Gay Marriage - 01

I've talked about this issue in the comments of other blogs, and thought it was time I opined here.

Like so many things in life, passionate beliefs do not an argument make. Each side on this issue feels its beliefs are self-evident and the others are just so very wrong. The reality is somewhere else.

The government's involvement in marriage is the legal recognition of a contract between two people. Period. Governmental recognition of marriage occurs on the state level. Federal involvement in the matter is spotty at best and normally follows the states' leads. In 1998, the Defense of Marriage Act was passed by a significant margin in Congress and signed into law by then President Clinton. It forbids the Federal government from recognizing same-sex partnerships. That is the first major intrusion by the Federal government into marital law as it applies to what is a marriage.

Now, recognize that there have been many intrusions prior to this, and after this. Any Federal law enforcing state support orders, the banning of polygamy, the judicial decisions that a husband has no say over his wife's pregnancy are all examples of this.

The government's interest in the legal recognition of these relationships revolves around property issues. Inheritance, support, all that money stuff that married people never think about under the worst happens. Who gets the back 40 acres when one of Susie's two moms dies? When Ted and Joe break up, who pays for little Susie's braces? Ann put Jane through medical school then Jane left her for some slut of a nurse. What should Ann get for all her years of sacrifice? Legalizing gay marriage at the state level is not as simple as removing all reference to the sex of partners in marriage laws. Many states explicitly recognize mothers are first in line for child custody after a separation or divorce. In a same-sex marriage, this is an issue to be addressed, either there are no mothers, or two. Child support, when neither party is the sperm donor, is another.

What I'm suggesting is that the laws involved will need a thorough review and recrafting to allow for same-sex marriage. It can be done, but it should be a process, and in the end every person in a marriage should have the same protections, same rights, and same responsibilities. This should equalize some of the existing unfairness in marriage laws, such as the presumption that the mother is the first choice for child custody, or that the male partner should be the person paying alimony or support.

At the State level, though, marriage laws are so very different. Different states have differing ages of consent, as low as 12 with parental permission in one state, differing standards of blood relation allowed to marry (first cousins, second cousins, etc.), and the laws concerning divorce vary hugely from state to state. The entire notion of "common-law" marriage differs by state. I can recall questioning a widow in a workers comp death about where she and her male partner had lived, in an effort to find a state that allowed common-law marriage so that she could receive death benefits though she and the deceased had never been civilly married.

Obviously a Supreme Court decision could legalize same-sex marriage nationally, though where they would find the ground for it is not so apparent. But the details would change from state to state, I suspect, just as they currently do.

Is it a Federal issue? I don't think so. I think it is very firmly a state issue under our constitution.

Do we need any sort of amendment to fix that? That's not really what the amendment process is for. We tried to do that with Prohibition, a state and local issue, and look at that mess.

Yet, I do believe that free people should be able to make free choices, and that those choices should be protected by law. I see no legal reason to ban same-sex marriage, but strongly support a detailed revamp of marriage laws in any state that is going to legalize this. Don't go off er... half-cocked on this issue, because if the courts are left to settle issues that were not covered in statute, we will regret it later. Write good law, clear and equally protective law, and do not let enthusiasm for a popular issue rush this into place.

George Bush and the Roman Catholic Church believe that marriage is solely between a man and a woman. This is a matter of faith and morality. Sometimes morality is codified in law; sometimes it has no place in law. Right now, right this minute as I write this, the Constitution of the United States does not involve the Federal Government in this matter. It is possible, even likely, that any statutes at the Federal level, including the Defense of Marriage Act, would be found by the courts to be in violation of the Constitution and that civil recognition of marriage is an issue reserved to the several states.

The Pope and George Bush have every right under our laws and our beliefs to state their views of same-sex marriage. Americans who believe that same-sex marriage is wrong have every right to say so, and to work for laws that codify that belief. Those laws may not be constitutional at the Federal level, and not constitutional in several of the states.

The reality is that George Bush cannot affect this issue in any meaningful way. Accusations of bigotry against those people who do not believe in same-sex marriage are spurious and generally unsupportable. This is an issue that affects a small proportion of our population, is completely new to our society, and requires major social and legal changes in the way things are done.

Slowly and surely it is being addressed. Insurance companies are changing their policies. Various localities are providing benefits for same-sex partners of employees. It is happening, and progress is being made.

Despite the passionate rhetoric, this is not a basic human rights issue. It is a money issue. Same-sex partnerships abound in the community. They just don�t have the civil recognition of their union, and the legal property rights that go along with that. There are ways around this; contracts and agreements of all sorts. Same-sex partnerships lack only the unplanned and unthinking legal enforcement of property rights that conventional marriages have. In other words, same-sex partners can solve most of their issues with pre-planning, and traditional couples can go along without any planning in the joyful knowledge that the state has provided a solution for them. Which, of course, they shouldn't do, but, hey, if you are marrying your twelve year old first cousin�

UPDATE: An additional post on this subject, discussing the Vatican and President Bush is here.

-- posted by Chuck at Friday, August 01, 2003 | E-mail | Permalink | Main | 0 comments

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Friday, August 01, 2003

Gay Marriage - 01