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May 15, 2005

Comments

Galois

While I agree that it is possible to have a situation that is equal and unjust, I don't believe the example above illustrates even formal equality. First of all, it clearly targets Jews. What makes something a Jewish holiday, after all? It is by definition a holiday celebrated by Jews. If Hindus were celebrating it instead of Jews it would be a Hindu holiday. Secondly, it explicitly and directly treats Jewish holidays and other holidays as unequal.

Galios

I find your Religion Analogy ultimately convoluted and therefore deceptive.
Allow me to attempt to answer your charges as you laid them out
Firstly, religion is not whom one has sex with, analogies are just analogist, that’s why they ultimately fail – the comparisons strain credulity. Religion has been the basis of unjust discrimination for decades. That’s why it was protected in the first amendment and the 1957 civil rights act. Secondly as to Jason’s point: it begs the question- Is the lack of special civil rights status for homosexuals unjust? That’s the charge we are arguing – I answer in the negative. We should not give homosexuals special civil rights protection. (this brings us to the legal standard persistent & pervasive an argument for another day perhaps) Thirdly – All citizens (hippies & homosexuals alike) are accorded equal protection status. Once again you beg the question: Is the lack of special civil rights status for homosexuals unjust? Fourthly: I AM admitting that religion as compared to homosexuality is unequal- of coarse it is – one is given special protected status the other is not. (question begging again) But to say they are treated unequally is not to say that is unjust. (all inequalities are not injustices)

If you seek such protections: do it the way all the other groups have: call your legislature.


(you Galios wrote)
“””As for the Eberstadt quote, that is not a policy argument against same-sex marriage, it is merely an allusion to the "dark side of homosexuality" with no basis. We also saw pseudoscience in the eugenic theories with regards to notions of racial superiority. I have made plenty of policy arguments in favor of ssm on this blog, but even if I hadn't made a single one that would not change the inherent injustice of the baseless unequal treatment.”””

This is the most intellectually dishonest thing you have ever wrote. What does eugenics have to do with it? How can you call it pseudoscience when I have not presented any science? Is there no dark side to homosexuality? (I have gay friends – who have “broken the code of silence”) Just because you call it “baseless” & “unequal” does not make it so. (once again question begging)
All that aside Galois: the point of my Eberstadt quote is to punctuate the overall intellectual environment that colors this debate. That environment is best summed up by “the case for the traditional family”. Not the “dark side of homosexuality”. I think you get my point. It is a simple one and goes to the heart of this debate. Whether we are arguing against illegitimacy, divorce or polygamy – the case against ssm IS the case for the traditional family. That case (for the traditional family) is one that time is bearing out. The term “would be imitators” encompasses ALL non-traditional households (including step-families) and is rich, scientifically under girded, and widely excepted by mainstream scholars. That’s the context that I was hoping to highlight with the Eberstadt quote

Fitz

That last post is mine...
Fitz (:

Fitz

Galios

Here is the original article that the quote is taken from..
Its an excellent piece that some's up the (daunting) intellectual enviroment proponents of SSM find themselves in (if they were truly honest with themselves)

http://www.firstthings.com/ftissues/ft0402/opinion/eberstadt.html

Jason Kuznicki

The Eberstadt piece is frustrating on a number of levels. The worst part about it, though, is the conclusion that because homosexuals suffer disproportionately from a variety of problems (drug addiction, depression, suicide), it is therefore best to afflict them with even more problems, in the form of excluding their relationships from the protections given to heterosexuals'. A decent person--dare I say it, a Christian--would ask how these problems could best be ameliorated.

F. Rottles

Galois, my comment followed Jason Kuznicki who said that strengthening traditional marriage would not be served by "foribidding same-sex union". I said that the very thing that Jason Kuznicki claims is being forbidden is actually a liberty that would still be available whether or not the Nebraska amendment stands. He has agreed on that point.

As for the Nebraska case, you made the error of taking as a given that the amendment "singled out the denial of any recognition" of "non-marital same-sex relationships". The Judge misread the law.

Civil union and domestic partnership are the terms that have become synonymous with government recognition of alternatives to marriage. Nebraska has decided to deny sanction of so-called marriage-lite. In addition, to avoid an end-run by judge-made law, the amendment stipulated "or other similar same-sex relationships". Similar to what? To civil union and domestic partnership which are denied government recognition for opposite as well as same-sex relationships.

No matter. Constitutional amendments are supposed to do some of the procedural things that the Judge found objectionable. His thought process is very hard to defend with a straight face. (Pun intended).

Jason Kuznicki, non-dykes and non-faggots are also denied government license to "marry" the same sex. There are other classes of couples who are in the same boat precisely because they are of opposite sexes. The point of marital status is that a certain type of "union" is deemed worthy of special preference and others are actively discouraged. However, same-sex union is not banned and it is not actively discouraged. It is simply not given preference in the laws of our society. The encouragement/ discouragement is left to the Churches and other nongovernmental bodies you mentioned.

You said: "Some of these rights can be obtained through other means, with difficulty and expense; others cannot be obtained at all in many cases."

The difficulty and expense might be addressed through other measures where appropriate. Which marital rights do you think should be made available to people who are not married? Which of these are not available to them "at all"?

The Nebraska amendment did not remove other means of obtaining power of attorney and hospital vistitation, for example. Existing means can be reformed without creating a marital status for non-marital relationships. If hospital policies, or insurance policies, need fixing, fix them. Don't use the tail to wag the dog.

On the other hand, I have the same complaint about addressing the tendency of the judiciary to wander out of bounds. It should be explicitly addressed along the same lines as the wording of amendments to other state constitutions, like Hawaii, or like the wording of the proposed federal amendment.

Hayleyanne

"Even supposing for a moment that there was a way to narrowly read the second sentence of the amendment so that it would be constitutional, what is the court to do to cure the unconstitutional implementation of it? It cannot dictate to all Nebraska officials how they must interpret their own constitution, and even if it could, the court could not rule in advance on the constitutionality of unnumbered possible acts not before it. The only alternative I could see is for the court to strike down the amendment and leave it to Nebraskans to pass a narrower amendment if they so wish."

I don't think this is correct. The court should have read the amendment in such a way as to find it constitutional. That is an established canon of construction and the expected practice. If that meant a narrow reading of it, so be it. It is irrelevant how the attorney general had interpreted it. Instead the court struck down the entire amendment, based on its unnecessarily BROAD reading. This was not correct and I believe was agenda driven.

Galois

F. Rottles: It was neither my error, nor Judge Bataillon's. That interpretation is not only how the amendment would be read on its face, but it is how the Attorney General (and Governor) explictly read it thereby killing all attempts to get any protections for same-sex relationships, while permitting the pursuit of them for non-mariatal opposite-sex relationships. Allowing a surviving partner of a long-term committed relationship to make post-mortem decisions regarding organ donation can harldy be considered "marriage-lite". As for full civil unions and domestic partnerships the amendment would indeed permit the adoption of them if they were restricted to opposite-sex couples. While I won't defend every part of the opinion, the main thrust that it suffers from the same deficiencies as Colorado's Amendment 2 and is thus unconstitutional. It is much more difficult to argue that Romer must be distinguished in light of the plain wording as well as how the AG and Governor have interpreted it in practice.

Jason: I agree with you on the Eberstadt piece. I hope to write a post about it in the next month. Apparently the use of contraceptives is "antitraditional" and destructive to society. As for the the higher incidence of alcoholism and suicide, it is absolutely counterproductive to prohibit marriage or in other ways treat gays and lesbians as second-class citizens. Native Americans likewise show a higher incidence of alcoholism and suicide, I would expect she wouldn't discourage Native American marriage. The Irish also show a higher incidence of alcoholism. Should we deny custody to someone who identifies as Irish?

Fitz: Religion has been the basis of unjust discrimination for decades. So has sex discrimination, especially sexual orientation discrimination. Is the lack of special civil rights status for homosexuals unjust? Well, equal civil rights status would certainly be a big improvement. Thirdly – All citizens (hippies & homosexuals alike) are accorded equal protection status. Good. When Congress amended the Food Stamp Act to deny food stamps to "households containing one or more unrelated persons", it was struck down because the Court found they were targeting hippies. Is there any doubt that the term "same-sex couples" similarly--or more so--targets gays and lesbians? I AM admitting that religion as compared to homosexuality is unequal The issue was comparing same-sex relationships to opposite-sex relationships. Are those being treated unequally? The answer is also clearly yes. If you seek such protections: do it the way all the other groups have: call your legislature. I did and they responded by passing a civil unions bill. One of the major problems in Nebraska was that same-sex couples were prohibited from seeking such protections from the legislature. Whether we are arguing against illegitimacy, divorce or polygamy – the case against ssm IS the case for the traditional family. You are clearly conflating very distinct issues. The arguments against illegitimacy, divorce, or polygamy tend to actualy support the idea of same-sex marriage One asks why is marriage better than cohabitation? Why then should same-sex coules be limited to cohabitation and not marriage? The term “would be imitators” encompasses ALL non-traditional households . This includes, accoring to Eberstadt, those households which use contraceptives. One of the many reasons I support same-sex marriage is the knowledge that people like Eberstadt and Dobson won't be content with stopping gay marriage. They will try to force everyone to conform to their ideas of what a marriage should be.

Hayleyanne: If a law (or amendment) came before a judge and there was some question about its constitutionality it would be correct for the judge to try to read it in such a way that it would be constitutional. You are correct that this is expected practice. In matters of state law (or state amendments) a federal judge (and even the Supreme Court) must defer to the state as to how it should be interpreted. So if the AG (and Governor) of the state interpret it an unconstitutional, the judge has absolutely no authority to overrule them and declare their interpretation incorrect, and based on their own interpretation the amendment was unconstitutional. I do agree that as far as the judge interpreting it so as to ban business ventures from people of the same sex, that could be argued as being too broad of a reading. If the judge had just stricken down the amendment based on that reading, that would have been wrong. But in so far as the state's own interpretation (as well as the plain wording) was so broad, the judge was absolutely correct in determining it to be unconstitutional in light of Romer. I don't know if the opinion was agenda driven. I have no reason to believe so, but in so far as the equal protection argument the decision is concerned it seems to be correct.

Mark Miller

Very interesting comments.

I don’t agree that the religion analogy works. The issue here is legal acknowledgment. No one is saying that there should be a law to deny celebrations of same-sex marriages. Anyone can have a same-sex marriage ceremony and celebration, just as anyone can celebrate marrying their sibling or marrying multiple partners. What this debate is about is the legal acknowledgment of the celebration and whether it should be treated the same way (legally and civilly) as state-endorsed marriage. The religion analogy implies that the state give legal special status to Christian celebrations versus Jewish celebrations. The state actually gives no legal status to either – it allows them both.

Fitz: Whether we are arguing against illegitimacy, divorce or polygamy – the case against ssm IS the case for the traditional family.

------- I’ve heard this before and it just doesn’t work. The only way one can say this with intellectual honesty is to say that the case for traditional family includes that no relationship other than traditional family – which I’ll assume to mean man-woman-biological child -- should be legally acknowledged. That includes adoptive children by opposite sex-married couples and any instances where child is raised by only one parent for any reason – including death of spouse. The argument of ‘children do best when raised by opposite sex married couple’ as a reason to deny civil legal acknowledgment to any other type of couple is absolutely arbitrary. Where does that logic lead – should people who own guns be allowed to marry? People who smoke?

Fitz: The term “would be imitators” encompasses ALL non-traditional households (including step-families) and is rich, scientifically under girded, and widely excepted by mainstream scholars.
------- OK, so only those non-traditional households that are widely accepted by mainstream scholars should be given legal acknowledgment. As opposed to any scholars that may consider same-sex households as worthy of legal acceptance. (I guess those wouldn’t be considered mainstream).

I happen to think the SSM is not a clear-cut issue of civil rights and the denial of such. I believe marriage is currently defined as being opposite sex and allowing SSM is a significant change in that definition. That doesn’t mean the change isn’t warranted and I do think this debate is mainly about the normalizing and equalizing of same-sex relationships and homosexuality, rather than protecting the sanctity of marriage.

The other thing that gets me is that constant ‘man and women make children’ argument. Yes, I’ll grant that marriage was based on that fact. But things have changed and marriage rights are now about much more than that. We allow people who don’t even live together to get married, people who cannot and are even prevented from procreating can still marry. The truth is that the ability to procreate has never been used to deny marriage to anyone opposite sex pairing – just same-sex couples.

F. Rottles

Galois, do you agree with the AG's opinion?

If you do, the Judge, you, and the AG are all mistaken in your opinions.

Galois

Mark: You are correct that the religion analogy as stated has a distinction of legal acknowledgement. There are official acknowlegement of cultural holidays and celebrations. There are parades, pageants or songs in public schools, proclamations, etc. Suppose we allowed Jewish holidays to be practiced in the privacy of one's bedroom, but prohibited any government acknowledgement of them (no suspending street cleaning, no days off of public schools or places of work, etc.) If the religious aspect bothers you, consider banning Mexican holidays instead (but would still permit Irish, Canadian, etc.) The question remains is that equal treatment, since nobody is allowed to have their Mexican holidays acknowledged?

F Rottles: I do, but that is irrelevant. I don't get to decide how to interpret the Nebraska Constitution, nor does a federal judge, nor do you.

Marty

Q: Were the plaintiffs in this case denied a specific same-sex contract? Which one(s)?
A: What do you mean by "same-sex contract"?

I'm under the impression that the Nebraska amendment was struck (in part) because it denies two members of the same-sex from entering into certain contracts. Jason mentions "organ donation contracts" (sorry, make that organ donation contracts).

My question is, what contracts were sought (and subsequently denied) by the plaintiffs? Contracts that, now that the Amendment is struck, plaintiffs will presumably be granted.

It's one thing for someone to venture an 'opinion' that organ donation (among other examples cited elsewhere) would be denied under the Amendment -- it's another for someone to actually be denied. Where was the plaintiff's cause of action?

Marty

Mark, "things have changed..." but not THAT much. There is still no other way to beget children, but by a man and a woman. Even so-called "gay parents" know that, despite their hysterical attempts to deny the relevance of it all.

If "things have changed" that much, then you might as well admit to enjoying the current devaluation of Marriage -- and to your hope that it is devalued still more.

Pretty soon now, marriage wont be worth the paper it's written on, for gays and straights alike.

Jason Kuznicki

Jason Kuznicki.. said that strengthening traditional marriage would not be served by "foribidding same-sex union". I said that the very thing that Jason Kuznicki claims is being forbidden is actually a liberty that would still be available whether or not the Nebraska amendment stands. He has agreed on that point.

This is true, but rather disingenuous. The VERY SAME religious conservatives who oppose same-sex civil marriage were also the ones most active in supporting anti-sodomy laws, and if we gave them but half a chance, they would be agitating for the reinstatement of these laws. So yes, same-sex intimate unions are still possible in Nebraska, but with no thanks at all to the people trying hardest to "protect" traditional marriage. Their hidden agenda is punishment, and it's almost pathetic how obvious the agenda really is.

The trouble with unprotected intimate unions is that they are subject over the long term to many insults and abuses, particularly from the state. The reason we have marriage as a governmental institution at all is to prevent these abuses where possible. (The reasons we have marriage as a spiritual and procreative institution are related, but distinct.)

Failure of the government to respect the long-term intimate unions of all citizens represents an attack on the freedoms of those neglected citizens. Not only does the government have an obligation to refrain from punishing intimate unions, but so too, when a union becomes serious enough, it passes into the sphere of things that we have created the government to protect in the first place. It becomes not merely a cheap pleasure or a passing fancy, but a real and permanent part of individual lives and individual pursuits of happiness. Governments are instituted for exactly these reasons.

Just as it does not grant any special rights to permit homosexuals to speak or publish, so too, it grants nothing outside the scope of government for government to protect long-term same-sex intimate unions. Same-sex partners cannot now obtain the right, enjoyed by straight people, to naturalization for a committed partner. Even Massachusetts marriages don't suffice, as immigration is handled solely at the federal level.
A friend of mine is facing exactly this problem right now, and it seems likely that his partner of many years will be deported soon.

The rights that we cannot get by any means at all often include joint child custody for same-sex partners, immunity from testifying against one's spouse, the right to sue for wrongful death, and the right to receive social security benefits in the event of a partner's death or injury. There are many more, but these are some of the most injurious.

Marty

Failure of the government to respect the long-term intimate unions of all citizens represents an attack on the freedoms of those neglected citizens.

Failure to respect represents an attack? What ever happened to benign neglect? Or live and let live? Maintaining the status quote (since, like forever man) is only an attack in your imagination. It is your side doing the attacking around here, and acting incredulous that anyone would have the gall to fight back.

And you certainly cannot reconcile it with this:

The reason we have marriage as a governmental institution at all is to prevent these abuses where possible.

So the government instituted marriage as a means of preventing government abuse of intimate unions between men and women? And not instituting it would have represented just such an abuse? That's a neat little circular argument, but it has no basis in reality.

"The Goverment" (that is, we the people) can draw our own lines and encourage certain intimate relationships, discourage others, and turn a blind eye towards others besides. You act as if we the people have no right whatsoever to discriminate between those relationships we find beneficial, those we find harmful, and those we merely tolerate. Do we not have that right?

Of course we do have that right when it comes to the intimate unions of bigamists, polygamists, pedophiles, among others. And we the people have this right too.

Galois

It's one thing for someone to venture an 'opinion' that organ donation (among other examples cited elsewhere) would be denied under the Amendment -- it's another for someone to actually be denied. Where was the plaintiff's cause of action?

You should read the complaint. The following is taken directly from the decision:


Stipulated evidence further shows that state Senator Nancy Thompson introduced Legislative Bill (“LB”) 671 in the Nebraska Legislature on January 14, 2003. That bill would have provided the domestic partner [FN4] of a deceased person with the power and authority to make an anatomical gift of and/or to dispose of the deceased’s remains. The bill was referred to the Health and Human Services Committee of the Nebraska Legislature on January 24, 2003. Senator Thompson requested an opinion of the Nebraska Attorney General on the constitutionality of the proposed legislation in light of Section 29. The Attorney General responded to Senator Thompson’s request and issued Op. Att’y Gen. No. 03004 (2003). In the opinion, the Attorney General answered the following question: “If the Legislature Were to Grant Rights to A Domestic Partner to Donate Organs of a Decedent and Control the Disposition of a Decedent’s Remains, Would Such Law Be Constitutional?” The Attorney General first noted that the Nebraska Constitution had been amended to include Initiative Measure 416 “[i]n response to concerns that a union of partners of the same sex may be considered lawful marriage in certain states and that the Full Faith and Credit provision of the U.S. Constitution may make it incumbent upon Nebraska to recognize it as a lawful marriage if the partners were to move to this state,” and to “make it clear that only marriage between a man and a woman is to be valid or recognized in this state.” The Attorney General then noted that under the second sentence of the amendment, “no legal recognition is to be accorded to the union of two persons of the same sex, regardless of whether one uses the word ‘marriage’ or attaches some other label to the relationship, such as ‘civil union’ or ‘domestic partnership.’” After outlining the provisions of the proposed legislation, the Attorney General concluded that the proposed legislation would amend Nebraska law and the Uniform Anatomical Gift Act to give a domestic partner the same right as a surviving spouse to control and direct the disposition of a decedent's remains—a right given priority over the rights of decedent’s parents and children that has traditionally been reserved to the surviving spouse. The Attorney General concluded that “such legislation would create new rights which spring from recognition of a domestic partnership; a partnership which could comprise same sex couples.” Because “the rights being created are placed on the same plane as rights which arise as a consequence of the marital relationship,” the Attorney General found that the proposed legislation “would be giving legal effect to a same sex relationship, thereby validating or recognizing it,” which would run counter to Section 29. The proposed legislation was not advanced out of the Health and Human Services Committee, and was on General File in the Nebraska Legislature when the 2004 session ended.

[FN4]The proposed legislation defined “domestic partner” as “a person who was in a committed relationship with the deceased person.” Evidence to establish such a “committed relationship” included: longevity of the relationship; joint ownership of a home; joint rental agreements; joint loan obligations; joint bank accounts, credit cards, investments, leases of vehicles; joint utilities; designations of the other as a beneficiary, or personal representative of each other’s will; power of attorney for each other; or evidence the other was receiving domestic partner benefits from an employer.


One couple upon moving to Nebraska from Vermont with their child wrote to the Governor with concerns about health care, adoption, and inheritance issues. He responded:

This letter is to respond to your faxed letter to me about your personal circumstances, particularly with the birth of [the child]. I do not doubt your sincerity or the depth of your concern for [the child], since your plans for his birth did not work out. However, I am sure you are aware of my beliefs about the sanctity of marriage, and that I supported the constitutional amendment providing that Nebraska would not give legal recognition to civil unions or domestic partnerships or other same-sex relationships. With the adoption of that constitutional amendment, I see no resolution for you of the issues you discussed.

And the state even said in their own brief

[p]laintiffs have full access to the political process and may obtain the rights via legislation which married couples enjoy, so long as those rights are not premised on recognition of a same-sex relationship.

The plaintiffs do not need to show that they would have achieved any of their legislative goals anytime soon, just that they were unjustifiably put on an unequal footing in trying to achieve them. As the US Supreme Court noted in Northeaster Florida

Singly and collectively, these cases stand for the following proposition: [When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing.] The ["injury in fact"] in an equal protection case of this variety is the [denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.] See, e.g., Turner v. Fouche, supra, at 362 ("We may assume that the [plaintiffs] have no right to be appointed to the . . . board of education. But [they] do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications") And in the context of a challenge to a set-aside program, the "injury in fact" is [the inability to compete on an equal footing in the bidding process, not the loss of a contract.] ("The [set aside program] denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race") To establish standing, therefore, a party challenging a set-aside program like Jacksonville's need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis.

Marty

Thanks for the background, there's plenty here to digest. (are you sure you're a mathmetician?). I see several potential problems, not least of which is in the first part of the first quote:

That bill would have provided the domestic partner ...

F. Rottles

Galois, you said: "I don't get to decide how to interpret the Nebraska Constitution, nor does a federal judge, nor do you."

I am confident that opinions such as mine are relevant because they've been reached in accord with the basic principles of interpreting statutory and constitutional texts in our legal system. Eugene Volokh fairly summarized the relevant principles at the very link you provided in your post. And although he generally supports enactment of SSM, his view of the judge's handiwork is not far from my own.

If you are saying that the AG, and the AG alone, gets to dictate how the amendment to the Nebraska Constitution is to be read in federal court, you are barking up the wrong sophistry.

Jason Kuznicki, you said: "So yes, same-sex intimate unions are still possible in Nebraska, but with no thanks at all to the people trying hardest to "protect" traditional marriage. Their hidden agenda is punishment, and it's almost pathetic how obvious the agenda really is."

Jason, in your previous comments you claimed yourself as among those trying hard to protect traditional marriage. Have you now retracted that overt claim?

Hayleyanne

Galois: I don't think the court was bound by the attorney general opinion in terms of its interpretation. I will have to check into that. IMO the court should have read the amendment narrowly and struck down only that portion that was too overbroad in its reach. The AG opinion was relevant of course, but it was the court's place to advise of the correct meaning. It did no need to strike it down entirely.

More generally, I want to comment that I think SSM proponents lose sight of the forest for the trees when they say that marriage is not linked with family and children. Sure, some couples choose not to have children, but the expectation is still there-- not legally-- but in the form of societal pressure. SSM changes fundamentally the definition of marriage. Historically, marriage has ALWAYS been between a man and a woman. Even in polygamous relationships, there is always the two opposite sexes. Homosexual "marriage" has never been recognized. Homosexual relationships have been recognized in ancient greece etc, but never the status of marriage. SSM proponents try to draw the analogy to mixed race marriages, but this is flawed. A mixed race marriage is still marriage as it is understood -- a man and a woman. Moreover, laws prohibiting mixed race, or mixed religion, or mixed anything have existed--yes, But there has never been a UNIVERSAL prohibition on such marriages in the way that there exists a universal prohibition of SSM. Why? Because SSM radically changes marriage as we know it. This kind of cultural change must come from the people and not from the courts. I think a good compromise position is civil unions. These will provide ss couples with the protections of marriage, but the traditional concept of marriage is allowed to remain in tact. If SS couples do not accept this, that tells me that they want more than just these protections and instead seek to impose on society an entirely different and radical definion of marriage itself.

Mark Miller

Galois, I still don’t think the other analogies work. Take Kwanza (sp?) for example. To my knowledge, there is no official holiday for that. No day off work or school unlike there is for Christmas. Is this an example of denial of equal treatment? IMO, it is not. I guess I don’t feel there is a legal right to have one’s choices and celebrations of such acknowledged. That does not mean that Kwanza or Hanukkah isn’t as legitimate as Christmas. That is a personal decision. But, to me, the fact that US mail gets delivered during Hanukkah but does not on Christmas is not an example of unequal treatment.

Marty, when I said that ‘things have changed’ I meant that in the context of biological parenthood being the standard of marriage. Again, your point seems to be the deny legitimization of gay parents and trying to use the argument that they are not deserving since gay parents cannot be the biological parents of children. Of course, you aren’t saying the same thing about other parent-children relationships where there is no biological link -- just same sex couples.

As far as devaluing marriage, it is your opinion that same-sex marriage devalues marriage for all. But your opinion is based on your view that homosexuality and thus, same-sex couples are immoral. And that is the same logic used by those who were against allowing separate races to marry. I’m not saying they are the same – same-sex couples, interracial couples. I think that same-sex marriage is a much more significant change than the interracial ban. But to say that SSM devalues marriage refers to your moral opinion. There are some that feel SSM increases the value of marriage – and obviously those that say that have a different moral opinion of homosexuality. My point ? Your view is based on morality, not the ability to procreate.

I’m probably closest to the view of Haleyanne – at least on her most recent comment. Except when she wrote: “Sure, some couples choose not to have children, but the expectation is still there-- not legally-- but in the form of societal pressure.”
------- I think there is some societal pressure and even expectation for couples to have children. In any case, whether there is a societal expectation or not should have no bearing on legal acknowledgment. Also, we do not give special statuses to biological parents versus adoptive parents. Legally speaking, both cases refer to parents and dependant children. So why can’t this be the case in civil marriage – regardless of ability to procreate?

Jason Kuznicki

Jason Kuznicki, you said: "So yes, same-sex intimate unions are still possible in Nebraska, but with no thanks at all to the people trying hardest to "protect" traditional marriage. Their hidden agenda is punishment, and it's almost pathetic how obvious the agenda really is."

Jason, in your previous comments you claimed yourself as among those trying hard to protect traditional marriage. Have you now retracted that overt claim?

I do think you are twisting my words here. The scare quotes around the word protect should have been an obvious clue, but if they were not, I will spell it out more plainly.

I protect and support traditional marriage by encouraging it among my friends, by offering moral support to those who are married, and by writing about it in forums like these.

Others "protect" and "support" traditional marriage by claiming that homosexuals are out to destroy civilization.

I think the difference is clear.

Jason Kuznicki

Hayleyanne-- I agree entirely with your view of the ruling. The court should have struck down the second provision as overly broad and vague, while leaving the first. I find it regrettable, but fully within U.S. constitutional law.

Does same-sex marriage change the definition of marriage? Yes, of course it does. But I disagree that the change is "fundamental." Only a few will ever take advantage of it, and heterosexual marriage will always remain the norm. Humans are predominantly heterosexual, and no law could ever hope to change it--certainly not this one.

The real question is not whether the proposed change has ever been seen before, however. The real question is whether that change gives equal justice to all.

In that light, I'd like to propose to you one solution I have often supported in the past: Let the government stop issuing "marriages" at all. From here on out, marriage will refer to a religious and cultural practice that is entirely private, between the two individuals, their community, and God. Let the government issue civil unions to everyone, possibly with a variety of elective responsibilities and rights. But make it clear that the people of the community--and not the government--is really in charge of marriage.

Under this system, I would be free to call myself "married" to my same-sex partner, wile you would be free to deny it. Some churches would recognize my union; others would not. The government might issue certain contractual assurances, but these would offer no seal of approval whatsoever for our status--or for anyone else's.

What do you think?

Hayleyanne

Jason-- I actually kind of like that idea. Everyone can have a civil union regardless of whether it is male/female or same sex. As long as the courts would not force polygamy in civil unions, I think this might be the best solution. That way, marriage can remain in tact as a traditional union and same sex couples can have whatever protections they need. I think this would also allow society to maintain the message that children need moms and dads. And as we learn more about the effects on children of being raised by same sex couples, some religious institutions may open up marriage to same sex couples as well.

Galois

F Rottles: One question the court had to consider was whether this amendment was whether the amendment was intended to deny any legal recognition to same-sex couples. It was an easy consdieration. There was evidence that the answer was yes in statement's made by those leading the drive to put the initiative in the ballot. There was evidence in the AG's opinion which must be given great weight. There was evidence in the Governor's response. More than all that, this claim was stipulated by the defense! I cannot blame a judge for believing the amendment did what the state said it did.

Hayleyanne: The court actually dealt with the issue of whether it could just strike down the second part which was overly broad. Neither side argued for or briefed the issue of severability, but the court noted in footnote 14 (internal cites omitted):


The court will briefly address the severability of the provision. The issue of severability is one of state
law. Leavitt v. Jane L., 518 U.S. 137, 139 (1996); Dakota, Minnesota & Eastern R.R. Corp. v. South Dakota, 362 F.3d 512, 518 (8th Cir. 2004). If legislation or a constitutional amendment embodies a single concept, then it is not severable. Duggan v. Beerman, 544 N.W.2d 68, 78 (Neb. 1996) (single concept is not severable). Whether intended to be single concept or not cannot be determined by voter intent. Id. at 78. The court should not guess voter intent. Id. at 80. See also Jaksha v. State, 486 N.W.2d 858, 873 (Neb. 1992) (fourpart test for determining severability); Omaha Nat’l Bank v. Spire, 389 N.W.2d 269, 279 (Neb. 1986) (no way to determine intent of voters). A voter could have voted for Section 29 for a number of reasons. (full faith and credit
issues, religion, definition of marriage, failure of Unicameral to pass legislation, fear that children will be taught that homosexuality and heterosexuality are morally equal and good, belief that homosexuality is wrong, among others). The court is unable to discern the intent of the voters. Because Section 29 contains no severability clause, the court assumes that the voters perceived it as one amendment, that is, a total concept. Moreover, the drafters of the proposed amendment considered and rejected a proposal that was limited to the first sentence. See Christopher Rizzo, Banning State Recognition of Same-sex Relationships: Constitutional Implications of Nebraska’s Initiative 416, 11 J. L. & Pol’y 1, 28 and n. 92 (2002). The court thus finds that Section 29 must be considered to be a single concept, not subject to severance. The court expresses no opinion on the constitutionality, standing alone, of the first sentence of Section 29, because that question has
not been presented to the court.

Mark: Actually, not celebrating Kwanzaa is unequal, but not unjustified. The state cannot celebrate every holiday and so must make decisions about which holidays to celebrate. Because Christmas is celebrated by such a vast majority of the populace, it is perfectly reasonable for the government to observe it. But that's not the issue we have here. We must consider what would happen if the state passed a constitutional amendment expressly prohibiting the state from acknowledging Kwanzaa in any manner or any holiday by any name which focuses on traditional African values of family, community, responsibility, commerce, and/or self-improvement. The amendment's promoters might argue it is needed to protect Christmas and make it clear that Kwanzaa is inferior to Christmas. They probably call it the Christmas Protection Amendment. Note that Kwanzaa is not a religious holiday, and as far as the courts are cocerned neither is Christmas. Now is this equal? Everyone is equally permitted from having their celebration of Christmas, Hanukkah, or any winter solstice holiday--provided it is not Kwanzaa and says nothing about traditional African values--acknowledged. And everyone is equally prohibited from having Kwanzaa acknowledged. Can you honsetly tell me those wishing to petititon their legislature to acknowledge Kwanzaa are asking for "special rights"?

Mark Miller

Galois,

I think we're talking past each other.
My comment on the analogy was based on the denial of the civil rights issue - that denying legalized SSM is not equivalent to denying the right to celebrate a holiday.

In any case, I'll address the constitutional amendment issue. I agree that an amendment saying no law could be passed to recognize Kwanzaa would be very unjust. Not necessarily unconstitional but IMO - clearly unjust. I definitely agree with your sentiment of the 'Christmas Protection Amendment' name. But it does sound better than the 'Stigmatize Gays Amendment', which is the real agenda.

But my point is that, as you said, the state can't and doesn't need to recognize all relationships. And the reasoning for some of court decisions denying SSM is unconstitutional can be applied to any type of relationship. To me, the issue is a moral one. I happen to feel that homosexuality should be legitimized/normalized but polygamy and incest should not. But I feel those beliefs should be codified via the legislative process rather than through the judiciary.

Regarding the decision in question, I agree with those that it would have been most appropriate that the judge strike down the second part. I disagree with the first part and as a voter, would have voted against it (and did in my State). But I'm not sure I see where it was unconstitutional.

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