Tag Archives: Fourteenth Amendment

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New Essay: “A Contract of Love”

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Categories: Essays, Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Gays are not very gay when it comes to the issue of marriage. In most states, they are not allowed to marry. In some of those states, civil unions offering a smattering of the same rights married couples enjoy are allowed. In a tiny minority of the United States, homosexuals are granted full marriage rights equal to heterosexuals. Gays and lesbians are upset in the states that offer no legal standing for their relationships because this relegates them to second-class status. They are simply not treated in like fashion to their straight peers. Some homosexuals are unhappy in states that offer civil unions as a supposedly equal alternative, claiming these unions don’t offer the same host of rights married couples enjoy. Others are angry they are branded with a different term, seeing a civil union as not equal to marriage in that the difference in language creates a prejudice against them, even if the union grants them the same set of rights as a married, heterosexual couple. Some straight couples, on the other hand, are upset the laws governing their marriage have changed. They see granting of marriage rights to gay couples in the states they’re allowed as fundamentally changing the nature of their heterosexual marriage. Other straights are angry they did not have the option of a civil union, instead being pressed into a marriage, which has a different social expectation attached. Furthermore, some heterosexuals are frustrated there’s a debate over gay marriage at all; they would prefer sexuality remain a topic that stays “behind closed doors.” In response to these varied – and often conflicting – frustrations, federal and state government officials have proposed numerous pieces of legislation in an attempt to balance the wants of their constituents. In 2004, opponents of gay marriage even proposed a Constitutional amendment to ban any marriage not between one man and one woman (Kuykendall). Yet, for every new proposal, a new round of angry condemnations and frustrated protests emerges. Lawmakers are in a fight they cannot win; they can’t please all of the people all of the time. Based on the frustration and anger generated on both sides of this issue, it’s evident a rational solution that works in the interests of most citizens must be found. The best solution to the issue of gay marriage is for state and federal government to replace current marriage regulations with domestic partnership agreements for all citizens.

Domestic partnership agreements would be structured in much the same way that business partnership agreements are set up now. In the simplest terms, a domestic partnership agreement would be a legal contract recognized by state and federal government as binding the parties for the purpose of creating and maintaining a shared household. The agreement would stipulate who is party to the agreement, the rights and responsibilities of the partners, and how changes to or dissolution of the agreement would take place. As with any contract, parties to a domestic partnership agreement would have to be legal adults. A domestic partnership could have more than two partners, provided all parties were in agreement with the arrangement. It’s also possible a person could be party to more than one domestic partnership, but this could present legal challenges depending on the wording of the individual agreements. Like a business partnership, a domestic partnership would have certain minimum rights and responsibilities conferred on the partners: right to make binding decisions on the partnership’s behalf, responsibility to act in the partnership’s best interests. Provisions could be added to the domestic partnership agreement allowing for other marriage-like rights and responsibilities, such as medical power of attorney and required monogamy. If the partners wished to amend the existing agreement, they would have to enter into a new agreement that supersedes the current partnership, or they could have stipulated a process for making changes to the agreement in the original contract. If one of the partners violated a provision of the domestic partnership agreement, the other partner would have cause to sue them for breach of contract in civil court (divorce).

Granting access to domestic partnership agreements to all citizens addresses the concerns of homosexuals that their relationships have no legal recognition. Domestic partnership agreements put homosexual relationships on equal footing with heterosexual ones, at least in the eyes of the law. The two-tiered system of civil unions and marriages would be cast aside in favor of a system that treats everyone as equals. Even if the pre-existing civil unions and marriages had like rights, the language in a domestic partnership is the same, thus eliminating the subtle prejudice the difference in words creates. Heterosexuals who are already married would see little change in how their marriage is treated for legal purposes. Their existing marriage would be converted to a “standard” domestic partnership agreement. For straight couples looking for a legal recognition of their relationship, but adverse to a traditional marriage, the domestic partnership agreement provides a handy solution to their dilemma. Further, for those who prefer such topics remain “out of sight, out of mind,” allowing domestic partnerships for all creates a veil of uniformity by eliminating the dichotomy between civil unions and marriages. From a legal standpoint, no one will care that the names on the partnership agreement are Bob and Mike. Finally, the domestic partnership solution eases pressure on politicians. They can allow the gay marriage debate to move from the legislative chamber back to its rightful place – the pulpit. Marriage is a religious institution made legal. By eliminating marriage from the public policy sphere entirely, politicians can focus on legislation that tackles critical issues with real impacts on people, such as the economy.

Of course, there will be objections to any change in marriage laws. Some will oppose changing marriages to domestic partnership agreements on the ground that what we have now is good enough. These objectors will claim the current system works fine, and just needs a few tweaks. They will oppose such a radical shift in our policies as disruptive to the status quo. These objectors are right: such a tectonic shift in American laws on marriage will disrupt the existing order. But, as we’ve seen in our country’s past, sometimes such a radical swing in policy is needed to exact social justice. Without intercession wildly opposed to popular opinion, yet just and fair, women in the United States would not be allowed to vote, and blacks would still be property – only 3/5 a person. Other objections will come from the religious right. They claim marriage as a holy institution that must be protected from those who would pervert it. They will also decry homosexuality as abhorrent and sinful, and that state sanction of homosexual relationships erodes the moral standing of our country. As anti-gay-marriage activist Brian Brown puts it, “… the marriage issue is the last frontier in the fight [to protect families and ensure religious freedom] …ultimately, same-sex marriage is not true” (Conant and Maloney). By enacting domestic partnerships for all citizens, the objections of these religious dissenters can be overcome. First, marriage is a religious doctrine, and as such should be debated in the appropriate forum – church. The free exercise provision of the First Amendment to the Constitution allows religious factions to determine for themselves whether or not to perform a religious marriage ceremony for homosexuals. Free exercise and free speech also grant religious individuals the freedom to speak out against homosexuals as sinful, abhorrent, and morally lax. The equal protection clause of Amendment XIV, however, grants gays and lesbians those same rights. Further, it affords homosexuals the right to equal legal recognition of their relationships.

Domestic partnership agreements are the rational solution to the gay marriage debate. They would afford equal protection to gay and straight couples, eliminate the controversy surrounding the use of the word marriage to sanctify homosexual relationships, and separate the legal recognition of a relationship from the religious one. As noted in her essay “The President, Gay Marriage, and the Constitution: A Tangled Web,” Mae Kuykendall writes “our Constitution as written supports gay marriage.” However, by taking the word “marriage” out of the debate, many of the opponents of same-sex rights would be silenced. Consenting adults would be granted the privileges and duties spelled out in their agreement with their partner(s): polygamists, homo- and bisexuals, and heterosexuals would all be equal under the law. Existing marriages would be largely unaffected by a shift to domestic partnerships, and politicians would be freed to tackle more pressing issues. For these reasons, a change from marriage defined by the state to domestic partnership agreements contracted between loving, consenting adults is needed.

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Straight Eye for the Proposition 8 Guy

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Categories: Politics, Tags: , , , , , , , , , , , , , , , , , , ,

I, for one, hope that the ban on gay marriage in California remains overturned. I’m really looking forward to getting gay married. I’ve been straight married for almost six years now, and it’s been great, but I bet Tiffanie and I would be even happier if we were gay married.

In all seriousness, Judge Vaughn Walker’s decision should be celebrated by all Americans. As the judge noted, the Constitution of the United States of America indicates

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.

I’m no lawyer or scholar of Constitutional law, but I’m pretty sure that means that if one group of people has a right to do something, all groups of people have that same right.

Social conservatives may not like it, but gay Americans are still Americans, and are thus entitled to equal protection. It doesn’t matter if homosexuality is a choice or biologically preordained. It doesn’t matter if one’s religion views it as abhorrent or not. It doesn’t even matter if it’s called marriage or civil union.

What matters is that a tyranny of the majority was struck down. The Federalist papers foresaw something like this happening over two-hundred years ago and railed against it. Yet today Maggie Gallagher, chairwoman of the National Organization for Marriage, thinks “our Founding Fathers… would be shocked by courts that imagine they have the right to put gay marriage in our Constitution.” Really, Maggie? First, California’s Supreme Court ruled that the original ban on same-sex marriage violated California’sConstitution. Second, because Prop 8 revoked a right homosexuals already had, it became a federal matter under the proviso of Amendment XIV. I think the Founders would have been thrilled to see the system they cobbled together work exactly the way it was supposed to. You forget, Mags; the Framers were notorious libertarians and state’s-righters.

I had to laugh this morning when a spokesperson for the Proposition 8 supporters encouraged people to read the Constitution, where they would find nothing about same-sex marriage rights. Interestingly enough, there’s also nothing in there about hetero marriage either, probably because it’s not the federal government’s fucking [pun intended] problem.

I applaud the Governator for not sending California’s Attorney General to defend Prop 8 in court. You know you’re on the wrong side of history when a conservative, lame-duck, Republican governor with nothing to lose won’t back you up on banning marriage between consenting adults.

Remember, kiddies, it’s supposed to be by, of, and for the people. Especially the “for” part. Here’s to one little victory.