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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, April 07, 2009

Vermont/New Hampshire Civil Union News

And Also: I will add some discussion of criticism of Harold Koh's writings on "transnationalism" etc. found here and here.


The Oyez website has recently gone through an overall and additional oral arguments have been added on a continuing basis. For instance, I have noted that the orals of the important companion case to Roe v. Wade* -- Doe v. Bolton -- was not provided. Recently, I noticed that the original argument was added. Now, I see the re-argument has as well. It provides some interesting listening, though the second go around was somewhat anticlimactic, particularly the state's focus on fetal rights. Ironically, the same advocate shortly beforehand argued for the death penalty.

[Update: Here is a summary of the laws in the U.S. The NJ civil union law can be found here; note that it has a blanket override procedure for those under 18. The California marriage ruling can be found here; FN24 tags nine differences between marriage and domestic partnership. For instance, the requirement in the latter case for a a common residence. This very well might be an important matter for some couples.]

The Vermont legislature, by a one vote margin in one house, overturned a veto of its decision to allow same sex marriages. As one might recall, the state supreme court years before noted some sort of equality was required in this context, and Gov. Dean supported civil unions. All the same, it has been argued that civil unions simply are not truly equal to marriages, which was the judgment of a panel set up to study the point in New Jersey (also having civil unions pursuant to litigation).

Reading about the matter, I learned that New Hampshire also has a civil union law, this time without the pressure of litigation. The law was in effect since the beginning of last year. One has trouble keeping up with these things. Though California might soon join it -- Prop 8 only talking about "marriage" -- it would then be the only state [along with NJ!] that has such a full-fledged civil union law. When the Massachusetts Supreme Court first ruled, I leaned toward allowing such a regime, at least for the time being. Less so now, particularly when that New Jersey study flagged many problems.

It tended to be ignored, but the California law in place before the marriage litigation had a few differences when civil unions were involved. Trivial as they might be in most cases, it was not completely equal to marriage. Looking at the New Hampshire law, which expressly amended the original marriage law for the purpose of permitting "same gender couples to enter civil unions and have the same rights, responsibilities, and obligations as married couples," such differences basically do not exist. This runs counter to California which, as the marriage ruling noted, has a handful or so differences.

The proviso would be that out of state and federal law might not recognize the unions, but this discrimination is not of the making of the state. Again, as the linked story/report flagged, use of the word "civil union" does have various negative effects. I also found one specific difference: the civil union law does not seem to have exceptions to its age requirement (18) unlike the marriage law. As with English policy, now defunct I believe, of having different age of consent laws for homosexuals, this is suspect. The permission granted for underage marriage is not limited to pregnancies, for instance, and same sex marriages very well can have the situation as well.

The law does specifically note: "Nothing in this chapter shall be construed to require a minister or clergyman or clergywoman to solemnize or perform a civil union." Since free exercise of religion would be violated if such a requirement was present for marriages, this is redundant, but answers a common scare tactic that same sex equality -- as compared to Jews marrying Christians or whatever -- would burden religious freedom. The marriage statute has a section involving "solemnize" requirements, which has a religious flavor that is dubious, but the civil union law requires (unless otherwise noted) all the requirements of marriages.

BTW, the state does not allow first cousin marriage. This violation of inter-familial bonding is not present in New York. We are pro-cousin marriage here. Not so much pro-same sex marriage or civil unions. New York at this time (by governor ruling per an intermediate court holding) does recognize out of state same sex marriages. We have no state-wide civil union law, so that would not apply here. Thus, we have a case where use of "civil union" deprives in such a way that is in the control of New Hampshire to avoid.

All the same, it was a very important legislative step. Surely, has dictionary connotations.

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* This led me to peruse Roe v. Wade again, particularly because someone yet again sneered at me that it is so useless as constitutional law. It helps when you do not actually read the thing. Anyway, in its discussion of the Hippocratic Oath, the opinion notes that the oath's opposition to abortion appears to have not been just a medical call. It was "dogma."

Contra, Aristotle spoke of "life and sensation" as the test. The ruling also notes the theological debate over the issue, one that at times focused on similar criteria. Criteria also reflected in Roman and common law though mid-19th Century medical judgment had a more conservative stance on "careless of foetal life." This judgment had changed by the time Roe was decided, though lasted (at least officially) into the 1960s.

The opinion notes such things. It is well worth reading, even if it -- like many opinions -- has its flaws.