California Supreme Court rules on same-sex marriage

[topaz]

"Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional."

Comments

[lhn.livejournal.com]

Though signatures for an initiative to amend California's constitution have already been submitted (http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/04/24/MNIF10BFT8.DTL) and are going through the verification process, so the ultimate outcome won't be known till November at the earliest. (And may, as in the case of Michigan, wind up worse than the status quo ante.)

[docstrange.livejournal.com]

The question of whether "separate but equal" with constitutionally-protected (state or federal) categories is such a good plan (never is, but hey, there it is at every turn) keeps coming up every place "We" keep enshrining things that are inherently unconstitutional (state-con, or fed con, depending). It's an interesting process. We have yet to slough off a lot of contradictions that went under the radar, or argued under the rug in the 1700s, and again after the 14th A.

The ideal system IMHO would be for the state to give ONLY civil unions to *everyone* on a simple, non-discriminatory basis, as a limited contract between two parties, which contract the state officially recognizes. Leave religion (or lack thereof) to the people. I have a lot of friends whose religion either would "marry" them but where the state won't recognize it as a "marriage" (hello, state in religion business!); or where the religion would not "marry" them, but where the state happily would call their state-issued union a "marriage", pissing off at least two of them who want their union official state-wise but don't want to go about pretending they just pulled one over on their religion, which they still hold pretty dear (Catholic in one case, Jewish in the other).

Not to mention the awful game of playing up the "marriage" word as an equal access item when it's a smokescreen for a religious issue being played out in state government.

In the '50s-60s it was racial discrimination enshrined in state law that finally bubbled to full public attention. Now it's the vestiges of religious doctrines being enshrined in government functions, a holdover from 15th C. England which - alas - the founders barely even noticed. About time it's getting a hard look-at.

[zsquirrelboy.livejournal.com]

Woo! (There's enough thoughtful response already.)

[alanj]

Yayyyyyy

[lhn.livejournal.com]

The ideal system IMHO would be for the state to give ONLY civil unions to *everyone* on a simple, non-discriminatory basis, as a limited contract between two parties, which contract the state officially recognizes. Leave religion (or lack thereof) to the people.

The fact that this generally comes up quickly in any discussion of same-sex marriage is, I suspect, one reason that many people who don't mind civil unions or extension of benefits are so defensive against broadening the concept of "marriage", so-named. Remove/weaken the religion and the cultural tradition components of marriage, and the logic is compelling-- and it's pretty clear that most people in a fair number of states don't want to move in the direction of that logical conclusion.

I've favored legally recognizing SSM for all of my adult life. But the inevitability of this suggestion in any discussion of it has forced me to admit that the people who see it as a threat to marriage as an institution have a point. If it's going to happen legislatively rather than judicially (and most places it's going to have to, now that so many states have enacted legislative/constitutional roadblocks), I'd guess that convincing the majority of voters that this isn't step one to a bright future of relationship-neutral civil unions for all is going to be necessary. Failing that, packing the US Supreme Court is going to wind up the only way to go.

(At least till the fraction of the population that's married or wants to be drops substantially. But at that point, same-sex marriage becomes sort of a moot point anyway.)

[harimad.livejournal.com]

I, honestly and truly, don't understand why a traditional marriage type feels threatened by someone else's untraditional marriage. I would be grateful if someone could explain. Take all the time you need, don't sum up.

I, too, am in favor of separating "religious marriage" from "secular union." Persons of any number, gender, or sex who want the secular benefits of being permanently and legally associated with each other, register for a secular union. This gets them different tax treatment, default medical power of attorney, inheritance rights, parental rights, etc. Persons who want a religious blessing on their association must meet the requirements of their religion of choice. Is this so hard to understand?

[lhn.livejournal.com]

Your second paragraph answers your first. Right now, marriage exists as a legal institution that conveys various rights and privileges. In my experience, any discussion that begins with expanding the definition of marriage rapidly proceeds to destroying that legal institution, possibly replacing it with a legal institution that's indifferent to the essential characteristics of marriage. (Whatever one thinks those characteristics may be-- that's something that can be discussed at length, but the people who think that children are the key, the ones who think a sexual relationship is, the ones who think it's about love, and the ones who think it's about cementing family alliances can all cheerfully choose to stick with marriage as currently constituted.)

So it's not irrational to see same-sex marriage as the first step on a slippery slope that ends in the deinstitutionalization of marriage. The idea isn't a calumny invented by reactionaries, it's enthusiastically embraced by a vocal subset of those initially presented as on the side of expanding marriage.

It's not that the replacement of marriage with a flexible legal union is hard to understand-- it's that most people, at this point, don't want their marriages replaced with a nonspecific union. They believe that marriage means something more than a generic legal partnership. And that shouldn't be all that hard to understand, either: isn't the symbolic weight carried by legal recognition of marriage the precise reason that Massachusetts-style same-sex marriage is preferable to Vermont-style civil unions to many people? Legal recognition matters to people.

Among those who consider marriage an important legal institution, some are willing to go so far as to make the participants in that relationship centered on love/sex/childrearing/whatever-they-consider-important gender-neutral, as long as it stays otherwise more or less the same. On the other hand, if allowing people of the same sex to marry each other is just a signpost on the road to losing marriage as a matter of law for everyone, then the simplest answer is to just say, "No, thanks." Relatively few people not otherwise affected are going to be interested in destroying the institution in order to expand it.

[lhn.livejournal.com]

Persons of any number, gender, or sex who want the secular benefits of being permanently and legally associated with each other, register for a secular union. This gets them different tax treatment, default medical power of attorney, inheritance rights, parental rights, etc.

Same-sex marriage is a legally simple matter-- now. Back in the days of couverture, when "husband" and "wife" were very legally distinct statuses, that wouldn't have been the case. But the heavy lifting has been done, and I can't think of a lot of contexts in which it legally would matter what sex a given spouse was. SSM may be hard to enact, but it's dead easy to administer.

"Any number" basically requires drafting a whole new family law code. I'd want to see the specifics before expressing an opinion on it. (I'd also guess that if one were under consideration, FLDS-types, traditionalist Muslims, and other religious proponents of traditional patriarchal polygyny might well outnumber egalitarian polyamorists among those lobbying, though I don't know if there are good numbers for either group.)

[harimad.livejournal.com]

But there's nothing in my proposal stopping (most?) persons from getting married. All they need is a religious institution willing to say "You are."

As for the "extra" step of having to get a civil document as well, it's not actually extra, it's a current requirement. A marriage license is a civil document that gives an officially designated person the permission to marry you. If you're having a religious wedding, that person is the minister.

In my experience, any discussion that begins with expanding the definition of marriage rapidly proceeds to destroying that legal institution, possibly replacing it with a legal institution that's indifferent to the essential characteristics of marriage....So it's not irrational to see same-sex marriage as the first step on a slippery slope that ends in the deinstitutionalization of marriage.

Can you expand, please. That's not the usual conclusion of my discussions of marriage. (Plus I hate slippery slope arguments, they're disingenuous.) What are the essential characteristics of marriage?

This is not an empty question. I'm not sure what the essential characteristics are, despite my married state. I got married[1] largely because my partner wanted to and partly because the permanence of a legal arrangement appealed to me. My proposed secular union is just as permanent as marriage is constituted today.

[1] As opposed to a functional-equivalent-thereto.

[harimad.livejournal.com]

You make a very good point about all the heavy lifting being done for any two persons marrying each other. As I am unwilling to let the "perfect" be the enemy of the "good enough" and you make more good points about the variety of current plural marriages, I'd be content (for the moment, at least) if marriage/union could encompass any two persons of legal age and decision-making maturity.

[harimad.livejournal.com]

PS - I'm sure that worldwide, polygamous Muslims outnumber all other types put together.

[lhn.livejournal.com]

But there's nothing in my proposal stopping (most?) persons from getting married. All they need is a religious institution willing to say "You are."

Right now, marriage is a legal status as well as a religious one. You can tell people that shouldn't matter to them as long as they get the rights, but the fact is that it does. Your proposal abolishes that unique legal status, and instead assures people that they can call themselves "married" just like they can call themselves "Duke of Gloucester" or "King Under the Mountain". Meanwhile, they can also enter into a generic union not unique to marital relationships.

It's a perfectly coherent proposal. But abolition of marriage as a legal institution isn't something that most voters want. Linking the expansion of that legal institution to its elimination pretty much frames same-sex marriage as a Trojan Horse.

In my experience, any discussion that begins with expanding the definition of marriage rapidly proceeds to destroying that legal institution, possibly replacing it with a legal institution that's indifferent to the essential characteristics of marriage....So it's not irrational to see same-sex marriage as the first step on a slippery slope that ends in the deinstitutionalization of marriage.

Can you expand, please. That's not the usual conclusion of my discussions of marriage. (Plus I hate slippery slope arguments, they're disingenuous.)

Not when the slippery-slope is being advocated outright. If a common reaction to the prospect of expanding marriage to same-sex couples is "Yay! Hopefully one day "[p]ersons of any number, gender, or sex who want the secular benefits of being permanently and legally associated with each other [will be able to] register for a secular union", it's not unreasonable for voters who don't want that to wonder if they're letting the camel's nose in the door by granting the first.

(In any case, slippery slopes are hardly unheard of in this context. In the 70s, ERA advocates dismissed fears that it would require allowing SSM. Massachusetts' equivalent was used for just that purpose.)

What are the essential characteristics of marriage?

It doesn't matter what I think they are. As I tried to indicate in my previous post, there are different, sometimes overlapping and sometimes conflicting ideas. One couple may believe that marriage only makes sense in the context of children, another may consider it primarily in terms of sexual exclusivity, another as a religious duty. They can have a rollicking argument over which marriages should be legitimate ideally, what circumstances should permit its dissolution (if any), which marriage laws are central and which compromises. But they'll still form a united voting bloc on the question of whether marriage is/should be a unique status enshrined in law.

Most of those actually think that it should be heterosexual-only, as witness the poll results. But even among those who are persuadable otherwise, few of them are going to be interested in having their marriages (current or prospective) replaced at law with a generic contract that might be entered into by a brother and sister or a mother and daughter in order to simplify their tax filing. Call it an irrational attachment to an archaic, arbitrary, inconsistent standard. That's still the electorate you have to reach.

Insofar as that vision is linked to "marriage-as-is, but for gay couples", it costs the latter support. There's no inherent connection between the two; it's also possible to believe that marriage has a particular social value that calls for legal recognition, while believing that same-sex couples and the community would benefit from their having access to it. (E.g., stipulating the conservative positions that marriage is beneficial to community stability, helps prevent poverty, ensures the welfare of children, etc., it makes sense to want those benefits extended to same-sex couples, their families, and the communities they live in.) But in practice, proposals to get the state out of the business of recognizing marriage tend to come hard on any discussion of modifying the qualifications for marriage. Which suggests that people who don't want the state out of that business are, perhaps, correct to be suspicious.

[lhn.livejournal.com]

Certainly. I was thinking in terms of US voters. I'd still guess that in the US advocates of some form of patriarchal polygyny, mostly religious, would substantially outnumber more egalitarian poly communities if the issue became politically live. But that's a gut feeling; I don't know offhand how many of either there are.

[browngirl.livejournal.com]

I read all the comments before I wrote this one.

I still think this is an excellent move towards equality.

*cheers*

[harimad.livejournal.com]

This has become a side topic but I wonder... I'm certain that there are many supporters of egalitarian polyhood who are not practitioners. Do you think/have reason to believe that there are supporters of patriarchal polygamy who are not practitioners?

(For the polygamists who believe men can't get into heaven unless they have at least three wives, what about the other two men who can't marry at all? Does the religion explicitly require (or recognizes that it requires) 67% of men to go to hell?)

[lhn.livejournal.com]

This has become a side topic but I wonder... I'm certain that there are many supporters of egalitarian polyhood who are not practitioners. Do you think/have reason to believe that there are supporters of patriarchal polygamy who are not practitioners?

There are certainly some. There are people who believe in patriarchal polygamy (henceforth "pp") on a religious basis but have no personal desire for a second wife or a sisterwife. AFAIK, traditional Islam permits up to four, as long as the husband can treat them equally, but doesn't actually demand it. Some Islamists therefore might be expected to believe that the law should read likewise, and argue for legalizing pp on that basis. I'd guess you could find a minority of Biblical literalists who believed likewise. Given that people don't automatically reject a religion because it treats them badly, presumably some fraction of the boys ejected by FLDS-type sects continue to believe in the Principle as a religious mandate even if they can't put it into practice. (And while modern Mormonism strongly rejects the idea, along with most modern Mormons, there's presumably an interface between the people who actually drift into schismatic sects and those who are thinking about it, sympathetic, or who just suspect that the church's decision to get rid of it was more pragmatic than revelatory.)

There's also a religious freedom argument for recognizing traditional pp that's less strong as applied to egalitarian poly (hence "ep"), especially among people whose sympathies are aligned with traditional religions. The argument that something okay for Abraham, Muhammad, or Joseph Smith can't be inherently bad-- so that it should be legal even if one isn't going to do it oneself-- is going to be more powerful to a large segment of the population than the argument for a complete innovation is. (AFAIK, there's actually no religious prohibition on polygamy for Sephardic or Yemenite Jews (http://www.faqs.org/faqs/judaism/FAQ/04-Observance/section-55.html)-- some Yemenite Jews reportedly believe that the Torah requires polygamy. I don't know how many American Jews of those heritages would actually favor pp, though-- I've never met one who would, but I don't know a lot of observant Yemenites either.)

Beyond that, there's just the fact that in common parlance pp is what "polygamy" unmodified means. (Understandably-- it is, overwhelmingly, the most common pattern of polygamy historically.) Everyone's heard of pp-- I've had to explain what polyamory is to a friend who's been out as a lesbian for fifteen years. (I.e., someone who's thought more about sexual identity than the overwhelming majority of Americans, has probably marched in Pride parades with people who were poly, and generally had more opportunity to hear about the issue than most people have.) Supporters of ep have to come from that relatively small number of people who've heard of the issue. I'd guess more people have an opinion on pp at all, for or against, than do regarding ep.

(For the polygamists who believe men can't get into heaven unless they have at least three wives, what about the other two men who can't marry at all? Does the religion explicitly require (or recognizes that it requires) 67% of men to go to hell?)

AFAIK, the LDS-offshoot sects only say that men need three wives (and women need to be part of such a marriage) to reach the highest level of heaven, not to be saved at all. (Basically, as I understand it-- possibly badly-- said patriarch basically gets to be to a newly created world what God is to this one.) A sect sufficiently on the fringe of a fringe to consider it central to salvation probably isn't sweating the math that much. It's also sort of peripheral, given that 99+% of humanity is outside the sect and therefore likely damned-- if everyone started hearkening to the message, doubtless the Lord would provide somehow. (Or not-- I make no strong claims for my ability to fully comprehend someone six standard deviations off the norm.)