Thinking strategy on gay marriage

[FlyingSquirrel]

The following idea popped into my head yesterday. Now I know a lot of people will probably flame on it 'cause they want it all and they want it now, and that's understandable. But to those who accept that things take time, this is an idea that might be worth it to pursue. (I'm probably not the first to think of it but ya never know)

16 states currently have common-law marriage laws. In addition to pursuing the right to civil unions in all 50 states, followed by the right to marry, a middle step might be to add gays & lesbians into current common-law marriage statutes. My theory is that there might be less resistance to the idea of codifying what has basically already occurred. And it would probably be a good idea to try and get more states to have common-law marriages beforehand.

Once it's already legal for gays & lesbians to be married in a state, though it would obviously be unfair that they had to wait so long and go through a much more difficult process, it might be easier to change enough minds to simply legalize gay marriage altogether in that state.

Just a thought..

Peace

[Idealism]

1. this matter, like segregation, needs to be decided in the courts

there are few instances in our country's past where the supreme court had to foster in social progression because our legislatures wanted to keep passing the buck on down. this is one of those times. you can hold a vote in some parts of this country still to this day where african americans would lose their right to vote, go to school with whites, or even marry another race (have you ever been to some parts of alabama? its stuck in the 1950s). the supreme court must make a stong ruling on this to make sure we are not experiancing a tyranny of the majority.

[TheWraith]

2. It's wrong to say Alabama is stuck in the 1950s.

Parts of it are stuck in the 1850s.

Seriously, I agree with you. The courts are where this is going to happen.

[bluedawg12]

6. Yup. I agree, and that is the bright light of Pres. Obama-SCOTUS

This made me pretty disheartened:

http://www.nytimes.com/2008/09/21/us/politics/21gay.html?_r=2&scp=10&sq=gay%20marriage%20ban&st=cse&oref=slogin&oref=slogin

[jody]

3. Interesting! Are you aware of any discussion on whether same-sex marriage is an “inalienable right”

under CA Constitution and thus off limits to both state law and amending the CA Constitution?

CALIFORNIA CONSTITUTION
ARTICLE 1  DECLARATION OF RIGHTS
SECTION 1.  All people are by nature free and independent and have
inalienable rights.  Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

ON EDIT: add bold for emphasis.

[maximillian1974]

4. time frame / dying concept

Just a little legal side note to this post: common law marriages often take a long long long time to become applicable (each state has its own rules.) Also more and more states are abolishing common law marriages rather than allowing them (Georgia and Ohio for example don't recognize any after '91 and '98 respectively.)So the idea of getting states to go back to common law marriage probably isn't realistic. Also CL marriage is often used to enforce the rights of a surviving spouse (or a CL spouse after a break-up to the other spouse's assets) rather than in real life proactive situations like a hospital stay or benefits as CL marriages often require a judicial determination that a marital relationship existed.
Overall a not a great idea without some serious alteration to the doctrine of CL marriage.

[Ms. Toad]

8. Although the court battles have generallyl been regarding

rights of surviving spouses, etc., a common law marriage is a legal marriage for all purposes (including federal and state tax purposes, health insurance, hospital visitation, etc.) It is just that most folks in common law marriages didn't really know they were legally binding marriages anyway until one of them no longer wanted to be married - or died.

But - the real problem with this path is that virtually all common law marriages are premised on the couple being eligible to to marry under the state marriage statutes (to prevent someone doing an end run around restrictions on who can marry whom by creating a common law marriage). So - to go the common law marriage route, you would have to change the state marriage statutes so that same gender couples could marry - and once you've changed them, why bother with a common law marriage.

[HamdenRice]

5. I think gays already have common law marriage, which is less useful than civil unions

I haven't checked this for accuracy but here goes: common law marriage isn't really marriage. It's a contract, or often an implied contract, that allows one partner to recover property when the relationship falls apart.

In pop culture reporting, these cases are often referred to as "palimony" cases -- usually involving a wealthy celebrity living unmarried with a less wealthy partner, and when they break up the less wealthy one sues for a division of property.

If I'm not mistaken, tennis superstar Martina Navritalova (sp?) was sued in a palimony case and lost establishing something like common law marriage for lesbians.

Common law marriage provides few benefits that civil unions or traditional marriage provide.

It's really just a remedy for breach of contract.

[Ms. Toad]

9. Where common law marriages exist,

they are every bit as binding (and have identical rights) to statutory marriages. As I noted above, though, if you are not eligible for a statutory marriage you are also not eligible for a common law marriage.

Palimony cases are a different matter - they are either in states that do not recognize common law marriages, relationships between people not eligible to marry, or arise because the couple didn't satisfy all of the common law requirements for a common law marriage to exist.

[Zuiderelle]

7. Sorry, but that just won't work for me. I've waited too long to settle for something that gives me

nothing, and that no one would agree to anyway. All these ideas like making it Civil Unions for everyone, or going state by state begging for scraps of common law marriage, do not solve my situation that everything I have right now is at risk if I die because it is not legal for my partner and me to marry. I am too old to wait for old bigots to die, and I am too old to spend 30 years trying to piece together the rights everyone else has. And why should I wait? Our constitution guarantees our equality. Our government has been betraying the constitution for centuries now. It's time we put a stop to it. We shouldn't have to go slowly. Now is the time to fight for our rights, since it's in the forefront of the American consciousness. If we stand back again and wait or try to go slowly, more rights will be robbed from us. The fundamental, religious right has an agenda we have to fight NOW.