Wrong. The proposed amendment would define marriage throughout the United States, at every level: national, state and local.
Federal law already does this.
It completely eliminates individual states' alternative solutions, like civil unions or domestic partnership. It's an amendment to take away civil rights. Completely. It's a morally repugnant and people should be ashamed of themselves for supporting it.
And so you'd support it if it only allowed states to make the determination for themselves and not have to recognize marriages that they themselves do not allow?
I'm not a lawyer, so I can't get into it much further.
I can.
Marriage is a social contract between 2 people, a contract that imposed certain legal rights and obligations on its participants. It has a number of historic justifications, many of which have been rendered obselete by other changes in the law.
For instance, one of the key rights it confers is that of inheritance. This was important because way back when, only married women could OWN PROPERTY. It also imposed a duty on the husband to support his wife (keeping in mind that way back when, women couldn't work and were wards of their fathers until they married). Obviously, these restrictions on women no longer apply, so these justifications ceased to be relevant.
THe other major justification for marriage was the promotion of children. Remember, way back when a women's body belonged to her husband (e.g., under common law it was impossible for a man to rape his wife). And a marriage was not "legal" unless the woman was a virgin (in fact, the man would have a civil claim for damages against the woman's father if she wasn't, on a "fraud" theory). THus, in a society where a woman was expected to be a virgin until marriage, marriage became basically a condition precedent to children). This promotion of children was one of the reasons why congress first permitted the concept of joint tax returns, the thinking being the married couple should pay less money in order to have more money to have and raise children).
Under constitutional law, the right to marry is a "fundamental right", up there with freedom of speech, religion, right to bear arms, etc.
Now, in order for a gay couple to demonstrate that the law is discriminatory, they would need to demonstrate that they are being denied access to that fundamental right on the basis of their sexual orientation, and that the state has no compelling/rational reason for denying them that right.
The real question is which standard, if its "compelling" then gay marriage will likely prevail, if its "rational" then gay marriage will likely fail.
The reason is that the government can clearly meet the "rational reason" test. To wit, the only tangible benefits denied to gay by virtue of their being unable to marry are (1) inheritance, (2) right to make medical decisions and (3) right to certain tax benefits.
With respect to inheritance, they can simply execute a will. With respect to medical decisions, they can get a power of attorney. These may be additional hoops to jump through, but neither is "so oppressive or onerous" to convince a court in my opinion.
So that leaves us with tax benefits. Its undeniable that me and my wife get certain tax benefits that my gay neighbors do not. However, if the government can demonstrate that it has a "rational" reason for making this distinction, its consitutional. And, in my opinion, that rational reason is the promotion and rearing of children. Fair or not, me and my wife CAN POSSIBLY have a child of our own, whereas my gay neighbors cannot. Yes, they can adopt, but thats not the issue, the issue is the CREATION of children. Certainly the promotion of children comes within the general police powers of the state, hence it has the right to regulate, and if it has the right to regulate, the policy of offering these tax benefits to heterosexual, married couples is rational. It may be UNFAIR, but that is not the same thing as unconstitutional (take affirmative action...its clearly unfair to someone, but its currently considered constitutional in most forms).
If, however, the court decides that the tax benefits are "fundamental" to the institution of marriage, it will likely apply the "compelling" standard, in which case, the current policy most likely fails, since its not narrowly tailored to the promotion of children since its offered to ALL married couples (even those that are medically infertile).
History will look back on those who supported it as unkindly as it looks back on slave owners and civil rights (women/blacks) opponents. Only those blinded by their won hatred fail to see this.
But the fact remains:
The state has the right to define marriage as it pleases.
You dont like it. Talk to your state rep/senator.
Home
Help
Search
Login
Register
Send this topic
Print
Topic: 1 reason not to vote for John Kerry (Read 17489 times)
