posted
I support civil unions for gay people and would prefer not to have a gay marriage amendment at all in our Constitution. But if we were to have one, this is what I can live with:
1. Each state can decide whether they want to allow gay marriage or civil union. This decision must be made through the legislature or a state wide ballot measure. It will not be decided by the state courts or federal courts.
2. No state is required to recognize gay marriages of other states.
3. All states are required to recognize the civil unions of other states. States must recognize all the rights and responsibilities granted to the civil union couple as defined by the state in which the civil union took place. However, no civil union couple's rights and responsibilities may exceed the rights and responsibilities of married couples in their state of domocile.
The scope of this clause is limited by clause 5 below.
4. No civil union or gay marriage can be retroactively nullified by future state legislation or ballot measure.
5. Conflict of laws: If there is any conflict between the states, the law of the state in which the right is being applied for will prevail if that state's legislation specifically reserved the right to married couples. For example, New York grants civil union couples the exact same adoption rights as married couples. This couple moves to Texas, and Texas law specifically gives preference to "married" couples. Texas law would prevail.
Is anyone terribly offended by this proposal? I hope this thread stays civil, I mean it is Thanksgiving and all....
posted
Aside from the difference in terminology, civil unions may contain rights similar but not identical to those granted to marriage.
For example, California may accept civil unions and define it as something like: "All the rights and responsibilities of marriage, except for the community property laws."
Of course, it is possible for a state to define civil union as "exactly the same as marriage, except for the name."
But as someone pointed out in another thread (I think it was Dagonee), there are some rights that will never be granted to people joined by Civil Unions, such as spousal privilege.
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posted
I really don't like that full faith and credit is being done away with, here. There should still be a neccesity that states must recognize marriages from other states, period. Making full faith and credit apply only to civil unions is also confusing. What if the state they are moving to HAS no civil unions. Do they then retain all the rights and privileges for civil unions of the state they just left? If that's the case, my state (Texas) will immediately adopt civil unions, but consisting of little more than a legal name change and coming with no rights whatsoever, just so they can deny rights to incoming couples under section 5 of your amendment.
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quote: But as someone pointed out in another thread (I think it was Dagonee), there are some rights that will never be granted to people joined by Civil Unions, such as spousal privilege.
Are you sure about that? I really don't think that's true.
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posted
I think there are definitely some rights that people with a civil union don't get that married people do, but I didn't think spousal privelege was one of them.
posted
People who get married today by going to the courthouse are technically getting a "civil union", and they have all the privileges that people married in churches have.
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quote:There should still be a neccesity that states must recognize marriages from other states, period
While I agree with you (I support gay marriages), this will not be accpeted by the religious right.
Unfortunately, the best we can hope for now is a workable compromise.
quote:What if the state they are moving to HAS no civil unions. Do they then retain all the rights and privileges for civil unions of the state they just left?
Yes, unless the state they are moving to has specifically defined the right they are asking for as reserved for married couples.
Again, it is a compromise.
quote:If that's the case, my state (Texas) will immediately adopt civil unions, but consisting of little more than a legal name change and coming with no rights whatsoever, just so they can deny rights to incoming couples under section 5 of your amendment.
Texas' civil union definition will not affect the rights of incoming couples. For example, let's assume California's civil union law gives couples the maximum package of rights allowable. If a Californian couple moves into Texas, their rights will be retained, regardless of Texas's definition of Civil Union.
Texas does have a defense against this, however. For every right they want to deny people in civil unions, they can amend the law to state specifically that it is for "married couples only and not for people in civil unions."
So if Texas wants to deny the right to adoption to people in civil uions, they have to amend the law to state that specifically. If that happens, Texas law trumps California law.
You might wonder "Well what the hell is the point then if Texas can still strip away the rights?"
The point is that by DEFAULT, the rights of out-of-state civil union couples would be protected. The burden is on the people of Texas to speficially assert what they do NOT want allow. There are tons of laws that affect marriage: adoption, wills & trust, community property, civil procedure, torts, contracts, etc. The burden will be on the people who want to take away the rights to go into each area of law and redefine these things as being specifically denied to people in civil unions.
I believe the plurality of Americans are against gay marriage but are supportive of giving gay people certain marriage-like rights. It is good to have each state consider each area of law and have the people vote on what they are willing to concede.
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posted
So, wait. Then the scope of a civil union must be defined to begin with. If a law establishing civil unions in Texas has to negate rights the people don't want gays to have rather than bestow the ones the people do want, who defines the starting point from which those rights are taken? Does your amendment automatically define civil unions as equivalent to marriages "with such exceptions and regulations as each state enacts"?
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quote:Does your amendment automatically define civil unions as equivalent to marriages "with such exceptions and regulations as each state enacts"?
No. I apologize for not being clear. My amendment does not define civil unions at all. My amendment allows each state to define the rights associated with a civil union.
States like New York may very well adopt the "equivalent to marriages with such exceptions and regulations as each state enacts" definition of civil union.
posted
So what I'm saying, then, is that Texas could simply define Civil Unions as a way for one partner to legally change his name. Your amendment doesn't do anything to keep the couple from losing all of their rights when moving from New York to Texas, with one simple piece of legislation. What you just said was that states that want to (for example) keep adoption for straight couples, they would need to amend their adoption laws specifically. However, if the state already has civil unions, a couple's civil union will be recognized as being of the state to which they are moving. When they want to adopt, the adoption law doesn't need to say that gay couples can't adopt, as long as the law establishing civil unions says that the rights of the couple are limited to a legal name change. This is a major problem. The constitution doesn't define marriage. However, there are certain expectations that come with it, even when one goes from state to state to state. This is (unless I am mistaken) due to the equal protections clause and the full faith and credit clause both. Under this amendment, a civil union means a different thing from state to state, which goes against the equal protections clause (if not the full faith and credit clause). Granted, if we are amending the constitution, what we put in there doesn't strictly have to be constitutional, because whatever it is WILL be constitutional once we put it in the constitution, but I really don't think equal protections is something we ought to mess with. Basically, civil unions is set to become a new parallel societal institution. Institutions should not be decided on a state to state basis.
Then again, neither should civil rights, but that's another barrel for another day.
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quote:However, if the state already has civil unions, a couple's civil union will be recognized as being of the state to which they are moving.
Ah, I see your point, thank you. When I said in Clause 3 that "all states are required to recognize the civil unions of other states," I don't mean a recognition in name only. Again, it is my fault for not making things clear.
Clause 3 really means "all states are required to recognize the civil unions of other states, i.e. recognize the rights and privileges granted to the civil union couple by the state in which the couple applied for the civil union." This is, of course, subject to the limitations of clause 5.
quote:Institutions should not be decided on a state to state basis.
Then again, neither should civil rights, but that's another barrel for another day.
Hey I agree with you.
I hope we never pass an amendment limiting rights of gay people. I'm just preparing for the worst and trying to gague what people from both sides would accept.
posted
That would be really, really confusing. Any time you have a couple permanently transferring residence to a new state, both they and their new state have an expectation that those people will be governed by the laws of their new state. That means all laws. If I perpetrate a crime in a state that has the death penalty, I can't claim that, since I just moved from a state that doesn't, I shouldn't get the needle. That's my first objection.
My second is that now, equal protections is being thrown away. A civil union in one state is not the same as a civil union in another. Rather than saying "the states have a right to civil unions or no civil unions" we are giving the states the right to define what a civil union is. This is bad enough in and of itself. However, the problem is compounded by the first problem. What if I, a happily civilly unified Californian, move next door to a gay couple in Texas. We both have our Civil Unions. Under your interpretation of your amendment, my civil union comes with a lot more rights than his does. His is a name change. Texas must recognize mine as a marriage in all but name. This is far more serious than simply saying my marriage is nullified. It's creating a system where people within a state are treated differently under the law for more or less arbitrary reasons like having come from somewhere else.
Under the current system, with DOMA intact, Utah can simply say that my marriage to another man doesn't count if I move in state from Massachusetts. Repugnant as that is, Utah is still required to treat all gays the same. Under your system, a stratification begins to take place based on where you come from. It's just too complicated if interpreted one way, and too easily abused if interpreted the other.
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quote:That would be really, really confusing. Any time you have a couple permanently transferring residence to a new state, both they and their new state have an expectation that those people will be governed by the laws of their new state. That means all laws.
I grant you that it would be somewhat confusing, but not impossibly so. Take common law marriages for example. Some states do not allow common law marriages within their jurisdiction. However:
quote:Even if the state does not recognize common law marriages itself, it will usually recognize one that was formed in a state which does recognize common law marriages. In addition, most states will recognize a common law marriage if the parties at some time during their period of living together resided in a state that allows the formation of common law marriages.
quote:Under the current system, with DOMA intact, Utah can simply say that my marriage to another man doesn't count if I move in state from Massachusetts. Repugnant as that is, Utah is still required to treat all gays the same. Under your system, a stratification begins to take place based on where you come from.
So you would prefer that Utah deny civil union rights to all gay people instead of allowing it for certain groups? Under my system it would be possible for all gay people in Utah to get civil unions in Massachusetts, provided that Massachusetts does not have any residency requirements for their civil unions.
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posted
This would be cumbersome, and completely unfeasable.
Either all states have to reconize the rights of civil unions, or none of them do....adn the same thing that prevents texas from allowing gay marriages now would prevent them from singning this a"amendment", becasue they would be forced to allow and support the rights of gays that were married in other states.
Also, you can say that no court or federal law can overrule or overturn these types of decisions, but that isn't how our system works. Any and all things are allowed to be reviewed by the legal branch....ang what happens if this "amendment" is ruled unconsititutional? Do you really think that wording it that way would prevent challenges in court? Should it?
It will be better for the SCOTUS to rule on it one way or another...this "amendment would have no chance of passing, and if it did it would make things even worse, adn create even more friction between the states.
posted
The common law example doesn't really apply, because it's still an all or nothing deal. If I am married in Florida, whether it be through common law or at a Justice of the Peace, it's a marriage in Florida. When I move to Utah, it's still a marriage. I couldn't GET married in Utah through common law (actually I probably could, but I'm just using Utah as an example) but as far as Utah is concerned, for someone moving in from out of state, a marriage is a marriage is a marriage. However, once I am in Utah, no part of Florida's laws touches me in any way. I am governed in every way by the law of Utah, whether it be matrimonial law or otherwise. If it's harder to get a divorce in Utah, I can't file under Florida provisions.
I would rather ALL gays from ALL states be allowed civil unions, and all straights have to get civil unions too and marriage is stuck back in the churches where sacraments belong. However, if we are amending the constitution I think we should do it in a way that doesn't force the government in one state to govern some of its citizens by the laws of another state.
I would also prefer that equal protections remain intact. Perhaps a better solution would be to go ahead and define civil unions in the amendment.
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technically, a constitutional amendment can't be ruled unconstitutional. It's the legislative branch's trump card in that respect. Once it's in the constitution, it can't be deemed inconsistent with the constitution, because it IS the constitution.
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quote:adn the same thing that prevents texas from allowing gay marriages now would prevent them from singning this a"amendment", becasue they would be forced to allow and support the rights of gays that were married in other states.
No they wouldn't. First, they do not have to recognize marriages from other states. Second, while they have to recognize civil unions from other states, Texans can legislate limitations on those rights to their hearts' content.
quote:ang what happens if this "amendment" is ruled unconsititutional?
Can an amendment to the Constitution be ruled unconstitutional? My conlaw is a little rusty, just wondering.
quote:It will be better for the SCOTUS to rule on it one way or another...
Most likely SCOTUS will come down against gay marriage or even civil unions. If that's the case, that's the same result as Bush's proposed marriage amendment.
If by some miracle the SCOTUS came down on the side of gay rights, wouldn't the religious right see this as another example of judicial activism and call for a fundamental change to our judicial system?
quote:this "amendment would have no chance of passing, and if it did it would make things even worse, adn create even more friction between the states.
You may be right that people will not support this amendment. This issue is so polarized in certain states that compromise is almost impossible.
I don't agree that this will create more friction though. The blue states can adopt gay marriage and civil union. The red states can reject gay marriage and limit the rights given to civil union couples on a right-by-right basis.
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posted
Demosthenes, I see your point about the common law marriage thing. Good point. I'll have to reconsider that example.
quote:However, if we are amending the constitution I think we should do it in a way that doesn't force the government in one state to govern some of its citizens by the laws of another state.
This really isn't as complicated as I'm making it out to be. (MY fault, again)
Example: New York civil union laws gives gay couples joined in civil unions the same adoption rights as straight married couples. Texas civil union laws does not give gay couples the same right; however, Texas adoption laws have not been amended to specifically exclude civil union couples (i.e. Texas has not invoked clause 5).
So when a civil union couple from New York moves to Texas, they would enjoy the same adoption rights as any other married Texas couple. The New York couple is still subjected to the general adoption laws of Texas.
The application of this amendment should not be too hard. The only change is that the gay civil union couple would be treated like a married couple in Texas for adoption purposes.
quote:I would also prefer that equal protections remain intact. Perhaps a better solution would be to go ahead and define civil unions in the amendment.
I might be open to that. Posts: 12 | Registered: Nov 2004
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posted
I would have to see the wording of the amendment to be sure of this, but I'm fairly sure the amendment you are describing could never be written. You see I can't require that the states govern using the laws of another state. In matters of state law, states are sovereign. If you relegate the definition of civil union to the states, then no individual state can be forced to recognize another state's definition, even in the absence of a definition in the first state. There is a very good reason for this. If I pass the bar to become a matrimonial attorney in Texas, I don't have to study a whole bunch of Arizona case law in order to do it. The state systems are constructed so as to be entirely independent of each other on a legal basis. Once you start applying Mississippi law to a case in Nebraska, you've done something wrong.
One more point. Texas wouldn't have to invoke clause five in every single area they want to. They wouldn't have to amend every law in the state just to strip rights away from gays. All they would have to do is pass one law instituting civil unions, with a clause that specifically LIMITS civil unions to a name change.
quote:If there is any conflict between the states, the law of the state in which the right is being applied for will prevail if that state's legislation specifically reserved the right to married couples.
So, as a misanthropic, homophobic texas state senator, here's what I do. In my law establishing civil unions, I simply include a clause that reads "In all instances where state law refers to a joined couple, civilly joined same-sex couples shall be ineligible, excepting insofar as such laws execute the legal change of the name of one of the parties involved." There. Now state law excludes gays in every instance. National Congress can't specify, when leaving determinations up to the states, how the states may legislate.
Obviously in amending the constitution you can do whatever you want, but this just isn't a good idea. It would needlessly entangle the legal system, derail the bureaucracy, and sow mass confusion.
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quote:The state systems are constructed so as to be entirely independent of each other on a legal basis. Once you start applying Mississippi law to a case in Nebraska, you've done something wrong.
That's not entirely true. State courts often apply the laws of other states. For example, parties to a contract can expressly stipulate that the law of another jurisdiction will govern. For example, two Texans can sign a contract with a clause stipulating that the law of California will be applied.
Like you said, "obviously in amending the constitution you can do whatever you want." I admit this amendment will redefine various aspects of state rights with regards to marriage. But Bush's proposal also take away state's rights by taking away a state's right to define "marriage" the way they see fit.
quote:"In all instances where state law refers to a joined couple, civilly joined same-sex couples shall be ineligible, excepting insofar as such laws execute the legal change of the name of one of the parties involved." There. Now state law excludes gays in every instance.
That is an excellent point. I really haven't figured out a good way to prevent that.
My only response is that such a move still puts the burden on state to pass this law. So the default rule still favors gay people, until such legislation is passed. I hope only a handful of states will support such an overwhelmingly anti-gay legislation.
Like I said before, I believe most Americans believe gay couples should be allowed some marriage-like rights. I think a measure like the one you described will not be adopted in most states.
Thanks for helping me work this out btw. Most of my friends are so adamant about gay rights that they will not even consider any type of concession.
posted
I don't see how contract law applies here either.
Gez, I feel like I'm being mean. I really do mean all of this in the nicest possible way.
However, while it is true that people can put basically whatever they want in a contract, that is because a contract is an agreement between two people. One fine example would be your cell phone contract. Most people don't read it carefully, but the contract for Cingular expressly states that you cannot sue them, but that you will seek "arbitration" by a non-governmental third party in case of a dispute. One man tried to sue Cingular for screwing him over on cell service, and the court ruled that, since he had agreed not to sue, his case would not be decided and he should seek arbitration. Now, since a contract is willingly and (presumed) knowingly entered into by both parties, they can do stuff like this and, unless it's clear one of them is grossly exploiting the other, civil court will uphold the contract as binding. However, if the state were to ever arbitrarily attempt to take away the right to sue, there would be hell to pay. The same applies here. Contract law is an exception to the general rule. In the social contract, the states are separate in every way.
Also, and here I'm just shooting in the dark, but I'm pretty sure that if a contract dispute were to occur under the contract you described, it would have to be tried in a California court. No Utah court would hold a trial under California law.
The whole state sovereignty issue when it comes to state law is actually reflected in the constitution as well, by the way, though not in exactly the same circumstance. One of the first amendments to pass (after the bill of rights, of course) stated that a citizen of one state could not sue another state. This is, generally, because a citizen of one state is not directly affected by the laws of any other state. They do not act upon him.
Here's another loophole, btw. What if I move to Texas from West Virginia when West Virginia has no adoption rights for same-sex couples, but then West Virginia passes such a right. Do I, as a "West Virginia civilly unified Texan" get this new right, or are my rights frozen, assuming Texan law does not speak to the issue. These are serious issues and they WOULD come up. Cumbersome is a very good word for this.
And I hold out little hope that the states that are against gay marriage would show any restraint whatsoever in slapping gays back down. What people forget is that right now, the legal marriages taking place in Massachusetts is only a temporary victory for gay rights, as Mass. legislature passed a state Constitutional amendment that only lacks a statewide popular vote, which is scheduled for later on. As soon as that ballot hits voting booths, according to the polls these marriages will stop. That's Massachusetts! You know, the state that extreme liberals are named after! The state that keeps electing Ted Kennedy! This issue isn't going away, and I don't expect our nation to do right by gays for a long time. 2000 was a crucial year. Right now, the best chance the movement has is in the courts, which are going to get a LOT more conservative over the next four years than they already were.
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posted
Oh, morally I'm not willing to consider making any type of concession either. Gays must have a societally recognized institution of formalizing their relationships that carries with it the benefits our government bestows upon married couples. Preferably, it will be the same one straight people have (whether that be civil marriage or civil unions). But that doesn't mean I won't critically look at any proposal from a legal standpoint.
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Of course you're not being mean. I can't learn if I only post in forums where pepole agree with me all the time.
quote:Here's another loophole, btw. What if I move to Texas from West Virginia when West Virginia has no adoption rights for same-sex couples, but then West Virginia passes such a right. Do I, as a "West Virginia civilly unified Texan" get this new right, or are my rights frozen, assuming Texan law does not speak to the issue.
Hmmm... that's a good point. Normally this would be something courts can figure out. But given that my amendment prevents courts from meddling in this subject, I would have to specify a way to prevent this problem. Like you said, this is looking cumbersome. My amendment is going to be four pages long.
quote:Oh, morally I'm not willing to consider making any type of concession either.
This makes me appreciate your input even more. Thanks for helping me work this out.
quote:But as someone pointed out in another thread (I think it was Dagonee), there are some rights that will never be granted to people joined by Civil Unions, such as spousal privilege.
Without commenting on the proposal in the first post, the quotation above conflates two separate discussions, I think.
The spousal privilege is not available to couples using the package of contracts, wills, and powers of attorney that can be used to aproximate, very loosely and incompletely, the benefits of marriage.
When I've spoken of civil unions in the past, it's generally to grant the same exact rights as marriage. My preference is for all civil marriage to be renamed civil unions and keep the same general legal framework.
BTW, the full faith and credit clause allows states to redefine marriage rights and responsibilities between states. A couple married in California doesn't bring the community property rights with them to an equitable distribution state.
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