Does it have to be Marriage?

[Dead_Parrot]

OK, put the napalm down for a second.

First off, a disclaimer: I'm a Brit now living in New Zealand, so I may be missing a few facts - Feel free to point them out. This is the end result of a conversation between me and my wife & we're trying to figure out the whole prop 8 / Warren thing. If it helps, although we're both fairly straight I have two mothers-in-law. Insert your own joke here. ;)

Assuming we've got the basics right, the problem seems to be that
a) GLBT couples are hobbled when it comes to getting the same rights as same-sex married couples, and
b) There are 150 million zealots with the vote who are worried you will give Jesus teh gay.

(Since Jesus wore a dress and hung around with 12 other guys it seems a moot point, but, whatever)

So, You can either:
a) Fight the zealots until the sun turns into ash, or they evolve into something more intelligent, or
b) Cook up a workable compromise.

New Zealand opted for (b), and I'll attempt to lay out the reasoning here:

1: Marriage is defined as being between a man and a woman. NZ has a Marriage Act (1955) that sets out the nuts and bolts of the legal rights of married people, and it definitely involves one of each sex. A high court (eqiv. supreme court) ruling confirmed this, but also found that;
2. The Marriage Act is discriminatory against same-sex couples, which is illegal under the Human Rights Act (1993) (I hope there is a US equivalent);
3. Therefore, a Civil Union Act (2004) was introduced: This was basically the same as the Marriage Act but with a few words changed. But the Key bit was;
4. The Relationships Act (2005) which basically stated that wherever a law referred to "marriage", it must also refer to "Civil Unions" or a de-facto partnership with the same force.

You can check the verbiage of the law at http://www.legislation.govt.nz if you are so inclined.

The reasons these laws got through seems to be that (a) it didn't give Jesus teh gay, and (b) it was good for lots of unmarried, same-sex couples, who were serious, but not that serious: I'm hazy on the small print, but from my experience a rental agreement signed in two names is as good as marriage certificate for most NZ agencies - I know it works for Banks, Immigration and the Tax Office.

Now, the NZ system isn't perfect - there's a clause that excludes non-married couples from adopting - but it passed, and is 99% good. The other 1% can be passed in the future as an amendment, I hope.

So I guess the question is, do you want to be married, or do you want to have the same rights as a married couple? And would this approach offer a way around the problem?

Right, now you can pick up the napalm. :)

Edit: http://www.justice.govt.nz/pubs/reports/2004/civil-union-bill/index-civil-union.html gives you a handle on the law and how it was spun out: GLBT are hardly mentioned. Softly softly, catchy monkey...

[Double T]

1. Call IT something else and YOU take away their argument.

Great point and I agree with YOU.

[Dead_Parrot]

3. "they" are human beings, like "we" are.

And as such "they" deserve the rights that "we" already enjoy.

I'm just looking for an easier way that "they" can convince "us" to let "them" have them.

[yardwork]

100. Civil unions are expressly illegal in most states of the United States.

It isn't a "workable compromise" in the vast majority of states in the U.S.

In Florida, for instance, the constitutional amendment passed on the same day as Prop 8 in California made marriage AND civil unions AND "anything approximating a marriage" for same sex people unconstitutional.

[Pacifist Patriot]

149. Amendment 2 went further than that and hurt a lot of elderly couples...

living together to share expenses in their later years. The bigots in Florida pulled a fast one on the voters of this state and put us all in a huge headlock. Idiot voters were so concerned with keeping gays from getting married that many of them voted their own rights away.

[MercutioATC]

2. Good luck with this.

I've tried to make a similar argument a few times here and have been met with a LOT of opposition.

Regardless of the rights conferred by a "union", many here feel the need to call it "marriage".

[Dead_Parrot]

4. I think it depends how it's worked...

...in NZ, the Relationships Bill was the key, not the Civil Union bill: I've not seen a similar proposal for the US, so I figured I'd try it out.

[LostinVA]

5. You can't have the same rights unless it is the same THING

Why is this so hard for people to understand?

Here in the US, we have a rather glaring and obvious history that shows "separate but equal"is never equal and never works. If it isn't the SAME THING, then it can never be the same rights.

I'm not "discussing" this anymore.

[Dead_Parrot]

6. The same thing, or the same name?

That's sort of the point: In NZ, GLBT couples - and same-sex-but-unmarried couples - have the same rights.

In NZ, it's the same thing. It's the same rights. But it's not the same name.

What is important?

And this isn't meant as antagonistic - as I said, I'm a Brit living in NZ, so point out where I'm going wrong here.

:)

[TommyO]

8. Calling it by a different name makes it separate, and inherently unequal

[Dead_Parrot]

11. I am white

My brother-in-law is Asian.
My mothers-in-law are Gay

Are we "inherently unequal"



Or are we human?

[TechBear_Seattle]

132. The law makes no distinction with regards to race. At least, not any more

Fifty five years ago, the law did make distinctions with regards to race: if you were one race, you could eat here and find lodgings here and use this group of public facilities. If you were a different race, you had to eat somewhere else, and find lodgings outside the city limits, and what public facilities you were allowed to use were significantly inferior.

You may wish to read up on Brown v. Board of Education.

[Deep13]

141. Really?

If it has the same rights as marriage and everyone calls it marriage except the state and most churches, where is the objection? Granted, if it were up to me, I would just recognize that committed gay couples are married and make the law reflect it. Still, what basis can there be to object based on a name? It may be a useful partial solution to get gay marriages the rights of marriage while we continue to haggle about the name. The whole seperate but unequal thing doesn't really apply since that refered to a physical seperation of races. That is more of an argument about employment and housing discrimination which remains legal in too many states, including this one.

[noamnety]

54. hehehe

come on now, surely you want to discuss this in the glbt forum another 300 times or so with well-meaning straight married people who believe they have this brilliant new angle that maybe we've just never fully considered?

[Dead_Parrot]

57. You can, I assume...

...point out the 300 threads where the New Zealand Relationship Act has been discussed?
:shrug:

[noamnety]

60. Well, if you can point to New Zealand as an example

than clearly you are bringing a brand new perspective to an issue that nobody has had to contemplate or think about before - cause gosh, we've been spending our time talking to people that know there are civil unions in Europe. This ... this is TOTALLY different.

Folks here are tired of explaining this into eternity to a thousand well meaning straight married people who don't see why they can't just discriminate against gays "a little bit" by letting them eat at the kiddie table. I mean, it's the same food, same calories and nutrition, so really, what's the difference?

I don't really care if the food is hamburgers, pickled herring, or whatever the national dish of New Zealand is. The issue is having to sit at the kiddie table because we will clearly fuck up dinner for all the guests if we are allowed to sit at the grownup table.

[Dead_Parrot]

71. I'll take that as a no, then. nt.

[noamnety]

76. Point to you. We do not yet have 300 threads from the perspective

of a straight dude from New Zealand lecturing gays in America about how setting up an entirely new set of laws to justify banning the evil gays from stealing marriage from straight people = equality.

Please rectify this for us ASAP.

[Dead_Parrot]

78. Yeah, whatever. nt

[Solon]

7. On whose authority are these Marriages conducted, is it the National or Provincial Government?

In the United States, its the State Government, not Federal, we have no equivalent to a "Relationship" or "Marriage" act that applies to all Married couples on the Federal Level. Instead we have a shitload of different laws, from Federal level on down that regulate how Married couples are to be treated. The Marriage license itself, being a State Contract, supposedly is covered under our "Full faith and equal credit" clause in the U.S. Constitution, which means that all states must recognize marriages from all other states, and also make sure they all provide the same responsibilities and benefits of marriage in all 50 states.

Civil Unions are also State sanctioned Contracts, but with a difference, first, they aren't restricted to same sex couples, not usually, and second, most stipulate in the laws authorizing them that the Federal Government, nor any other State Government needs to recognize them. This expressly exempts them from the clause I mentioned above.

In addition, we already have Same Sex Marriage here, in one, and hopefully up to 3 states if California's Prop. 8 is overturned. So we will have some states with Marriage Equality, and others that don't, it can get very confusing, very quickly.

I do have a question, how does your government handle Same Sex Marriage internationally? If someone from New Zealand went to Canada and got married to someone of the same sex there, and that person decided to move back to New Zealand, would their spouse have to stay behind?

ON EDIT: One thing I noticed, when you said this:

Now, the NZ system isn't perfect - there's a clause that excludes non-married couples from adopting - but it passed, and is 99% good. The other 1% can be passed in the future as an amendment, I hope.

I guess this means that, even in New Zealand separate is not equal.

[Dead_Parrot]

9. That would be where it gets awkward...

...it's difficult to pin down the state/federal laws equivalents: we have a monarch who rubber-stamps what ever laws we pass. I think, given the basic rights that these laws allow, you would be looking at a federal law or constitutional change: but I am open to suggestion - Look up the NZ Human Rights law on the link I provided, and see if there is an equivalent.

State civil unions are worth dick if they don't pass rights on at the federal level: I think that's the angle you should be aiming for.

[Solon]

55. The problem is that such a bill, as you used as an example, would be struck down by the courts...

here because the Federal Government would have exceeded its authority. 10th Amendment. The only way to override state's "rights" is for the Federal Courts to strike down discrimination on the basis of gender in Marriage using a combination of existing same sex marriages in some states, the 14th Amendment, and the full faith and equal credit clause.

[Dead_Parrot]

77. Oh...

...Bugger

Shit. Don't take this the wrong way, but I'm really glad I'm not you.

Fuck it.

Emigrate.

There's space in NZ.

:hug:

[Solon]

86. Thanks for the thoughts, though I'm straight, so I have all my rights...

however, the fact of the matter is that my GLBT brothers and sisters don't, so I fight for them, not myself. Even though, if I were thinking of emigrating, not saying I am now, it would be Canada, and for my own...reasons.

[Ms. Toad]

107. That clause excluding non-married couples from adopting

throws lots of things into question - making it far less than 99% good. Is my spouse allowed to become the legal parent to the daughter we decided together to bring into this world, and whom she has parented since before her birth? That requires a formal adoption in Ohio. That impacts not only their legal relationship, but everything that flows from that relationship (health insurance, financial aid, dependency for tax purposes, right to be the adult driver supervising child with the learner's permit, inheritance, etc.)

From a legal perspective, it also undoes much of the good intended to be done by the relationship statute. Legally, the two statuses (marriage and civil unions) are presumed to be intentionally different (otherwise there would not be separate statutes) and to have different rights associated with them. The Relationship status purports to overcome that presumption except where it comes to adoption - which opens up at least the entire can of worms which grow out of parent-child (and extended family) relationships. Basically, you're back to the presumption that the statuses are intended to be different and a whole lot of everything will need to be litigated to establish that they really were intended to be equal.

[Lost River Ledger]

10. Better yet....

Delineate marriage as a religious construct recognized by the church and civil unions as a secular construct recognized by the state. You would need a civil union to be recognized and receive benefits and recognition as a "unit" from the state, a marriage performed by clergy would not suffice. Have your church wedding if you must, but leave the government out of it. i.e. the clergy could not act for the state in any capacity.

As it stands now, the state need not wait for church approval to declare a couple divorced on the back end, why should it need approval on the from end.

[Dead_Parrot]

12. That's the Idea...

Get a CU recognised at the federal level - and if need be, get a dissolution rec'd by a local parish (rec'd at the same level).

Why not?

[Aleric]

28. Allow religious marriage to stand as deFacto CU

I would do it differently. I would allow any religious marriage to stand as the basic requirement for a Civil Union even though the State would only recognize the CU. In other words find a priest who will marry you and you've got a marriage. I could find a dozen clergy from a dozen different religions willing to sanctify a gay marriage.

In the end, I see this as the only workable solution. Get government out of the business of marriage.

[Aleric]

30. moved

posted in wrong thread. Moved to main thread

[laconicsax]

94. That's entirely unacceptable.

My spouse and I had a completely secular ceremony performed by a judge and we are legally married. A week later, we went to my cousin's wedding which was a very religious ceremony performed by a fundegelical pastor. There is no difference in the eyes of the law between my marriage and my spouse's cousin's marriage. The only substantial difference between the two was the nature of the joining ceremonies.

As it stands now, the state need not wait for church approval to declare a couple divorced on the back end, why should it need approval on the from end.

As it stands now, the state doesn't need approval from a religious body to grant a couple a marriage license. Your argument is flawed. I know it's hard for a lot of people to grasp this concept since religious groups have done a masterful job of convincing people that everything about marriage is religious, but people need to wake to this con.

Marriage is a civil construct recognized by the state. The only thing that can be religious about marriage is the nature of the joining ceremony and the personal beliefs of the married persons.

[Ms. Toad]

109. Absolutely correct.

Religious marriages are legally recognized only because the state has agreed to permit the clergy to act on behalf of the state to marry the couple - not the other way around. If the state chose not to recognize religious ceremonies, it wouldn't mean that the state would no longer recognize any marriages, it would mean that it anyone choosing to marry in their faith community would need two ceremonies - one to satisfy state requirements - with a real state actor (not a clergy stand-in for one as is currently permitted), and one to satisfy the requirements of their faith community.

[MNBrewer]

108. That's not any more viable at the moment that making "Marriage" equal.

[zeemike]

13. I have made that case here and got flamed for it too.

And sometimes some here seem to want to rub the christians noes in it instead of actually having the same rights.
i only hope that these people are not in the leadership positing in the gay community, because it could cause a backlash that will not be pleasant for any of us.

[laconicsax]

95. Do you not get it?

Marriage is not a religious institution, it is a civil one to which religious groups have laid unjust claim. There's no rubbing anyone's nose in anything to insist on extending a civil right to all persons.

[zeemike]

127. Then what is the problem with calling it a civil union?

And letting the church call it marriage.
And if you are going to say that the difference is a tax break don't bother because tax breaks are not civil rights.

[noamnety]

128. *plonk* (n/t)

[laconicsax]

130. I'll try to make this as clear as possible.

Here's how you get married in the most general terms.
-Two consenting adults go to a government building and apply for a marriage license.
-If approved, they are issued a license that expires after a set amount of time. They must get married before that expiration or they will have to restart the process.
-To become married, they must have a joining ceremony of some sort officiated by someone who the state says can officiate and witnessed by a specific number of adults.
-Upon the conclusion of the ceremony, all parties sign the license and submit it to a government office where it is validated and kept on file as a legal document.
-At this point, the couple is now legally married and afforded a substantial number of rights by the state.

The only place religion enters into the process is the joining ceremony, which can be officiated by a religious leader. Even then, the ceremony is a legal requirement and the use of a religious leader is purely optional.

Why should the entire civil institution of marriage be renamed at the behest of people who, despite dutifully following the above procedure, see the entire process as a purely religious affair?

[zeemike]

134. So then there are these question.s

Why should the state or government not distinguish between a marriages between same sex couples and that of different sex couples?
You must remember that throughout history marriage has been a union between a man and a woman for the purposes of procreation.
And same sex couples cannot procreate without a third party being involved.
And why should the state be forbidden from encouraging procreation between men and women without a third party being involved? Because no matter how you cut it, the children have only one biological father and mother.
And what of these "substantial number of rights"granted by the state?
Are tax breaks a right?
Are adoption a right? And if it is does that mean that children are property?

Now there are things that could be considered rights like Social Security benefits to surviving spouses but these all involve property and should be granted to any civil union, but I see no wrong in distinguishing between marriage and civil unions. sense there is s clear distinction between procreating couples and unions for the porpoise of property rights.

Now I am not saying this to put anyone down of for the porpoise of just being argumentative but to point out that the other side has an argument and that a solution can be made by a compromise that takes noting from aether side. That is if the purpose is parody and acceptance by society of gay people and not just the reason of erasing distinction by word.

[MNBrewer]

135. Your comments are stunningly superficial

and offensive.

[Rhythm]

147. Are we dissolving 'marriages' for sterile/geriatric couples then?

Since there is s clear distinction between procreating couples and unions for the porpoise of property rights.

Shall we now make the ability to spawn the criteria for allowing a couple to 'marry', since 'civil unions' are not available everywhere in our nation? What shall be the deadline for popping out a kidlet before the marriage is annulled?

The states, and indeed the Federal government should not distinguish between legally-binding contracted relationships of either heterosexual OR homosexual couples because of a pesky little clause in the 14th Amendment of the Constitution... the one that says "equal protection of the laws."

As for the rest of your post, if you're staying here, you may want to refrain from copy/pasting from Freeperville. The offensivenesses of it is off the scale, and is awash in RR kool-aid stains.

[TechBear_Seattle]

137. What is wrong with having churches change the name of THEIR ceremony?

As both the California and New Jersey Supreme Courts have said, "marriage except in name" is inherently inferior to "marriage." Such things do not have access to centuries of judicial precedents and court rulings regarding marriage. They create an unnecessary division of people, a division which serves no legitimate purpose and a division that directly violates our 14th Amendment rights.

Why is this such a difficult concept to grasp?

If religious groups have a problem with us having legal marriage, THEY should be the one to come up with a new name. Religious marriage does not carry any legal weight, and thanks to the First Amendment, it never will. It would be far easier for them to adjust, and leave the laws alone.

[Dead_Parrot]

144. You're kidding...

...Christians can't even decide if they should follow the Pope without a slaughtering each other: Hell, even the number of fingers used to make the sign of the cross can result a major shitstorm

Which I could live with, if just the fundies were involved - but they can never shoot straight. Safer for everyone involved it stays the same.

I think what you need is an understanding Pres., houses and SC: Fingers crossed you get them...

AbE, And I hope you get this: post #140 ( galledgoblin ) suggests taking "marriage" out of the laws completely (and presumably replacing them with something else) - might that be any good? Circling back to my OP, I know - sorry. :o

[TechBear_Seattle]

146. Irrelevant, and no

I don't give a rat's ass that Christians cannot agree on anything; that is not germain to the issue. If Lutherans and Catholics and Greek Orthodox and Pentecostals all change the name of their joining sacrament to something different, so what?

Marriage is a legitimate state interest. It determines who has property rights, who has inheritance rights, who has legal rights. More, it determines who has responsibility with regards to children, medical care, and hundreds of other things. Changing the name of legal marriage to something else would require that all 50 states and the federal government, all at the same time, change thousands of laws each. We would have to completely abandon centuries of judicial rulings and precedents and start over from scratch: again, if it is not "marriage," it does not have access to our body of common law regarding marriage.

In short: Leave legal marriage alone.

[Dead_Parrot]

148. Agreed. It's a legal battle, not a religious one

Hopefully it won't take the courts too long to figure that out...

[La Lioness Priyanka]

14. yes, it does have to be marriage.

because seperate and equal has never worked before.

i want to be married. i do not want to be a second class citizen.

do you know how easily states would rights that deprived civil unioned couples rights that married couples could have?

also, this is my only life, i deserve equality.

[Dead_Parrot]

20. My wife and I are "only" joined...

...by a civil union in the UK. Yet I still feel like a human: We have a family, and my only "proper" marriage - to someone long gone - lasted 3 years.

I still feel like a person, and am treated like one in NZ.

As I said, this would need to be done at a federal level to work properly: All states subject to it. would you have a problem with that?

[La Lioness Priyanka]

21. you dont see the seperate is never going to be equal? i am fine if ALL of us had to be civil unioned

not just if it applied to one demographic

[Dead_Parrot]

33. It depends whose eyes you're looking through

I'm used too not being equal through the eyes of the fundamentalists, and I never will be, so screw them.

I'm used to being equal through the eyes of my peers, mainly because they are relaxed (and slightly drunk) pagans & pantheists.

Frankly, my priorities are: 1, My Family; 2, My friends; 3, My government; and 4, My countrymen.

The first three are in the bag. The other 3.7 million can piss off.

[La Lioness Priyanka]

35. in the eyes of the law, seperate and equal has never worked.

thats the big problem.

[Dead_Parrot]

38. Not if the law says they ARE equal

They are, in NZ.

And it's a better place for it.

[Creideiki]

43. One of the problems that came up in NJ

The government recognized the Civil Unions as Marriages, but there was no enforcement or way to enforce that the private sector did the same. That led to things like insurance companies refusing same-sex Cu'd partners and the stripping of benefits when a Cu'd couple in NJ moved to another state.

Overall, I don't see an easy solution besides either recognition of same-sex marriage at the federal level, or an amendment that says that all the "marriages" in the US are now considered "civil unions" and same-sex couples are allowed "civil unions" also. There would be a lot more panic over people thinking that the government was taking away their marriage status than there is in thinking that the government might extend that status.

[Dead_Parrot]

49. That's where the "Relationships Act" came in...

...Making it illegal to discriminate on grounds of sexual inclination or partnership. CUs on their own are worth spit - it's wrapping the rights around them that matters.

[Creideiki]

51. And in NJ, the CUs were supposed to be treated the same as marriage

Turned out different in practice.

That doesn't even consider that in the US, we have 2 states that allow same-sex marriage, a few more that do Civil Unions, and a few more that do Domestic Partnerships--with minimal portability. Even without DOMA, there wouldn't be portability between CUs, DPs and marriages, leaving a lot of chaos out there. Sometimes states' rights are a bitch, and this is one of them.

[Dead_Parrot]

53. I think it needs to be a federal law...

...or a constitutional amendment. It seems state legs. are too full of bullshit to even pick the pen...

[Ms. Toad]

110. In the US, marriage is a state institution

To make it a federal institution would require a constitutional change. (The 10th amendment reserved to the States all powers not delegated to the United States by the Constitution. Marriage was not delegated to the United States by the Constitution, so it is a state power (and generally when the U.S. needs to know whether a marriage is valid - such as for income taxes - it relies on the law in the state of residence to determine the validity of the marriage - with the federal marriage discrimination act being the lone exception...hmm...perhaps that act {aka DOMA} might be unconstitutional :evilgrin: .)

Aside from that, the constitution as it exists requires that each state recognize the marriages of another state (and of other countries). (Note: even though this is the existing law, I would not recommending testing it with regard to same gender marriages until the composition of the Supreme Court changes - they have proven that although they are reluctant to completely disregard their prior decisions, they have few inhibitions about modifying them - and if pushed on the matter might well modify Loving v. Virginia (and the international equivalent therof) beyond recognition.

[t0dd]

15. What is so hard to understand?

To answer your question, I want to be married. It is more than just having the same rights. Marriage is a commitment to another person and an affirmation of love. It is a way of being. And civil unions do not equate to that; it is a separate, degrading institution. When you think of someone proposing, replace "marry" with "civil union". How ridiculous is that? Marriage should be about love and nothing more: why else would you marry someone? To procreate? For religious reasons? Please. Some may see civil unions as a fair compromise, but history has shown that separate but equal does not work.

[Dead_Parrot]

23. Many years ago...

...I was a Wiccan Priest: I have handfasted several couples, none of whom were married under UK law. Yet they made vows to each other, before witnesses, and under UK CU's enjoyed the same rights. You say: Marriage is a commitment to another person and an affirmation of love. It is a way of being yet what has that to do with most "marriages"? is not a commitment, affirmation, and the legal rights as a couple the same thing?

This is a question, not an attack, BTW. :)

[dsc]

16. because election after election shows it won't work

There is no discernable difference in either the rate of passing nor the margin of passing of referenda which banned only marriage and ones which banned all legal constructs for unmarried persons. The only exception to this is Arizona where the elderly voted their own self interest. Even Florida, with boatloads of elderly, voted for an initiative that banned any legal construct for unmarried people. Just last week a prominate evangelical was forced to resign for going on NPR and saying he favored Civil Unions, not gay marriage, but Civil Unions. It simply won't work.

[Dead_Parrot]

25. But could this not be changed at a federal level?

OK, I may be just a dunb furriner, but surely this could be put thruogh as a rights issue - as it was in NZ - without referring to the blue rinse posse? with a dem prez., congress and senate it must be worth a go?

[dsc]

31. It could

but it is hard to believe that it would be less contraversial than giving gays marriage outright.

[Dead_Parrot]

37. As I said, Softly softly...

Teh Fundies are also strong in NZ: This way, it slid through without them noticing. Which it a Good Thing. :)

[yardwork]

103. They already noticed in the U.S.

[yardwork]

101. If we change it at the federal level, why not insist on marriage? It will be just as difficult.

I appreciate your questions. I'm not trying to be difficult. The fundamentalists and right-wingers are not interested in compromise. They don't want gay people to have any rights. They are as much against civil unions as they are against marriage. I know that they pretend that this isn't the case, but they're lying, as proven by the dozens of state laws and constitutional amendments making it all illegal for gay people.

Check out Texas's constitution. Gay folks aren't even allowed to draw up paperwork making them one another's heirs there!

You don't understand how serious this is. It's not a matter of semantics.

[cate94]

17. Did you know that if you do a search on DU

about this very issue that there are 13,400 hits?

Here's the thing, look at the law passed in Florida. It doesn't just ban gay marriage, it also bans civil unions and domestic partnerships.

There is an underlying false assumption that these homophobes are just irrationally afraid of us stealing their "sacred". That is where this argument completely fall apart. The same folks against gay marriage are also against hate crime protections for the GLBT community.

The Mormons are actively against civil unions and have stated that in an official memo. Why? Because they view it as a step towards marriage equality.

Churches in the US are not required to marry anyone. They know it. The RCC doesn't marry divorced people, despite the fact that divorce is legal and marrying divorced people is legal. They use the pretense to rile their troops. Do you think they won't lie about civil unions?

Marriage is a civil contract that can be performed by either a civil servant or a licensed religious person. It is a "civil" contract. Look up the New Jersey courts decision about how "civil unions" are not equal to marriage, pretty much says it all.

[La Lioness Priyanka]

22. thank you. i forgot that part. the false dichotomy part

i need coffee

[Dead_Parrot]

27. Fuck Florida

(With apologies to any Floridans present).

I am Starless at the moment, so I'll take your word for it: So maybe this needs to be passed at the federal level. But if the US followed the outline I presented - at a federal level - would it not work for you?

[yardwork]

102. Thank you.

It's really tedious to have to say this over and over again, and all the time gay people are made out to be the bad guys.

It makes me mad.

[Burma Jones]

18. It's pretty simple really, and words matter a lot

Civil Unions = Tolerance

Marriage = Acceptance


The Marriage vs Civil Union debate defines whether same sex relationships are inherently bad, yet inevitable (like some sort of handicap) or whether they're a naturally occurring benign part of our existence (history seems to indicate so)....

I used to think Civil Unions for everyone and marriage by a church was the way to go, but the bigots will not let that happen. As a co-worker told me once, "well at least we don't go out and stone them to death, that should be good enough"

Acceptance and equality is something, like the idea of a spherical Earth, that will have to be shoved down some peoples' throats.....

[Dead_Parrot]

29. I guess it depends on the society

I've mentioned up-thread that I was a Wiccan priest: In my own circles, marriage meant fuck-all, and hand-fasted meant the world. But we didn't hold a marriage against those who had a marriage.

NZ - which is a fairly liberal country - doesn't care if you are married, hand fasted, or just shacked up together. The tax office don't give a fig, Internal Affairs don't give a monkeys, and the general population just want to know if you will still get the beers in.

The gay couples I've met here are quite happy, and isn't that enough?

[Burma Jones]

45. We were founded by Puritans.....too uptight for England.......

So, official imprimatur probably means more here than NZ......

[Chovexani]

126. Please, STFU. Just, please.

People like you are why I'm a solitary witch and have been for ten years. Making these kinds of bullshit pronouncements from high atop Mt. Hetero Middle Class White Privilege and not even realizing how ridiculous your candy privileged ass sounds.

You don't know what the fuck gay couples are thinking. And you certainly don't know wtf you're talking about vis a vis American gay couples, who face an entirely different set of circumstances. But that sure won't stop your ignorant ass from talking about it.

[sui generis]

19. but they don't want us to have those rights anyway

in Texas and many states, any contract that even "approximates" the rights of marriage is either unrecognized or outright illegal.

That means if my nephews challenge my life insurance beneficiary (my partner) on the grounds that I attempted to approximate a marital contract or obligation, it is very likely that my partner would lose in court, or at best only my premiums to date would be returned.

Fortunately I have reliably decent nephews.

No, we need marriage. It is cut and dried. Anything else gets us accused of asking for "special rights" instead of demanding our equal rights.

[Dead_Parrot]

39. So make it a federal law

Then they can piss off. :) As I said, it's the Relationship act that has the teeth, and nobody saw that...

[TechBear_Seattle]

24. Yes. Here is why

Under state law, marriage grants between 700 and 1100 statutory rights, priviledges and protections, depending on the state. Marriage also comes with about 800 statutory rights, priviledges and protections under federal laws. This count does not include those rights, priviledges and protections granted by right of common law, court precedent and judicial precedent, estimated at about 300 more depending on the state and who is counting.

By contrast, Washington State's "domestic partnership" only grants 67 of the 900+ rights granted under state law through marriage, and none of the common law rights (if it is not "marriage" then precedents regarding marriage cannot be applied.) While a same-sex marriage in Massachussets gets all of the state benefits, it is still denied any federal recognition thanks to the "Defense" of Marriage Act enacted in 1996 by President Clinton. In fact, thanks to DOMA, most states have enacted laws allowing them to completely ignore the validity of a same-sex marriage enacted in Massachussets or any other state, in direct violation of the United States Constitution's Full Faith And Credit clause.

Even if you passed a "marriage in everything but name" type of law, as was done in New Jersey, you still run afoul of the US' system of common law, which should be very similar to the one you have in New Zealand, as both derive from the ancient system of British common law. Under that system, court rulings create a legal precedent, with lesser courts must follow unless the precedent is specifically overthrown by a higher court. Earlier this year, a commission constituted by the New Jersey Supreme Court issued an opinion that that state's civil unions were inherently unconstitutional, as couples in a civil union did not have access to almost three centuries of court rulings and precedents regarding regarding marriage, and recommended to the Court that civil unions be replaced by full, equal marriage. Back in May, the California Supreme Court issued a similar ruling with regards to the state's domestic partnership law.

So basically, it comes down to simple equality. Gay people cannot be barred from the benfit of law; that was why the United States Supreme Court ruled in Romer v. Evans to overturn Colorado's Amendment 2, which not only prohibited local and state governments from offering legal protection to gay people but also barred gay people from any form of legal recourse against discrimination and bigotry.

In the United States, marriage is and always has been a CIVIL matter, regulated by CIVIL statute and coming with a very large number of rights and benefits protected by CIVIL law. Because of the concept of separation of church and state, enshrined in the First Amendment of the US Constitution, no religious ritual is sufficient to create a legal marriage, and no religious ritual can be required to create a legal marriage. That religious groups use the same name for a similar "sacrament" is irrelevant. If they don't like this, THEY should be the ones to change the name of their religious ritual. Leave civil MARRIAGE alone.

[Dead_Parrot]

41. Quick Question...

...Since you seem to know the US laws, is there an equivalent of the NZ Human Rights act in the US? That was the lynchpin of the NZ laws, so is it OK for a US agency/company to discriminate against GLBTs?

[GodlessBiker]

44. It goes state by state. The federal government may discriminate. In some states it is illegal, ...

in other states it is legal.

[Dead_Parrot]

50. Wouldn't a federal ruling overide them? nt

[yardwork]

104. If we get a federal ruling then we should get marriage equality.

No more "separate but not equal" in the United States. The U.S. Supreme Court struck that down before I was born.

[TechBear_Seattle]

48. I'm not familiar with that law

And the Wikipedia article is a bit anemic. But based on the article, I would have to say no.

The United States is a federalist republic, with each of our 50 states (theoretically) sovereign except for power ceded to the federal government when a state ratifies the US Constitution. (Ratification is one of the last steps towards becoming a new state.) Individual states and the federal government have specific laws which protect specific rights, but as far as I know there is no omnibus act that parallels your Human Rights Act at any level of government. I'm pretty certain that there are no state or national commissions charged with overseeing and enforcing these laws. Some municipalities have human rights commissions, but they do not have legislative or enforcement authority and only serve to field complaints and advise the local government.

Instead, we have 50 state constitutions and the United States Constitution, all of which outline and guarantee certain rights. On this board, you will see frequent mention of the First Amendment to the US Constitution, which reads in full:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Of great importance is the Constitution's 14th Amendment, passed in the aftermath of the US Civil War. The key text is from Section 1 of the amendment, here in full:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This is important because many of the rights guaranteed by the Constitution had been guaranteed only at the national level; states could, if they wanted, establish religion, abridge freedom of the press, etc. The 14th Amendment brought these protections down to the level of state governments and, by court rulings already a century old when this was ratified, to all levels of local government as well. (Local government is not mentioned in the US Constitution, so the courts have always held that, constitutionally, local governments are extentions of the government of their state and are bound by the same obligations.)

Most of the court rulings that have helped to guarantee civil rights in the United States have come from the 14th Amendment. In 1954, the US Supreme Court ruled in Brown v. Board of Education that racial segregation violated the 14th Amendment; subsequent federal laws prohibiting discrimination on the basis of race are all based on this ruling.

There is no requirement that the federal government put Supreme Court rulings into statutory form, however. One good example is Roe v. Wade. This 1973 ruling stated that the 14th Amendment's guarantee of personal liberty and restriction of state action, and the 9th Amendment's declaration that rights not expressly given to Congress and the states is held by the people, created a "right to privacy" and that, in light of that right, a woman has the right to decide on her own medical health which included a right to have an abortion. For the last quarter of a century, state and federal governments have been trying to eliminate that right.

This all probably answers your question in far more depth than you wanted. :hi:

[Dead_Parrot]

52. You're not kidding...

...at 5:35AM, I can barely read the letters: Your words are meaningless to me. :)

I think the UN charter of human rights - enacted into federal law, or constitutional amendment - should be one of Obama's first moves: that seems to be the missing piece in the system. Then you can push for that to be enforced in a "relationships act" equivalent, but that should be a walk over.

Does that sound like a plan, or am I firing blanks?

[Solon]

56. A Constitutional Amendment is a non-starter, you need 3/4ths of the states to approve it...

We couldn't even get that many for the ERA(Equal Rights Amendment) and things haven't really approved since.

[Dead_Parrot]

59. OK, that's a pisser

How 'bout a federal law?

[Solon]

61. Look, at my response to you above, it would exceed federal authority...

The law would last about two seconds after the President signed it, and about a dozen State Attorney Generals challenged it in court.

[TechBear_Seattle]

68. You are correct

Federal civil rights laws are constitutional only because the US Supreme Court has held, in different rulings, that the 14th Amendment protects civil rights regardless of race, gender, disability and religious beliefs (or what hold a similar place in the life of non-believers.) Until and unless the Supreme Court rules that the 14th Amendment likewise protects civil rights regardless of sexual orientation, it would be a violation of the Tenth Amendment for Congress to act. And if the Supreme Court rules in favor of gay rights, any federal legislation would be redundant.

[Solon]

72. Yes, the courts would have to rule on it first...

But, and this is the big one, most civil rights laws in the United States regulate private, not public, institutions, and were covered under the Interstate Commerce clause. This is why Congress can legally pass ENDA, yet not a Federal Marriage(or civil union) law. The Supreme Court struck down Jim Crow laws, all the President and Congress did was make sure the ruling was enforced. The only exception was voting rights, but that's because voting rights are explicitly mentioned under the heading "enforce with appropriate legislation".

[Dead_Parrot]

69. Damn, is it really that hard?

OK, furriner ignuranse coming out: I kind of assumed human rights would be a straightforward deal, but I guess that's here, not there...

...shit, I'm getting an idea about what it is to be GLBT in the US.



That sucks. :(

[Solon]

73. The United States has a peculiar Government, compared to most Democracies in the world...

which are more Parliamentary in nature, but its the one we were given, or should I say designed with. The United States borrowed elements of its government from the United Kingdom, but also altered it in unexpected ways. It was hammered out, literally, in a room full of men with differing ideas on what should or should not be the purview of State, Federal Government, and other institutions. We already had one failed federal government at the time, and so they decided to try to get it right. I won't say they accomplished that, but it does function, in a way, kind of like an old steam engine that just won't quit. Not the most efficient means of governing, nor even the fairest, but it works, kinda.

[TechBear_Seattle]

80. That's because we are not a democracy

We are a federalist republic.

In a democracy, the people have a direct voice in governance; all of our states are democracies because it is the people who elect state officials, and representation in the legislature is apportioned evenly based on population. The US federal government is a republic because the people have only an indirect voice in governance. It is a federation because the constituent members are not the people, but sovereign states that have voluntarily ceded some of their sovereignty to a central authority. It is the states, not the people, who are represented in Congress and it is the states, not the people, who elect the President (via the Electoral College.)

And actually, the United States is neither the first nor the only federalist republic in existence today. Switzerland formed a federalist republic back in the 16th century, when several cantons banded together for mutual protection against the Holy Roman Empire. Germany is a federalist republic comprising of what used to be independent duchies and kingdoms. I believe Australia is like the US, with semi-independent British colonies banding together to create a single nation. The Netherlands is the real oddity, as it is both a federalist republic and a constitutional monarchy in its own right (and not like Australia, which is only technically a constitutional monarchy.)

[Solon]

81. Well, given your own definition, the House of Representatives is the democratic structure on the...

Federal level, at least theoretically. The House of Representatives was created to explicitly represent the People of the United States, not the States, that's what the Senate is for. Also, I didn't say we were unique, just peculiar, and even most other federalist republics don't have the peculiar idea of States' Rights(or its equivalent) like we do.

[TechBear_Seattle]

89. Except that representation still goes to the state

Each state is divided into districts, and the boundaries of each district are set based on a decennial census so that each district within a given state contains the same number of people as closely as possible. The people who live within that district are allowed to elect the representative from that district.

HOWEVER, representation in the House is still by state. The number of representatives for a given state is based on its relative population in the census, with a guarantee that each state will have at least one representative regardless of population. Representatives from different states represent a widely different number of people.

It should also be noted that the House has only two unique powers: to originate bills dealing with national finance and to impeach. All other Congressional power -- approval of presidential appointments, ratification of treaties, trial on impeachments, etc. -- all lay exclusively with the Senate, which was originally filled with appointments by state government and not by popular vote (and thus, very likely to be filled with aristocrats and not the Great Unwashed.) Also, the term of office for a Representative is two years, shorter than any other federal office.

Basically, the House was not designed to explicitly represent the people; it was designed to serve as a safety valve. It made minimal concession to the concept of democracy while having no power to cause any real harm at a national level.

[TechBear_Seattle]

74. New Zealand is a unary government, not a federation. That makes a big difference.

You don't have to worry about the sovereign pride of member states; what Parliament says, goes. While that opens the possibility of abuse, it also makes it much easier to pass things like civil rights legislation.

[Solon]

75. Actually, this is something we should illuminate for our friend here...

The United States has a much more...confrontational system of Jurisprudence compared to most democracies in the world. I would argue that the reason is because our Congress, being hobbled as it is by the Federal-State form of government, can't be as responsive as a parliamentary system when it comes to violations of civil rights. In many countries, this is almost the exclusive purview of the legislature, they pass the laws, the courts, more or less, make sure they are enforced impartially, but beyond that, they don't do as much. However, the parliamentary system does hold advantages, the legislature is usually more responsive to such crises, in addition, they also have a check on their authority through votes of no confidence and the possibility of parliamentary dissolution when they exceed their authority.

Not saying either system is perfect, but both have advantages and disadvantages.

[Dead_Parrot]

83. So, in this case...

...you have to jump through 5 burning hoops just to get your name on a hospital form?

[Solon]

87. For someone not related to you that you can't be married to to have next of kin status...

yes, as a matter of fact. There was a Lesbian couple I knew, many years ago, who got power-of-attorney over each other, probably the closest to next of kin status you can get without signing a marriage license, yet they still faced obstacles. One of them adopted her own niece, because her sister was an unfit mother, yet her partner can't adopt her child, so if something happened to her, her niece would end up in the foster care system. In addition, power of attorney status can be contested by blood kin, in addition to living wills and wills of last testament, without marriage, there is no additional protection against that possibility.

[LostinVA]

91. You can't have the POA status in Virginia even if you have POA legally

Because VA won't recognize it.

[Beausoir]

133. Hey Lost? Would you please PM Me?

[bluedawg12]

138. I remember during Falwell's reign that Va. passed a series of laws

essentially prohibiting legal alternative ways for gay couples to establish safe guards for property rights, inheritance, adoption, I did not realize it even extended to the commonly known right of selecting ones own power of attorney.

A POA is a voluntary transfer of one's own rights to a surrogate in case one becomes incapacitated.

We should all have the right to select such a surrogate to care for out interests when we can not.

What a dehumanizing sack of shit law(s). Thank you morally-self righteous- hate-majority.

[bluedawg12]

139. A ballot referendum to amend the Virginia Bill of Rights

http://en.wikinews.org/wiki/Virginia_Bill_of_Rights_to_deny_legal_status_to_same-sex_and_unmarried_relationships

November 17, 2006


Virginia, United States – A ballot referendum to amend the Virginia Bill of Rights that denies to same-sex and unmarried couples any legal status that approximates that granted to married couples was approved by state voters during the U.S. midterm election by a 57% to 43% margin.

The amendment establishes a section that explicitly prevents the government from recognizing the legal status of any relationships outside of heterosexual marriage. Though paragraph one of the amendment specifically bans same-sex marriage, paragraph two prevents the government from recognizing the legal status of any relationship of unmarried individuals that would in anyway approximate marriage.

Thus, as discussed by Raymond A. Warren, any portion of common law that is determined by the seven-member Virginia Supreme Court to be in conflict with the amendment would no longer provide any such protection within Virginia.


That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

– Section 15-A. "Marriage" which was amended to the Virginia Bill of Rights


Judge Warren argues that one of the greatest dangers of this amendment is that “no body knows what the sentence means”.

Judge Warren argues that this modification affectively transfers broad power to the 7-member Supreme Court to interpret how this amendment affects the existing laws, benefits and rights that unwed partners currently enjoy.

For instance, the domestic partner benefits that are offered by many companies operating in Virginia are a concern. Since corporate policies must be consistent with Virginia law, these domestic partner benefits are at risk.

The state is now forbidden from recognizing a broad set of previously recognized rights associated with unwed relationships.

So many existing laws may now be unconstitutional, or will no longer safeguard same-sex or unwed couples and their families.

Making “murky” modifications to the very foundation of government, which in-turn underlies the most complex social system in history, argues for prudence and pause.

Individual Rights are an inherent power or liberty, not awarded by human power, to which one is justly entitled and which cannot be legally deprived or restricted by government.

Laws, on the other hand, are the obligations and restrictions instituted by governments that are needed to secure those rights.

Since rights are considered superior to laws, the judicial branch should necessarily strike down the passage of any law that violates any of these rights.

Both the governor of Virginia, Tim Kaine, and Senator-elect, Jim Webb, publically opposed the amendment before the vote.

[TechBear_Seattle]

65. Funny story about ratifying constitutional amendments...

What is now the 27th Amendment, ratified in 1992, was actually part of the original Bill of Rights submitted to the states in 1789 (the Bill had 12 proposals, of which ten were approved by 1791.) For more than two centuries, the number of states that had ratified it lagged just behind the necessary three-fourths. It is because of this "eternal amendment" that amendments proposed latter carried an expiration date, cancelling them if not ratified within a period of years.

[Solon]

67. Yes, I remember that, and I think its usually 7 years or so for sunset provisions. n/t

[TechBear_Seattle]

62. That would require ratification of the Senate

Article II, Section 2, paragraph 3 of the United States Constitution states: (The President) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur...

The Constitution also states, in Article VI, Section II: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The International Bill of Human Rights is a treaty. I believe the US government has signed it (I know we have signed the Universal Declaration of Human Rights, a component of the Bill of Human Rights.) However, until and unless the Senate ratifies it, the US signature on the treaty is nothing more than an unenforceable political promise.

In other words, this is not something Obama can do by himself. Either the Senate must act on its own to ratify this treaty, which gives it the effect of law, or Congress must pass legislation that Obama signs. Ratification is pretty much out of the question: for the last century, the Senate has consistently refused to ratify treaties because they "interfere with national sovereignty" and there are implications of international law that would make things awkward should a treaty later become "inconvenient" to national interests. And honestly, I think Christ will return long before Congress takes any meaningful action on promoting gay rights.

[Bluenorthwest]

26. I have Brit friends who see it like you

But I have one Brit friend who has spent half his life in the US and he most certainly gets the differences in the law, and he'd also understand that the relgionists here are not accepting of civil unions or even law to prvent open discrimination against gay people, which is legal in several of our states. It is legal to evict or fire a person for being gay in some states.
Are there parts of NZ or the UK where such discrimination is lawful? Right there is the key to understanding the difference between the two places.
Here is not there, in so many ways.

[Dead_Parrot]

42. Yeah, I know

And no, if you fired/evicted someone in the UK or NZ for being gay, you would have your nuts nailed to a tree.

It would hurt.

Lots.

But the US is another word, and I feel for your friend. Good luck to you both...

[Aleric]

32. Separate but Equal

I think others have covered the legal technicalities. What may be harder for those outside the US to understand are the cultural factors surrounding the issue. Go to wikipedia and search for "separate but equal". It will serve as a gateway to walk you through critical court cases governing the treatment of other races in America. In short, we've tried experiments which purported to give every individual "equal rights" but still allowed for separation and discrimination based on race (and other factors). This only resulted in a clearly defined class system where non-whites were second class citizens. "Separate but Equal" is merely a smokescreen for covering up discriminatory attitudes, actions and behaviors.

We now know that "Separate but Equal" can not work. The Civil Union approach can not work here unless the State(s) all decide to convert everyone to civil unions and get out of the business of marriage. Remove the religious element and you remove the basis for discrimination. In fact, if you release the clergy from the restrictions of the state we will very quickly see clergy of all denominations sanctifying gay marriage. (I'm straight and I can easily find you a catholic priest, protestant minister, rabbi, or pagan priest to sanctify a gay marriage. (I don't have enough muslim, hindu, shinto or bhuddist contacts to make the same claim but I bet someone else can.))

[Dead_Parrot]

47. As I've said upthread...

...it might need to be done at a federal level. From my experience - and feel free to correct me here - on a community level it isn't that much of a problem (unless you are in the wrong community), and "separate but equal" certainly does work in NZ and the UK...

[Aleric]

136. Cultural differences

If you live in a culture that accepts "separate but equal" then it's simply going to be difficult for you to understand why it doesn't work here.

[GodlessBiker]

34. Marriage isn't just a collection of rights. It is a solemn and serious...

relationship which is recognized as having emotional and psychological value.

Your reduction of this fight for marriage equality to an insistence on the equality of consequences that might come from marriages and civil unions misses a key element.

This is a fight over emotional maturity and commitment.

[Dead_Parrot]

63. As solemn and serious as Brittney Spears?

Cool. Post back in 55 hrs, I'm eager for an update. We can talk about yhe key elements of emotional maturity and commitment.

[GodlessBiker]

90. I am not arguing for the least of us, but for the best of us.

[Dead_Parrot]

121. I know that really

Sorry for the snark. :hug:

[MNBrewer]

122. and, that's your opinion.

Literally, people of different genders may get married for no reason whatsoever. Nobody asks them why, unless one is a foreigner. The state sure doesn't.

[HamdenRice]

36. Yes, legally, Constitutionally, it has to be marriage

This is perhaps a difference between any other country and the US -- namely, that this debate is fought out in the context of our peculiar legal context of having a written Constitution with a hundred fifty years of doctrine.

In the US, we have Constitutional prohibitions on certain kinds of discrimination. Contrary to popular belief even in the US, most forms of discrimination are legal.

Most forms of private discrimination, for example, are legal, unless they are specifically made illegal (like the way the Fair Housing Act makes certain kinds of discrimination in renting apartments illegal: you can't discriminate against a tenant because she is a woman, but can discriminate against her because she is a lawyer).

Most forms of public, or government, discrimination, are legal. Government could hardly go on if the government could not discriminate between, say, polluting corporations and non-polluting corporations, or between gas stations and bakeries.

But Constitutional doctrine says that if the government discriminates it must provide a reason. That reason has to be less or more stringent depending on the kind of discrimination. In routine government discrimination (between, say a gas station and a bakery), the government must state a reason that's at least "legitimate." In practice, that means "not laughable." :rofl: That reason must also be "rationally related" to some legitimate governmental goal. In practice that means, “not insane.” :rofl: That test is called the "rational relationship test." A state government that regulates gas stations differently from bakeries could say, gas stations can catch on fire and leach gasoline, and government's legitimate goal is to prevent fires and pollution, and regulating smoking and gas tank integrity is rationally related to those goals. That's enough of a reason and rational relationship.

If the discrimination is based on race, nationality or ethnicity, however, because of our history (the civil war, slavery, Jim Crow), the reason must be "compelling," and the means must be "narrowly tailored" to accomplish that means. That test is called "strict scrutiny." Most forms of racial discrimination (school segregation or employment discrimination) fail the "strict scrutiny" test -- but not all. For example, Supreme Court justices have indicated that if a state discriminated on the basis of race in giving marriage licenses -- providing health outreach awareness to blacks about sickle cell anemia along with the license -- that would pass strict scrutiny. The goal is compelling and the means are narrowly tailored to accomplish the goal. Or if the government discriminated by providing affirmative action in state education, that would pass strict scrutiny.

If the discrimination is based on gender, then an intermediate test is used, called "semi-strict scrutiny." The goal of the discrimination must be "important" and the means "substantially related" to that goal. So, a state may not discriminate in allocating athletic funds to men's and women's state college athletic budgets (what important goal would that serve?) but can discriminate in creating men's bathrooms and women's bathrooms to give the genders privacy.

So the question is: can a state discriminate in the issuance of marriage licenses against gays and lesbians who want to marry? What is the reason? Is the reason rational or compelling? What is the standard?

The fascinating thing about this issue, is that if you read the cases over the last 10 years or so, no state has been able to come up with a single legitimate goal! The cases -- or at least the state's reasons for denying marriage equality -- are unintentionally hilarious. They have argued that men and women have children together -- and the courts say that being gay doesn't make you sterile, that gay couples have or adopt children, and many straight married couples forgo children. They have argued that heterosexual marriage is in the Bible -- and the courts say it's not the state's job to protect religion. Discriminating against same sex couples doesn't even pass the rational relationship test.

State courts seemed to be converging on using "semi-strict scrutiny" as the test for discriminating against gay marriage. After all, it's basically a form of gender discrimination in the sense that presently men can marry women, women can marry men, but men can't marry men and women can't marry women. If marriage discrimination doesn't even pass the rational relationship test, it certainly won't pass semi-strict scrutiny.

The California court applied "strict scrutiny" to find that marriage discrimination was unconstitutional. Some legal commentators were dissatisfied with that reasoning (the civil war was not fought over sexual orientation), but the strict scrutiny test is probably limited to California because of very unique peculiarities of California’s constitutional doctrine. Anyway, it was California’s court decision that was over turned by Prop 8.

At some point in the future, probably with a US Supreme Court changed by Obama appointments, we may see a federal application of semi-strict scrutiny to marriage equality. In the mean time, look for more states to adopt statutes or court decisions that enact marriage equality.

[Creideiki]

46. I concur (one exception and one addition)

The addition is that if we were somehow to end up with legal civil unions and legal marriages, it wouldn't take long before exceptions to the "everything with marriage must also have civil union" thing. We may start from an equal place under the law, but the divergence would be swift and remarkable. Then we'd be stuck in battle after battle to re-amend all the special rights for the marriages. The real only ways out are separation of civil marriage and religious marriage (unlikely) and the addition of same-sex couples to access to the marriage contract. Neither is likely, but at least it would end the divisiveness.

[plantwomyn]

79. separation of civil marriage and religious marriage (unlikely)

Why?
I see it from the opposite side of the coin. Revoke the right of "clergy" to be licensed in the U.S. to "marry" anyone. Marriage can only be done "legally" by an official of the state or the federal government. WE take the word marriage away from THEM. They may "sanctify" a marriage, they may not "legalize" a marriage. Separation of Church and State. Clergy can no longer act as an agent of the state.

Revoke DOMA and ADD a little note at the end that says OBTFW the federal government only recognizes marriage performed by "civil" authorities. Any state that does gets whacked since Art. 4 states "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
See that little bit at the end? Congress may prescribe how records "shall be proved, and the Effect thereof."
Ain't it great.
Now we just have to make them do it.
It's an end around. There will be litigation until the cows come home. BUT....
The FEDERAL GOVERNMENT will be the DEFENDANT! Marriages will start NOW. We all know how the courts work here. By time it gets to SCOTUS, Obama will have changed the SCOTUS and the country would have lived with gay MARRIAGES for a decade.

[Vanje]

84. Nicely laid out.

Thanks for the good explanantion

[Dead_Parrot]

106. Thanks, HR...

...that's filled in a few gaps. Admittedly they now seem to be filled with madness, but it's a start. I guess the question is how to get GLBT rights onto the statute books as "compelling" (without another civil war) - which should be common sense, but that's a rare thing in legal circles. :(

[noamnety]

40. "a conversation between me and MY WIFE"

Try rephrasing that as "a conversation between me and my "domestic partner" - and try living one month solid wording your relationship with her - in every conversation you have with ANYONE - that way. On every form that crosses your desk, when you get to "married" - put a post-it note on the form that you have a civil union because you aren't allowed to have a real marriage.

Anytime during that month that someone calls her your wife or spouse, correct them. If someone doesn't know you at all, refer only to your "partner" and never let on that 1) you are married, and 2) you are straight. If they assume you are gay, run with it - even if it means they think of you differently.

Do that, because when you tell people here to mark every form as "civil union" and always refer to their spouse as "their partner" - what you are telling them to do is announce on every form and in every interaction, even with people they don't know, that they are gay - knowing that we are living in a culture that discriminates against gays, financially, socially, and violently.

At the end of the month, let us know how that went.



Edit to add: You wrote: "although we're both fairly straight I have two mothers-in-law. Insert your own joke here." Why would we joke about that? Why is it relevant that you have two mother-in-laws, and why is it the source of a joke? What sort of jokes would we make?

When you understand the answer to that question, you'll be a little closer to understanding why telling people you have a "domestic partnership" is not the same as saying you have a marriage.

[Book Lover]

58. Tell me, those NZ same-sex couples

Do they refer to their partners are partners, or wives and husbands?

[Dead_Parrot]

88. In my experience, "partners"...

...But it may not be representative. And it's normal for CU'd hetro couples to refer to their "partners", so I guess you take what you need from it.

Mrs_P, and I were CU'd in the UK, and Hand-fasted by good friends: I call her my wife because she is (to me), but Immigration referred to us as "partners" and we took no offense. We're from a slightly different culture.

[TEmperorHasNoClothes]

64. yes, because separate but equal is inherently UNequal

[noamnety]

66. Some background on "the end of discrimination" in New Zealand

also known as "do you want to be married, or do you want to have the same rights as a married couple?"

"Pupils are being prevented from taking same-sex partners to school balls unless they sign contracts confirming they are homosexual,"

from Aug 2008: http://www.stuff.co.nz/4674143a11.html

See, the gay kids have the same exact rights to go to the same dances as everyone else, as long as they sign the appropriate contracts acknowledging that they are different from the "normal" people.

[Solon]

70. OK, WTF?

I didn't know New Zealand was that ass backwards, to be frank about it. The United States isn't much better, in some school districts, even having a same sex partner is enough to ban you from Prom or any other school function. Its happened before. But still, how the fuck do you "prove" you are homosexual? Is this under threat of perjury or something?

[plantwomyn]

82. Please read your link. It also says....

"Rainbow education officer Serafin Dillon knows of four Auckland colleges that do not allow same-gender ball partners unless pupils sign contracts stating their sexual orientation."
There are around 70 Auckland colleges. I'm pretty sure that we in the US couldn't match this percentage, even in CA.

[noamnety]

85. I don't know about colleges in the US on the whole.

I went to one where it wasn't an issue, and my daughter goes to this one - where it isn't even "kind of okay, but let's not talk about it" - it's a bragging point on their website: http://www.marlboro.edu/news/pr/2002/nov/01

So we've been lucky, we've been able to be part of communities like that - but that's not a choice for most people, for people who need to go to schools close to home, or community colleges, or need to work out of high school instead of go to college altogether.

I'm not claiming it's better in the US, though. Gosh no. I'm just pointing out the cluelessness, I guess, of someone trying to hold up New Zealand as a model of how separate but equal isn't discriminatory at all.

[plantwomyn]

92. In NZ college

= high school here. HIGH SCHOOL. I don't think our NZ friend is saying "separate but equal isn't discriminatory at all". I think the OP is more about whether we would accept their solution as close enough for government work. Pun intended. I read the Act and it is quite impressive. I say hurrah for NZ for giving it a go. They are a light year ahead of us. Is it enough. Not for me. As I've said B4, I say take marriage away from THEM .
I cried when I heard about CA both times, when the court ruled and when prop. 8 passed. I was elated when the court ruled. I don't live there anymore but I have many friends who do and intended to go there to get married. I was still elated even though it doesn't do me a hell of a lot of good here in IN. We have aquiesed the fight to a state by state thing and we had a win. Hopefully now we can revoke DOMA and go back to the idea of demanding our federal citizenship.

[noamnety]

93. Ah, high school, college - my mistake

and one I should have copped onto, since I have run into that misunderstanding before, with friends in England.

I am a little belligerent in this thread because of the presumption of the OP, I think, that hey, maybe gay activists haven't considered this entirely unique angle that I have, that maybe civil unions give you all the same rights as marriage, and you shouldn't bicker over a word.

It's just kind of insulting, on a level I'm having trouble putting into words.

[SacredCow]

96. I'm on the fence with this one....

What you say makes absolute sense. But at one time so did: "It's the same water, from the same pipes- who cares if it comes from a different fountain? Why does it matter?" Of course, it DOES matter when the existence of two fountains in the first place denotes that all are NOT equal.

Marriage already IS a civil union. Whether or not it started out as such is immaterial. Other religion-derived ceremonies (ie- baptism, circumcision, confirmation, etc...) are routinely performed. Do I (as a circumcised male) have access to rights and priveleges that other uncircumcised males do not? I'm not aware of any. Marriage, therefore, is well into the realm of government territory.

All that said, and practical guy that I am, I would probably happily accept the civil union compromise. But that doesn't mean that everyone should be (or will be) OK with such an arrangement.

[Two Americas]

97. if I may, Dead_Parrot

Your post has not gone over well here, and you are still expressing surprise about that.

There are some fundamental flaws in your argument, in my opinion. I am going to be somewhat confrontational here, but my bark is worse than my bite and I hope you will give my arguments consideration.

"How about this compromise, folks?" arguments are always inherently reactionary in practical political effect, for reasons I will go into and which are not specific to this issue. I think it is important to ask ourselves - especially as straights - why we feel so compelled to come up with these arguments. I ask this as a person who was doing that before the Warren controversy. I know that I wanted to skip over that question, and was resistant to considering it. "Question MY motives will you? Why, I am 'good' on this issue - really I am - and how dare you say otherwise?"

First, these arguments are based on some sort of "king for a day" assumption, as thought the challenge was to come up with the perfect theoretical solution as though any one of us had the power to decree something into law. That sabotages political activism. The debate here is about what we should be advocating, not what we would enact into law. People with academic backgrounds are especially susceptible to thinking this way, and approach it as though it were an amusing exercise in exploring hypothetical and theoretical "solutions." In politics in the real world, there are no grades or degrees awarded for coming up with the perfect academic solution. That is a place to hide. We place reality over there, in a neat little box, we think, by merely saying "here is my position on the issue, now let's look for a solution" as though we were neutral observers rather than participants in the political struggle.

This discussion is about what we should be advocating, not what we should be coming up with as a clever, impersonal, detached, lifeless academic "solution." We advocate for what is right, for what is true, we should never see what is right and what is true as mere variables to manipulate in order to develop some hypothetical micro-managed plan. The very fact that your argument is clever, impersonal, detached, lifeless and academic is cause for rejecting it. The "I am on your side" protestations don't change that. We stand up and we speak out. Let the politicians do the horse trading and compromising. That is not our job.

"Here is my brilliant solution" line of reasoning is condescending and paternalistic. It establishes a hierarchy covertly at the outset of the discussion that places you, as the technician and analyst, as the wise and presumably cool and dispassionate observer, in a superior position to those who are directly impacted and who are suffering. It makes this "their" problem, that you are going to solve for them, since they obviously do not know what they are doing.

Next, the gradualism arguments, so popular on this and on other issues, are flawed. The idea is that if we go slowly - take baby steps, give some politician a chance, be patient - it will be more productive than some imaginary dangerous alternative - going fast, I guess. But gradualism causes more resistance, not less, and gives a convenient place for outright enemies to lurk and engage in rear guard reactionary opposition. Things may take time, but we should never be advocating going slowly. Discouraging urgency is to argue against progress, and it also trivializes the point of view of those directly harmed.

Then we have the fear of right wing backlash, or fundy resistance, and clever arguments as to how to trick them or get around them. This is particularly reactionary because it grants so much power to the right wing. The key thing to understand about the political right wing and the religious right is that the leaders are lying to the followers, deceiving and manipulating them. If we see the right as a bloc, that we must accept the reality that there are millions of followers of the religious right whom we must take seriously, we have precluded any chance of talking about the lies and the deception, and granted legitimacy to the religious right political movement. we should be aggressively confronting the lies, not compromising with the leaders who are doing the lying.

The leaders of the religious right want us to believe that they have millions solidly behind them, that they speak for millions, but that is a lie and we should not accept it as true. We need to peel away their supporters, and we do that by standing up and speaking out.

Then, anyone who has ever been in a bazaar in the Middle East knows that you never start with the price you would settle for, and you are not obligated to give the seller's initial offer any consideration. Too many here want to start with compromise. This has the effect of continually shifting the political context to the right, since we wind up halfway between our compromise position and their hard and fast extreme position.

Lastly, it is not possible to support the GLBTQ community and at the same time object to who they are, how they are expressing themselves, what they think, and what they feel. The people suffering are the authorities on what they are thinking and feeling, and denying their authority on that is denying their existence in a surreptitious and hypocritical way. "Look guys, I support you, but could you not be so, you know, so gay (angry, aggressive, confrontational, upset, radical, impatient, outspoken) because while I am OK with that - really I am - I am afraid that you will lose support for 'your' cause."

Supporting the cause of GLBTQ equality means supporting who people are, the way that they are, how they feel, what they are thinking, what they have to say, and the way they are saying it - without qualifications and dismissals.

[LostinVA]

98. Oh, what a wonderful post!

If you ever want to be "brave," please post this as an OP in ehre.

Thank you.

[Two Americas]

111. thanks

I posted a revised version here -

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x4739873

[noamnety]

112. Thank you.

First recommendation - from me. :)

[Two Americas]

115. appreciate that

By the way lwfern, have been reading your recent posts - you are on fire. Great work.

[yardwork]

105. Thank you. Great post.

[bluedawg12]

114. Well said! The topic is way too complicated to pretend that it's about a name change.

Call it what you will-but call it the same legal word for all.

[Two Americas]

117. people look for an easy way out

The easy way out, or rather the obvious and simple way out is this - the people who are directly affected say that marriage is what is needed, so we advocate for that and fully support them in that.

Why are people looking for an easy way out that is also in opposition to GLBTQ people? That is a question worth asking. What is the dilemma? Why do they need to get out of it? What is it that is more important - when supposedly supporting equal rights - than actually supporting equal rights?

[bluedawg12]

118. Socially conservative progressives seem ashamed to ally with gay issues.

It seems they have a personal problem *cough* bigotry *cough* and want to frame it in many other ways.

[Dead_Parrot]

116. To be honest...

...it's gone over a lot better than I was expecting: I wasn't aiming for condescending and paternalistic, but I was expecting to hit ignorant - which I've managed magnificently. :) However, there are some great posts detailing the legal wrangling involved, and I think the question of "how do you get equal rights in a country where half the population believe in creationism" is still a valid one: A constitutional amendment seems to be off the cards - too many people are either opposed or don't care - and while some individual states have seen sense, quite a few need to have the idea pushed onto them.

With that in mind, I'm not aiming for a "be less gay" compromise for the sake of it: I'm trying to figure out what might actually work to get basic rights within our lifetimes. Yeah, the end result might look the same, but it's not my reasoning for suggesting this approach. Viewing my motives with suspicion is your perogative, however, and I won't hold it against you or anybody else.

The problem with an all-or-nothing approach is, that quite often you get nothing.

Maybe I'm just being too cynical: I remember attending the anti-war rally in Hyde park many years ago: with around a million other people I stood up for what what was right and what was true on the assumption that, as you succinctly put it, the politicians would do the horse trading and compromising. Look how that turned out.

[Zuiderelle]

124. My god, what a great post!

I am in awe.

Absolutely brilliantly well said.

[AntiFascist]

99. It's not that simple...

the issuance of a marriage license is left up to the state, and in the US something called "states' rights" is considered important, where each state is left with the freedom of determining such things as the minimum age allowed to be married, whether to issue civil unions, or in the case of California, Massachussetts and Connecticut whether same sex marriage is allowed. In California we decided not to go the civil union route and the CA Supreme Court has ruled that a 'separate but equal' solution is not acceptable because it would be viewed as a second class or lower class designation. When the state Supreme Court makes a ruling that powerful, then you're asking a lot to try to get us to back down from that.

[Dead_Parrot]

119. Many thanks...

I wasn't aware of the CA SC ruling: that clarifies things somewhat - although in the light of prop 8, I'm not sure it helps... :(

[AntiFascist]

131. That's what the legal fight to overturn Prop 8 in the CA Supreme Court is mostly about...

The CA marriage ruling determined that marriage is a fundamental right. The state attorney general Jerry Brown, who is supposed to defend Prop 8 on behalf of the state, has come to the conclusion that Prop 8 is unconstitutional because you simply cannot take a Fundamental Right away so easily. Now, within the next 3 months, it will be up to the Yes on 8 attorneys to make their case before the state supreme court.

[Dead_Parrot]

145. Sounds good

How you have a right that is fundamental to all human beings "except for them queers" will hopefully a) bankrupt the bastards in legal fees, and b) turn up a blank.

Fingers crossed. I've learned a lot in this thread, And whilst I can't vote I can use my voice: I'll do so from now on.

[bluedawg12]

113. We're not fighting the zealots - we are fighting for legal justice in Courts.

We are also trying to support legislators who will take same sex marriage to their respective legislatures.

I support reasonable efforts at dialogue - but I don't think we need to waste our breath on stone cold bigots .

Priorities.

[Dead_Parrot]

120. I just want to say a big thank you...

...to everybody who's helped me out on this. My solution my have been somewhat off the mark, but at least I have a better understanding of the problem.

:hi:

[bluedawg12]

123. The right wing is falling apart-let's fight them this time.

Good thread. :hi:

[Chovexani]

125. *sigh*

[bluedawg12]

129. ....

Yes again.
Great pic.

[Dead_Parrot]

143. lol. Sorry.

If it's any consolation, I'm a lot less ignorant now that I was when I posted the OP

[galledgoblin]

140. I would agree, except for two big problems

1) we'd need the word marriage taken out of the laws completely to grant equal rights
2) this compromise would only work if it came from the right

too many on the right don't want to give us equality, period. "I'd be recognizing your deviant behavior" and other bullshit. if enough on the right were logical, reasonable people, then this would work, but too many are old crazies clinging to the belief that their marriages are somehow superior.

[Deep13]

142. I think religious conservatism is a deviant behavior.

Nothing but harm comes from it.

[La Lioness Priyanka]

150. yes, it does.

[ScreamingMeemie]

151. Yes. Yes it does.

If it was good enough for me it is good enough for every human being on this planet. We have to acknowledge that we are all equal in the eyes of the law, entitled to the same rights.

[Left Is Write]

152. Yes. And why shouldn't it be?

There's no reason to jump through legal hoops to grant this or that "right" to same-sex couples. There is a perfectly good legal institution already - marriage. Allow marriage equality for ALL couples. It's that simple (or it should be). Religion need not enter into it at all. Religion has no place in lawmaking.

Gay marriage, straight marriage - how about no labels like that? How about just marriage, period?

[sui generis]

153. I'm an American

I want to be married to the person of my choice.

PERIOD.

I don't need a special set of semantics. I'm an American, marriage will do for me as it does for every other American.

[Left Is Write]

154. Succinct.

And well-said.