summer_jackel: (Furries for Obama)
summer_jackel ([personal profile] summer_jackel) wrote2008-10-28 03:58 pm
Entry tags:

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?

[identity profile] skye-ds.livejournal.com 2008-10-29 01:08 am (UTC)(link)
My opinion (as a paralegal) is this:

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.)

[identity profile] summer-jackel.livejournal.com 2008-10-29 06:08 pm (UTC)(link)
Yes, yes and yes! Said far more succinctly than I did. ;)

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.

[identity profile] skye-ds.livejournal.com 2008-10-29 06:58 pm (UTC)(link)
My thing about drugs is this. Almost all of the bad behaviors that come from drug use are already illegal. Whether or not one was under the influence of drugs, or not. Go after those things, hard.

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)

[identity profile] summer-jackel.livejournal.com 2008-10-29 07:45 pm (UTC)(link)
no problem, I'm pretty much completely in agreement with the rant. Wars on ideas are just dumb, and a combination of having substances more or less legal AND educating the heck out of the populace, starting in jr. high, about what the various things actually do to your brain, would do much to curb the very bad things associated with such use.
joreth: (Dobert Demons of Stupidity)

[personal profile] joreth 2008-10-29 06:12 pm (UTC)(link)
I would be completely in favor of removing the word "marriage" out of the legal aspect and just calling everyhing a Domestic Union (or civil union or any freakin' term that is not "marriage") and leaving the word "marriage" for religious observances. Since most people end up doing both anyway, that wouldn't really change many situations who have already gotten married.

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).

[identity profile] summer-jackel.livejournal.com 2008-10-29 06:28 pm (UTC)(link)
Yeah, there's so much cultural weight that it's hard to get around. I really do think, though, that both contract law and *everyone's* marriages would benefit by separating the two ideas! I know it ain't gonna happen, but if we are going to conflate a marriage (by which I mean the ceremony you do with your sweetie signifying intent for a LTR) with a legal domestic union, we must let everyone confuse their personal life and legal contracts equally.

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.
joreth: (Dobert Demons of Stupidity)

[personal profile] joreth 2008-10-30 03:38 am (UTC)(link)
Yep, I agree that both contract law and "everyone's marriages" would benefit if we separate them. Unfortunately, as we've seen by the fundies' belief that homosexuals "attack" the institution of marriage, you're right, it just ain't gonna happen.

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!

[identity profile] summer-jackel.livejournal.com 2008-10-30 04:16 am (UTC)(link)
Yep. Exactly why the conflated 'marraige' bugs the living daylights outta me.

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.
joreth: (Misty in Box)

[personal profile] joreth 2008-10-30 04:52 am (UTC)(link)
:-) sorry, I should have ended that with /sarcasm

[identity profile] summer-jackel.livejournal.com 2008-10-30 05:12 am (UTC)(link)
hee, I'm agreeing with you and I got the sarcasm, I'm just a little steamed up about this right now. ;)
joreth: (Dobert Demons of Stupidity)

[personal profile] joreth 2008-10-30 06:11 am (UTC)(link)
Totally understandable, I'm pretty ticked off about the whole issue myself!

[identity profile] skye-ds.livejournal.com 2008-10-29 06:52 pm (UTC)(link)
Score - nail right on the head. (Par for the course for you. I read you avidly.)

[identity profile] skye-ds.livejournal.com 2008-10-29 08:20 pm (UTC)(link)
Aye! Indeed!
joreth: (Misty in Box)

[personal profile] joreth 2008-10-30 03:32 am (UTC)(link)
Aww, I'm flattered! Thanks

[identity profile] skye-ds.livejournal.com 2008-10-30 03:36 am (UTC)(link)
:D

[identity profile] furtech.livejournal.com 2008-10-29 01:15 am (UTC)(link)
Would passage of Prop 8 actually annul existing same-sex marriages? Wouldn't they be grandfathered in?

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?

[identity profile] summer-jackel.livejournal.com 2008-10-29 06:11 pm (UTC)(link)
Yep. Prop 8 would annul marriages. It's a vile little law.

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
joreth: (Dobert Demons of Stupidity)

[personal profile] joreth 2008-10-29 06:16 pm (UTC)(link)
That tricky little idea is what's got the fundies here in FL up in arms about Prop 2. They're spreading rumors around that any priest who refuses to marry a gay couple will lose his tax-exempt status, which is just patently untrue.

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?

[identity profile] skye-ds.livejournal.com 2008-10-29 07:00 pm (UTC)(link)
Ever read the TX State Constitution as it was rewritten for Reconstruction?

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)

[identity profile] summer-jackel.livejournal.com 2008-10-29 07:38 pm (UTC)(link)
The irony is that legal language is so exhaustive because it is supposed to be so clear an unambiguous that no one can possibly misinterpret it. This of course makes legal language about as clear as mud.

750 words w/o punctuation is an extra-special flavor of amazingly bad, though.

[identity profile] skye-ds.livejournal.com 2008-10-29 07:41 pm (UTC)(link)
*vehement nodnodnodding* (My BA is in English, certified English teacher as well as certified paralegal.)

[identity profile] summer-jackel.livejournal.com 2008-10-29 07:54 pm (UTC)(link)
Oh, reading law must just give you huge headaches, then. (While I don't hold degrees in English, I am fond of the language being used properly. Which the law just doesn't.

[identity profile] skye-ds.livejournal.com 2008-10-29 08:21 pm (UTC)(link)
Amen, Sister, Amen.

[identity profile] corpsefairy.livejournal.com 2008-10-29 08:48 pm (UTC)(link)
Wait, I thought it *wouldn't* annul existing marriages. erf?

[identity profile] summer-jackel.livejournal.com 2008-10-29 08:53 pm (UTC)(link)
Maybe I am wrong. I thought that I read that it would, when I first researched it. I'd better go check that...

[identity profile] summer-jackel.livejournal.com 2008-10-29 09:01 pm (UTC)(link)
Nope. Unfortunately, I was right. Prop 8 would annul existing marriages.
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.
Edited 2008-10-29 21:25 (UTC)

[identity profile] kjatar.livejournal.com 2008-10-29 05:58 pm (UTC)(link)
A perfect example of what most opponents don't seem to understand. Do you mind if I link this post to people? Puts it better than I can, I think.

[identity profile] summer-jackel.livejournal.com 2008-10-29 06:02 pm (UTC)(link)
Please feel free to redistribute as you wish if you think it would be useful! Just, you know, link back to me.

[identity profile] troubleagain.livejournal.com 2008-10-30 07:09 pm (UTC)(link)
I hope you don't mind if someone you don't know does the same...I found you on my friendsfriends list and this is EXACTLY how I feel about "marriage."

[identity profile] summer-jackel.livejournal.com 2008-10-30 07:15 pm (UTC)(link)
Feel free to do so, and be welcomed. :)
Glad to know I'm not the only one who feels this way about it...

[identity profile] troubleagain.livejournal.com 2008-10-30 07:23 pm (UTC)(link)
Yay! Thanks!
joreth: (Silent Bob Headbang)

[personal profile] joreth 2008-10-29 06:08 pm (UTC)(link)
Hear hear!

I'm linking to this, if you don't mind!

[identity profile] summer-jackel.livejournal.com 2008-10-29 06:12 pm (UTC)(link)
Feel free. If you deem it worth spreading, by all means, spread it.