Mike ([info]iaminyourhead) wrote,
@ 2008-05-16 11:18:00
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Gay Marriage? In My California?
OK, So by now everyone's heard about the thing in California, right? Legalizing gay marriage? Sort of?

I should be unabashedly happy about this. I shouldn't have reservations, or be conflicted.

But I do, and I am. See, in my mind, it comes down to what exactly the role of the judiciary branch of the government is supposed to be doing. Yes, it's there to protect the minorities from the tyranny of the majority, but isn't there also a sort of implied contract there, that states that judges interfere with the will of the majority only where that will directly interferes with the constitution?

I want to be clear here. I am totally in favor of any two consenting adults being able to celebrate their marriage to one another. I think if you, or your religion is uncomfortable with that, that you should choose, on a personal or religious level, to not recognise their marriage. I don't think that's the state's place.

Rerally, what this entire thing has been about is words. California allowed civil unions between same-sex couples, which afforded all the legal and state-level tax benefits of being married. They just weren't calling it marriage. Whatever. People get so hung up over that damned word. Anyways, this decision was that there was no earthly reason to define marriage as between a man and a woman., and that, really, who are we kidding anyways, we're already letting them get married, why not call a spade a spade*?

This isn't really a big deal at this point because of the marriage thing, at least in my mind. It's a big deal beacuse of the possible judical power abuse thing. Or maybe there wasn't any. I need a civics professor.





*I mean like the kind that you use to dig holes. I don't care if that was originally a racist sentiment.



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[info]ladyrutile
2008-05-16 07:32 pm UTC (link)
"why not call a spade a spade"?
I thought it had to do with the Army calling a shovel (or spade) a manual entrenchment tool.

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[info]wabishtar
2008-05-17 12:37 pm UTC (link)
The US Constitution defines all people as equal under the law. OK, then it goes on to say that women can't vote and that black people are only 3/5th of a white person, but we've counteracted those parts of the constitution with amendments, meaning that NOW the US Constitution says that all people are equal under the law. There is no mention of homosexuals anywhere in the constitution, so unlike blacks and women, no ammendment is needed to give them equal rights. The constitution says all people are equal, and since there's no part that says "oh, except for queers" they should get all the same rights as anyone else, meaning that any law denying them those rights is unconstitutional, and one of the most important responsibilities of the judicial branch is to shoot down any blatantly unconstitutional laws, which is all they've done here. Personally, I don't think they over stepped their bounds, I think they did their job exactly as it is meant to be done.

Secondly, your statement that civil unions are equal to marriage is wrong. They are equal under state law, not under federal law. So if you are filing federal income tax, applying for federal welfare, working at a federal institution, or anything similar, civil unions don't count, only marriages. Since the federal government doesn't recognize civil unions, and probably won't for quite some time, the only way for a state to allow a same-sex couple to have full federal marriage rights is to call a same sex union a marriage rather than a civil union, meaning that their is a very important legal difference between the two, and the difference is not just semantics.

If you would like to discuss this further, I will be in India.

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[info]iaminyourhead
2008-05-19 01:28 am UTC (link)
I understood that that was under state law only. It's under state law that the new law was not passed.

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[info]wabishtar
2008-05-19 08:23 am UTC (link)
There is no federal definition of marriage, meaning that the federal government is legally obligated to extend full marriage rights to whatever a state chooses to define marriage as. That's the whole point of the conservatives trying to pass the Defense of Marriage Act which would define marriage as between a man and a woman. It would make it so that the federal government wouldn't be obligated to acknowledge same sex marriages. As it stands right now, while the federal government extends certain privileges to married people, the power of defining marriage and thereby deciding who gets those privileges has been left to the state.

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[info]iaminyourhead
2008-05-20 06:30 pm UTC (link)
Actually, that's not true. there is an exception to recipricocity in the case of same-sex marriages.

Wait, that's what you said, isn't it?

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[info]wabishtar
2008-05-21 02:21 pm UTC (link)
My apologizes, you're right. I got the Defense of Marriage Act, which has passed, confused with the Federal Marriage Amendment, which hasn't, which led to me misunderstanding the federal legal situation with same sex marriage. Sorry.

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