Another gay marriage topic: theories of possible futures.

[tedoll78]

First, I think that this is the last stand of those who oppose equal marriage policy. They know that the younger members of the U.S. population are much, much more liberal than their elders. So if this fails, a Constitutional ban on equal marriage policy (I think) will be dead for good. Marriage cases will make their ways through the court system, and non-equality laws will fall state-by-state.

Second, if it passes, it passes for good. There will always be enough of a GOP minority to block a new amendment repealing this one. But there would still be a way to make a victory on this topic in the future - we'd simply change the fight into one that makes government get out of the marriage business entirely. We could press for laws to change the word "marriage" to "civil unions" everywhere in the text of the law; states could be compelled to comply by various means. We will indeed have enough of a majority to see that such a change could pass through, and such a change would in effect make legal marriage a relic of the past.

Where do you see this going?

[Nicholas D Wolfwood]

1. No way it passes

I don't see them getting 2/3 of the House of Reps voting for this, even if by some miracle it passes 3/4 of the states.

Edit: I just want to note the whole thing is just a diversion from the real issues because Bush can't fight on those.

[MsUnderstood]

2. The future is so bright I have to wear pink. . .

I see that this is election year Amendment is BS and the hype will go nowhere.

I see that Prop 22 in California will be overturned as Unconstitutional (based on California constitution, not US Constitution)

I see that the East and the West Coast will allow marriages (California and Mass) and will marry couples from other states.

I see the couples who married in those states returning home to challenge the LACK of benefits their state provides and send a court case to the supreme court.

I see the next Democratic President appointing 2 supreme court Justices who overturn the DOMA act (when hearing the court case above) and in doing so pave the way for federal rights related to gay marriage.

I see a bright future, because anything less would be too depressing!

[happyslug]

3. Will die within a biblical generation (40 years)

The reason is the Business community will use the "Homosexual Marriage Right" to cut out the much more expensive right of Children and heterosexual spouses to medical care provided to such family members of an employee. Furthermore I believe the push for such "Homosexual Marriage Rights" is being supported the GOP who plan to use it as a wedge issue in not only this election but in future elections. Once these are either done or defeated "Homosexual Marriage Right" will cease to be an issue. To understand what I mean we have to understand what is meant by "Equal Protection of the Law" AND how such "Equal Protection" is being used to push for The right for Homosexuals to marry.

"Equal Protection" means people is similar situations should be treated the same under the law. The rational up to now opposing Homosexual marriage has been based on the concept that the law treats everyone the same, you can only marry someone of the opposite sex.

The Homosexual marriage movement is based on concept that it is a violation of equal protection to prohibit any two people to marry. Thus since two people of the opposite sex can marry why not two people of the same sex? As far as that argument goes it is a logical argument. The problem is what is the next "Bright Line" in the law? Where do we stop "marriage"?

Under the Common law marriage was between two people of the opposite sex who were not within three degree of blood. Furthermore under the Common law, a spouse was NOT a heir to their spouse. Through spouses did have "spousal right" to get something on the death of their spouse. Spousal Right differed between male and female. The male has no right to his spouse's property unless a child was born to the marriage. If a child was born than he had right to her property for his lifetime. A female was entitled to 1/3 of her husband's property doing the remainder of her life (No need for a child to be born).

The difference between the treatment of wives and husbands seems to be that the Courts in the Middle ages did not want to have widows on the streets so widows were entitled to 1/3 of their late husband's property (thus the widow was entitled to 1/3 of her husband's property).

Husbands on the other hand had to fulfill all and any military duty tied in with the ownership of the land (even if it was his wife's land) and as such had 100% use of it (This was so he could use the proceeds from the land to pay for his equipment). Remember the Middle ages tied in land ownership with military duty. That military duty was NOT transferred to the mere paying of taxes till the time of the Tutors, long after the above laws were the laws of the land.

Even with the transfer of military duty to the payment of taxes by the Tutors (In violation of Magna Carta) the above "Spousal right" remained the law in most states till the late 1800s. In the late 1800s and into the 1900s the movement was to treat husband and wives the same. Generally this was done by preserving only the wives 1/3 right to her husband's property and than giving the same right to the husband. This is generally the law to this day (Through some states have different rules). That is a spouse is NOT an heir to their spouse, but is entitled to the "spousal right" generally of 1/3 of their spouse s's property.

Now starting with the 1970s other "rights" of spouses started to be given to spouses. For example most businesses restrict who can attend a funeral to blood or married relatives. Medical benefits are restricted to children or spouses. Insurance would only be paid to blood relatives or spouses. Note these are benefits that are the product of CONTRACT not the marriage itself and it is these CONTRACT rights that is the excuse for the claim for the right of Homosexual to marry.

Since the States made the change making the rights of Husband and wives equal under the law, except for contracts with employees, the states have made no changes in decades as to the rights of spouses.

So why are the gay community pushing gay marriage? I have my suspicions but the claim is to be treated as equals to other long term couples. Since the law does not forbid people living together (Given the recent Supreme Court Decision in all states) the issue being claimed being in violation of Equal Protection are the right under contract given to a "Spouse".

Thus the rationale being used today is that if a contract (employment or other) gives a spouse any rights, the partner of a Homosexual who is a party to that contract should be treated the same as a spouse. i.e. to be called a "spouse" and treated as a "spouse".

This is the main problem, the rights being claimed are rights of a spouse set by CONTRACT not LAW. There are no laws requiring your employer to provide medical coverage for your spouse, or to permit you to go to your spouse's funnel. Those rights are product of Contract and the Homosexual community wants such contracts to always include their partners as spouses.

Now that we see the push is for uniform enforcement of CONTRACT law, i.e. the sex of the spouse should not matter, how does "equal protection" prohibit discrimination in who is your spouse? The common law did, but is that restriction a violation of a Homosexual couple's right to equal protection of the law?

The court's have addressed equal protection by first deferring to the Legislature the right to differ between classes of people. Most equal protection violation claims reflect a dispute with a legislative classification that the court view as violating someone's right to equal protection of the laws. One way for the Courts look at in equal protection cases is whether such classifications were permitted under the Common Law. Next did such classification violate a right in the Constitution. Next the court looks at the reason for the classification and is the reason for the classification rationale?

To demonstrate what I mean let me give a couple of examples. If a State Legislature would to set one set of law for black people and another for white people, such a law would be a violation of the 13th amendment even through such classification were permitted under the Common Law. The violation of the Equal protection would be clear.

Another example is that children have a different set of laws regarding being out after dark than adults, such classification difference have been upheld as NOT violating the right to equal protection of the laws by such children.

Another example is that people who wear glasses can not be pilots, the rationale is weak (it goes back to the days of the open cockpit of WWI days, when it was justified) but the courts have upheld such a ban even in today's days of completely enclosed planes. The Courts tend to defer to the Legislature when it comes to classifications, as long as some rationale is given for the difference in treatment.

In Vermont and Massachusetts the State Court have ruled that the existing legislative classification that only people of different sexes may marry is a violation of Homosexuals rights to equal protection of the laws. Please note no FEDERAL court has made such a ruling, these are state ruling relying on their state constitutions.

This is where I see this movement for Gay marriages dieing within 40 years. Simple put where will this line of legal reasoning end? Let me show how it can go.

First - If it is a violation of the right to equal protection for the state to prohibit a gay couple from marrying, it is a violation of the right to equal protection for the state to prohibit a gay couple from marrying even if their are siblings.

Second - If it is a violation of the right to equal protection for the state to prohibit a gay couple who are siblings from marrying, it is a violation of the right to equal protection for the state to prohibit two siblings from marrying even if their are of the same sex and are not homosexuals (Marriage is something more than for procreation and thus once procreation is NO longer a factor in marriage, why can not siblings be treated as married even if they do not have sex with each other given that if their were homosexuals they could be treated as married?)

Third - If it is a violation of the right to equal protection for the state to prohibit a two people who are siblings from marrying, why stop there? Why not extend it to a commune as long as everyone eats together and act as one big family?

Do not laugh this off, Under the Common Law you had two bright lines, first was "Of the Blood". The second was "Of the House". "Of the Blood" meant blood relatives with a special exception for a spouse but that right was restricted to a spouse who had (or may have) a common blood relative (their Children).

"Of the House" survives as "Employee/Employer law. This was when you had people acting in the name of owner of a house (generally a castle in Feudal times) and the owner of the house was liable for the action of such a servant. This survives in the law where the act of an employee can be used to sue his employer for the employee's acts. This is the next "bright line" in the law. A "bright line" that will be opposed by the business community for while the business community really does not care for permitting gays to go to their partner's funerals, or even pay the Homosexual partner's medical coverage (For these are low costs to most businesses), extending such rights to people who live in their employee's homes will be opposed (the costs will be extensive given the move to multiple generations in one home that has been ongoing for the last 20 years).

All of the above can be avoided by ruling that "equal protection" is limited to the right to marry someone of the opposite sex. The courts and the legislature will be pushed by the business community to restrict who can be considered a "Spouse". If you expand the right of being a "spouse" to include homosexuals is it not also a violation of someone's equal protection of the law to be denied being treated as a spouse even if they live together just because they DON"T have sex? The easiest divide is the existing one, but if the court do wonder into expanding who is a spouse, where will they stop? Given that the next "bright line" is to limit it to people in the same house, will the business community tolerate such an expansion? I do not think so given the costs involved. Thus this expansion of who is a spouse will have to be stopped and I fear at a place more restrictive than today limits (For more details see below).



Now why is "Homosexual marriage" coming to a head today? I see no movement in the state Legislatures for such "Homosexual marriage (unlike France and Europe where such a push is on-going and even passing their legislatures).

Given the right to Will to whoever you want, a homosexual can Will his or hers property to his or her partner. Thus inheritance is NOT the reason. In those companies that want to keep Homosexual employees, the rights of "partners" is slowly being added to employment contracts. Why the push through the Courts? I have two possible explanations (and may be a combination of BOTH).

First - Bush wants to break up the Democratic Party by dividing people who oppose such Homosexual marriage from those people who want them. This is the divide and Conquer attitude. Bush might think that their are enough Democrats who will vote against Homosexual Marriage rights (and thus vote for Bush) if Bush can paint the Democratic Party as being "pro-gay marriage".

Second, the Business community wants to cut medical insurance costs. One of the main costs of Medical Insurance are the costs to insure spouses and children. In most cases the cost to insure one spouse and children exceeds the costs to insure the employee (remember the employee has to be healthy enough to work to be hired, his children and spouse do not have to be, thus the costs to insure children and spouses are higher than just for one employee for such family members can be in need of more health care than the employee).

If "Homosexual Marriage" is adopted, pressure will build to eliminate state mandates that if you insure an employee, you must insure his (or hers) spouse and children. This pressure will be from people who do not want to insure "Homosexual partners" and would prefer to eliminate the obligations to insure family members under the guise of "Not providing Insurance to Homosexuals".

There already a problem of employers pushing health care costs onto their employees, with the advent of "Homosexual Marriage" it would be easier for employers to say "we will only insure our employee, his or her spouse and children are NOT covered".

Remember the above is NOT because the Business Community does not want to cover the partners of homosexual, but that the Business Community will use such potential coverage as the EXCUSE to cut back on payment for family members of employees.



A variation of the above is a push to end spousal support payments. The Courts have for centuries accepted that fact that a man benefits from a marriage for he has a wife to do any errands for him while he is working, thus improving his productivity (This was one of the reason for Wives to get 1/3 of her husband's estate, because she earned it doing all the small things a wife does for her husband). If he had no wife, he would have to do those same errands and while doing so be away from work. In higher income groups this including planning parties, attending functions etc that a spouse was expected to attend.

On the surface these duties performed by wives have no inherent value, but increase of value of her husband. When Divorce became more common and husband's decided to trade in their old wives for a newer model, the courts had a habit of saying the old wife deserves part of his "Wealth" he had earned during the marriage. I see many high income males (and some high income females) seeing this "right" for spousal support a thief of their "wealth" for the spouse did not "earn" the wealth, the husband did it himself.

If you eliminate marriage all of the right of such a discarded wife disappears. She may retain some right to things with her name on it, but that would be all, no claim to things earned or even purchased during the relationship that does not have her name on it, for example his pension, his stock options etc. She may not even have a claim to the house unless her name is on it.

I see the above as a reason for the push for "Homosexual Marriage", but I believe the main reason is reason number one, i.e. Bush looking for a wedge issue with the Democrats. The second reason will last until we either get National Health Insurance (and the costs are included in taxes) OR the economy gets so bad no one has Health Insurance so the issue will no longer matter.

The Third reason (and that comes out of some comments I have read from so called "liberal commentators" in the press) I believe is a factor, but a factor the Courts will grow to hate for the same reason the Courts made the Common Law Rule that a wife gets 1/3 of her husband's property i.e. the court do not want a penniless elderly woman walking the streets when the person she lived with for 20 years has all types of cash.

Once The GOP no longer can use "Gay Rights" as a wedge issue, and we either have National Health Insurance or no health insurance "Homosexual Marriage" will die as an issue. It may survive in a limited degree in the law covering any break up of a long term relationship. What I mean is some rights of Homosexuals would be covered as part of the concept that any long term heterosexual relationships should impose some duty on the non-dependent partner for care and upkeep by the any dependent long term partner.

This would not be the first time such "Homosexual Marriage Rights" have died, such rights appeared to have existed in the Second century and the 13th Century AD, but died out within 40 years of their appearance both times (and both times appear to die out from lack of use as opposed to any overt opposition to such marriage rights). I see the same thing happening again, once this generation of homosexuals gets the "right to Marry" it will be a fad for a few years and die out like it seems to have done in prior periods of "Homosexual marriage". Once such marriages are no longer a "wedge" issue the issue will disappear and be forgotten.