Marriage and other LGBTQ Rights

[Brian-E]

Originally Posted by cheesehead

Opponents for whom gay marriage is religiously or morally abhorrent will try any legal avenue they can, but I'm not sure that "cynical" is the right adjective. Perhaps "stubborn"?

Thankyou, "stubborn" has indeed a better ring to it. With the minor quibble that the word perhaps lacks the element of deviousness which I think may also be present. California is, I hear, due to hold its referendum in November on changing its constitution to disallow gay marriage. If the Californian public have started to get used to gay married couples by then and perhaps know some personally, they may be less inclined than they are now to vote the way their church leaders tell them to. If on the other hand the opponents of gay marriage have successfully drawn the legal avenues out, that of itself could ensure the constitution change.

OK, not cynical. Stubborn yes, but it's worse than that too. My vocabulary doesn't quite stretch. Has anyone else got an adjective to suggest?

[only_human]

Originally Posted by Brian-E

OK, not cynical. Stubborn yes, but it's worse than that too. My vocabulary doesn't quite stretch. Has anyone else got an adjective to suggest?

Intransigent
(disclosure:pro gay marriage)

[Zeta-Flux]

I am sometimes extremely surprised by what I read on this message board, and the judgements people pass. One poster has proposed that, in his perfect world, all religions would be forcibly destroyed, and that same poster accuses all religionists of bigotry and hypocrisy! Another poster proposes that legal rights should be removed from those he considers cults!

But let's talk about another interesting claim; that it is wrong (or, in the words of Brian-E, "indefensible") for those opposed to same-sex marriage to attempt to use legal means to achieve their purposes. I find this doubly funny. Firstly, because it is only because of supreme courts having found the law unconstitutional (by the smallest of majority opinions) and legislating from the bench how the law should read, that gay marriage is allowed in the two states; due to gay activists continually using those same legal means in (what could be called) stubborn defiance of current law. Second, because the whole issue in California began with the non-lawful attempts of the mayor of San Fancisco to become a law unto himself; and ignore the rule of law.

Let's talk about the California Supreme Court 5-4 decision. The ruling was 121 pages long, so I am likely to get a few things off in my summary but here goes. In their own words:

Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

In other words, the issue wasn't about civil rights, per se. Those were already granted to civil unions in California. Gay couples pretty much already enjoyed every right afforded marriages. The court, in its 121 page decision, had to find out whether or not the name of said relationships was constitutional. You guys getting this?

They continue:

These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.

In other words, the difference in name was found, by the court, to not give the same dignity and respect as traditional marriage. This was found, by the court, to be unacceptable. In other words, this is no longer about forming partnerships protected by the law, affording basic services, but having the law give those partnerships a measure of respect, dignity, and an official stamp of approval. The very things that many religionists find unacceptable.

Best,
Zeta-Flux

[crash893]

civil union <> Marriage

[only_human]

Originally Posted by crash893

civil union <> Marriage

Without actually double checking it at the moment, the previously mentioned California ruling delineates 9 differences between the two. Civil Unions in California have a residency requirement that marriages don't, etc.

What struck me when I listened to some of the hearing on C-Span was an awareness to other differences that while not exactly in the area of rights were felt to be worth noticing. (please bear in mind that I am drawing on my memory from weeks or perhaps a couple of months in the past) Someone on the bench mentioned that there is a difference in how you would reply to the question "are you married?" In the civil union case answers can declare a person's sexual orientation (which they might like to keep private).

I feel that the question often is merely asking is if you are in a committed relationship but compels answers to swerve and bob along using careful language to answer partially.

[Brian-E]

Originally Posted by Zeta-Flux

...But let's talk about another interesting claim; that it is wrong (or, in the words of Brian-E, "indefensible") for those opposed to same-sex marriage to attempt to use legal means to achieve their purposes. I find this doubly funny. Firstly, because it is only because of supreme courts having found the law unconstitutional (by the smallest of majority opinions) and legislating from the bench how the law should read, that gay marriage is allowed in the two states; due to gay activists continually using those same legal means in (what could be called) stubborn defiance of current law. Second, because the whole issue in California began with the non-lawful attempts of the mayor of San Fancisco to become a law unto himself; and ignore the rule of law.

My use of the word "indefensible" was applied to the request of the group of other states to California to delay its opening of marriage. The reason given by the states was that they needed more time to sort out their legal situation. To my thinking this can only be a lie. As I explained before, their situation has not changed: they must have to deal already with the same-sex marriages from Massachusetts (as far as I know, they simply don't recognise them), so why not just do the same with Californian marriages for the time being before they've grown up to certain realities. I'd be interested to hear if you consider their delaying tactics now to be defensible, Zeta-Flux, and how you would defend them.

Originally Posted by Zeta-Flux

Let's talk about the California Supreme Court 5-4 decision. The ruling was 121 pages long, so I am likely to get a few things off in my summary but here goes. In their own words: In other words, the issue wasn't about civil rights, per se. Those were already granted to civil unions in California. Gay couples pretty much already enjoyed every right afforded marriages. The court, in its 121 page decision, had to find out whether or not the name of said relationships was constitutional. You guys getting this?
...
They continue:

In other words, the difference in name was found, by the court, to not give the same dignity and respect as traditional marriage. This was found, by the court, to be unacceptable. In other words, this is no longer about forming partnerships protected by the law, affording basic services, but having the law give those partnerships a measure of respect, dignity, and an official stamp of approval. The very things that many religionists find unacceptable.

Best,
Zeta-Flux

Exactly. And it ties in perfectly with what we are discussing here. Same sex couples may already have had the same practical rights as opposite sex couples with the possibility of a civil union (in California and some other states but by no means everywhere), but as it was not called marriage it was discriminatory and insulting.
What point are you trying to make by summarising the Californian ruling?

[Brian-E]

Just read only_human's last posting and apparently I am incorrect in suggesting that there were no practical differences in California between civil union and marriage. Apparently 9 have been identified. I stand corrected, thankyou.

[Zeta-Flux]

Originally Posted by Brian-E

I'd be interested to hear if you consider their delaying tactics now to be defensible, Zeta-Flux, and how you would defend them.

First, I take them at their word. They want a delay to figure out the implications, and make appropriate changes if necessary.

Gay marriage is a completely new institution, unheard of in human history until quite recently, which for some strange reason Supreme Court justices find to be a basic human right. People need time to address such a strange ruling with strong implications cross state by the "full faith and credit" clause.

----

P.S. With regards to the 9 differences: if any of them were in the area of civil rights, they could be appended to civil unions. There wouldn't be the need to misappropriate the word marriage.

[Brian-E]

Originally Posted by Zeta-Flux

First, I take them at their word. They want a delay to figure out the implications, and make appropriate changes if necessary.

Gay marriage is a completely new institution, unheard of in human history until quite recently, which for some strange reason Supreme Court justices find to be a basic human right. People need time to address such a strange ruling with strong implications cross state by the "full faith and credit" clause.

Nonsense. Marriage was opened to same sex partners 4 years ago in the United States. By suddenly deciding now that they want to figure out the implications they are having a devastating effect on those couples who have planned their weddings in California now that they thought they could. Can you imagine a more hurtful and vindictive thing to do?

Originally Posted by Zeta-Flux

P.S. With regards to the 9 differences: if any of them were in the area of civil rights, they could be appended to civil unions. There wouldn't be the need to misappropriate the word marriage.

Yes, and then we would make sure that gay couples retain their fitting sense of inferiority compared with their married straight friends. Your views are very clear.

[only_human]

Although the governing statutes provide that registered domestic partners have the same substantive legal rights and are subject to the same obligations as married spouses, in response to a request for supplemental briefing by this court the parties have identified various differences (nine in number) that exist in the corresponding provisions of the domestic partnership and marriage statutes and in a few other statutory and constitutional provisions.

First, although the domestic partnership provisions require that both partners have a common residence at the time a domestic partnership is established (§ 297, subd. (b) (1)), there is no similar requirement for marriage.

Second, although the domestic partnership legislation requires that both persons be at least 18 years of age when the partnership is established (§ 297, subd. (b)(4)), the marriage statutes permit a person under the age of 18 to marry with the consent of a parent or guardian or a court order. (§§ 302, 303.)

Third, to establish a domestic partnership, the two persons desiring to become domestic partners must complete and file a Declaration of Domestic Partnership with the Secretary of State, who registers the declaration in a statewide registry for such partnerships (§ 298.5, subds. (a), (b)); to marry, a couple must obtain a marriage license and certificate of registry of marriage from the county clerk, have the marriage solemnized by an authorized individual, and return the marriage license and certificate of registry to the county recorder of the county in which the license was issued, who keeps a copy of the certificate of registry of marriage and transmits the original certificate to the State Registrar of Vital Statistics. (§§ 306, 359; Health & Saf. Code, §§ 102285, 102330, 102355.)

Fourth, although the marriage statutes establish a procedure under which an unmarried man and unmarried woman who have been residing together as husband and wife may enter into a “confidential marriage” in which the marriage certificate and date of the marriage are not made available to the public (§ 500 et seq.), the domestic partnership law contains no similar provisions for “confidential domestic partnership.”

Fifth, although both the domestic partnership and marriage statutes provide a procedure for summary dissolution of the domestic partnership or marriage under the same limited circumstances, a summary dissolution of a domestic partnership is initiated by the partners’ joint filing of a Notice of Termination of Domestic Partnership with the Secretary of State and may become effective without any court action, whereas a summary dissolution of a marriage is initiated by the spouses’ joint filing of a petition in superior court and becomes effective only upon entry of a court judgment; in both instances, the dissolution does not take effect for at least six months from the date dissolution is sought, and during that period either party may terminate the summary dissolution. (§§ 299, subds. (a)-(c), 2400 et seq.)

Sixth, although a proceeding to dissolve a domestic partnership may be filed in superior court “even if neither domestic partner is a resident of, or maintains a domicile in, the state at the time the proceedings are filed” (§ 299, subd. (d)), a judgment of dissolution of marriage may not be obtained unless one of the parties has been a resident of California for six months and a resident of the county in which the proceeding is filed for three months prior to the filing of the petition for dissolution. (§ 2320.)

Seventh, in order to protect the federal tax-qualified status of the CalPERS (California Public Employees’ Retirement System) long-term care insurance program (see Sen. Com. on Appropriations, fiscal summary of Assem. Bill No. 205 (2003-2004 Reg. Sess.) as amended Aug. 21, 2003; 26 U.S.C. § 7702B(f)(2)©), the domestic partnership statute provides that “nothing in this section applies to modify eligibility for [such] long-term care plans” (§ 297.5, subd. (g)), which means that although such a plan may provide coverage for a state employee’s spouse, it may not provide coverage for an employee’s domestic partner; this same disparity, however, would exist even if same-sex couples were permitted to marry under California law, because for federal law purposes the nonemployee partner would not be considered a spouse. (See 1 U.S.C. § 7.)

Eighth, an additional difference stems from the provisions of California Constitution, article XIII, section 3, subdivisions (o) and (p), granting a $1,000 property tax exemption to an “unmarried spouse of a deceased veteran” who owns property valued at less than $10,000; however, as the Legislative Analyst explained when this constitutional provision last was amended in 1988 (see Ballot Pamp., Gen. Elec. (Nov. 8, 1988) analysis by Legis. Analyst of Prop. 93, p. 60), few persons claim this exemption, because a homeowner may not claim both this exemption and the more generous homeowner’s exemption on the same property (Rev. & Tax. Code, § 205.5, subd. (f)), and the homeowner’s exemption is available to both married persons and domestic partners. (See § 297.5, subd. (a).)

Ninth, one appellate decision has held that the putative spouse doctrine (codified in § 2251) does not apply to an asserted putative domestic partner. (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1172-1174.)

Plaintiffs also have brought to the court’s attention a statement of decision in a recent superior court ruling that declares, in part, that “[a] Registered Domestic Partnership is not the equivalent of a marriage. It is the functional equivalent of cohabitation.” (Garber v. Garber (Super. Ct. Orange County, 2007, No. 04D006519.) That trial court ruling is currently on appeal and has no precedential effect.

[Jwb52z]

After reading only_human's post, I wonder something. Are the terms "confidential marriage" and "common law marriage" the same now? I ask because I don't think they are and wonder how the rule of common law marriages would apply to gay couples if at all. I think it should. For those of you who might possibly not know what a common law marriage is, it's basically, and I forget the number, but I think it's twice, you introduce the person you want to be your spouse to at least 2 different people as your spouse and they are automatically to be legally considered so.