Wednesday, August 09, 2006

SSM: View from the Cave

Like so many feral critters guarding their kills' carcasses, anti-same-sex marriage forces are in their legal caves. They feast on DOMA amendments to their states' constitutions and reinforced laws that in many cases prevent not only SSM, but also domestic partnerships that benefit heterosexuals and relatives almost entirely.

Their apparent successes seem largely in anticipation of or reaction to the Massachusetts decision legalizing SSM. They had their way in state after state pointing to the horror, certain horror of SSM.

Now they don't let the obvious positive results here deter them or reverse their puerile panic or, God forbid, apologize. Instead, they are reduced to the schoolyard taunt of "Just you wait and see. Oh, boy. Will it be bad!"

For the pro-SSM side, we saw:
  • Conceptual rulings and subsequent partnership laws in Hawaii, New Jersey and elsewhere.
  • Pioneering civil unions in Vermont, eventually followed by Connecticut.
  • Full SSM in Massachusetts.
On the other side, over a dozen states rushed through their anti-SSM amendments to inoculate themselves against this dreaded disease, as they see it. Then recently we have seen a series of state high court decisions in various regions begging their legislatures to deal with the SSM issue. (When they handed out guts, most judges seem to have been at the snack bar.)

Preceding all of this was the 1996 pandering Defense of Marriage Act, one of President Bill Clinton's worst blunders. DOMA would defend heterosexual marriage against equality, civility, civil-rights, and most of all comity. The principle of having states recognize each others' laws is a key basis of our federalism for good reason.

Ironically, a major argument for DOMA is that making states recognize SSMs from other states would force them to legalize and perform SSM locally. Yet, in marriage law, we have had centuries to contradict that. For one example, some states permit common-law marriages, wherein a couple lives together and says they are married. Poof, they're married there. The states that do not accept this as a basis for marriage locally do recognize these couples as married when they move in-state. No changes occur to the laws of the non-common-law state. Thus it would be without DOMA for SSM and civil unions.

Amusingly, we have a similar situation here related to comity. Our governor and attorney general began enforcement of 1913 laws forbidding out-of-state couples to wed here if the marriages would be illegal if performed in their home state. This was originally an accommodation to other states which enforced their own laws forbidding interracial marriage.

It is worth noting that before WWI, other states did not so accommodate Massachusetts laws. Nor has any agreed fully to recognize SSM couples from here as married locally. Massachusetts plants its legal kisses in thin air.

When the executive branch here dusted off the unused laws to apply to same-sex couples, everyone from GLAD to the NAACP screamed. Yet, the Supreme Judicial Court here said in a narrowly focused decision that the laws were okay, in large part because they discriminated equally across genders. Double huh?

Likewise, the befuddled Roman Catholic hierarchy here and elsewhere (including Canada) openly lied that they would be forced to perform SSM ceremonies and bless the fearsome homosexual unions. Of course, this turns law on its head. Our separation of church and state forbid that, they know that, but they had no shame in deceitful fear mongering to sway voters.

We end up asking whether or for how long will there be an upright finger of marriage equality in New England. Rhode Island or even Maine may be next with civil unions or marriage, as well.

So, as we see from the gay and straight media alike some calls for falling back to civil unions and backing off from pushing for marriage. Others suggest that just as straight couples have been fleeing from marriage for decades, perhaps homosexual ones need to get their legal rights in other ways, like partnership contracts. Many in the pro-SSM camp have simply followed the court's index fingers to legislatures.

We at this blog are bears of very little brain. We turn to other sources. In particular, the next few posts will discuss the latest work on the subject by Carlos A. Ball, Penn State Law Professor and author.

He has a well-reasoned take on why anti-SSM forces are so driven as well as what to expect next.

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