Last December, a civil rights milestone was reached with the end of DADT and I said "next up DOMA!" A guest blogger at Volokh Conspiracy has been talking about conflict of laws, that is, what marriage is recognized by the government. I found the discussion somewhat unhelpful, but it did give us another shot in comments to debate "marriage" with the usual suspects. So easy to get back into that morass, even though hitting your head against the wall is at times more productive.*
It also is on some level missing the point. The alleged concern is that "marriage" means different sex couples and in particular those that unite for procreative purposes. The fact marriage is repeatedly not for such purposes and same sex couples fit all criteria of what "marriage" is usually thought to include doesn't matter to them. The fact that "that's how it always was done" applies to unequal sex roles we now reject doesn't either. Invidious discrimination is aided and abetted by selective argument and tuning out complications. And, it often is a lie -- the real concern is that same sex couples are bad. Even without "marriage."
But, many do honestly or otherwise accept (or say they do) protecting same sex couples in other ways. Hawaii just passed [rather, it will soon go into effect] a civil union law, e.g., that requires the state to treat those in the union the same way as they would treat marriages. This doesn't mean the people will get full faith and credit that "married" couples would, federal benefits by "marriage" (if DOMA was simply repealed tomorrow) or fit in a union that society has a wide recognition of as compared to something many do not know much about. "A civil union? sorry, we only let in married couples here."
I support full equality but basic equality often is a big step. And, if Hawaii recognizes civil unions are treated the same way as marriages (other than the significant fact of calling it them) under state laws, why can't the federal government? "Spouse" comes from the word "pledge" such as two people who pledge to each other in a special ceremony. Civil unions and domestic partnerships at times are weaker than marriage, including easier to alienate. But, if it is of the same level for state purposes, or strong enough to merit protection, the word "spouse" should fit in each. Surely, for federal purposes.
I don't see how denying such benefits is necessary to "defend marriage." Unless it is about screwing over gays.
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* Let me add, that I realize that at some level it is unproductive, but this doesn't stop me and others from being pissed off by the whole thing. And, upset, since distasteful as some of these people are, their basic sentiments are reaffirmed by denial of equality in this area. The aggravation in part comes from the widespread ignorance involved.
One person, for instance, in full ex cathreda fashion, favors extended citations of legal precedents and so forth (including from the 19th Century or earlier) that shows "clearly" (some are wrong, others are quite firm in their wrongness) that the same sex marriage argument put forth in the Prop 8 case etc. is so weak. A favored device is citing Baker v. Nelson, which was dismissed by the Supreme Court for lack of a significant federal question, which basically tells us nothing. It does not tell us that the reasoning of state ruling, including its outdated limited reading of Griswold, was accepted by the USSC even then, surely not binding now.
Anyway, the analysis tends to be a selective reading of the precedents, at times (as others with more legal study as I sometimes note) rather mistaken, and in no way compelling the promotion of the invidious discrimination desired. And, when the patina of respectability is removed, that is made clear, such as remarks about "sodomites."
It also is on some level missing the point. The alleged concern is that "marriage" means different sex couples and in particular those that unite for procreative purposes. The fact marriage is repeatedly not for such purposes and same sex couples fit all criteria of what "marriage" is usually thought to include doesn't matter to them. The fact that "that's how it always was done" applies to unequal sex roles we now reject doesn't either. Invidious discrimination is aided and abetted by selective argument and tuning out complications. And, it often is a lie -- the real concern is that same sex couples are bad. Even without "marriage."
But, many do honestly or otherwise accept (or say they do) protecting same sex couples in other ways. Hawaii just passed [rather, it will soon go into effect] a civil union law, e.g., that requires the state to treat those in the union the same way as they would treat marriages. This doesn't mean the people will get full faith and credit that "married" couples would, federal benefits by "marriage" (if DOMA was simply repealed tomorrow) or fit in a union that society has a wide recognition of as compared to something many do not know much about. "A civil union? sorry, we only let in married couples here."
Section 3. Definition of marriageThe so-called "defense of marriage" entails blocking federal benefits to "spouses" of the same sex, even if they are not labeled (by state law) as married. This underlines, even under the Orwellian philosophy of DOMA, the overreaching involved here. The second section also speaks of a relationship "treated as a marriage," which very well might be considered a civil union situation like Hawaii, where civil unions are so treated. The section also covers "judicial proceedings," which unlike marriages alone, is in other cases treated more strictly.
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
I support full equality but basic equality often is a big step. And, if Hawaii recognizes civil unions are treated the same way as marriages (other than the significant fact of calling it them) under state laws, why can't the federal government? "Spouse" comes from the word "pledge" such as two people who pledge to each other in a special ceremony. Civil unions and domestic partnerships at times are weaker than marriage, including easier to alienate. But, if it is of the same level for state purposes, or strong enough to merit protection, the word "spouse" should fit in each. Surely, for federal purposes.
I don't see how denying such benefits is necessary to "defend marriage." Unless it is about screwing over gays.
---
* Let me add, that I realize that at some level it is unproductive, but this doesn't stop me and others from being pissed off by the whole thing. And, upset, since distasteful as some of these people are, their basic sentiments are reaffirmed by denial of equality in this area. The aggravation in part comes from the widespread ignorance involved.
One person, for instance, in full ex cathreda fashion, favors extended citations of legal precedents and so forth (including from the 19th Century or earlier) that shows "clearly" (some are wrong, others are quite firm in their wrongness) that the same sex marriage argument put forth in the Prop 8 case etc. is so weak. A favored device is citing Baker v. Nelson, which was dismissed by the Supreme Court for lack of a significant federal question, which basically tells us nothing. It does not tell us that the reasoning of state ruling, including its outdated limited reading of Griswold, was accepted by the USSC even then, surely not binding now.
Anyway, the analysis tends to be a selective reading of the precedents, at times (as others with more legal study as I sometimes note) rather mistaken, and in no way compelling the promotion of the invidious discrimination desired. And, when the patina of respectability is removed, that is made clear, such as remarks about "sodomites."