Reply #10: I realize that...

[Meldread]

I realize that certain benefits (you named Social Security spousal benefits) cannot be gained without the blessing of the state. I do not deny this. However, further up in the thread I proposed a couple adjustments.

First, all benefits granted by marriage that could be obtained by a single individual would be granted to all individuals married or not. Second, all benefits granted by marriage that require an additional individual (Social Security spousal benefits as an example) would be amended to be available to anyone who signs up.

This could potentially mean that you could pass on your Social Security benefits to your sister or brother, should you so desire. In some cases, there may be certain limitations. For example, when passing on Social Security benefits, there may be a stipulation that the individual receiving the benefits must have a net worth below a certain amount, and that it may only be passed onto non-blood related relatives.

Finally, any benefits that cannot be structured in such a manner (for example: the benefit of family discounts at national parks) would simply be abolished all together. All of this allows individuals to create their own contracts as they see fit. If you desired a custom "marriage" contract you would go to a lawyer. The contract would most likely look similar to a prenuptial agreement.

An added benefit here is that it clearly outlines what you are getting into before you get into it. It could reduce the burden on the courts when it comes to something like divorce (or the legal equivalent) as in most cases how things would be divvied up would already be decided at the very beginning.

In response to your other points, I don't think you understood what I meant by inalienable rights. Although the Declaration of Independence holds no legal value, it does hold some moral value today and is relevant to the discussion.

"We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."

That defines what I consider to be inalienable. Inalienable by definition is something that is not transferable to another or capable of being repudiated. If we look at the Declaration of Independence as an example, it says that all individuals are born with certain rights. That then creates a second class of rights, which are more akin to privileges granted by the state.

Now, you can look at the Constitution and attempt to make a legal argument. You can even point to certain States and the rulings that have passed through their Supreme Courts. That does not mean the United States Supreme Court is going to agree, as there have been other State Courts which have ruled against us on the issue.

Additionally, I would point out that the U.S. Supreme Court right now leans toward the conservative side ideologically and we have no idea where Justice Sonia Sotomayor will stand. If her past record is any indication I would say there is a 50/50 chance either way.

However, setting all that aside for the moment. If you are making the argument on legal Constitutional grounds, based off Equal Protection, you are making a 14th Amendment argument. As we all here know, 14th Amendment arguments are highly subjective at best.

We face an additional hurtle that race-based arguments around the 14th Amendment did not face. We have to prove that being gay isn't a choice. Now, we know it is not, but every person sitting on the bench (as far as we know) is straight. Since we don't yet have any genetic evidence we can point to that makes clear being gay isn't a choice, such an argument comes down to (for straights) personal beliefs. A straight person either believes individuals are naturally gay or that being gay is a choice. In the end, we would get a 5 to 4 decision in our favor if we are lucky. If we are really unlucky (with Sotomayor) we could see a 6 to 3 ruling against us.

Finally, we also open an additional can of worms. If we are successful in our quest, what does that mean for the government and its power to confer certain privileges onto one group and not another?

Let us say the government decides to create a system to help poor children pay for college. A wealthy kid then sues based on equal protection. Neither the wealthy kid nor the poor kid chose their wealth status, yet one is clearly being discriminated against by the law. The wealthy kid could even argue that, because he pays more money in taxes, that he is even more entitled to the grant money than the poor kid.

Then what about corporations, which more-or-less have the status of personhood? Could they use the 14th Amendment to argue that patents or copyrights are unconstitutional because it allows the state to grant favors to one group over another?

Some people might read that and roll their eyes. Yet, the argument we make here has broader implications outside of marriage, and what's more it relies too much upon the opinions of individual justices and very little on the actual law.

We are talking about contractual privileges here. The government is not denying us the right to share our lives together or the right to raise children. To make a full circle: the government is denying us the privilege of things such as Social Security spousal benefits. Yet, the government could, at any time it wished, declare that Social Security benefits are non-transferable. While that may create a public outcry, there is no court in the United States that is going to deny the governments right to do that.

Thus, receiving Social Security spousal benefits is a privilege, not a right, and like patents or certain government programs, the government could argue that it has the right to discriminate on a certain basis. In our case, the government chooses to discriminate because it seeks to promote a certain type of relationship and behavior over another.

Is that more clear? :P