around that sticky marriage word thing .

What if you are hetrosexual and just dont believe in calling your union a marriage ? HUH what then ??? Common law marriage...or something in most states....that word marriage again...

Isn't this a religion thing and since the constitution has a seperation of church and state thing in it...how can banning marriage of two people of any gender be constitutional ? Its not like they are wanting to marry their german Shepherd .

equal protection under the law...

how does excluding gays the rights of a married couple meet that criteria ?

I need an asprin.

Word up! Another endless appeal by right-wing christian fascists is approaching.
I find your use of the word Fascism insulting. A good number of us Fascists are not Christian and support gay marriage.

crap. Gotta leave NJ now.

crap. Gotta leave NJ now.

If that's your response to this news then I strongly suspect many in NJ don't want you there....

What if you are hetrosexual and just dont believe in calling your union a marriage ? HUH what then ??? Common law marriage...or something in most states....that word marriage again...

My girlfriend and I (six year anniversary last night) have said that we don't want to get married, but that we might like a civil union. Unfortunately, all the states that currently have CU's exclude heterosexual couples from getting them.

What it really comes down to is this--we both have very close gay friends, and we don't want to be part of a system that excludes our friends. So when marriage or civil unions become available to every couple, we'll think about it. But not before then.

If that happens, the "Deep South" legislators would almost be forced to go along with the times, lest they look like the dipshits they really are.

You should see the political ads, the revel in being the kind of dipshits you are talking about. That is their fucking platform.

w00t! :)

Tis' good news. So long as this stays a state issue, it’s just a matter of baby step after baby step until someone sets a strong precedent for it. It'll take time, but it's coming.
Of course it is. It's been the trend of civilization in general for several thousand years that it keeps getting more and more egalitarian, slowly but surely. There are setbacks, often serious ones, but the simple fact is that no one wants to be lower than anyone else in the social order, and the only real solution to that is for society to be level and equal. It's been growing slowly along those lines since the first city-states were created.

EDIT: By the way, YAY New Jersey!

Mmm... While I welcome this on principle, I fear it might energize the Republicans... I wish this decision would have been postponed till AFTER the elections...

Mmm... While I welcome this on principle, I fear it might energize the Republicans... I wish this decision would have been postponed till AFTER the elections...

The people who are going to get exercised about this were going to vote anyway. They weren't staying home--they think the Democrats are all heathens and fags and can't stand the idea that they might be in charge.

they think the Democrats are all heathens and fags and can't stand the idea that they might be in charge.

Oh if only. A gay President. A gay, pagan President. Woot!

Oh if only. A gay President. A gay, pagan President. Woot!

It's more likely than an openly atheist president. That closet's shut the tightest of all in politics.

Well, my state Supreme Court (WA) just upheld our DOMA, but things could change. All we need to do is bring this up as a referendum, then find a way to get everyone on the other side of the Cascades to stay home...

It's more likely than an openly atheist president. That closet's shut the tightest of all in politics.

At times it seems the words "secular humanist" are either largely unknown - or widely reviled - down your way, Nazz.

At times it seems the words "secular humanist" are either largely unknown - or widely reviled - down your way, Nazz.

Not as much where I am now. We have our wingnuts, mind you--I pass D. James Kennedy's church on my way to work every day, and give it the finger every time--but in a place with over 6 million people from Miami to Palm Beach, there's no one dominant group for the entire area. There's little pressure on atheists individually, but still, if you're running for office, you better at least belong to a church and show up occasionally.

Edit: or mosque or synagogue. Lots of cultures down here.

Im fine with Civil unions, and im glad the US is starting to ease up about it, but I thought Christianity was opposed to gays, i think its wrong that churches should start allowing gay marriages just because a lot of people (a lot of which arn't Christian) think it should be ok...
The church always seem to change their beliefs in order to try and keep people believing in christianity :(
*considers making a few links between church leaders and nazis* *runs and hides*

Im fine with Civil unions, and im glad the US is starting to ease up about it, but I thought Christianity was opposed to gays, i think its wrong that churches should start allowing gay marriages just because a lot of people (a lot of which arn't Christian) think it should be ok...
The church always seem to change their beliefs in order to try and keep people believing in christianity :(
*considers making a few links between church leaders and nazis* *runs and hides*

There is no way, NO WAY that any law can require a religious organization to marry gay people...first amendment and all that. A religion will do as it will. But in the case of gay marriage/civil unions the government will marry/unionize you if need be.

Im fine with Civil unions, and im glad the US is starting to ease up about it, but I thought Christianity was opposed to gays, i think its wrong that churches should start allowing gay marriages just because a lot of people (a lot of which arn't Christian) think it should be ok...
The church always seem to change their beliefs in order to try and keep people believing in christianity :(
*considers making a few links between church leaders and nazis* *runs and hides*

allowing marriage by law in no way impacts any church. Any church can choose to or not to perform any ceremony at its discretion (the flip side of seperation of church and state). The issue is getting the same rights for all couples, and that is strictly a legal matter.

And I imagine that some states will paint it that way. However, the New England states should be among the first to pass it across the board. If California and New York pass it, it would follow that Oregon, Washington, and Hawaii do the same, along with Minnesota, Illinois, and if they ever decide to overturn Proposal 2 from 2004, Michigan and maybe even Wisconsin. And even a token non-coastal and non-northern state may pass it as well. The Utahs, Kansases, and Mississippis of the world will try to paint it as an attack on Christian America, but in time, the U.S. Supreme Court will strike down any gay marriage ban the way they struck down interracial marriage bans in 1968. States will be cheesed off at it, but they won't have a choice but to comply.

They will if my state gets off its collective ass and moves beyond this "some rights" crap.

And now watch the state fall part. Oh thats right, too late. Well I guess it can't hurt.

And now watch the state fall part. Oh thats right, too late. Well I guess it can't hurt.
Why would New Jersey fall apart over this? If anything, it should strengthen it.

Also, as an amusing anecdote, I just watched the gay marriage episode of Family Guy. For a while--since it IS a Fox cartoon--I was worried it would come out against it, but it came out for in the end. =/

Anyway, that's beside the point. Hopefully, we'll be seeing this kind of decision repeated in many other states. It'll take way too damned long, but even the Deep South will get around to allowing it, though I have no doubt they'll mess around with Jim Crow-style laws for a while before SCOTUS gives them the smackdown.

Farnhamia, a telegram has been sent to you, by the way.

Also, as an amusing anecdote, I just watched the gay marriage episode of Family Guy. For a while--since it IS a Fox cartoon--I was worried it would come out against it, but it came out for in the end. =/

So if we can find the keys to a few Volkswagen Shiroccos, will other states legalize gay marriage?

And now watch the state fall part.

Just like massachusetts.

*looks outside*

huh, state still looks like it's here...

Im fine with Civil unions, and im glad the US is starting to ease up about it, but I thought Christianity was opposed to gays, i think its wrong that churches should start allowing gay marriages just because a lot of people (a lot of which arn't Christian) think it should be ok...
The church always seem to change their beliefs in order to try and keep people believing in christianity :(
*considers making a few links between church leaders and nazis* *runs and hides*

Some Christians are opposed to homosexuals. Others are not. Should those Christians who are not opposed stop worshipping?

It generally isn't a matter of the the church changing beliefs to keep believers, although that might sometimes happen. It is generally more the fact that people's viewpoints change over time, and their churches will reflect that.

Just like massachusetts.

*looks outside*

huh, state still looks like it's here...
Heh, beat me to it.

Yeah, Mass sure has fallen apart, what with having the lowest divorce rate in the US. Not like those Bible Belt states with their highest divorce rates in the nation, along with the honor of having the highest homicide, poverty, and illiteracy rates.

;)

My girlfriend and I (six year anniversary last night) have said that we don't want to get married, but that we might like a civil union. Unfortunately, all the states that currently have CU's exclude heterosexual couples from getting them.

Yeah, I'm bummed about this as well. I think "marriage" as an institution represents some pretty disgusting things, and I would vastly prefer to have a civil union that carried the legal rights without the taint of "marriage" on it.

Oh, and congrats on 6 years!

Civil unions are fine. As long as they're not marriages. That's our word.

Civil unions are fine. As long as they're not marriages. That's our word.

Your word? Please. My Lady and I love each other as much as any heterosexual couple we know, and we've been in a stable relationship for longer than you've been alive, I suspect. Why can't we say we're married and enjoy the rights and privileges that word you claim brings with it? Do we not have the same citizen rights you have? I'm not requiring any church solemnize our union, by the way, just the state, which is the important entity here.

Your word? Please. My Lady and I love each other as much as any heterosexual couple we know, and we've been in a stable relationship for longer than you've been alive, I suspect. Why can't we say we're married and enjoy the rights and privileges that word you claim brings with it? Do we not have the same citizen rights you have? I'm requiring any church solemnize our union, by the way, just the state, which is the important entity here.

I never said you couldn't say you were married. Just on paper, you'd have a civil union, not a marriage. You can have all the stupid rights, I don't care about that.

And when you say "your lady," is that what your partner really is, or is that a pet name? *swish*

Heh, beat me to it.

Yeah, Mass sure has fallen apart, what with having the lowest divorce rate in the US. Not like those Bible Belt states with their highest divorce rates in the nation, along with the honor of having the highest homicide, poverty, and illiteracy rates.

;)

What most people don't understand is that the places with civil unions are very liberal states to begin with....I mean...come on...california vermont connecticut new jersey and freaking MASSACHUSSETS? Can you get more blue than this?

These are very liberal states, that have had a very vocal gay population for a long time. And they've been in the public, and have settled, and have formed their relationships, and have become part of the community. In fact if you read the 2004 mass supreme court decision that gave gays the right to marry in MA, it basically says just that, these are people, they get up, they go to work, they drive their minivans to take their kids to soccer practice. These are people who are part of our community, they are our friends and neighbors, and damn it this isn't right.

MA (and VT, and CT, and NJ) isn't going to suddenly fall apart because "them damned fags are gonna start coming out of the woodwork!" They've been part of the communities for years, and now they're just getting what they deserve. The communities of these states aren't going to burn down...gays have been a part of them for years, having relationships for years, and intigrated for years.

Which I think is what REALLY scares the arc conservatives. It's that if you give gays the right to marry, and have to start treating them like human beings, then people might stop being ashamed of being gay, and be more out with it. And from a conservative viewpoint, if you HAVE to be gay...be gay in quiet where nobody has to deal with you.

Civil unions are fine. As long as they're not marriages. That's our word.
Yeah, it's THEIR word!

It's their word to describe the selling of barely-pubescent girls into servitude to men twice their age!

It's their word for the relationship between a man and his four wives, as the Bible describes!

It's their word for the relationship between a man and the female property that he has acquired to bear his Manly Seed and clean his Manly Castle!

Honestly, as somebody in a hetero relationship, I think the best thing that could happen to the word "marriage" would be to distance it from its actual hetero history as much as we possibly can. Anything that takes marriage away from its "traditional" meaning will be an improvement.

Yeah, it's THEIR word!

It's their word to describe the selling of barely-pubescent girls into servitude to men twice their age!

It's their word for the relationship between a man and his four wives, as the Bible describes!

It's their word for the relationship between a man and the female property that he has acquired to bear his Manly Seed and clean his Manly Castle!

Honestly, as somebody in a hetero relationship, I think the best thing that could happen to the word "marriage" would be to distance it from its actual hetero history as much as we possibly can. Anything that takes marriage away from its "traditional" meaning will be an improvement.

I'm not a Christian.

I never said you couldn't say you were married. Just on paper, you'd have a civil union, not a marriage. You can have all the stupid rights, I don't care about that.

And when you say "your lady," is that what your partner really is, or is that a pet name? *swish*

:rolleyes: Yes, Potato, she is my Lady.

And if we'd have all the rights, why not the word? A man and a woman can go to City Hall and get hitched and call it a marriage, but it's really just a civil union, isn't it?

I never said you couldn't say you were married. Just on paper, you'd have a civil union, not a marriage. You can have all the stupid rights, I don't care about that.

see, I'm really torn on this. Now it's true that marriage does mean historically in this country one man, one woman. Part of me says "well screw that, times change". Another part of me goes "well, should we be altering the definition of a word when a new institution doing the same thing works as well?"

One part of me thinks that keeping marriage as purely one man one woman reeks of sexism, but on the other hand...well...that IS what the word has meant in this country

Your word? Please. My Lady and I love each other as much as any heterosexual couple we know, and we've been in a stable relationship for longer than you've been alive, I suspect. Why can't we say we're married and enjoy the rights and privileges that word you claim brings with it? Do we not have the same citizen rights you have? I'm not requiring any church solemnize our union, by the way, just the state, which is the important entity here.
But it's THEIR WORD, and you can't get your gay cooties all over it.

See, a relationship between a convicted felon and the woman he is beating is worthy of the name "marriage," because it's SACRED.

A 55 year old man who has his 18-year-old trophy wife sign a 200 page pre-nup is entering into a holy union.

When a couple of drunk college kids get hitched in a Vegas chappel, that's a beautiful and meaningful commitment that is worthy of the glorious title of MARRIAGE.

Convicted sex offenders can legally get married because they will be able to uphold the true meaning of marriage, unlike fags.

But you, with your icky non-hetero sex, you just dirty up their nice clean word. YOU shouldn't be allowed to use it.

But it's THEIR WORD, and you can't get your gay cooties all over it.

See, a relationship between a convicted felon and the woman he is beating is worthy of the name "marriage," because it's SACRED.

A 55 year old man who has his 18-year-old trophy wife sign a 200 page pre-nup is entering into a holy union.

When a couple of drunk college kids get hitched in a Vegas chappel, that's a beautiful and meaningful commitment that is worthy of the glorious title of MARRIAGE.

Convicted sex offenders can legally get married because they will be able to uphold the true meaning of marriage, unlike fags.

But you, with your icky non-hetero sex, you just dirty up their nice clean word. YOU shouldn't be allowed to use it.

Oh, okay, never mind. :p

I'm not a Christian.
Ok, replace "Bible" with any other holy book or Manly Tome. Christians certainly don't have a monopoly on patriarchy, nor are Christians the only ones who have helped make Western marriage into the sexist and debased institution it is. :D

But it's THEIR WORD, and you can't get your gay cooties all over it.

See, a relationship between a convicted felon and the woman he is beating is worthy of the name "marriage," because it's SACRED.

A 55 year old man who has his 18-year-old trophy wife sign a 200 page pre-nup is entering into a holy union.

When a couple of drunk college kids get hitched in a Vegas chappel, that's a beautiful and meaningful commitment that is worthy of the glorious title of MARRIAGE.

Convicted sex offenders can legally get married because they will be able to uphold the true meaning of marriage, unlike fags.

But you, with your icky non-hetero sex, you just dirty up their nice clean word. YOU shouldn't be allowed to use it.

See, I can almost buy this argument BECAUSE I don't think of it as anything sacred, or holy, or glorious. I just think it's an arrangement between willing parties, nothing more.

And since that's all I as an individual see it as, I recognize that traditionally, historically, it has been an arrangement done between one male, and one female...ignoring all the wondeful symbolism of it all.

And I get torn between the thought of "well times change, change the definition" and the thought of "well, should we be changing the definition of a word when a fully different institution, which would do the exact same thing, would be for all legal purposes the exact same?"

see, I'm really torn on this. Now it's true that marriage does mean historically in this country one man, one woman. Part of me says "well screw that, times change". Another part of me goes "well, should we be altering the definition of a word when a new institution doing the same thing works as well?"

One part of me thinks that keeping marriage as purely one man one woman reeks of sexism, but on the other hand...well...that IS what the word has meant in this country

Yes, and the original rules published for baseball defined it as a game played by white gentlemen. Times do change and we should change with them, don't you think? "Marriage" is the word used to describe a loving, committed relationship, we're merely proposing widening the definition.

Yes, and the original rules published for baseball defined it as a game played by white gentlemen. Times do change and we should change with them, don't you think? "Marriage" is the word used to describe a loving, committed relationship, we're merely proposing widening the definition.

Don't get me wrong. If the choice is between gay MARRIAGE or nothing at all, my choice is pretty obvious.

And...I could argue...marriage is the word used to describe a loving, committed relationship between a man and a woman (GOD I can't believe I'm using these catch phrases, just hear me out).

Baseball is a poor analogy because baseball is not law. It is, I suppose, a self regulating institution, and self regulationg institutions may change as they see fit. Perhaps as a lawyer I have more reverence to the legal thought of it, then any idea of "sanctity of marriage". I just question whether any group should be allowed to alter legal definitions that have LONG been defined when another institution would do the job equally well.

Now I know culturally it's not the same, culturally "marriage" sounds a lot better than "civil union" but I'm not really talking cultural, I'm talking legal, and if a marriage and a civil union are indistinguishable from a legal aspect, should we be altering the law to accomodate and alter a fundamental definition of a word when that's not necessary.

Don't get me wrong, this is merely a thought experiment. I'm perfectly fine with gay marriage...just as a hypothetical I wonder if "civil unions" are more appropriate, as they grant identical rights, yet do not actual alter a long held definition.

Yes, and the original rules published for baseball defined it as a game played by white gentlemen. Times do change and we should change with them, don't you think? "Marriage" is the word used to describe a loving, committed relationship, we're merely proposing widening the definition.
Exactly.

Here's how I look at it:

Marriage is, at least in the idealized theory of it, about a RELATIONSHIP. It's supposed to be a kind of partnership, in which two individuals commit to build a life together. In the legal sense, marriage is a contract that two people enter into.

If we want to uphold the tradition of marriage, then all we have to worry about is that contract, that partnership. All we have to ask is, can the people who want to get married fulfill the requirements for the contract/partnership?

It used to be that white people couldn't marry black people, and vice versa. But we recognized that there is nothing about being black that makes a person unable to enter into a marriage partnership with a white person, or vice versa. There is no reason why a black man would be less able to fulfill the role of spouse to a white woman than a white man would be.

Similarly, it is patently obvious that there is no inherent reason why a woman would be less able to be spouse to a woman than a man would be. There is no marital responsibility that a woman is inherently unable to fulfill simply by virtue of being female, nor is there any responsibility a man is unable to fulfill simply because he is male.

Being male or female does not automatically make you unqualified (or qualified) to be somebody's spouse. It's beside the point entirely, just like being black or white is beside the point.

Don't get me wrong. If the choice is between gay MARRIAGE or nothing at all, my choice is pretty obvious.

And...I could argue...marriage is the word used to describe a loving, committed relationship between a man and a woman (GOD I can't believe I'm using these catch phrases, just hear me out).

Baseball is a poor analogy because baseball is not law. It is, I suppose, a self regulating institution, and self regulationg institutions may change as they see fit. Perhaps as a lawyer I have more reverence to the legal thought of it, then any idea of "sanctity of marriage". I just question whether any group should be allowed to alter legal definitions that have LONG been defined when another institution would do the job equally well.

Now I know culturally it's not the same, culturally "marriage" sounds a lot better than "civil union" but I'm not really talking cultural, I'm talking legal, and if a marriage and a civil union are indistinguishable from a legal aspect, should we be altering the law to accomodate and alter a fundamental definition of a word when that's not necessary.

Don't get me wrong, this is merely a thought experiment. I'm perfectly fine with gay marriage...just as a hypothetical I wonder if "civil unions" are more appropriate, as they grant identical rights, yet do not actual alter a long held definition.

Exactly.

Here's how I look at it:

Marriage is, at least in the idealized theory of it, about a RELATIONSHIP. It's supposed to be a kind of partnership, in which two individuals commit to build a life together. In the legal sense, marriage is a contract that two people enter into.

If we want to uphold the tradition of marriage, then all we have to worry about is that contract, that partnership. All we have to ask is, can the people who want to get married fulfill the requirements for the contract/partnership?

It used to be that white people couldn't marry black people, and vice versa. But we recognized that there is nothing about being black that makes a person unable to enter into a marriage partnership with a white person, or vice versa. There is no reason why a black man would be less able to fulfill the role of spouse to a white woman than a white man would be.

Similarly, it is patently obvious that there is no inherent reason why a woman would be less able to be spouse to a woman than a man would be. There is no marital responsibility that a woman is inherently unable to fulfill simply by virtue of being female, nor is there any responsibility a man is unable to fulfill simply because he is male.

Being male or female does not automatically make you unqualified (or qualified) to be somebody's spouse. It's beside the point entirely, just like being black or white is beside the point.

I think that refusing homosexual couples the word "marriage" somehow stigmatizes them, sets them apart. ("Well, they're a lovely couple, they even have a civil union, you know.") That seems to be what the courts are starting to recognize in their decisions, that you can't do that. I suspect that the furor over the word itself will eventually die down, once the legal details are worked out.

And I guess baseball was not the best analogy, it was spur of the moment. Still, I was going for an example of changing definitions. Besides, who says Baseball isn't a Law unto Itself? It is the National Pastime, after all! ;)

A step in the right direction.

Originally Posted by Heikoku
Mmm... While I welcome this on principle, I fear it might energize the Republicans... I wish this decision would have been postponed till AFTER the elections...
The people who are going to get exercised about this were going to vote anyway. They weren't staying home--they think the Democrats are all heathens and fags and can't stand the idea that they might be in charge.
I hope you're right, Nazz, but I'm afraid Heikoku's scenario is pretty likely. The pre-election polls seem to indicate a severe downturn in support from the base for the Republican party in general, because of the combined weight of Iraq and all their scandals, especially that gay-pedo-perv Foley extravaganza. The general expectation is that the rabid anti-Dem/left/gay/swarthy/non-Jeebus faction will stay home, because there's no way they'd vote Dem. But I am afraid that the closer we get to election day, the more their fear-hate of the Dems will override their disgust with their chosen leaders. Something like this could tweak their knee-jerk reaction and get them to the polls to vote our side down, even though they no longer trust their own side.

Like John Stewart said long ago, "two guys kissing each other trumps everything."

Oh if only. A gay President. A gay, pagan President. Woot!
With a leftist, atheist veep. Now THAT would make for some sound bites.

I think that refusing homosexual couples the word "marriage" somehow stigmatizes them, sets them apart. ("Well, they're a lovely couple, they even have a civil union, you know.")

I think that's a perfectly good argument. One could argue that it's not the job of the law to regulate how society views it however, and legal definitions should not be modified if not necessary. It is not the matter of law to dictate society.

However at the same time law can recognize society for what it is and recognize that, as you said, not calling it a marriage still keeps a stigma attached to it.

I hope you're right, Nazz, but I'm afraid Heikoku's scenario is pretty likely. The pre-election polls seem to indicate a severe downturn in support from the base for the Republican party in general, because of the combined weight of Iraq and all their scandals, especially that gay-pedo-perv Foley extravaganza. The general expectation is that the rabid anti-Dem/left/gay/swarthy/non-Jeebus faction will stay home, because there's no way they'd vote Dem. But I am afraid that the closer we get to election day, the more their fear-hate of the Dems will override their disgust with their chosen leaders. Something like this could tweak their knee-jerk reaction and get them to the polls to vote our side down, even though they no longer trust their own side.

Like John Stewart said long ago, "two guys kissing each other trumps everything."
And the Republicans will be pulling out all the stops now, "See? See? Activist Judges!!!!!!oneone111!!!!!!!" And have you noticed all of a sudden that "phased withdrawal" has crept into some people's vocabulary?

With a leftist, atheist veep. Now THAT would make for some sound bites.

Yeah, after the sound of conservative heads exploding died away.

Civil unions are fine. As long as they're not marriages. That's our word.
Whose word?

I'm a heterosexual woman, and I no longer consider it MY word, because it has become far too politicized by a minority of other heterosexuals who seem bent on using "marriage" as a badge of social honor that they get to reserve for themselves and deny to selected others. I am not interested in buying into YOUR idea of YOUR privileges.

I think that's a perfectly good argument. One could argue that it's not the job of the law to regulate how society views it however, and legal definitions should not be modified if not necessary. It is not the matter of law to dictate society.

However at the same time law can recognize society for what it is and recognize that, as you said, not calling it a marriage still keeps a stigma attached to it.

Ah, but I don't believe that prior to the creation of the various state and Federal DOMAs, there was a legal definition of marriage that spoke to the genders of the couple getting married. Enshrining the traditional definition in a Defense of Marriage Act is relatively recent, and is a conservative reaction to gay people moving for their rights. Anyway, I don't think we disagree on more than the semanitics involved and we're not that far apart there, either.

I never said you couldn't say you were married. Just on paper, you'd have a civil union, not a marriage. You can have all the stupid rights, I don't care about that.

And when you say "your lady," is that what your partner really is, or is that a pet name? *swish*
If you think the rights are stupid, why don't you give them up so other people who do value them can have them?

It's simple. All you have to do is lobby to have "marriage" redefined as a religious ritual/observance, and then, under separation of church and state, the government will no longer be permitted to grant special tax status or legal privileges affecting property ownership, inheritance, insurance, health care proxy designations, etc, to married couples.

Then, all those legal rights will be free to be applied to civil unions, instead. That way, everyone who doesn't think they are stupid can have them. Even married people can have them, if they also file for a civil union from the state.

Ah, but I don't believe that prior to the creation of the various state and Federal DOMAs, there was a legal definition of marriage that spoke to the genders of the couple getting married. Enshrining the traditional definition in a Defense of Marriage Act is relatively recent, and is a conservative reaction to gay people moving for their rights. Anyway, I don't think we disagree on more than the semanitics involved and we're not that far apart there, either.

Well the counter argument is that the law just got around to defining something as it's been socially defined.

But again, semantics, I live in Massachussets, I'm quite fine with the fact that my state has legal gay marriage. In fact, from a practical standpoint, it is probably better to call it a marriage and not a union since you avoid that whole "social stigma, seperate but equal" thing that you mentioned.

Just from a pragmatic practical viewpoint as a legal scholar I question whether it is necessary, or even good, to EVER change a legal definition, about ANYTHING, unless necessary to preserve LEGAL rights, which would not be the case here.

Basically I'm split between the two sides of me, one that says "well it's a good social move to legally call it marriage" and the other side of me that says "but law doesn't care about social beliefs, it cares about law, and you shouldn't change legal definitions unless necessary".

Yeah, it's THEIR word!

It's their word to describe the selling of barely-pubescent girls into servitude to men twice their age!

It's their word for the relationship between a man and his four wives, as the Bible describes!

It's their word for the relationship between a man and the female property that he has acquired to bear his Manly Seed and clean his Manly Castle!
And make his Manly Sammiches. ;)

Honestly, as somebody in a hetero relationship, I think the best thing that could happen to the word "marriage" would be to distance it from its actual hetero history as much as we possibly can. Anything that takes marriage away from its "traditional" meaning will be an improvement.
Agreed.

And the Republicans will be pulling out all the stops now, "See? See? Activist Judges!!!!!!oneone111!!!!!!!" And have you noticed all of a sudden that "phased withdrawal" has crept into some people's vocabulary?
Yes, I have noticed that. Those spineless, weasling scumbags. But that's for another thread.

Yeah, after the sound of conservative heads exploding died away.
Ah, the delicate *fumph* of exploding rightwing heads, music to my ears...

Civil unions are fine. As long as they're not marriages. That's our word.

Yeah, and once upon a time it was a word that only applied to whites in many states.

Then it only applied to couples of the same ethnicity.

Do you really want to follow in that background?

Don't get me wrong, this is merely a thought experiment. I'm perfectly fine with gay marriage...just as a hypothetical I wonder if "civil unions" are more appropriate, as they grant identical rights, yet do not actual alter a long held definition.

Here's the problem, they aren't "identical rights." There is not yet a single "civil union" that grants identical rights to the marriage in any country or state that offers it. Why? Because there are hundreds of years of legislation, treaties etc. regarding legal marriage. Because, even though the federal government cannot, itself, grant marriage licenses, it does recognize legal marriage for some purposes. And so on......

Without rewriting our entire body of marriage law and resigning quite a few treaties with countries that may or may not be willing to recognize them both, civil unions will never be equivalent to civil marriage.

Meanwhile, objections to "changing the meaning of the word," are fairly ludicrous. The word has been changing, even in the legal definition. At one point, black Americans couldn't get married at all in most places. Hence the tradition of jumping the broom. Then they could get married, but only to a member of the opposite sex who shared their ethnicity. Then, we decided that banning interracial marriages was unconstitutional. This next step is really no different.

I think that's a perfectly good argument. One could argue that it's not the job of the law to regulate how society views it however, and legal definitions should not be modified if not necessary. It is not the matter of law to dictate society.

However at the same time law can recognize society for what it is and recognize that, as you said, not calling it a marriage still keeps a stigma attached to it.

The legal definition isn't changing by allowing same-sex couples equal access, any more than the legal definition changed when anti-miscegenation laws were done away with.

Here's the problem, they aren't "identical rights." There is not yet a single "civil union" that grants identical rights to the marriage in any country or state that offers it. Why? Because there are hundreds of years of legislation, treaties etc. regarding legal marriage. Because, even though the federal government cannot, itself, grant marriage licenses, it does recognize legal marriage for some purposes. And so on......

Without rewriting our entire body of marriage law and resigning quite a few treaties with countries that may or may not be willing to recognize them both, civil unions will never be equivalent to civil marriage.

Except we're not talking about a federal change. I agree that making this change on a FEDERAL level would be far more difficult without simply expanding the definition. We're talking only about a state level, which is significantly easier to create equal regimes.

Meanwhile, objections to "changing the meaning of the word," are fairly ludicrous. The word has been changing, even in the legal definition. At one point, black Americans couldn't get married at all in most places. Hence the tradition of jumping the broom. Then they could get married, but only to a member of the opposite sex who shared their ethnicity. Then, we decided that banning interracial marriages was unconstitutional. This next step is really no different.

Well it's different in that this is not a federal decision yet. If and when it becomes a federal decision, it would be far more difficult to do without expanding the definition, I agree.

And again, don't think I'm against calling it marriage...it's just a thought experiment.

Well the counter argument is that the law just got around to defining something as it's been socially defined.

But again, semantics, I live in Massachussets, I'm quite fine with the fact that my state has legal gay marriage. In fact, from a practical standpoint, it is probably better to call it a marriage and not a union since you avoid that whole "social stigma, seperate but equal" thing that you mentioned.

Just from a pragmatic practical viewpoint as a legal scholar I question whether it is necessary, or even good, to EVER change a legal definition, about ANYTHING, unless necessary to preserve LEGAL rights, which would not be the case here.

Basically I'm split between the two sides of me, one that says "well it's a good social move to legally call it marriage" and the other side of me that says "but law doesn't care about social beliefs, it cares about law, and you shouldn't change legal definitions unless necessary".
Actually, I think that, in this case, preservation of legal rights IS at stake. My thinking is as follows:

All this talk of "marriage," "sanctity," "relationships," "love" and other emotional claptrap only confuses the issue. Let's ask ourselves what the real core of the issue is. What is it that gays say they are being denied? What is really at stake here?

What is really at stake in governmental recognition of marriage is the LEGAL rights of the people involved in re such decidedly unemotional matters as taxation, property rights, inheritance, parental custody, health care proxy authority, and so on. To the extent that these LEGAL matters are attached to marriage, then denial of marriage to a selected group of people can only be seen as denial of LEGAL rights. It is discrimination, plain and simple.

So how did these legal rights get attached to marriage in the first place? Those who oppose gay marriage claim that it has something to do with some intangible quality of the state of holy wedlock, but history belies this. There has never been a period or a culture that has not included relationships that, today, would be called "commonlaw marriage," i.e. couples who have co-habited long and steadily enough to count as married, even though their relationship was never "sanctified" by any god or authority. By simple time and habit, it has become solid enough that no outside authority -- no church, no government, not even their own extended families -- would have the right to dissolve it, separate the couple, take their children, and redistribute their property.

And THAT right here is the key to the matter. The fact is, rhetoric aside, society does not recognize personal relationships. Society does not give a rat's ass whether couples love each other or not. All society cares about is whether or not a given pair of people will have the right to bar others from interfering with their lives and the right to access particular social privileges. After all, what else COULD society care about, because what else can it measure?

Look at all marriage ceremonies, religious and civil, throughout all of history and all the world, and you will see it clearly. Marriage has nothing to do with relationships and everything to do with legal and financial/property status, from assurances that the parties are entering into it willingly, to warnings for others not to interfere, to promises to share worldly goods and not to abandon each other, to the parents of the couple relinquishing parental control over them, even to marriage contracts/pre-nups and dowry exchange transactions, all designed to create a legally sound new social unit -- i.e. a household. Throughout history, we see again and again that people do not need marriage to have a loving relationship, or even a shitty relationship. They do not need marriage to have and raise children. But if they want to establish the foundation of a new legacy, in terms of pooling their resources to create their own property base, then yes, they have traditionally needed marriage to protect such an arrangment.

This is clearly the true nature of marriage, and to deny such legal rights to gays, or any group, on any basis which does not directly affect those rights or how they are held by others, is ridiculous. There is no reason for it.

As to the argument that marriage is traditionally based in religion and should be governed by religion, history again shows that many things were traditionally based in religion but are not nowadays. The fact is that, historically, appeal to divine power was the most compelling way of memorializing an oath, and as marriage is an oath, it makes sense that god(s) would be called upon to witness it. But that does not mean that it was the god(s) dictating the rules of marriage. Also, in more recent Western history, immediately after the collapse of Roman imperial rule, the church remained the most coherent organized social institution and stepped up to take over many governmental functions that later were passed back into the hands of kings and councils. I don't see why marriage should be any different.

I see three possible solutions:

A) Separate the legal rights from the idea of "marriage" and attach them instead to the idea of "householding" (or similar term). As you yourself pointed out, people can get civil ceremony marriages, and be married, even though what they got is no different from a civil union. I suggest that, for tax and other legal purposes, ALL unions should be civil unions presumed to be created for the purpose of establishing a "household", no matter who is doing it or why, and ALL civil unions should have the same legal rights attached. This would in no way interfere with other people getting married in religious ceremonies in order to sanctify their union/personal relationship/whatever, but if they want the legal benefits, they must also file as a civil union or household. This is my personal preference, and if some people want "marriage" then to mean only the religious rituals, I would be fine with accepting that.

B) Redefine "marriage" to conform to the above and give up these supposed traditions. More socially traumatic, but possibly healthier in the long run.

C) Keep marriage as a privileged social status which is available to some people but denied to others solely on the basis of arbitrary personal characteristics and, thus, live in an unequal society built on a system of privilege and denial of rights. I do not like that option.

What is really at stake in governmental recognition of marriage is the LEGAL rights of the people involved in re such decidedly unemotional matters as taxation, property rights, inheritance, parental custody, health care proxy authority, and so on. To the extent that these LEGAL matters are attached to marriage, then denial of marriage to a selected group of people can only be seen as denial of LEGAL rights. It is discrimination, plain and simple.


I agree 100%, however the intellectual question is, if you take those LEGAL matters attached to marriage for heterosexuals, and attach them to ANOTHER institution for homosexuals, so that they are given absolutly, fully, totally, 100% the SAME LEGAL RIGHTS, should the law redefine marriage?

In other words, should the law redefine something when it can create something else instead. I can not think of any, single compelling LEGAL argument for it, civil unions can grant the EXACT SAME LEGAL rights so that, legally, they are denied NOTHING.

There are, however, good social reasons for it, such as a sense of stigmatism and a creation of "seperate but equal" status. The question is, in my mind, are the social reasons enough to outweigh the legal principle of not screwing with the law if you don't have to.

Make no mistake I am in every way AGAINST denying legal marriage benefits to same sex couples, my question is merely an intellectual one, if you can grant those same legal benefits through same sex civil union, should we be redefining the law? Are the social reasons for that enough?

A) Separate the legal rights from the idea of "marriage" and attach them instead to the idea of "householding" (or similar term). As you yourself pointed out, people can get civil ceremony marriages, and be married, even though what they got is no different from a civil union. I suggest that, for tax and other legal purposes, ALL unions should be civil unions presumed to be created for the purpose of establishing a "household", no matter who is doing it or why, and ALL civil unions should have the same legal rights attached. This would in no way interfere with other people getting married in religious ceremonies in order to sanctify their union/personal relationship/whatever, but if they want the legal benefits, they must also file as a civil union or household. This is my personal preference, and if some people want "marriage" then to mean only the religious rituals, I would be fine with accepting that.

My personal belief is that the word "marriage" SHOULD be struck from every law in this country and replaced with civil unions. However since it IS there, should it be redefined or create a seperate institution? Which is the better situation?

Don't give a damn either way, because this entire issue doesn't matter in the slightest.

By the way, Arthais, you're in the law racket -- do you know if there are any laws in the US which would prohibit couples from having more than one marriage or more than one kind of marriage ceremony?

For instance, with a mixed marriage, say Christian and Jewish, is there any reason why the couple could not have BOTH a Christian ceremony and another, Jewish ceremony?

Or both a civil ceremony AND a religious ceremony?

Or how about, if a couple get married under the laws of one state, and then move to another state in which the legal requirements are different and the legality of their marriage is under question, can they get married again in their new state without having to dissolve the first marriage?

Or if people who are citizens of different countries get married, can they get married in BOTH their countries, and what would be the status of both those marriages?

What about the legality of marriages that are conducted in international territory, i.e. at sea?

I have known couples that have married each other more than once without ever getting a divorce, and they have done it in different states, too. I just assumed that the legality of the first marriage was what counted and all the rest was just for show, but could it be otherwise?

If US citizens can have more than one legally binding marriage ceremony, then I see no reason why we can't adopt my option A and have governmental legal rights attach only to marriages issued by the government. Thus people can get married before God and get divine blessing and also get married before a judge and get legal protections for their households.

Don't give a damn either way, because this entire issue doesn't matter in the slightest.
It matters if it becomes institutionalized in law and if the US Constitution gets amended to reflect it. Then it affects everyone.

I agree 100%, however the intellectual question is, if you take those LEGAL matters attached to marriage for heterosexuals, and attach them to ANOTHER institution for homosexuals, so that they are given absolutly, fully, totally, 100% the SAME LEGAL RIGHTS, should the law redefine marriage?

In other words, should the law redefine something when it can create something else instead. I can not think of any, single compelling LEGAL argument for it, civil unions can grant the EXACT SAME LEGAL rights so that, legally, they are denied NOTHING.

There are, however, good social reasons for it, such as a sense of stigmatism and a creation of "seperate but equal" status. The question is, in my mind, are the social reasons enough to outweigh the legal principle of not screwing with the law if you don't have to.

Make no mistake I am in every way AGAINST denying legal marriage benefits to same sex couples, my question is merely an intellectual one, if you can grant those same legal benefits through same sex civil union, should we be redefining the law? Are the social reasons for that enough?



My personal belief is that the word "marriage" SHOULD be struck from every law in this country and replaced with civil unions. However since it IS there, should it be redefined or create a seperate institution? Which is the better situation?
The only problem with your argument is that the US Supreme Court has already ruled that "separate but equal" is not equal. In Brown v Board of Education, the court overturned the "separate but equal" principle of the 1890s Plessy case which had created a legal justification for segregation. Here are two articles:

http://www.watson.org/~lisa/blackhistory/post-civilwar/plessy.html

http://americanhistory.si.edu/brown/history/1-segregated/separate-but-equal.html

Just as Plessy created a justification for segregation in all areas of public life, not just the railroads, so Brown destroyed that justification in all areas of public life, not just schools. And not just for black people, either. I see no reason why we should now argue that it does not apply to marriage, when it has been successfully applied to all other areas and to marriage for groups other than gays. And I see no reason to argue that it does not apply to gays when it has been successfully applied to women, religious and ethnic minorities, and handicapped people. I have never seen any argument that has convinced me that "separate but equal" will be okay for gays, even though it has already been rejected as discrimination against all these other groups.

For instance, with a mixed marriage, say Christian and Jewish, is there any reason why the couple could not have BOTH a Christian ceremony and another, Jewish ceremony?

Or both a civil ceremony AND a religious ceremony?

No reason what so ever. In fact as a first amendment right the state CAN NOT stop them. in your example, a mixed religion couple could VERY easily have two different religious ceremonies, they're allowed to have as many religious ceremonies as they want on just about any issue their religion wants to give them. They can not be stopped from having multiple marriage ceremonies. Only one of them would be a "legal" marriage for the purpose of the law however (likely the first one, however it's really up to the couple as they have to sign the license, they can chose which one is the "legal" one, or, as your example gave, have two religious ceremonies, and one civil ceremony that would be the "legal" one...) but to briefly answer your question, yes, a couple can have multiple marriage ceremonies in multiple religions, only one of which would be, as a matter of law, be the "legal" one, generally they get to choose which.

Or how about, if a couple get married under the laws of one state, and then move to another state in which the legal requirements are different and the legality of their marriage is under question, can they get married again in their new state without having to dissolve the first marriage?

That's...a much more tricky question. Under the full faith and credit clause of the constitution, technically, the state they moved to would be required to give "full faith and credit" to the laws of the state they came from, and consider them married. That's a contentious issue, and one we haven't fully resolved yet. So to answer your question...I don't know.

Or if people who are citizens of different countries get married, can they get married in BOTH their countries, and what would be the status of both those marriages?

Depends on the relationship between the two countries. Some countries have reciprocal agreements. For instance if a US and UK couple get married in the US, britain generally recognizes the US marriage as legal in the UK. If you have that sort of reciprocal agreement between the countries of which the couple are citizens of, then married in one automatically is considered legally binding in the other.

If there IS no reciprocal agreement, the couple would actually have to get married in both places (or at least fulfill whatever legal obligation there is between the other country). For instance let's say...the US and Cuba. The US government wont recognize marriages from Cuba and vice versa, so an american/cuban couple would have to get married in america to get american legal status for their marriage, and in cuba to get legal recognition for their marriage in cuba.

It depends basically if there is reciprocation.

What about the legality of marriages that are conducted in international territory, i.e. at sea?

Oh I have NOOOO idea. I think you can't get married, legally, in international territory, since no nation has legal recognition for those actions.

I have known couples that have married each other more than once without ever getting a divorce, and they have done it in different states, too. I just assumed that the legality of the first marriage was what counted and all the rest was just for show, but could it be otherwise?

Generally you're right that it's "the first marriage", however technically it's at whatever marriage the couple wishes to sign the papers

If US citizens can have more than one legally binding marriage ceremony,

They can't. Only one is LEGALLY binding, but they can have as many CEREMONIES as they want.

then I see no reason why we can't adopt my option A and have governmental legal rights attach only to marriages issued by the government. Thus people can get married before God and get divine blessing and also get married before a judge and get legal protections for their households.

That is perfectly permissable yes. Alternatively the government can do what it does now, and vest legal authority to religious authorities, and allow the religion to also create legally binding marriages in lieu of governmental authority, but allow the religious authority to marry gays as some religious do that already in purely religious ceremonies.

so Brown destroyed that justification in all areas of public life, not just schools. And not just for black people, either.

No, actually, it did not. That is a popular, but erronious statement. What Brown v. Board of Education said was that racially segregated schools, by their nature, can NEVER BE EQUAL. Ever.

It did not say seperate but equal is dead. It said that seperate, in the context of racially seperated schools, CAN NOT BE EQUAL, so it can not be segregated.

It did not kill the principle of seperate but equal entirely, and in theory, plessy is still somewhat valid.

To quote the majority opinion in brown:

"We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does...We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment

It DID NOT SAY seperate but equal was dead, it said "seperate educational facilities are inherently unequal".

And I see no reason to argue that it does not apply to gays when it has been successfully applied to women, religious and ethnic minorities, and handicapped people. I have never seen any argument that has convinced me that "separate but equal" will be okay for gays, even though it has already been rejected as discrimination against all these other groups.

You're slipping into really complicated constitutional theory...it's hard to explain, but at least take these two statements as true:

1) brown did not necessarily overrule the concept of seperate but equal in all regards, it only said that seperate schools are not equal, therefore the concept of seperate but equal was inapplicable to schools

2) as a matter of constitutional principles, gays are treated differently than black and women etc. It's a different standard of scrutiny.

Oh I have NOOOO idea. I think you can't get married, legally, in international territory, since no nation has legal recognition for those actions.

I think the marriage would be recorded in the country whose flag the ship flies.

I think the marriage would be recorded in the country whose flag the ship flies.

hrm, yeah, you're probably right there.

ok, seriously, what is so goddamn bad about letting two guys do each other in the butt? in private. With out you. (if your strait) its not your buisness to tell people who or what to have sex with. As long as its consentual. Whats so bad about them being able to be married? nothing. All paranioa of the conservative right wing christain facist agenda to whiten, and christanize america, then attempt to conquer the world.

Bottle, best responses to the Potato Factory ever! :D

And TPF, you're highly delusional if you think law will ever EVER control linguistics. And even more so if you think "it's our word" will prevent anyone from using it. And even MORE if you think it would be right if it did.

No reason what so ever. In fact as a first amendment right the state CAN NOT stop them. in your example, a mixed religion couple could VERY easily have two different religious ceremonies, they're allowed to have as many religious ceremonies as they want on just about any issue their religion wants to give them. They can not be stopped from having multiple marriage ceremonies. Only one of them would be a "legal" marriage for the purpose of the law however (likely the first one, however it's really up to the couple as they have to sign the license, they can chose which one is the "legal" one, or, as your example gave, have two religious ceremonies, and one civil ceremony that would be the "legal" one...) but to briefly answer your question, yes, a couple can have multiple marriage ceremonies in multiple religions, only one of which would be, as a matter of law, be the "legal" one, generally they get to choose which.



That's...a much more tricky question. Under the full faith and credit clause of the constitution, technically, the state they moved to would be required to give "full faith and credit" to the laws of the state they came from, and consider them married. That's a contentious issue, and one we haven't fully resolved yet. So to answer your question...I don't know.



Depends on the relationship between the two countries. Some countries have reciprocal agreements. For instance if a US and UK couple get married in the US, britain generally recognizes the US marriage as legal in the UK. If you have that sort of reciprocal agreement between the countries of which the couple are citizens of, then married in one automatically is considered legally binding in the other.

If there IS no reciprocal agreement, the couple would actually have to get married in both places (or at least fulfill whatever legal obligation there is between the other country). For instance let's say...the US and Cuba. The US government wont recognize marriages from Cuba and vice versa, so an american/cuban couple would have to get married in america to get american legal status for their marriage, and in cuba to get legal recognition for their marriage in cuba.

It depends basically if there is reciprocation.



Oh I have NOOOO idea. I think you can't get married, legally, in international territory, since no nation has legal recognition for those actions.



Generally you're right that it's "the first marriage", however technically it's at whatever marriage the couple wishes to sign the papers



They can't. Only one is LEGALLY binding, but they can have as many CEREMONIES as they want.



That is perfectly permissable yes. Alternatively the government can do what it does now, and vest legal authority to religious authorities, and allow the religion to also create legally binding marriages in lieu of governmental authority, but allow the religious authority to marry gays as some religious do that already in purely religious ceremonies.
Thank you, this clears up a lot.

The deciding factor seems to be the marriage license issued by the state, which is a civil document. In fulfilling the requirements of the marriage license, the function of the marriage ceremony only seems to be one of declaring intent -- the marriage oath sworn before a recognized authority is the declaration of intent to create a "marriage", i.e. a legally recognized social unit.

The only requirement for that oath is that it be sworn before an authority recognized by the state issuing the license. The US has chosen to extend that authority to religious organizations, but it also extends it to judges, and still calls the ceremonies conducted by judges "marriages." Obviously, then, under US law, it is erroneous to claim that the legal concept of "marriage" is necessarily connected to any religious marriage ritual or to any particular religious doctrine. It can just as easily be completely secular and completely legal. So the argument that gays should not be allowed to marry because marriage is defined as "a man and a woman" by Judeo-Christian cultural tradition goes out the window.

Also, the fact that secular civil marriages are available stands as proof against the argument that any church would be forced to conduct marriages in violation of its doctrine if gays are permitted to marry. Churches do not have a monopoly on marriage. (Leaving aside the fact that not all churches would refuse to marry gays.)

Also, the state has the power to grant such authority or to rescind it. The fact that marriage authority has traditionally be granted to churches means nothing in and of itself. It's just tradition, little more than habit. There is nothing particular about churches that requires it, so the argument that religious doctrine should get to define marriage also looses steam.

The mere fact that a marriage license must be filed before a marriage is legally recognized proves that it is the state, not any religion or society, that is defining what marriage is or is not and on what basis it will attach and grant legal rights. As far as those legal rights are concerned, the state may define the terms of them any way it likes, as long as it does not conflict with US law. I think the argument is strong that denying those rights to gays does violate US law.

As long as states are already willing to recognize so many different kinds of marriages and to allow the couple applying for the license to decide which one to use for establishing their legal status, then I fail to see how the state defining marriage in terms that are different from the terms used by religions should be considered a change in the concept of what "marriage" is. It already seems rather amorphous to me.

Thank you, this clears up a lot.

The deciding factor seems to be the marriage license issued by the state, which is a civil document. In fulfilling the requirements of the marriage license, the function of the marriage ceremony only seems to be one of declaring intent -- the marriage oath sworn before a recognized authority is the declaration of intent to create a "marriage", i.e. a legally recognized social unit.

Correct.

The only requirement for that oath is that it be sworn before an authority recognized by the state issuing the license. The US has chosen to extend that authority to religious organizations, but it also extends it to judges, and still calls the ceremonies conducted by judges "marriages."

Correct. Naval captains are also extended that authority.

Obviously, then, under US law, it is erroneous to claim that the legal concept of "marriage" is necessarily connected to any religious marriage ritual or to any particular religious doctrine. It can just as easily be completely secular and completely legal.

Correct.

So the argument that gays should not be allowed to marry because marriage is defined as "a man and a woman" by Judeo-Christian cultural tradition goes out the window.

Correct.

Also, the fact that secular civil marriages are available stands as proof against the argument that any church would be forced to conduct marriages in violation of its doctrine if gays are permitted to marry. Churches do not have a monopoly on marriage. (Leaving aside the fact that not all churches would refuse to marry gays.)

You don't even need to go that far. The first amendment OUTRIGHT BANS the government from forcing a church to perform a religious ceremony it does not wish to. Gay marriage legality CAN NOT REQUIRE a church to perform a gay marriage. Flip side, even when gays can NOT legally marry, the state CAN NOT STOP a church from performing a gay marriage, that marriage just won't have any legal authority. The state can not dicatate what a religious institution can and can not do in terms of its ceremony, all it can do is decide whether or not it wishes to allow that religious ceremony to ALSO have legal authority.

Also, the state has the power to grant such authority or to rescind it. The fact that marriage authority has traditionally be granted to churches means nothing in and of itself. It's just tradition, little more than habit. There is nothing particular about churches that requires it, so the argument that religious doctrine should get to define marriage also looses steam.

Again you don't even need to make this argument. First amendment bans creating a legal institution only recognized by religious authority. Even if the state REALLY TRULY believed that a religious wedding is the only way to truly be married, they MUST provide civil alternatives, otherwise they're granting legal rights to only those who chose to take part in religious activities, unconstitutional as all hell.

The mere fact that a marriage license must be filed before a marriage is legally recognized proves that it is the state, not any religion or society, that is defining what marriage is or is not and on what basis it will attach and grant legal rights. As far as those legal rights are concerned, the state may define the terms of them any way it likes, as long as it does not conflict with US law. I think the argument is strong that denying those rights to gays does violate US law.

I agree so.

As long as states are already willing to recognize so many different kinds of marriages and to allow the couple applying for the license to decide which one to use for establishing their legal status, then I fail to see how the state defining marriage in terms that are different from the terms used by religions should be considered a change in the concept of what "marriage" is. It already seems rather amorphous to me.

Because we're running into a legal maxim that states, in general "you shouldn't change a legal definition without a damned good reason". Is there a good reason to change the LEGAL (I am not talking religious, I mean LEGAL) definition of marriage if by creating civil unions you can do the same thing and NOT have to change the law? That is my question, I don't CARE what religion has to say, I care about the fact that it's generally bad to change the law when you don't have to. Do we have to LEGALLY redefine marriage from its existing LEGAL definition if we can grant the same legal rights through some other method?

No, actually, it did not. That is a popular, but erronious statement. What Brown v. Board of Education said was that racially segregated schools, by their nature, can NEVER BE EQUAL. Ever.

It did not say seperate but equal is dead. It said that seperate, in the context of racially seperated schools, CAN NOT BE EQUAL, so it can not be segregated.

It did not kill the principle of seperate but equal entirely, and in theory, plessy is still somewhat valid.

To quote the majority opinion in brown:



It DID NOT SAY seperate but equal was dead, it said "seperate educational facilities are inherently unequal".
But the opinion re education has been successfully cited in other cases as a precedent under arguments that, essentially, "what is sauce for the goose is also sauce for the gander." Neither Brown nor Plessy specifically addresses areas of life outside of the specific issue at hand in the case, but they have still been applied, with success, to other areas. Thus it was that Plessy was used to institutionalize segregation (a system that already existed, extralegally), and Brown has been used to destroy not only racial segregation but other forms of discrimination as well.

Brown is not used to settle such cases/arguments, but rather to support the arguments of attorneys, and it does so in convincing fashion, judging by the steady stream of discriminatory laws that have been struck down after cases in which Brown was cited as a precedent.

Now, I direct you back to my point. If it can be argued that

(A) if "separate but equal" cannot be applied to education, then it cannot be applied to any area in which racial segregation was in force, thus ending segregation; and

(B) if it can be argued that, if "separate but equal" is discriminatory against blacks in these areas of life, then it is also discriminatory to these other groups in these same areas of life; then

(C) on what basis could we argue that "separate but equal" is NOT discriminatory against gays in these same areas of life? If all blacks are to live under the same system as whites, and other social groups are to live under the same system as the races, then why should gays not be permitted to live under the same system as everyone else?

I predict that this is the kind of argument that will win the day for gay marriage, because it is the kind of argument that has won the day for all the other groups so far, including gays on other issues.

You're slipping into really complicated constitutional theory...it's hard to explain, but at least take these two statements as true:

1) brown did not necessarily overrule the concept of seperate but equal in all regards, it only said that seperate schools are not equal, therefore the concept of seperate but equal was inapplicable to schools

2) as a matter of constitutional principles, gays are treated differently than black and women etc. It's a different standard of scrutiny.
I'm sorry, Arthais, I was not aware that the Constitution mentions gays at all. What constitutional principles treat gays differently from any other group?

I'm sorry, Arthais, I was not aware that the Constitution mentions gays at all. What constitutional principles treat gays differently from any other group?

Caroline Products Footnote 4....it has to do with the standard of review for due process...

OK basically this, it is untrue that a fundamental right can not be denied to you. It can, however it has been held that for the government to deny you a fundamental right it needs a "compelling state interest".

So the first question for gay rights advocacy is "is the right of marriage a fundamental right which includes the right to marry a partner of the same sex?" If it is, then the federal government can not limit it, unless it has a compelling interest to do so, which it does not.

However SCOTUS has held that the right to marry a partner of your gender is NOT a fundamental right. So that argument goes away.

The next question you can ask is one of equal protection. OK, it's not a fundamental right, BUT once the government allows for it, can it allow for it discriminantly?

There is where the confusion sets in. The court has held that to discriminate against different groups requires a different standard of review. For race, it's a standard again of heightend scrutiny, you need a REAL good reason.

For gender it's middle scrutinty, you need a pretty good reason. For sexuality it's been held that you only need "rational basis", some general reason other than pure bias.

This is perhaps one of the most confusing aspects of constitutional law, and something very hard to explain in a single post.

(A) if "separate but equal" cannot be applied to education, then it cannot be applied to any area in which racial segregation was in force, thus ending segregation; and

This statement is incorrect. if seperate but equal cannot be applied to education then it can not be applied to education, that's it. A ruling never goes beyond what says it does. This is a fundamental principle of law.

(B) if it can be argued that, if "separate but equal" is discriminatory against blacks in these areas of life, then it is also discriminatory to these other groups in these same areas of life; then

That argument can not be made for the reason I mentioned above.

(C) on what basis could we argue that "separate but equal" is NOT discriminatory against gays in these same areas of life? If all blacks are to live under the same system as whites, and other social groups are to live under the same system as the races, then why should gays not be permitted to live under the same system as everyone else?

Because as a general rule of constitutional principles (not one I agree with note) in some situations it's ok to discriminate against gays when it wouldn't be ok to discriminate against blacks.

As much as that statement may seem abhorent to you, that is the law of the land.

Except we're not talking about a federal change. I agree that making this change on a FEDERAL level would be far more difficult without simply expanding the definition. We're talking only about a state level, which is significantly easier to create equal regimes.

But then they are not, by defintion, equal. Civl marriage in a state will provide benefits that civil unions do not.

The federal government is supposed to recognize the civil marriages of the states, but there is no provision that they have to recognize civil unions. This makes the two inherently unequal.

Likewise, the countries we have treaties with regarding marriage have to recognize civil marriage from any state in the US. They do not have to recognize "civil unions." This, again, makes the two inherently unequal.

Well it's different in that this is not a federal decision yet. If and when it becomes a federal decision, it would be far more difficult to do without expanding the definition, I agree.

It doesn't have to be. The federal government doesn't grant civil unions or civil marriages. Only the states do. If the states are going to create an equivalent institution under a different name, that "equivalent" institution must provide all that the first does. If it does not, it is not equivalent.

So when Fred Phelps gets married he can do it in New Jersey legaly ?

Or he has to wait 6 months for legislation I think.

Hey Fred you can come out now !!

But then they are not, by defintion, equal. Civl marriage in a state will provide benefits that civil unions do not.

The federal government is supposed to recognize the civil marriages of the states, but there is no provision that they have to recognize civil unions. This makes the two inherently unequal.

This is where you are incorrect, and inherently mistaken. The federal government does not, by default, recognize "state marriages". It does not recognize same sex marriages in massachussets, it will NOT recognize same sex marriages from New Jersey.

The federal government ONLY recognizes state marriages that meet the definition of marriage at a federal level, and you are quite mistake that the federal government does not have its own definition of marriage. I suggest you look up the Defense of Marriage Act.

The federal government ONLY recognizes marriages that conform to its definition, it would not recognize same sex marriages from NJ just as it currently does NOT recognize same sexs marriages from massachussets.

Ergo it makes no difference legally whether it's a same sex MARRIAGE or a same sex civil union, provided the union provides the same state level rights as the marriage would.

Either way, neither would be recognized by the federal government.

All the federal government is required to do is recognize that a couple married in massachussets is married in massachussets. The federal government is not REQUIRED to confer federal rights to same sex couples if it doesn't want to (under currently constitutional theory anyway). It can simply say (and has) we are not extending federal marriage benefits to same sex couples even if they are legally married under their state's law.

I agree 100%, however the intellectual question is, if you take those LEGAL matters attached to marriage for heterosexuals, and attach them to ANOTHER institution for homosexuals, so that they are given absolutly, fully, totally, 100% the SAME LEGAL RIGHTS, should the law redefine marriage?

In other words, should the law redefine something when it can create something else instead. I can not think of any, single compelling LEGAL argument for it, civil unions can grant the EXACT SAME LEGAL rights so that, legally, they are denied NOTHING.

There are, however, good social reasons for it, such as a sense of stigmatism and a creation of "seperate but equal" status. The question is, in my mind, are the social reasons enough to outweigh the legal principle of not screwing with the law if you don't have to.

Ask yourself this. Should interracial marriages have been given a whole new legal institution instead of removing the laws that made them illegal?

Make no mistake I am in every way AGAINST denying legal marriage benefits to same sex couples, my question is merely an intellectual one, if you can grant those same legal benefits through same sex civil union, should we be redefining the law? Are the social reasons for that enough?

We have to change the law much, much, much more to create an entirely new legal institution that we wish to be equivalent. To include same-sex marriage, all we would have to do is revoke the laws that ban it (which only exist in some places) and begin issuing marriage licenses to all homosexual couples. No marriage laws need be rewritten, as they can be directly applied to same-sex unions without change. To create civil unions, we have to write into law an entirely new construct. We then have to go through all of the legal challenges that would arise from perceived or actual differences between them. Every time someone forgot to add "and civil unions" into a law, it would have to be challenged separately and altered.

Bottom line: the law is going to change a whole lot more, get challenged a whole lot more, and end up with a whole lot more beurocracy with separate institutions.

That's...a much more tricky question. Under the full faith and credit clause of the constitution, technically, the state they moved to would be required to give "full faith and credit" to the laws of the state they came from, and consider them married. That's a contentious issue, and one we haven't fully resolved yet. So to answer your question...I don't know.

You gave the answer. Without amending the Constitution itself, the marriage of the first state would be recognized by the second state. Period. All of the laws currently being written to the contrary are unconstitutional.

Oh I have NOOOO idea. I think you can't get married, legally, in international territory, since no nation has legal recognition for those actions.

Actually, at sea, through some pretty old common law recognized in most places, the captain of a ship has the ability to act in legal matters. He can oversee marriages, make arrests, hold court, etc.


The mere fact that a marriage license must be filed before a marriage is legally recognized proves that it is the state, not any religion or society, that is defining what marriage is or is not and on what basis it will attach and grant legal rights. As far as those legal rights are concerned, the state may define the terms of them any way it likes, as long as it does not conflict with US law. I think the argument is strong that denying those rights to gays does violate US law.

Precisely.

This is where you are incorrect, and inherently mistaken. The federal government does not, by default, recognize "state marriages". It does not recognize same sex marriages in massachussets, it will NOT recognize same sex marriages from New Jersey.

Of course not. But the reason it will not do so is DOMA, which is an unconstitutional law.

The federal government ONLY recognizes state marriages that meet the definition of marriage at a federal level, and you are quite mistake that the federal government does not have its own definition of marriage. I suggest you look up the Defense of Marriage Act.

You mean the one that is inherently unconstitutiona for a number of reasonsl?

No marriage laws need be rewritten, as they can be directly applied to same-sex unions without change. To create civil unions, we have to write into law an entirely new construct. We then have to go through all of the legal challenges that would arise from perceived or actual differences between them. Every time someone forgot to add "and civil unions" into a law, it would have to be challenged separately and altered.


Not true, many states have laws that directly, specifically state that marriage is an institution between men and women. Those laws would have to be repealed first.

Of course not. But the reason it will not do so is DOMA, which is an unconstitutional law.

SCOTUS has disagreed, and has stated more than once that there is no federal right to same sex marriage. Now I may disagree with that, but I will not call something "unconstitutional" after the supreme authority on the subject has weighed in.

Correct.
Well, of course, we agree on most points because we agree that gays should be allowed to marry and have equality under the law. More about that later.

Correct. Naval captains are also extended that authority.
That's why I asked about marriages in international territory, but the other poster is right. The marriage would probably be legal under the laws of the flag under which the ship sails, and in that case, the legality in the US would be depend on treaty between the two countries.


Correct.



Correct.
Good. Thanks.


You don't even need to go that far. The first amendment OUTRIGHT BANS the government from forcing a church to perform a religious ceremony it does not wish to. Gay marriage legality CAN NOT REQUIRE a church to perform a gay marriage. Flip side, even when gays can NOT legally marry, the state CAN NOT STOP a church from performing a gay marriage, that marriage just won't have any legal authority. The state can not dicatate what a religious institution can and can not do in terms of its ceremony, all it can do is decide whether or not it wishes to allow that religious ceremony to ALSO have legal authority.
Yes, of course, one would think that the First Amendment would put everyone at ease, but many gay marriage opponents still try to claim that legalization would force churches to marry gays, even though nothing could be further from the truth. They tend to frame such arguments on the assumption that they are the only ones performing marriages, which I was showing is also untrue.

Again you don't even need to make this argument. First amendment bans creating a legal institution only recognized by religious authority. Even if the state REALLY TRULY believed that a religious wedding is the only way to truly be married, they MUST provide civil alternatives, otherwise they're granting legal rights to only those who chose to take part in religious activities, unconstitutional as all hell.
Obviously, but this is still an argument floated by gay marriage opponents who, again, try to frame the debate as if religion holds a monopoly on marriage.

I was trying to express the idea that the definition of marriage comes FROM the state TO the church, not the other way around, because marriage is a LEGAL construct, not a RELIGIOUS one. Thus, the state may define marriage any way it likes without reference to religious traditions or doctrines, no matter how traditional they may be. If the state chooses to use religious definitions, it may just as easily choose to use some other definition at any time.

No matter what it does, what the state says marriage is will decide what marriage is.


I agree so.
The only difference between us is HOW to achieve equality under the law for gays and heteros. More below.


Because we're running into a legal maxim that states, in general "you shouldn't change a legal definition without a damned good reason".
Oh, piffle. :p Change it already. This isn't brain surgery; you can always change it back with little more difficulty than it took to make the change in the first place. Do you go through this much resistance every time you have clean out your closets, too?

Seriously, Arthais, judging by the history of egregious, even violent discrimination against gays in this country, don't you think the reason for change is "damned good" enough?

Is there a good reason to change the LEGAL (I am not talking religious, I mean LEGAL) definition of marriage if by creating civil unions you can do the same thing and NOT have to change the law? That is my question, I don't CARE what religion has to say, I care about the fact that it's generally bad to change the law when you don't have to. Do we have to LEGALLY redefine marriage from its existing LEGAL definition if we can grant the same legal rights through some other method?
Okay, here's where we get into the HOW of the matter.

You propose that the separate but equal approach would get the job done. It would grant gays equal access to legal rights, just by a different legal avenue than that used by heteros, with the different labels of "civil union" versus "marriage."

In theory, I have no problem with that at all, EXCEPT that history shows us that limited legal doctrines have been and are applied to areas much broader than originally intended. "Separate but equal" was exploited to institutionalize broad areas of discriminatory practice. That cannot be denied. It is not the principle I distrust, it is the people applying it, so on that ground, I must reject a separate but equal approach to gay marriage. If we are saying that gays are equal to heteros then, in my opinion, there is no valid argument, legal, pragmatic, ethical, or whathaveyou, for keeping equals separate. The fact that there are so many bigots in our country who would love to use the law to set themselves above their neighbors leads me to suspect the motives of those who argue that gays should be satisfied with their "different" status. We have seen before how conservative legal thinkers who are not themselves bigoted in any way play into the hands of bigots and then have to rethink their legal decisions to undo unintended damage.

I say, if we are going to set a precedent, let it be one that is more likely to decrease discrimination than increase it.

The approach I favor would be for the state to redefine SOMETHING. Either it can redefine "marriage" to focus more on the legal rights being granted than on the persons receiving those rights. OR it can define the service being provided by the state and not call the civil recognition that it provides "marriage" but "civil union." Or whatever.

What this really is, is the same concept of different approaches to the same set of rights that you propose, only I put the distinction on the procedures performed by the states and churches and not on the citizens filing documents under those procedures. Thus, no matter what this or that church says about marriage, ALL unions recognized by the state would be civil unions by definition, since it is a union recognized by a civil authority, for both gays and heteros. As far as I can see, because of the legal requirement for a marriage license, which is a civil document issued by a civil authority, this is already the case, and the debate is just about semantics.

Once we settle that what we are getting with our state license is access to a particular set of rights and privileges issued by the state to its qualifying citizens, then the only argument left is who will qualify. Under the First Amendment, neither the state nor the citizenry can dictate to churches who will qualify to participate in their rituals. But the citizenry most certainly can dictate to the state who will qualify for access to civil rights. Directed at the state, the arguments for equality will by much harder to argue against.

SCOTUS has disagreed, and has stated more than once that there is no federal right to same sex marriage. Now I may disagree with that, but I will not call something "unconstitutional" after the supreme authority on the subject has weighed in.

No, it hasn't. SCOTUS has continually sidestepped the matter, and has not actually yet heard a proper challenge to DOMA. It also has never stated that there is "no federal right to same sex marriage." Once again, it has sidestepped the issue.

In reality, SOCTUS has avoided this issue like the plague and has taken great lengths to keep from ruling on the matter, instead ruling on issues of eligibility to bring suits and jurisdiction or simply refusing to hear cases at all.

Of course, SCOTUS has ruled that marriage is an inherent right. Without breaking their own interpretation of the 14th Amendment, they couldn't rule that the right was not as inherent to same-sex couples as to opposite sex ones.

Not true, many states have laws that directly, specifically state that marriage is an institution between men and women. Those laws would have to be repealed first.

Reading is HARD. Let me requote the whole thing for you:


We have to change the law much, much, much more to create an entirely new legal institution that we wish to be equivalent. To include same-sex marriage, all we would have to do is revoke the laws that ban it (which only exist in some places) and begin issuing marriage licenses to all homosexual couples. No marriage laws need be rewritten, as they can be directly applied to same-sex unions without change. To create civil unions, we have to write into law an entirely new construct. We then have to go through all of the legal challenges that would arise from perceived or actual differences between them. Every time someone forgot to add "and civil unions" into a law, it would have to be challenged separately and altered.

Bottom line: the law is going to change a whole lot more, get challenged a whole lot more, and end up with a whole lot more beurocracy with separate institutions.

Hmmmm, looks like I covered that. Of course, repealing said laws would be fairly easy compared to the legal wrangling necessary to create an entirely new institution.

Reading is HARD. Let me requote the whole thing for you:

So, apparently, is writing. But if you're unsure lemme spell it out for you.

Ignoring states with constitutional amendment, anti gay marriage laws come in two forms.

One, is that the state has a general statute describing marriage, its benefits and duties. And then it has a tag along to that law which says basically "sorry, no gays".

Other states have, written DIRECTLY INTO THEIR MARRIAGE laws, definitions that it includes only man and woman.

The first is easy, just repeal the law of the qualifier and it goes away, in the second instance it's harder because it's integrated directly into the law.

And it would take very little legal wrangling:

Statute for the creation of gay civil unions:

This law mirrors in every regards section X to Y of the state statute governing marriage except all instances of the word "marriage" are to be replaced with "civil union" and all instances of the word "married" are to be replaced with "bound in a civil union". Additionally all restrictions placed on sections X to Y in relation to gender do not apply to this section.

Done.

Caroline Products Footnote 4....it has to do with the standard of review for due process...

OK basically this, it is untrue that a fundamental right can not be denied to you. It can, however it has been held that for the government to deny you a fundamental right it needs a "compelling state interest".

So the first question for gay rights advocacy is "is the right of marriage a fundamental right which includes the right to marry a partner of the same sex?" If it is, then the federal government can not limit it, unless it has a compelling interest to do so, which it does not.

However SCOTUS has held that the right to marry a partner of your gender is NOT a fundamental right. So that argument goes away.
It does not go away. It remains arguable. No decision is immune to review and revision. Otherwise, there never would have been a Brown v Board of Ed. I would think you'd know that. Aren't you a lawyer?

It is up to any given attorney to present a case strongly enough to warrant review in challenge to earlier rulings. It is difficult but it can be done, and has been, rather surprisingly frequently. Unlike Biblical law, US law is not written in stone. That's why we can change it for the better and why we must always be vigilant that it doesn't get changed for the worse.

The next question you can ask is one of equal protection. OK, it's not a fundamental right, BUT once the government allows for it, can it allow for it discriminantly?

There is where the confusion sets in. The court has held that to discriminate against different groups requires a different standard of review. For race, it's a standard again of heightend scrutiny, you need a REAL good reason.

For gender it's middle scrutinty, you need a pretty good reason. For sexuality it's been held that you only need "rational basis", some general reason other than pure bias.

This is perhaps one of the most confusing aspects of constitutional law, and something very hard to explain in a single post.
I'm sorry, but I call nonsense on this. Let the legal concept be what it likes; in actual practice, the level of scrutiny will be whatever society demands that it be, even if legal battles must be fought to raise or lower it. This is no more permanent than any other factor of US law. There is absolutely no reason why we cannot argue that the current levels of scrutiny are unfair and should be changed and absolutely no guarantee that such an argument, properly and persistently presented, will not prevail.

All you are really saying here is that, according to your view, we can only work with the rules as written right now and if they are unfair, then we must work within the unfairness. But we only have today's rules because we rewrote yesterday's rules. I fail to see how "the way things are" bars us from working towards "the way we want things to be."

It does not go away. It remains arguable. No decision is immune to review and revision. Otherwise, there never would have been a Brown v Board of Ed. I would think you'd know that. Aren't you a lawyer?

It is up to any given attorney to present a case strongly enough to warrant review in challenge to earlier rulings. It is difficult but it can be done, and has been, rather surprisingly frequently. Unlike Biblical law, US law is not written in stone. That's why we can change it for the better and why we must always be vigilant that it doesn't get changed for the worse.


I'm sorry, but I call nonsense on this. Let the legal concept be what it likes; in actual practice, the level of scrutiny will be whatever society demands that it be, even if legal battles must be fought to raise or lower it. This is no more permanent than any other factor of US law. There is absolutely no reason why we cannot argue that the current levels of scrutiny are unfair and should be changed and absolutely no guarantee that such an argument, properly and persistently presented, will not prevail.

All you are really saying here is that, according to your view, we can only work with the rules as written right now and if they are unfair, then we must work within the unfairness. But we only have today's rules because we rewrote yesterday's rules. I fail to see how "the way things are" bars us from working towards "the way we want things to be."

*sigh* ok, look. I don't know what's going to happen tomorrow. Do I agree with the standards that have been articulated? No. Do I hope they change? Yes.

But this isn't about my personal opinion. You asked me, as a matter of law, what the justification is. And I gave you that legal justification. As of today, October 26th, 2006 in the United States, what I have said is true as a matter of legal principle.

It may change. I hope it does change. However, right now, TODAY, that's how it is as a matter of law. Which is what you asked me. You asked under what basis could it be argued, I have given you what the argument has been that such policies have been based on. Again I might not AGREE, but that's what it IS. You didn't ask me what I think SHOULD happen, you asked me how it is, and that's the way, right now, that it is.

You didn't ask me MY opinion, you asked me what the law is, right now. And I told you what the law is, right now. My opinion on what the law SHOULD BE is quite different...but that's not what ya asked.

Not true, many states have laws that directly, specifically state that marriage is an institution between men and women. Those laws would have to be repealed first.
So, repeal them. Call the lawyers, and let the games begin.

*sigh* ok, look. I don't know what's going to happen tomorrow. Do I agree with the standards that have been articulated? No. Do I hope they change? Yes.

But this isn't about my personal opinion. You asked me, as a matter of law, what the justification is. And I gave you that legal justification. As of today, October 26th, 2006 in the United States, what I have said is true as a matter of legal principle.

It may change. I hope it does change. However, right now, TODAY, that's how it is as a matter of law. Which is what you asked me. You asked under what basis could it be argued, I have given you what the argument has been that such policies have been based on. Again I might not AGREE, but that's what it IS. You didn't ask me what I think SHOULD happen, you asked me how it is, and that's the way, right now, that it is.

You didn't ask me MY opinion, you asked me what the law is, right now. And I told you what the law is, right now. My opinion on what the law SHOULD BE is quite different...but that's not what ya asked.
I think I know your opinion. You support equal rights for gays, including equal access to the civil rights accorded to married couples. You have stated as much, haven't you? What we are arguing here is HOW this could be accomplished, not whether it should.

My attitude is that we should come at the issue proactively and use the US legal and legislative system to change and refine the law so as to guarantee these civil rights to gays. If this means making certain changes to certain basic legal definitions, I don't see the problem with that. It will not be the first time those definitions have been changed, nor will it be the last. I believe this should be done on a state by state basis because it probably will require changes that will be felt as cultural shifts more in some places than in others, and I believe we will be better able to get the majority on board if we can present our arguments within the contexts of their social cultures. I expect it will take many years, possibly decades for all states to make some kind of provision for recognizing the rights of married gays.

You seem to take a somewhat more "constitutional constructionist" approach that wants to achieve the goal without changing any existing laws. This leads me to only one question, and I'm sorry but it's a personal one, A: Are you Robert Bork? Come on now, own up. And if you are, can I have your autograph? :p (I'm just teasing.)

I am for changing whatever laws necessary to be changed. For instance obviously constitutional amendments denying those kind of unions would need to be repealed.

I just question at what point is necessary to change existing law when creating a new law would do the same thing, from a legal perspective. I don't know the answer to that, but for me it is an intellectual exercise to consider.

I must be honest...

I, personally, wouldn't recognize a same sex onion if it came-on to me, so I've really got to hand it to those New Jerseyans for their extreme perceptiveness.

Is it something different in the little stem-like thing at the top, or what?

Kudos to Jersey..!

I am for changing whatever laws necessary to be changed. For instance obviously constitutional amendments denying those kind of unions would need to be repealed.

I just question at what point is necessary to change existing law when creating a new law would do the same thing, from a legal perspective. I don't know the answer to that, but for me it is an intellectual exercise to consider.
Well, I've laid out my argument. Let's let it simmer for a while and see what happens.

So, apparently, is writing. But if you're unsure lemme spell it out for you.

Ignoring states with constitutional amendment, anti gay marriage laws come in two forms.

One, is that the state has a general statute describing marriage, its benefits and duties. And then it has a tag along to that law which says basically "sorry, no gays".

Other states have, written DIRECTLY INTO THEIR MARRIAGE laws, definitions that it includes only man and woman.

Those two things are essentially the same thing. And the only thing that would need to be changed to apply them to same-sex couples is to change "a man and a woman" to "two individuals." Most, if not all of them have actually added that "a man and a woman" thing anyways, specifically to discriminate against homosexuals.

The first is easy, just repeal the law of the qualifier and it goes away, in the second instance it's harder because it's integrated directly into the law.

Not at all. It would be just as easy as repealing the other laws. Laws are changed all the time, and it would take a change in wording of about three words.

And it would take very little legal wrangling:

Statute for the creation of gay civil unions:

This law mirrors in every regards section X to Y of the state statute governing marriage except all instances of the word "marriage" are to be replaced with "civil union" and all instances of the word "married" are to be replaced with "bound in a civil union". Additionally all restrictions placed on sections X to Y in relation to gender do not apply to this section.

Done.

That isn't all it would take. Of course, it's still more difficult than simply applying the law as is to same-sex couples. It still creates more beurocracy, as there are now *two* institutions to take care of. And what, precisely, happens to a couple that gets married and then one of them has a sex change?

In fact, if that's really all it would take, and that would be so very much easier, why didn't they do the same thing for interracial marriages?


OK basically this, it is untrue that a fundamental right can not be denied to you. It can, however it has been held that for the government to deny you a fundamental right it needs a "compelling state interest".

So the first question for gay rights advocacy is "is the right of marriage a fundamental right which includes the right to marry a partner of the same sex?" If it is, then the federal government can not limit it, unless it has a compelling interest to do so, which it does not.

However SCOTUS has held that the right to marry a partner of your gender is NOT a fundamental right. So that argument goes away.

In what case was this stated? From what I've seen, SCOTUS has continually side-stepped the matter and has actually yet to rule on same-sex marriage directly. They have ruled that some couples didn't have standing to bring suit (which is a way of avoiding making a decision). They have ruled on legal technicalities that had nothing to do with the underlying question. They have refused outright to hear some cases. But they have yet to actually make a ruling on the constitutionality of DOMA or of same-sex marriage.

There is where the confusion sets in. The court has held that to discriminate against different groups requires a different standard of review. For race, it's a standard again of heightend scrutiny, you need a REAL good reason.

For gender it's middle scrutinty, you need a pretty good reason. For sexuality it's been held that you only need "rational basis", some general reason other than pure bias.

Actually, gender and sexuality get pretty murky in the courts. With gender, depending on the case in question, different levels of scrutiny are used. If the different treatment is rooted in basic biological differences, the lowest level of scrutiny ("rational basis" - which need not actually be rational at all) might be used, although the middle level of scrutiny is more likely. In cases not rooted in those basic biological differences, the strictest form of scrutiny may be used.

Sexuality has generally been seen by the courts as falling under gender issues, but at the lesser levels of scrutiny. However, as it has become more and more clear that sexuality, like any other trait, is an aspect of a person, rather than a choice that is made, the courts have been moving to higher levels of scrutiny.