Gay Rights, the Law and Politics

[Green Gaia]

I know, I know.. I hear you all groaning.. "Not another thread about THIS topic!" But I promise, this is different. I want to focus on the LEGAL and POLITICAL aspects of BGLT rights and those who would deny them. So, for this thread, and this thread only religious arguments such as, "Gays should have no right to marry because my religion says homosexuality is a sin," will not hold water here, you'll have to do better than that. If you want to argue that gays are immoral because your holy book says so, we have threads already for that, I will point you towards them if that's all you want to say. I want to hear LEGAL reasons why BGLT people should not be allowed to marry, adopt, or be protected under hate crime and discrimination laws.

Now, I know those who would deny BGLT people these rights often site their holy book as a reference to why they feel the way they do. That's fine for their opinion. But in order to make laws there has to be a more compelling, unbiased agrument. For example, the Bible says, "Remember the Sabbath and keep it holy." What if a politician decided he was going to outlaw all work on the Sabbath and require everyone to go to church on that day? He would probably have some followers, but by and large he would be laughed out of office. He would have to have a better reason than, "my holy book says so" to make a compelling argument for this.

So, we are going to use this same logic for this thread. Give me LEGAL reasons why it is or is not OK to discriminate against BGLT people and don't use your religious book. Also, give your opinion on what impact BGLT rights will have on the election this year.

 

[Alaric]

Here are a few letters published in The Economist, in response to its article about (and endorsing the rights for) gay marriage, that made me think that maybe the case for equal rights between hetero- and homosexual marriage isn't quite as open-and-shut as I thought:
From www.economist.com:

SIR – You implicitly assume that the quintessential feature of marriage is sexual gratification. Wrong. Procreation and socialisation of children within the family provide the sole justification for the institution's unique status in society. The stigmatisation of homosexuality is unacceptable but the contemporary urge to equate homosexual and heterosexual unions probably has its origins in the inability of modern societies to live comfortably with the phenomenon of homosexuality. To offer marriage reflects the search for legitimisation of homosexual unions—but there are other and better paths to the same end.

Richard Tilly
Dettelbach, Germany

SIR – Your case for gay marriage misses the point. The real issue is whether its people or its courts will rule America. The vast majority of Americans do not support gay marriage. For the courts and elected officials to force this change upon everyone else is profoundly undemocratic.

A federal marriage amendment that forbade the courts from requiring gay marriage but permitted the people to enact it through referendums or their legislatures is most desirable. But if you choose to support taking this path through the courts, then you are advocating a more noxious form of inequality, one that grants unequal power over an entire society to the special interests favoured by an activist elite judiciary over the interests of the masses.

Jeffrey Burk
Washington, DC

SIR – For many years there was no dispute over the definition of marriage in America and it was convenient for the states to use the term to describe the legal union of a man and a woman. However, in most states these are in fact civil unions. In the Catholic church, for example, marriage is a religious sacrament carrying no secular legal significance. Massachusetts does not recognise a religious marriage ceremony performed without benefit of a state-issued marriage licence. Conversely, two people joined in a civil ceremony are not married in the eyes of the church. Perhaps the states should abandon their use of the religious term “marriage” and instead adopt the more accurate “civil union”, thus respecting a true separation of church and state.

Gregorio Corrado
Dover, Massachusetts

SIR – American law should not allow government officials to perform marriage rituals. Government should license civil partnerships just as it does business partnerships, in which the sexes of the partners are unimportant. Partners would be free to seek a religious marriage. Some churches would perform gay marriages, some would not. Controversy concerning gay marriage would be between religious leaders and not involve officialdom.

Donald Gerber
Stockton, California

SIR – The support for a constitutional amendment banning gay marriage may be one of the rare times George Bush has got it right. To legalise gay marriage would be to give too wide or simplistic an interpretation to equality rights and go too far in undermining collective or societal wellbeing, to which these rights must sometimes be subordinated. Gay marriage will, among other things, erode a fundamental institution, namely the family, because marriage often is about children. Furthermore, although marriage has been weakened, nothing proves that expanding it would actually make it stronger or that gays would be less inclined than their heterosexual counterparts to divorce or cheat.

Dimitrios Nassios
Montreal

 

[Mr Spinkles]

SIR – The support for a constitutional amendment banning gay marriage may be one of the rare times George Bush has got it right.

Whoever said this, I completely disagree. This is one of the things Bush has got wrong....though, to be fair, he is only appealing to how the majority of Americans feel....although the majority of Americans feel wrong about this issue, i.m.o.

This is precisely why the founding fathers created a seperate judiciary...it's one of many safegaurds against a tyrannical majority.

 

[Bastet]

SIR – You implicitly assume that the quintessential feature of marriage is sexual gratification. Wrong. Procreation and socialisation of children within the family provide the sole justification for the institution's unique status in society. The stigmatisation of homosexuality is unacceptable but the contemporary urge to equate homosexual and heterosexual unions probably has its origins in the inability of modern societies to live comfortably with the phenomenon of homosexuality. To offer marriage reflects the search for legitimisation of homosexual unions—but there are other and better paths to the same end.

The problem I have with this argument against gay marriage, is that it assumes that homosexual couples don't want (or can't have) children, or to raise a family. An extremely erroneous assumption. There are many ways for gay women and men to bring children into their lives, and raise them in a loving environment.
Quite apart from that, what about heterosexual couples who don't want, or can't have children? Do you ban them from marriage as well? I have a good friend who has chosen not to have children, for her own reasons, and I'm sure she'd be pretty pissed to have someone tell her she shouldn't be allowed to be married to her husband because she's not procreating. :roll:

SIR – For many years there was no dispute over the definition of marriage in America and it was convenient for the states to use the term to describe the legal union of a man and a woman. However, in most states these are in fact civil unions. In the Catholic church, for example, marriage is a religious sacrament carrying no secular legal significance. Massachusetts does not recognise a religious marriage ceremony performed without benefit of a state-issued marriage licence. Conversely, two people joined in a civil ceremony are not married in the eyes of the church. Perhaps the states should abandon their use of the religious term “marriage” and instead adopt the more accurate “civil union”, thus respecting a true separation of church and state.

Quite frankly, I couldn't give a rat's *** anymore if I were married in (or by) a church, or not. I want a legally recognised union, that will allow me and my partner all the rights and responsibilities that heterosexual couples enjoy. If taking the word "marriage" out of the law and making it purely a religious ceremony that holds no legal weight, and demanding everyone (gay and straight), has a civil union to be legally recognised is the only way to stop this stupid argument, then I'd go along with that. Separate church and state, and be done with it.

 

[Mr Spinkles]

One argument against gay marriage is that if people of the same sex can be married, why can't men of certain religious denominations marry multiple women? This is difficult to address...part of me feels that freedom of religion dictates men of these religions must be allowed to marry multiple women.

 

[Alaric]

Good point, Spink! It seems the important thing about marriage is the legal implications - two people effectively become one financial (and in some ways legal) unit. Imagine a mob family all marrying each other to avoid having to testify against one another in court!

 

[Bastet]

Next you'll be telling me gay marriage is a short step away from someone marrying their dog. :roll:

 

[Mr Spinkles]

Bastet-- for the record, I support the right for gay marriage. I'm just bringing up possible legal problems.

I think ultimately, the argument that marriage is what culture/society defines it to be is the strongest argument. Culture and society have changed recently, however, and more people are open to changing the traditional view of marriage to include same sex couples.

 

[Green Gaia]

These same arguments were used by those who opposed interracial marriage. They were not valid then, and they are not valid now. Same-sex marriage, like heterosexual marriage, would consist of two consenting adults. There's no reason to believe that same-sex marriage will lead to pologamy, legalized incestuous relationships, anyone marrying their animal or anything of the other atrocities that people can think up, anymore so than heterosexual marriage already does.

I agree with Bastet on if people are so hung up the word "marriage" fine, don't call it "marriage" but you have to make civil unions equal in a legal sense to marriage and be done with it. It's the fair thing to do. Those opposed to same-sex marriage can feel better that gays cannot get "married" instead, they can only get civil unions. But same sex couples will have the rights they are fighting for. Truly, from most of the people I've talked to, we don't care what you call it, we want the legal rights to protect our families.

Are there legal reasons that some would oppose this course of action?

 

[Alaric]

Exactly.
Except, how is hetero or homo marriage different from polygamous or incestuous marriage? Two or more consenting adults, 'celebrating their love' etc... what right does the state have to forbid any kind of marriage whatsoever?

Are there legal reasons that some would oppose this course of action?

Does anyone know what marriage means, legally? Then we could see if there might be some potential problems.

 

[Green Gaia]

Exactly.
Except, how is hetero or homo marriage different from polygamous or incestuous marriage? Two or more consenting adults, 'celebrating their love' etc... what right does the state have to forbid any kind of marriage whatsoever?

It is very different from polygamous or incestuous marriage. In hetero and homo marriage there are only TWO consenting adult people. To deny same sex marriage because of what who might want what next, is not fair to the legitimate concerns of same sex couples.

Does anyone know what marriage means, legally? Then we could see if there might be some potential problems.

I will look this up and get back to you.

 

[Green Gaia]

Marriage Rights and Benefits

Tax Benefits
Filing joint income tax returns with the IRS and state taxing authorities.
Creating a "family partnership" under federal tax laws, which allows you to divide business income among family members.

Estate Planning Benefits
Inheriting a share of your spouse's estate.
Receiving an exemption from both estate taxes and gift taxes for all property you give or leave to your spouse.
Creating life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.
Obtaining priority if a conservator needs to be appointed for your spouse -- that is, someone to make financial and/or medical decisions on your spouse’s behalf.

Government Benefits
Receiving Social Security, Medicare, and disability benefits for spouses.
Receiving veterans' and military benefits for spouses, such as those for education, medical care, or special loans.
Receiving public assistance benefits.

Employment Benefits
Obtaining insurance benefits through a spouse's employer.
Taking family leave to care for your spouse during an illness.
Receiving wages, workers' compensation, and retirement plan benefits for a deceased spouse.
Taking bereavement leave if your spouse or one of your spouse’s close relatives dies.

Medical Benefits
Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility.
Making medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.

Death Benefits
Consenting to after-death examinations and procedures.
Making burial or other final arrangements.

Family Benefits
Filing for stepparent or joint adoption.
Applying for joint foster care rights.
Receiving equitable division of property if you divorce.
Receiving spousal or child support, child custody, and visitation if you divorce.

Housing Benefits
Living in neighborhoods zoned for "families only."
Automatically renewing leases signed by your spouse.

Consumer Benefits
Receiving family rates for health, homeowners', auto, and other types of insurance.
Receiving tuition discounts and permission to use school facilities.
Other consumer discounts and incentives offered only to married couples or families.

Other Legal Benefits and Protections
Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).
Suing a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these laws are available in only a few states).
Claiming the marital communications privilege, which means a court can’t force you to disclose the contents of confidential communications between you and your spouse during your marriage.
Receiving crime victims' recovery benefits if your spouse is the victim of a crime.
Obtaining domestic violence protection orders.
Obtaining immigration and residency benefits for noncitizen spouse.
Visiting rights in jails and other places where visitors are restricted to immediate family.


As it stands now, civil unions come nowhere near providing most of these benefits.

 

[Alaric]

It is very different from polygamous or incestuous marriage. In hetero and homo marriage there are only TWO consenting adult people. To deny same sex marriage because of what who might want what next, is not fair to the legitimate concerns of same sex couples.

No, but that doesn't answer the question. If the concerns of same sex couples are legitimate, what would make illegitimate the claim of a guy for the right to marry his nine adult brothers? In order to resolve this debate, you need to come up with some fundamental principle, or definition, so we know where to draw the line. I personally don't think that society has a right to make emotional-type decisions on who can or cannot marry - the argument needs to be based solely on practical legal concerns. I mean, there is nothing necessarily nasty in a guy marrying his nine brothers, because in all likelihood it would only be to take advantage of the legal status. And that might allow for abuse. Though even that shouldn't mean it should be banned, it just means there are measures that need to be taken to prevent abuse.

 

[Lightkeeper]

We have laws against incest and multiple spouses. I don't see the problem here.

 

[Alaric]

Well you also have laws against gay marriage! That's the whole point!

 

[Mr Spinkles]

I don't know about you, Alaric, but I am noticing a bit of hypocrisy here. On the one hand, the traditional view of marriage is that it is between a man and a women. Maize thinks this traditional view holds no water at all. I agree.

On the other hand, Lightkeeper seems to be saying that marriage has to be between between only TWO people, because that is what the law says. What if a man is in love with multiple women, and multiple women with him? No, she says, because the traditional view of marriage and the law state that marriage can only be between TWO people.

Forgive me, Lightkeeper, but this is a bit hypocritical. You reject the reasoning against gay marriage, but embrace the same reasoning against polygamy. I think polygamy should probably be legal as well, I do not see why not. Who are you to tell someone the definition of love/marriage, after all? Would multiple-spouse partners 'threaten' your right to have only one spouse?

I see a lot in common between the fight for gay marriage and the fight for polygamous marriage....both are not part of the traditionally accepted view of marriage.

 

[Green Gaia]

I have to tell you Alaric, that I'm having a hard time coming up with a reason against polygamous marriage. It's not my thing, and I would say that would be the shared view of most people, but if it is between consenting adults, then I really don't see a problem with it. But that's just my opinion. Perhaps if/when same-sex marriage is allowed that will help the cause of those wanting legal polygamous marriage, but that should not be a reason to deny same sex couples the right to legal marriage.

As for abuse of the system, that happens now with heterosexuals, so yes it would have to be addressed, but is still not a reason to deny legitimate rights to same sex couples.

 

[Fra.Morelia]

EDIT: sorry for the double post, the Marine Computer System is living up to it's knuckledragging namesake....

It basically boils down to this: There is a (suppossed) seperation of Church and State in this nation, so thus all laws derived from a religious standpoint vice a moral standpoint should be done away with. Gay marriage offends someone? Great, but some things offend me to no end, but I am still beaten down with them everytime I leave my house. The constitution promises us many things, but freedom from being offended is nowhere on the list. Polygamy? Would never work for me, but as I support gay marriages I can't say a thing against it. A lot of straight people do things that are considerably more 'perverse' than any homosexual/polygamist could dream up. What bothers me is that these people are being denied their union based on a religious standpoint. That is wrong. Flat out wrong. In fact, it is bloody well unconstitutional.

 

[Fra.Morelia]

double post

 

[Alaric]

It's just that you can take the idea quite far, have some real fun with it, like I started to do before - imagine that adult consent was all that was needed, and a whole community decided to mass-marry one another, so that everyone was married to everyone else. When one died, their savings would be distributed among everyone else in the community. Noone could be forced to testify against anyone else. And if one decided to get divorced, then everyone's wealth would have to be tallied up, and the one divorcing the others would get his or her one-umpteenth share of the total loot. A veritable socialist paradise! Usually, polygamy is one man and a number of women - the women are married to the man, not each other. So imagine same-sex or part-same sex polygamy - a bunch of men, perhaps with a few women, who are forced to share their wealth in life and death with one another, not testify against each other, etc... great for a street gang, everyone becomes financially and legally one with the leader!

So, marriage is a bit like a business relationship between to people, seen from the state's point of view. The people involved may or may not see it differently. So how about this for a solution: Any number of consenting adults can go to the courts and apply for a financial and legal contractual arrangement which suits their needs, and which need to be investigated and approved by the local authorities based on a number of potential concerns; maybe insurance companies have a say as well, I don't know. As for actual marriage, this should be a purely religious thing, and they too should have to submit a petition to the authorities asking permission to have their marriages legally recognized. So for example, a Muslim mosque might submit a request for the legal recognition of their marriage, which is a contractual agreement between a male and female to share wealth, childraising etc, but perhaps including a clause saying that males have the right to ask for divorce, but the women don't. Then the local authorities decide that this is a breach of equal rights, and deny it. In which case Muslims getting married in the mosque will still be married religiously, but this contract will not be legally recognized by the state.

In order that there isn't a huge backlog of individual requests, pre-approved 'templates' will be made, so when I want to be with a girl forever, I'll get down on one knee, and present a contract and say, "Will you make me the happiest man in the world and sign civil union 16B with me?" And then her lawyer will get together with my lawyer and work out the details. *sigh*... so romantic...

It's just seems a bit hard to explain the rational basis of marriage other than that two people want to be together, they need some kind of legal recognition of their union, and the traditional rules seem to do it. As soon as you start actually thinking about what it really means, then it's a little more complicated. Maybe society just has to say, "Alright, we'll accept same-sex marriages, but after that, let's just give it a rest, huh? So you hillbillies and Mormons will just have to accept the need for some kind of social hegemony."