Sunday, June 13, 2004
That's what it sounds like after reading this Washington Post editorial on Virginia's new law. This law sounds so overly broad and vague that I can't imagine it would pass Consitutional muster. While I can, like the author, understand how people of good-consience may be concerned about the prospect of "gay marriage" being given both nominal and legal equality with hetero marriage, it strikes me as far over the line to go as far as this law does, in pre-emptively nullifying even legal contracts between individuals and private businesses. Especially when one considers that one of the most common arguments against same-sex marriage is that all of the rights and benefits from marriage could be accrued through contracts set up between individuals.
This law is not an attack on the threat to traditional society that many people fear same-sex marriage represents and that many could support. It goes beyond that to an attack on homosexuality itself. I can still understand how some people of good consience may believe such an effort is necessary, but for me, that is certainly the point at which I would draw the line and say that this is not the government's place. It goes too far.
Virginia's New Jim Crow (washingtonpost.com) By Jonathan Rauch
I do not write those words lightly or rhetorically. Although I'm an advocate of same-sex marriage, I have taken care not to throw around motive-impugning words such as bigotry, hate or homophobia. I have worked hard to avoid facile comparisons between the struggle for gay marriage and the struggle for civil rights for African Americans; the similarities are real, but so are the differences.
Above all, I have been careful to distinguish between animus against gay people and opposition to same-sex marriage. No doubt the two often conjoin. But millions of Americans bear no ill will toward their gay and lesbian fellow citizens, yet still draw back from changing the boundaries of society's most fundamental institution. The ban on gay marriage in 49 states (Massachusetts, of course, being the newly minted exception) may well be unfair and unwise, as I believe it to be. Yet people of good conscience can maintain that although all individuals are equal, all couples are not.
If I seem to be splitting hairs, that is because Virginia -- where my partner and I make our home -- is not splitting hairs. It has instead taken a baseball bat to civic equality, thanks to the so-called Marriage Affirmation Act.
The act -- really an amendment to an earlier law -- was passed in April, over Gov. Mark R. Warner's objections, and it takes effect July 1. It says, "A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges and obligations of marriage is prohibited." It goes on to add that any such union, contract or arrangement entered into in any other state, "and any contractual rights created thereby," are "void and unenforceable in Virginia."...
Ok, I'm genuinely curious. What, exactly, is the objection to this law (aside from that it's against gay marriage)?
The law says, so far as I can tell from this excerpt, that Virginia does not recognize gay marriage, or any other subterfuges like "civil unions" that are intended to be a marriage-that-isn't-called-a-marriage-out-loud.
The law only applies to laws or contracts "... purporting to bestow the privileges and obligations of marriage ..." It doesn't say anything about what folks may or may not do in Virginia, or what contracts are enforceable...other than that gays may not marry, or get official recognition of a "civil union". Or in other words, no gay marriage, and no pretend gay marriages either, smart-asses.
Again, while one might well disagree with the spirit and intent of such a law, I think the clarity of it is refreshing. :)
Well that's just it. To me it seems to go too far. OK, so marriage is illegal. So why can't I enter into a set of legal contracts with my partner that add up in sum to must of the rights married couples enjoy...powers of attorny, consent decrees in the case of incapacitation...etc, ad nauseum (I'm not a lawyer, so fill in the blanks yourself.) Why should that be any of the state's business? I don't believe it is. And who will decide at what point it becomes a marriage in name and at what point? Will some AG decide that, OK, I have two people of the same sex here, and then have a sum of 10 different legal agreements between them and co-mingled bank accounts, so we'll nullify these agreements.
Which agreements will they choose? What will the threshhold be?
It seems an attempt at a catch-all, that will be very difficult to get down into specifics, and will get the state prying into all sorts of agreements between individuals - even when the individuals are in agreement and no one but the state is in opposition.
"OK, well you can agree to these arrangements and not these arrangements..."
"Well, OK, but how will we know in advance what's over the line?"
"You don't but we'll know it when we see it."
I just don't see any good coming from that. There's just too much broad discretion.
Mind, I'm not a lawyer. It's just my feeling on the matter.
Well, yeah, it IS bad law. It's terrible law. But that's a result of the situation.
The laws about marriage merely codified what everyone already agreed on after thousands of years of social evolution. They aren't particularly well-crafted because it wasn't necessary; "everyone knows" what they mean.
But now come along a group of people who want to turn all that on its head. They want to, effectively, highjack that which they did not build and turn it to ends which the original builders would never have approved of. And they don't do it by persuading the public, but rather by using the legal system as a weapon to get their way. Under the circumstances, no surprise if opponents turn to the legal system in response, and no surprise if the responses aren't always reasonable or well thought-out.
The reasonable and responsible thing to do would be for gay marriage advocates to persuade their opponents, and, once they have convinced a majority, for all thenceforth to work together to use the legislative process to change the laws in a reasoned, consistent matter to serve the needs of all involved.
But that's not what's happening. Instead, gay marriage advocates are attempting to bludgeon society into acquiescence of their demands. I think it's reprehensible. If some people advocate getting out legal bludgeons in defense, that's no surprise.
Finally, I think it's funny that gay marriage advocates want government to "butt out" of their marriage and living arrangements BUT THEN demand that the government "butt in" and give the Stamp Of Approval to same, and enforce the associated contracts, etc. They demand approval, but only on their own terms. If the majority of The People that that government represents don't agree, well that's just too darn bad.
To return to the case in point, this particular law is very broadly worded precisely because it is trying to defend against activist judges. My own view is that activist judges, on either side, are people who have violated the oaths of their offices. The judiciary is not the legislature and is not intended to make new law. Allowing the judiciary to legislate yields very bad law, as we have seen numerous times. No surprise then that attempts to defend against this also lead to bad law.
If you want to fix the blame for this new law where it belongs, blame Marbury vs. Madison. "Who will watch the watchers?"
Well, obviously we disagree somewhat on the merits of same-sex marriage, but that's OK. I can understand society wanting, even needing, to protect traditional definitions, but I can also understand Homosexual couples who are willing take on the responsibilities of marriage also taking on the rights and those who are in all respects already acting as married - what, between heteros would be Common Law Marriage - simply want it recognized in Statutory Law. I believe on a rational non-winner-takes-all day these two needs could be satisfied, but the system is a bit more messy, unfortunately.
So if there was no original need to define marriage (I can't imagine John Adams, when he sat down to write the Massachusetts Constitution every thought for a moment about it), there is now, but I would suggest that going too far and enacting bad laws is not the answer. After all, if the problem is activist judges, and I agree it may be, then all you're doing by making bad law is asking for it to be challenged in court. And who's going to judge that law? Why, the activists, of course. And what you've done by passing bad law is give those activists a big crow-bar to take to the thing, and then the whole law likely goes.
I don't know what to say beyond that?...
I don't think the law is a great idea either - but what else is there? I'm not even saying I support it or approve of it, just that I understand the motivation of those who wrote it, and share their frustration with the way this issue has been approached.
Thanks for the thoughtful discussion. :)