summer_jackel (![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png)
summer_jackel) wrote2008-10-28 03:58 pm
summer_jackel) wrote2008-10-28 03:58 pm
Gay Marriage: This term may not mean what you think it means.
This election will be over soon, and I will be so very happy. I really want to go back to comfortably ignoring politics, oh please yes. But as we all know, there's some major stuff on the plate right now, so I don't get to yet.
My subject of bitchy rant at the moment is CA's Prop 8, which if passed would repeal existing and prevent future same-sex marriage in our state. I am of course livid about this, not just for the obvious reason of being gay, or even because the other side is dirty enough to sink to blackmail and extortion in an attempt to push their discriminatory agenda, or all of the many other good reasons I am sure exist to want to see this thing crash and burn.
The whole thing has me pissed off as a lawyer, too.
So Ok, people. There is a distinction between legal and sacred/religious/whathaveyou marriage. I am not at all thrilled that the term is used as a catchall for both, and conflating the two leads to lots of confusion, and, well, juicy little pockets of evil like Prop 8.
Legal marriage is the handy process of entering into a number of contracts all at once. They include imparting medical authority and rights with regards to the custody of minor children, but mostly these contracts are about property. Particularly real property (land).
California is a community property state, which in a nutshell means that (almost) all assets, earnings and property earned or obtained by either spouse during the marriage become equally and jointly owned by both. (There's more than that...a semester of law school and a day on the bar more...but that's all you really need for now). Personally I'm too much of a loner to enjoy the thought of entering into that particular contract, but hey, there are tax advantages, so if you're into it, go for it. The divorces get pretty unpleasant, but that's true in other states, too.
Legal marriage was originally a way for a husband and his bride's father to come into agreements vis. money and land (because of course the woman couldn't own it). The woman herself was part of the property being exchanged, because until the early 20th century her legal rights were abysmal. Yes, the law has changed since then, but ponder that history for a moment anyway.
Note that I haven't mentioned sex, other than that's the typical way a couple ends up with children. They are a part of the marriage contract, true, but California's complex family code will give custody to a surviving parent whether or not there was a marriage and has otherwise done everything it can to give equal rights to married and unmarried parents. This is a Good Thing For Everyone. So the bit in the marriage contract about children is pretty superfluous. Besides, we all know that there are other ways that straight couples come by kids as well, and plenty of gay folk have them too. (Hello, lesbian couples have been borrowing their male friends for stud service for ages, and that's just the easiest way).
Sex has nothing to do with legal marriage. Because it's an example of contract law. Denying legal rights, including the making of contracts, to a class of Americans based on gender is gender discrimination, pure and simple. That's illegal both in CA and Federally (I could look up the Act, but I'm being lazy), which is why this issue is eventually bound for the Supreme Court. This is a purely legal issue. No really. It is.
The Pro-8 folks are yowling about the sanctity of marriage and the desire to protect traditional unions, but trust me because I've studied it when I say contract law is anything but sacred, and if you want to look at traditional legal marriage, you end up with the woman-as-property bit. My long winded point here is that Prop 8 will in no way, shape or form change religious marriage. If you want to think gay sex is Teh Evil and marriage should only be between a man and woman of your own specific religion, well, fine, that hurts my feelings but I won't argue much. I'll support your right to think that, so long as you don't attempt to kill anyone. I firmly believe that the law should stay out of our churches as much as I believe that, well, the churches should stay out of our law...
Again, the fact that English uses the same word for legal and sacred "marriage" and that we are culturally conditioned to enter into both at the same time ANNOYS me. Annoys the HELL out of me. I don't like the traditions behind legal marriage, I don't like the bundle-of-contracts that no one talks about and most newlyweds don't understand because this institution is supposedly about relationships. I don't like the assumption in either type that making any kind of agreement will somehow keep a relationship alive forever, when the reality is that people grow and change, sometimes apart, whether or not they've agreed to co-own all their property.
Personally...I am fond of long-term commitments and serious rituals made out of love. Something like a handfasting where the couple (triad, quad, whathaveyou) renews their vows every now and again to keep things current emotionally is more my speed, but I digress. I seem emotionally predisposed to long-term attachments and come on, I'm a Pagan, of COURSE I like Deep Meaningful Rituals...but I've just given you many of the reasons marriage (legal and sacred) as practiced in America today rubs my fur a bit wrong.
I just wanted to point out that Prop 8 is not even about what its supporters are claiming it's about. This thing is an example of pure sex discrimination, and an attempt to write it into our very constitution at that. Sacred marriage won't change when 8 fails, and if you want to go do it in a way that excludes gays, or anyone who isn't your flavor of religion, have at. It's a free country.
...it still is, isn't it? Right?
My subject of bitchy rant at the moment is CA's Prop 8, which if passed would repeal existing and prevent future same-sex marriage in our state. I am of course livid about this, not just for the obvious reason of being gay, or even because the other side is dirty enough to sink to blackmail and extortion in an attempt to push their discriminatory agenda, or all of the many other good reasons I am sure exist to want to see this thing crash and burn.
The whole thing has me pissed off as a lawyer, too.
So Ok, people. There is a distinction between legal and sacred/religious/whathaveyou marriage. I am not at all thrilled that the term is used as a catchall for both, and conflating the two leads to lots of confusion, and, well, juicy little pockets of evil like Prop 8.
Legal marriage is the handy process of entering into a number of contracts all at once. They include imparting medical authority and rights with regards to the custody of minor children, but mostly these contracts are about property. Particularly real property (land).
California is a community property state, which in a nutshell means that (almost) all assets, earnings and property earned or obtained by either spouse during the marriage become equally and jointly owned by both. (There's more than that...a semester of law school and a day on the bar more...but that's all you really need for now). Personally I'm too much of a loner to enjoy the thought of entering into that particular contract, but hey, there are tax advantages, so if you're into it, go for it. The divorces get pretty unpleasant, but that's true in other states, too.
Legal marriage was originally a way for a husband and his bride's father to come into agreements vis. money and land (because of course the woman couldn't own it). The woman herself was part of the property being exchanged, because until the early 20th century her legal rights were abysmal. Yes, the law has changed since then, but ponder that history for a moment anyway.
Note that I haven't mentioned sex, other than that's the typical way a couple ends up with children. They are a part of the marriage contract, true, but California's complex family code will give custody to a surviving parent whether or not there was a marriage and has otherwise done everything it can to give equal rights to married and unmarried parents. This is a Good Thing For Everyone. So the bit in the marriage contract about children is pretty superfluous. Besides, we all know that there are other ways that straight couples come by kids as well, and plenty of gay folk have them too. (Hello, lesbian couples have been borrowing their male friends for stud service for ages, and that's just the easiest way).
Sex has nothing to do with legal marriage. Because it's an example of
The Pro-8 folks are yowling about the sanctity of marriage and the desire to protect traditional unions, but trust me because I've studied it when I say contract law is anything but sacred, and if you want to look at traditional legal marriage, you end up with the woman-as-property bit. My long winded point here is that Prop 8 will in no way, shape or form change religious marriage. If you want to think gay sex is Teh Evil and marriage should only be between a man and woman of your own specific religion, well, fine, that hurts my feelings but I won't argue much. I'll support your right to think that, so long as you don't attempt to kill anyone. I firmly believe that the law should stay out of our churches as much as I believe that, well, the churches should stay out of our law...
Again, the fact that English uses the same word for legal and sacred "marriage" and that we are culturally conditioned to enter into both at the same time ANNOYS me. Annoys the HELL out of me. I don't like the traditions behind legal marriage, I don't like the bundle-of-contracts that no one talks about and most newlyweds don't understand because this institution is supposedly about relationships. I don't like the assumption in either type that making any kind of agreement will somehow keep a relationship alive forever, when the reality is that people grow and change, sometimes apart, whether or not they've agreed to co-own all their property.
Personally...I am fond of long-term commitments and serious rituals made out of love. Something like a handfasting where the couple (triad, quad, whathaveyou) renews their vows every now and again to keep things current emotionally is more my speed, but I digress. I seem emotionally predisposed to long-term attachments and come on, I'm a Pagan, of COURSE I like Deep Meaningful Rituals...but I've just given you many of the reasons marriage (legal and sacred) as practiced in America today rubs my fur a bit wrong.
I just wanted to point out that Prop 8 is not even about what its supporters are claiming it's about. This thing is an example of pure sex discrimination, and an attempt to write it into our very constitution at that. Sacred marriage won't change when 8 fails, and if you want to go do it in a way that excludes gays, or anyone who isn't your flavor of religion, have at. It's a free country.
...it still is, isn't it? Right?
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Domestic Contracts are the bidness of the Gummint. If dey gonna respect one, they need to respect all, or respect none.
Marriage is a sacrament and the domain of the Church. No Gummint involved.
(I also believe in no vice law - legalized drugs, prostitution, gambling, what have you.)
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I'm against vice law too, though I have very mixed feelings about meth and similar...nasty stuff, and the labs tend to blow up and hurt people. I like it being illegal. On the other hand, if it was legal, it could be regulated, and I feel that education is more effective in curbing these things than proscription.
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Apparently we've learned nothing from Prohibition. Which. Has. NEVER. Worked. Here. And MADE La Cosa Nostra in this country. Like the war on drugs has made the drug cartels laugh all the way to the bank.
Wars on Things/Ideas don't work round here neither, for that matter.
And we have learned nothing from La Cosa Nostra. Which is that punishment does not work, negative reinforcement does, and that negative reinforcement must be Quick, Clean and Consistent. Always. Like an electric fence for horses.
(/end rant - sorry)
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Unfortunately, there is a lot of social weight to the word "marriage" and a lot of the gay community doesn't want to give that up. Of course, my suggestion is to go find a church that will "marry" you and there you have it, but some members of the gay community want the same historical and social significance for their unions as their hetero counterparts and the het community would be absolutely livid if we tried to take away their "marriage" (which, most of us here understand isn't want we'd be doing, but it's what they'd think we were doing anyway).
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There are plenty of churches out there which would/do marry gays, if the contract law portion was to be set aside for a moment. I hold to the position that this is the private business of the religious body...if you're gay and your church sez you're evil and they won't marry you, well, IMO you have a different kind of problem than legalized equal rights.
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And yes, since our nation has decided that religion is outside of the law in a lot of ways, that "freedom of religion" trumps many other rights and obligations (tax exempt and censorship, to name two), a church's refusal to marry someone is a totally different problem than legalized equal rights.
It just baffles me how people can't see how much better off EVERYONE would be if we finally, once and for all, separated the two concepts officially as they are in reality.
I mean, religions would get to keep their "sacred institution" and everyone would get to keep the government out of their personal relationships, while the government gets to continue regulating property contracts. Everyone wins!
But no, we have to hold onto that damn word because it has "historical significance". Yeah, and that historical significance is fraught with unequal distribution of civil liberties and horrendous abuse. Now that's something I want to align my modern-day, egalitarian, romantic relationship with!
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If you want to trace the "historical significance" of legal marriage, it gained its significance to begin with because a woman was *part of the property* being transferred from her father to her husband and ultimately to her sons! This wasn't even abolished all that long ago, historically...it's a bit of common law that survived into American history for quite some time, though I would have to dig way back into my law school notes/comb the internet to get you a date.
My modern-day, egalitarian, romantic relationship(s)? I don't want them anywhere near this concept, thank you.
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And...it won't end: if it doesn't pass now, they can put it back on the ballot...and over and over. I hate it.
But-- forewarned is forearmed: how about a ballot proposition or legal action against the churches that actively campaigned for prop 8-- taking away their tax-exempt status. I believe that current law states that if you're non-profit or tax exempt, you can't become politically active, right?
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They could put it back on, but if it loses now, I feel that it will be harder to pass in the future. Eventually, I feel that the marriage issue has to come before the Supreme Court for the reasons I outline above...denying contract rights based upon sexual orientation, a protected class, is a violation of Federal law.
As for the last, I don't know about the tax exemption laws for non-profits, but I like that idea! :D
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Personally, I don't think churches should have any tax-exempt status, but participating in politics as a reason to remove that current status pleases me greatly. If this were true, that only certain behaviours could remove tax-exempt status (and not just removing it from all churches everywhere, which is what I'd prefer), then that needs to be written very, very carefully, with clear and unambiguous rules for what activities are considered a violation and what activities are not, and how to decide in the future on an activity that wasn't thought of at the time of writing.
And we all know how good the govt. is at writing clear and unambigious laws, right?
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Written by lawyers and farmers in tandem. There is a 750 word sentence that is completely without punctuation (commas, colons, semi-colons, dashes, elipses, etc)
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750 words w/o punctuation is an extra-special flavor of amazingly bad, though.
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http://civilliberty.about.com/od/gendersexuality/p/ca_anti_gay.htm
"The California Marriage Amendment, to be inserted as an exception to the state's equal protection clause (which would immediately precede it), reads as follows:
Only marriage between a man and a woman is valid or recognized in California."
edited to add an excerpt from the Atty. General's "Impact of the Proposed Amendment:
The amendment would overturn a May 2008 California Supreme Court ruling which granted equal marriage rights to same-sex couples, annulling thousands of existing marriages. The language would also make it possible for a future conservative state court to overturn state domestic partnership ordinances on the basis that they are too similar to marriages, and therefore violate the California Marriage Amendment.
...This is really scary stuff.
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Glad to know I'm not the only one who feels this way about it...
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I'm linking to this, if you don't mind!
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