Quote:
Originally posted by sultan:
quote: Originally posted by Thoran:
however Sultan was specifically discussing Gay Marriage,
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you're telling me we are arguing about what to call it? [img]graemlins/biglaugh.gif[/img] i mean, seriously.
as timber has already shown, no one would deny gay "partners" equal protection, benefits, etc. under law as provided to non-gay "partners". marriage, civil union, domestic contract, grimbalg dwarfenburgers... knock yourselves out choosing.
the TRUTH is that we're actually in agreement on the salient point - give them equal treatment.
so let's have a group hug - feel the love! [img]graemlins/bighug.gif[/img] [/QUOTE]Actually I think we do agree on key parts of the subject, but agreeing isn't much fun now is it?
Regarding the naming convention, there IS a distinction... in opinion polls as well as in the Mass. Suprime Court. I was actually referring to TL's reference to the fact that the Mass Supreme Court left the door open for drawing a distinction between Marriage and Gay Legal Partnerships. Additionally TL's subsequent post objected to my rejection of the Bill Of Rights as a justification for changing the Definition of Marriage... it seems I'm not alone in that assertion (even though I don't know the proper legalese to communicate it), which you'll see below.
Now... to TL's reply: I checked your link, it was very interesting but didn't really show how equal protection/due process was being applied in regards to marriage (admittedly I didn't read the WHOLE thing). I found a legal opinion from NJ here and a quick search yielded some interesting stuff... I wish I had time to read all these documents, fascinating stuff:
http://www.judiciary.state.nj.us/feinberg/feinberg.pdf
(from Page 17)
The United States Constitution has never been interpreted
to guarantee same-sex couples the right to marry. A Due
Process Clause challenge to a same-sex marriage ban under the
Federal Constitution was rejected in Dean v. District of
Columbia, 653 A.2d 307 (D.C. 1995). In Dean, two homosexual
men appealed from an order of the court rejecting their
complaint for an injunction to require that the clerk issue
them a marriage license. The court concluded that same sex
marriage was not a fundamental right protected by the Due
Process Clause. Id. at 331. While recognizing that the freedom
to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness, the
court noted that the right to same-sex marriages is not a
fundamental right that is deeply rooted in our nation’s
history. Ibid.
Parts of the decision are worthy of review:
"The question, then, is whether there is a constitutional basis under the due process
(from Page 18)
clause for saying that this recognized fundamental right of heterosexual couples to marry also extends to gay and lesbian couples. The answer, very simply is ‘No.’ Even without reference to Hardwick’s constitutional approval of statutes criminalizing consensual sodomy, we cannot say that same-sex marriage ‘is deeply rooted in this Nation’s history and tradition.’"
[Id. at 333 (internal citations omitted).]
Applying that standard, both the Federal and State courts
consider as fundamental, those rights and liberties deeply
rooted in the Nation’s history and tradition and implicit in
the concept of ordered liberty.
Now while I didn't know the legalese to say it... I think this is a way of saying "if it's stuff we've been doing for a long time, the historical record IS of significance, and should be considered", which is what I said earlier... maybe that's what TL considered "a waste and incomplete", sorry I didn't know the right terminology (lawyers can be such sticklers).
(From Page 21)
Other sister states, faced with the same issue, have
declined to recognize a fundamental right to same-sex
marriage. In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971),
appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, L.Ed.2d 65
(1972), a male couple, argued that the absence of sex-specific
language in the Minnesota statute was evidence of the
Legislature’s intent to authorize same-sex marriages. Ibid.
The couple also claimed that prohibiting them from marrying
was a denial of their due process and equal protection rights
under the Constitution. Id. at 186
Recognizing the historic definition of marriage and
expressing an unwillingness to expand the definition of
marriage, in Baker, the court simply stated, “we do not find
support for [these arguments] in any decision of the United
States Supreme Court.” Id. at 186. The court rejected the
argument that the absence of an express statutory prohibition
(From Page 22)
against same-sex marriages showed a legislative intent to
authorize such marriages. Ibid. Most significantly, the court
held “[t]he due process clause of the Fourteenth Amendment is
not a charter for restructuring [marriage] by judicial
legislation.” Ibid.
There's a lot of discussion of State Constitutions in there too... and like Mass., Hawaii had some favorable (for Gay rights) rulings before a Legislative initiative closed the door. Seems to me that successful challenges are coming from State Constitutional bases, not THE Constitution. It SEEMS like this will work as long as State rulings don't run afoul of Federal Law. Of course that will mean that some states will allow Gay unions, while others won't... that'll get ugly real quick.