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Overturning Prop. 8
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maryskl



Joined: 25 Apr 2009
Posts: 354
Location: Alabama

PostPosted: Mon Aug 16, 2010 6:35 pm    Post subject: Reply with quote

Sterling_95 wrote:
maryskl wrote:
What are the reasons for not calling civil unions "marriage?" I have YET to hear one. [/b]


Tee has offered you one and so has dick and so have I. Marriage as it is defined right now is for men marrying women, and if civil union grants the same rights and privileges, what's the deal?

***Sorry it took me so long to respond. I was out of town getting my youngest daughter settled into her college dorm. I will try to clarify since we seem to be arguing at cross purposes. I am an attorney. When I say a "compelling reason," I mean a LEGAL reason. Just saying marriage has traditionally been defined as one male/one female is NOT a compelling reason legally if we are dealing with infringing upon someone's fundamental/civil rights. In order for the government to have the power to interfere with those rights, there must be a reason that trumps their civil rights. When regulating the marriage of minors, the courts would state that the compelling reason is to protect the minor against sexual predators (safety and welfare), to make sure they are entering into a legal contract/marriage with full understanding of the actions they are taking, etc. A minor could petition the court and if they provide enough convincing evidence, the judge could rule them an emancipated minor and therefore legal to enter into a marriage contract. I am not sure I agree with the legal bar against polygamy although I would disagree with it personally. I think if the issue were revisited with the right court, that decision might stand a chance of being overturned. The rationale given over 120 years ago was that having two spouses would disrupt the harmony of the home and place the multiple wives at a disadvantage. At the time, the court felt that was enough of a compelling reason (the welfare of the parties involved).

SO...in order to show that the government has the right to deny homosexual couples the same rights as heterosexual couples, they have to state a compelling LEGAL reason to deny those fundamental rights. A judge might cite tradition in a rationale, but that would have to be accompanied by a legitimate interest that the government would have in denying those rights.

In Plessy v Ferguson, the court stated that separate but equal education was justified because black children were being given an equal education compared to white children. That decision was later overturned by Brown v Board of Education of Topeka and the court stated that having separate school systems was inherently unequal. I would think a similar argument could be made about gay marriage vs. gay civil unions. Insurance companies might write in the fine print that they only acknowledge "marriages" and not "civil unions." As long as there is a distinction in definition, people will try and find a way to use that distinction as a tool of discrimination.


Quote:
Oh come now Sterling. You KNOW that using pedophilia as a comparison plays to people's deepest fears and prejudices. It is disingenuous for you to claim otherwise. You are correct...laws do change. However, as a progressive nation we try to enact laws that protect the powerless from those who would abuse them. Do you truly foresee us lowering the age of consent to 10 years old? I am not having a knee-jerk reaction. I am calling you on a sly insinuation that is designed to influence people on a subliminal level.


Look, this debate can get heated enough without flinging ad hominem insults and rude aspirations. Trying to tell someone that you know what they think better than they do is always the beginning of a conversation going downhill. I thought being progressive meant being open-minded, accepting of differences and new views and willing to consider other views. You could have just politely told me that the comparison is too loaded for objective argument, please switch it to something else. I would have done it. Fine, I'll compare it to brother-sister marriages. Consenting adults, no allegation of abuse, no one hurt except possibly children of the union and risk of genetic defects doesn't apply since deaf and blind people are allowed to marry.

My apologies.

Quote:
Driving a car is not a right. It is a privilege. In order to gain that privilege, you must abide by the regulations set out by the licensing authority.


Marriage is a right, but driving a car which you purchased with your own money and driving on your own time is a privilege? There's no law when you apply for a driver's license that says: "I agree to always wear a seat belt".

The constitution is silent about any right to regulate driving. Case law states that citizens have a right to travel, but not that they have to travel by car or to be the ones driving. Since the Constitution has been silent on this issue and it is not specifically spelled out in the constitution, the 10th Amendment gives the states the right to regulate it. State laws say that states have the right to regulate who can legally drive. In most, you must be 16, pass a vision test, written and driving test in order to be licensed as well as having a valid tag. If you abuse your "privilege" (i.e., DUI, speeding tickets, etc. the state has the right to take your driving rights away). Once you are married, the state cannot come in and say you are now unmarried because one spouse was unfaithful or the other abused their spouse. The only way the government might declare a marriage void would be if it was not legal to begin with.


Quote:

You do realize that the Reynolds v US case was adjudicated in the 1890's. We might get a different outcome if a case were brought today.


Yes, I know.

Quote:
As far as the Photographer case, it has not been heard yet. Only filed. We do not yet know the outcome.


http://www.pdnonline.com/pdn/content_display/photo-news/photojournalism/e3i7d41666c039b61afd8e22025e08c07a8

Sorry...did not look closely enough. However, the ruling goes along with the original rationale using the Interstate Commerce Clause in conjunction with the Civil Rights Act of 1964 to prevent businesses from denying goods and services based on race and ethnicity.

Quote:
Would you agree that if someone's religious convictions forbade them from selling shoes to black people that civil rights laws should kick in?


As a matter of fact, I wouldn't. I support the Muslim woman who sued a clothing store after she was fired for wearing her hijab on the job. I support Navajo tribes for forbidding non-Native Americans to participate in tribal activities.

I would probably agree with you on the Muslim woman, although the issue of employment is a different one from a consumer. There is no compelling reason for a non-Native American to participate in a Native American tribal activity AND that is also not an issue of commerce, it is strictly one of religion. Denying someone the right to goods or services based on race, religion, gender or ethnicity would violate the Civil Rights Act of 1964. What if there were only one hospital in a community and that hospital refused to admit fundamentalist Christians? Or what if it were the only shoe store, or auto repair, etc.?

Quote:
If a guarantee were written into a federal law that church leaders would not be compelled to perform wedding ceremonies for gay couples, would that ease your mind?


That would depend on whether or not they write in a clause saying that financial enforcements such as higher taxes, revoking tax exempt statuses, etc.


[b]??? I am not sure about your meaning in the last paragraph. Churches are not required to pay taxes now by virtue of the IRS regulations (501(c)(3)). As far as revoking tax exempt status, churches are on shaky ground right now with their political activism. As a body they can speak to issues but not endorse candidates (individual members can say and do what they want). Many violate this all of the time, but that is another issue for another time. The Establishment Clause protects churches from the interference of the government. I am not aware of any case that has compelled a church to admit someone as a member of that church. Plus, a church ceremony is not necessary for a marriage to take place. It is a religious service and without a government issued license, it is not a legal ceremony. Therefore a religious ceremony is not crucial to the state of matrimony and the government has no reason to compel a church to marry people against their beliefs.
[/b]
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Sterling_95



Joined: 04 Oct 2008
Posts: 212

PostPosted: Thu Sep 02, 2010 4:29 am    Post subject: Reply with quote

maryskl wrote:
***Sorry it took me so long to respond. I was out of town getting my youngest daughter settled into her college dorm.


That's fine. I haven't been around either.

I hope that you don't mind, but I'm going to try to keep things brief. I originally had a reply formatted with quotes and sections and everything, but it ended up being a monster post, and I don't want to be the poster that ate the thread.

Answering your first point: I would have to see how international law manages to ensure that civil unions are on parity with marriages, because as I said before, the majority of countries pass that rather than marriages. As far as I understand, this is for custodial purposes, because "mother" and "father" are often specifically cited during cases. I agree that a clause would have to be written in to ensure that separate yet equal could be enforced. However, it can be done. Have you handled any adoption cases? I'm thinking of how adoptive parents and birth parents are described under the law, yet both can be accorded the same level of rights in terms of custody.

Secondly, I appreciate the apology and I apologize if I offended. That was not my intent and I should have changed analogies as soon as things started to get heated instead of getting defensive.

Third, I think the link that I provided to the NPR article describes my concerns in here. It's always a fine line to walk in enforcing the rights of the customer vs the right of the business, but there are 3 questions that can help determine things:

1. Are other businesses or alternatives available to the party being denied?
2. What is the risk/harm to the business? The consumer?
3. Will there be a significant health or lifestyle detriment if the business denies this party?

Going by this logic, a hospital that forbids fundamental Christians from receiving medical treatment would be in violation. However, if a patient requests elective genital circumcision (a practice with clear cultural and religious roots), the hospital can refuse without facing discrimination charges.

Likewise, with churches, despite the Establishment clause, lawsuits have already been launched and courts have already stepped in where they are not supposed to go. As Tee astutely noted, pushing into areas where other people have clearly drawn their boundaries will just bring the other side to push back as hard as they can, and then both parties start shoving each other under water, while thinking the other is trying to drown them.
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KarenS



Joined: 23 Mar 2007
Posts: 870
Location: Florida

PostPosted: Mon Sep 13, 2010 10:20 am    Post subject: Reply with quote

Some of my gblt friends want to be married while a few others would prefer to be united in a civil union. I am surprised how religious many gblt folks are in light of how cruelly they are treated by their religious brethren. For some reason they want the marriage vows and the blessings of a minister. Others want nothing to do with religion at all and who can blame them. The problem is that civil unions are not on par with marriage in regards to insurance, employee benefits, and most of all being recognized as a legitimate couple. So the courts (most likely the Supreme Court) will have to rule on this issue. Hopefully parity will be given that will satisfy every one.

Even now no one can be married without the marriage license. If it's not produced at the time of the wedding the minister is unable to "marry" the couple regardless of their sexual orientation. He can do the service but can't say the official words that makes the marriage valid. So it all goes back to the government determining who is marriage material. Sounds like government intrusion to me.

If two people are in love and committed to each other they should have the right to be together in a government sanctioned relationship. Call it marriage, call it civil union, just give every one a level playing field.
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Mark



Joined: 22 Mar 2007
Posts: 1390

PostPosted: Thu Jun 27, 2013 8:37 pm    Post subject: Reply with quote

Well, SCOTUS has ruled (sort of). They avoided a strong ruling, but their way of ducking effectively finishes off Prop 8.
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KarenS



Joined: 23 Mar 2007
Posts: 870
Location: Florida

PostPosted: Fri Sep 06, 2013 8:51 am    Post subject: Reply with quote

SCOTUS will need to address the "Full faith and credit clause" so that each state will honor and recognize the official acts of other states. Once this happens same-sex marriage will be official in every state. Hopefully SCOTUS will respond appropriately.
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