A same sex marriage misconception (Please read)

[dsc]

The issue of marriage versus civil unions have been discussed quite a bit due to Dean's candidacy. I am posting this thread to clear up a misconception about what Vermont could and couldn't do in 2000. Many posters are under the impression that Dean could have caused federal recognition of gay marriage if he had opted for that over civil unions. The truth is he couldn't. DOMA forbad it. Here is the relevant text.

"The Defense of Marriage Act (DOMA) does two things. First, it provides that no State shall be required to give effect to a law of any other State with respect to a same-sex "marriage." Second, it defines the words "marriage" and "spouse" for purposes of Federal law."

Most people are familiar with the first part. That is the part many people who favored this bill emphasized. The second part is the one that is relevant here. By defining marriage and spouse under federal law no matter what Vermont did no person inside or outside of Vermont would get federal benefits from a same sex marriage. Barring removal of DOMA via Congressional or Supreme Court action no state, and no Governor can cause federal rights of marriage to be granted to anyone.

Here is my link:

www.lectlaw.com/files/leg23.htm

[dsc]

1. kick

:kick:

[Occulus]

2. We're seeing the precursors

of something chilling; they are the slow, small steps in the direction of requiring marriage for any federal benefits at all, of any kind. Then they'll make it even harder for single people to be single. Why? Well, if there's a universal draft, you'll need plenty of nice, pregnant women to breed the next generation of soldiers, right? </sarcasm> But couch it in a religious context, and the boiling point of blood drops considerably.

Personally, I don't think married str8 people should receive any extra benefits just because they're married; after all, didn't they make a lifestyle choice?

(By the way, it has to be a lifestyle choice according to fundies' logic for anyone to be gay; otherwise, it invalidates part of that Bible thingy. Can't have that.)

Why pass a law that defends a lifestyle choice that 'everyone' can have? Oh- only if you're str8. Forgot again.

Say I'm driving with my man down to Oklahoma and we get in a wreck along the way. He gets free and goes for help, but I'm injured; by the time the ambulance gets there, I'm already unconscious. At the hospital, my mom must be called to make an emergency medical decision. Don's right there, and I'd trust him to do this. I'd even put it in writing. But because it's not codified in law, the hospital may refuse to even let him see me, much less make a life-or-death decision, because we're unrelated and have no legal status. The decision goes unmade, and I die on the table while my mom is in the air on her way to where I am.

So, defending heterosexual marriage (DOMA) can conceivably be a threat to my life. How very nice.

I don't hate being gay. What I hate is the way str8 people (or the hopelessly, vindictively closeted) make it potentially so very deadly for me to be me.

[dsc]

3. It should be noted

that the civil unions bill did grant the right to determine treatment and that depending on where you live you may be able to get that done via a Power of Attorney. You might check into that. I am certainly in agreement that DOMA sucks I just wanted to clarify a misconception.

[outinforce]

4. Actually,

Actually, in the situation you cite, your life would be safe.

This is because hospitals have a legal obligation to do all they can to keep you alive. Same with EMT's.

So, your real concern would be if you did not want any extraordinary measures taken to keep you alive. Your partner, in most cases, would not be able to over-ride the hospital's obligation to keep you alive. If, however, you had signed power of attorney designating your partner as having the power to make medical decisions for you, he would be able to direct your care.

You and your partner do NOT need to be married in order for him to direct medical care for you.

[dsc]

5. Doh

You are so right. I had the legal thing down on one part but forgot the save a life thing.

[Occulus]

10. I... don't think so.

Here's why:

http://www.aclu.org/LesbianGayRights/LesbianGayRights.cfm?ID=9210&c=101

I know, it's the ACLU.

http://www.datalounge.com/datalounge/news/record.html?record=9334

I realize we were talking about just the incident I described above, but here's an article that appears to outline the legal issues quite well:

http://www.valleyscene.com/cover.html

Read and learn, if it's necessary. These issues are very real, and very near and dear to my heart.

[alaine]

8. I love you guys...

It's so nice to even be able to discuss the specifics about what a pain it is to be discriminated against for being gay. Alot of straight people never even have to think about the specifics and things like power of attorney, etc, and I suspect some think gays are whining and getting hung up on semantics.

One thing that is really upsetting to me, in light of all that has gone on since 9/11, is that all these benefits and laws are absolutely usless to gays in the military, because of don't ask/don't TELL, any homosexual person in the military who entered into a state recognized civil union would be kicked out of the military for being gay. What a bunch of hooey.

The frightening thing, too, about car accidents and such is if you don't have your papers with you you may not even be allowed in to see that person, if only family members are allowed. And I once had a nurse in an emergency room absolutely go BESERK and yell at me while my partner who had been in a fender-bender was laying right there on a gurney, for no reason, she just went over the edge when I asked her if my lover would have to stay overnight. When they wheeled C.J. into the room she was staying in, the C.N.A apologized profusely for the nurse's behavior and said she was pretty stunned, she didn't know what would make the nurse act this way. But WE do don't we? Just one more day 'in the life'.

[REP]

27. Marriage Should Give No Advantages or Disadvantages To Anyone

Of course, the way it is now, it does. Until marriage (in the sense of it being an official seal of approval from the state and/or church to screw) is an obsolete custom, everyone should be able to take part it in. I would much rather see the custom have no legal standing, and that anyone can designate heirs, presumed next-of-kin, etc through do it yourself papers that cost less to file than a marriage license.

It makes me angry that I could go through a ceremony that offends me and immediately reap the benefits (as well as its serious drawbacks) while there are many for whom the ceremony is meaningful who can't participate.

It also kind of puzzles me that the same morons who cry about the 'irresponsibility' of the 'gay lifestyle' are the same ones who want to withhold the traditional stamp of responsibility that marriage is.

[Mairead]

6. Sorry, that's not so

DOMA is a clear, obvious violation of the 'full faith and credit' clause in the Constitution --probably the clearest and most obvious violation since the miscegenation laws were struck down. DOMA could not possibly have withstood that test, particularly after Loving v. Virginia.

[dsc]

7. a couple of things

The second part of the statute, that to which I refer actually has nothing what so ever to do with the full faith and credit clause. That would cover the first part. If Dean had confered marriage and say I went to Vermont and married someone and came back to Ohio and Ohio refused to honor that marriage (presumedly citing DOMA) that is a full faith and credit clause case. But the feds aren't covered by that. Also it should be noted that Loving v Virginia went way further than full faith and credit clause (if they even addressed that) they struck all laws barring interracial marriage down on grounds of equal protection. Had the court merely addressed full faith and credit then Virginia could have continued to bad the perfroming of interracial marriages in Virginia but not refuse to acknowledge them when performed elsewhere.

On edit:

Here is the first part of Chief Justice Warren's decision in Loving v Virgina. Note the utter and complete lack of even one word about the Full Faith and Credit Clause. The case was decided entirely upon the 14th Amendment.

LOVING
v.
VIRGINIA
 
SUPREME COURT OF THE UNITED STATES
388 U.S. 1 (1967)



MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

1 Section 1 of the Fourteenth Amendment provides:


"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."

Link will follow.

Here is the link.

http://wings.buffalo.edu/law/bclc/web/loving.htm

To be fair it is you who are wrong on pretty much all counts. I will say that I would hope that if a Full Faith and Credit clause case were to come up we would win it. But all we would win is a marriage right in another state. It would take an equal protection challenge to know out the second part of this law. And Dean couldn't have initiatated it in any case.

[Occulus]

9. Yes, but

were they arguing solely on the basis of the 14th? If so, the full faith and credit question need not be addressed at all.

Correct me if I'm wrong.

On edit: Could someone address the lifestyle choice issue I brought up above? I'm curious to see what you all think of this. After all, there are a lot of benefits being given to married people at the expense of heterosexual and homosexual single people.

The religious right is neither 'religious' nor 'right'. Discuss. :silly:

[dsc]

11. I have no idea

but Justices have no problem finding justifications for things they do regardless of whether that justification has been argued or not. Also I would be pretty amazed if they didn't. This couple (who were the clients after all) would have gotten exactly what they needed with a Full Faith and Credit decision. As to your lifestyle point. I think we should stay away from that since for many the lack of choice seems to be a necessary precondition for our rights (I think that is bunk but too many people buy it).

[alaine]

13. I'm going to go flying wingnuts on you...

...straight into an issue that is very near and dear to my heart. The whole concept of marriage and everything in our culture that relates to it is based on ONE THING: "legitmate" offspring. It began as the buying of a woman with the guarantee that any offspring born by her would be yours. Marriage is based on the violation of civil and human rights since it reduces women to property, anyone questioning this can look at cases of "honor killings" of women in families of Muslim faith, any woman having had sexual intercourse or having been raped, or just having been the victim of a rumor is in danger of being murdered by her husband, brothers, father or cousins, it's also a quick alternative to divorce, start a nasty rumor, and be entitled to kill the wife and move on.

We only have to look at our own dialects to see the remnants of this: words like slut, bitch, whore, etc, plus many epithers for men such as son of a bitch, bastard and mother fucker.

The curse of humanity is it's insistence on patrilineality, that is why the sodomy laws outlaw any sex that does not lead to reproduction, heterosexual and homosexual combined. It never was about virtue or bigotry, it was about property rights and rightful heirs and estate issues. The more things change, the more things stay the same.

It is so telling that these laws were about property issues, not the romantic dilemnas of the common man. It has been suggested that there is a lot of spin in the old testament about the social status of the early Hebrews; that during the time of the first few chapters of the old testament they may have well had an aristocracy, rather than having been wholly enslaved and impoverished as they were portrayed. I lean to this interpretation because why all the insistence on property laws and such over-arching social control if there was no property to inherit?

[alaine]

14. I don't know if you want just any answer, or one

from the person it's addressed to, but I took a whole page of notes on this thread and wrote down the web-site, it's not just drifting out in cyber-space. I wasn't replying to the legal-ese because it is way over my heard, but your efforts are greatly appreciated.

[dsc]

15. thanks

I was mainly addressing him but admit that I am a little ticked that some of the Dean bashing claque aren't reading it. I figure that within days we will be hearing this again and they will innocently say who me what thread? etc

[Mairead]

21. I probably should have quoted

the part to which I was responding, your "By defining marriage and spouse under federal law no matter what Vermont did no person inside or outside of Vermont would get federal benefits from a same sex marriage. Barring removal of DOMA via Congressional or Supreme Court action no state, and no Governor can cause federal rights of marriage to be granted to anyone."

My point is that, had Vermont (or Hawaii) gone for actual marriage, then the DOMA/FF&C conflict would have compelled a hearing by SCOTUS, at which point Loving would put paid to DOMA altogether. DOMA could not withstand a Loving test any more than it could withstand a FF&C test.

[dsc]

22. We may like that to be true

but no Supreme Court decision has ever held that Equal Protection applies to gays and lesbians (O'Conner's concurence does for the purposes of the sodomy law but her concurence is not controlling). The Issue 2 case kinda, sorta, looked at it. In any case there are different levels of scrutiny applied to Equal Protection tests depending on what characteristic is being discussed. Race gets strict sructiny while gender gets something less. Where sexual orientation would fall is anyone's guess. It should be noted that when this issue came up the Bower's decision was still controlling (as was a decision regarding a Cincinnati version of Issue 2 which upheld a repeal of gay and lesbian rights via a city charter amendment). No legal commentator could have predicted the scope of the Lawerence decision nor its 6 to 3 margin. Without that the other precedents showed no likelyhood of an equal protection argument being taken seriously.

[Mairead]

26. That's true. But sometimes things happen that haven't happened before

And a good predictor might be how egregious a failure to do the right thing would be.

I think the Five Felons...two of them at least...have realised that they allowed Scalia to completely consume the Court's stock of respect and goodwill during Coup2000, and that another such decision would find them fleeing quite a lot of people armed with torches and pitchforks. Whence the recent 6-3 decision reversing Hardwick.

So, it seems obvious to me that, given a FF&C wedge to get the issue on the docket to begin with, the parallels with Loving are so strong that the Court could not fail to recognise them if they wanted to avoid the aforementioned T&Ps.

But you can disagree if you like. I need to go on to other things.

[dsc]

12. an answer to post 7 would be nice

it took awhile to do.

[Mairead]

20. Strange as it might seem to you

I don't keep the same life schedule that you do. :)

[dsc]

23. I posted that after at least 5

replies on the pot thread from you which were time stamped between my posting of post 7 and my posting of that post. If you don't believe me I will point them out to you. Your implication that I posted this while you were not on DU is nothing short of pervacation.

[Mairead]

24. I apologise. I can see that my implication was too oblique

My intention was to gently remind you that you and I are not the same person, and so you're bound to be disappointed if you expect me to have the same priorities you do.

[jiacinto]

16. Thanks

Thanks for the cliarification.

[dsc]

17. Mairead

I am more than a little disappointed. You accuse me in post 6 of being wrong I go to no small effort to prove my point and get no response at all despite close to a half dozen posts in the marijuana thread. I think I deserved better.

[dsc]

18. over 90 responses on pot and less than 20 on this

:kick:

[dsc]

19. kick

kick

[Aaron]

25. Ty good info to have n/t