Operative BJ has been thinking a lot about the way things are worded in today’s world. And with darn good reason. For example, he’s been toying with the idea of same sex marriage. No, wait—that came out wrong. He’s been considering the wording of “same sex marriage.” See how much better that sounds?
This henpecked one comes before you to comment on the most recent decision from the SCOTUS in regard to same-sex “marriage.” Or, to be more accurate, the NON-decision rendered by the 9 robes.
The decision was made to NOT decide whether two same-sex individuals may “marry.”
The SCOTUS must have recognized that there was no authority granted by either the Constitution or in any of the Amendments to permit them to make a decision regarding the nature of marriage. Marriage is a contract regulated by state law. The Constitution and the Amendments are silent on marriage, and the 1st Amendment prevents the government from imposing itself as an arbiter in a States’ rights debate – especially one with deeply felt religious overtones. (No, the Hobby Lobby decision is an entirely different situation.)
DOMA was found to be unconstitutional primarily because it was an egregious overstepping of Federal authority onto the domain of States’ rights. This was exactly the right decision: there was no basis for the law other than to satisfy some legislators’ personal religious agendas.
Now the SCOTUS has taken the (ahem) “surprising move” of NOT deciding whether the Federal government has the power to take away the rights of States to legislate marriage for themselves. This is only “surprising” to those who have forgotten the 9th and 10th Amendments, wherein any powers not reserved by by the Constitution and its Amendments are granted to the states. Since the establishment of marriage law is not reserved to Federal authority, it is a States’ rights issue.
This worthless one will not say whether he agrees or disagrees with whether same-sex “marriage” should be legal. But, just as a cake is a marriage of flour, eggs, and sugar that infuse together to create a new form, same-sex individuals are incapable of providing the two primary components needed to generate a new human.
Hence, in my mind, it may be termed “marriage” by the same-sex community, but it is nothing more a legal relationship between two same-sex individuals. If they wish to call it “marriage”, so be it. And if they wish to have a religious ceremony, let them.
But they should not expect nor require any entity to respect, accept, or approve of their decision beyond the requirements of the law of their respective States. And just as one State’s laws are not binding on any other State, they should not expect their “marriage” to be treated as legally binding in other States that do not yet support single-sex “marriage”.
Perhaps the lesson of Roe v. Wade is finally coming to light: that there are some decisions better left to the individual States.
This mirrors the Czar’s own conviction: the Federal government has no business whatsoever dealing with marriage.
Okay, the Feds have no business getting into states’ laws about driving, except where it makes sense to achieve some uniformity between states. In other words, ‘Puter’s New York driver’s license is recognized and valid in Illinois, but he still has to obey all of Illinois’ laws when driving here.
Many same-sex marriage arguments go in that direction: because states have different tolerances for same-sex marriage, is a New York-based same-sex marriage recognized in Illinois? Yes, in reality, but you could easily pick different states and cough up a complex chart of this. Hey, it’s even worse for firearms, folks: how and whether one state recognizes another’s rights is an ever-evolving miasma of if, buts, and howevers.
But the Czar will push this one step further: he doesn’t believe the States have any business dealing with marriage. What’s more, he doesn’t even believe the municipalities do, either. This concept is a throwback to centuries ago when the King was the Law, the King was the Religion, and the King was the Land. All ye are property before him. If you want to get married, you need the state’s permission.
That’s a crock. How about this idea that seems to get a lot of support from all different folks: how about government totally gets out of the marriage business?
You want to get married, you go to a church, a temple, a synagogue, a mosque, a shul, basilica, cathedral, or other house of worship. A marriage there is legally binding, but because they are religious in nature, they are allowed to include or excluse individuals based on their faiths. A gay couple is not going to be accepted in a mosque; a heterosexual Lutheran couple will not be married in a Catholic church, and so on.
If you’re not religious, or are otherwise excluded from marriage—say a quickie-divorced Catholic couple—you can go to City Hall and wait in line and fill out a civil union partnership. This is also legally binding, but shall be open to same-sex couples as much as different-sex couples. Both partners must be legally aware of their rights and responsibilities: this means no adult-child partnerships, no human-animal partnerships, or conscious-comatose partnerships: both signatories must be fully able to represent themselves without problem. Yes, this can means—as is presently the case—participants must either be fluent in English or must have a legally appointed translator to ensure both parties understand their duties and obligations.
These obligations wouldn’t be strict: just an understanding that the civil contract is binding equally for both parties, that they can represent themselves as a single entity for tax purposes, that each has power of attorney for the other, visitation rights, and so on. Also, and importantly, that bigamy represents a legal breach since that creates a power imbalance, and the second party now has the power to seek legal action against the bigamist partners.
All this is easy to do: in fact, the same sex couple can call this a wedding, or even a marriage, but legally it’s just a contract. If you want a marriage, go the religious route. With the civil contract, there’s no judge, no vows, no music, and a fee to be paid to the municipality for filing the paperwork. It will be as exciting as getting a mortgage (but with less paperwork).
The advantage here is that it makes a legal corporation that would be recognizable in the other 49 states. We do this already with birth certificates, right? One form is pretty much like another, and there’s little pomp or circumstance with this process.
Here’s where the states can customize the whole thing to their own ends: states can run background checks to ensure both parties are legally allowed to be married, or to see if there’s fraud about to happen. Arizona can check citizenship, Nevada can check to see they’re not already married to each other and forgot, and Massachusetts can make sure their $4500 fee has been processed. Some states can be easier, others harder—like with everything else.
There are two thoughts about this that may cause heartburn between states.
First, what’s to stop polygamy? You could have 72 people all perfectly willing to get married to each other, just as you could have 72 people all willing to start a business together, declare themselves a religion, or form a political action committee. With the Czar’s plan, this sounds like you couldn’t prevent polygamy, polyandry, or group marriage. But a civil contract with multiple partners has to be limited to two people; otherwise, you run right into problems. With a contract of two people, either can leave (divorce) at any time and the contract is nullified. With three or more people, the contract would remain in force and potentially difficult to dissolve. This becomes true if the group marriage arrangement proposes letting people leave or enter or re-enter. Since there’s no way to manage this, it makes the contract unenforceable. The only way to protect all parties equally is to limit it to two people.
For example, Glen and Debbie and Jenna want to be united as a single family under this model. They do, and after three years, Glen wants out. If he leave the contract, what happens to Debbie and Jenna? Their contract is still binding, even if they don’t particularly care for each other. They’re stuck, unless they call the whole thing off. But what if Debbie and Jenna want Marty to join in? What if Debbie does but Jenna does not? You can see how adding even a third person into this arrangement makes the contract completely worthless and susceptible to legal disputes and outright fraud. So sorry, friends of polyamory, you’re still out. There’s a reason polygamy has been booted out of most religions: it’s nothing but a pain in the ass, legally.
This leaves the second problem, which is incest. If we simplify the arrangement to siblings, what’s to stop a 32-year-old guy from going into a union with his 30-year-old brother or sister? This is a bit trickier to think about because (a) a parent-single adult child arrangement would cause no issues for inheritance, (b) inbreeding is not quite the certainty popular culture promotes, and (c) two adults do not assume a power imbalance that would be ipso facto inequitable. Outside of the ick factor, there’s not a lot of legal ground to prevent this, other than we just want to.
States might simply have to say—as all 50 do now—sorry, no siblings or children. (Contrary to popular belief, some form of first-cousin marriage is either legal or possible in most states already.)
In short—which we could have done paragraphs ago—marriage becomes a religious ritual resulting in a legal, contractual union; a religion can put as many restrictions or requirements as it chooses, because a couple can always go to the municipality as a last resort. But a state or local government can no longer perform a marriage: they can only officially stamp a legal union. Takes the romance out of it for some folks, sure, but it eliminates all the marriage equality nonsense.