"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Tuesday, August 02, 2005

So Much For Marriage and Self-Government

The "widely respected" (by the Los Angeles Times) California Supreme Court ruled yesterday that businesses offering discounts or other benefits to married couples must offer the same to registered domestic partners, most of whom are homosexuals. The sages argued that "A business that extends benefits to spouses it denies to registered domestic partners engages in impermissible marital status discrimination."

Got that? California law does not recognize homosexual marriage, and so it is the law---The People---that engages in "marital status discrimination." Put aside the issue of freedom of contract. Put aside the issue of what marriage means. Put aside the likely attendant effects that would follow upon a change in the fundamental definition of marriage. Ignore the implications of the evolution of marriage over the millenia in virtually all human societies in terms of the social function of marriage as an institution. Ignore the effects of weakening incentives for marriage. Put aside the opportunities for rampant fraud, as roommates, third cousins twice removed, and others register as "couples" so as to obtain insurance discounts, easier real estate credit, ad infinitum. Focus instead upon the deeper implication of this ruling: In the view of the sophisticates, self-government simply is unacceptable if it yields outcomes inconsistent with the demands of those interests favored by the modern high priests of political correctitude. So much for the separation of church and state.

The silver lining is that two initiatives proscribing homosexual marriage in California are likely to appear on the ballot this fall. The black-robed Solomons have improved the prospects for voter approval, in a blue state.


Hunter Baker said...

"so much for the separation of church and state. . ."

You've put your finger on it here, Doctor Zycher. What we have is nothing more than an elite imposing one orthodoxy over and against a different one.

James Elliott said...

Way to blow up a non-issue, Dr. Zycher.

Proposition 22, currently facing challenges before the Supreme Court, does indeed prohibit gay marriage.

However, California recognizes common law marriages after a period of five years cohabitation, and this recognition is available in the form of registered domestic partnerships to both straight and gay couples. Yesterday's ruling provides these couples with the same protections in the marketplace that they have in state law.

Marriage as an institution is in about as much danger today as it was the day before yesterday: Which is to say, none.

First off, like I said, you have to live together for five to seven years before registering. So, your "fraud" gets tossed out on its ear.

You wrote of the evolution of marriage's place in society? You know what the best thing about evolution is, Herr Doktor? It doesn't stop. Oh, look, marriage is further evolving before our eyes! It is a wonderful time to be alive!

I wasn't aware that people needed "incentives" to marry beyond wanting to recognize their bond with a ceremony. I know that's why I'm getting married in 13 months.

I'm having a hard time seeing where your self-government argument comes in. It seems like your reaching above and beyond the scope of the issue.

So, what, gay marriage is going to be legalized and, what exactly is going to happen? Dudes everywhere will be saying, "Forget marrying ::insert woman's name here::, I'm going to shack up with my gay butt-buddy!" I don't think so.

I cannot believe that you are encouraging the writing of discrimination into the state constitution. I was always jealous of my father's getting to see the civil rights era up close and personal. Now I get to see my own. Try casting your mind back fifty years, Doc.

Hunter Baker said...

The self-government concept shouldn't be novel to you, James. The fact that it is is perhaps not a shocker. See, we elect representatives and we are supposed to get to vote on things. Judges are supposed to apply the laws we voted on via our representatives. It's really very simple. You've endorsed a wishing makes it so brand of jurisprudence. And what you forget is that a judicial minority can take away just as easily as it can give.

James Elliott said...

But that doesn't make any sense. They aren't passing legislation. The two issues aren't remotely related. California's elected representatives have decided that common law marriages (registered domestic partnerships) can include homosexuals and lesbians. The ruling Doctor Zycher is harping on merely states that a business cannot offer benefits or discounts to one set of recognized marriages and not another. It's like offering senior citizen's benefits but ony to WHITE senior citizens, which is against the law and the Constitutions of both California and the United States.

That registered domestic partnerships in California also include homosexuals is not the court's "fault" but that of the people's elected representatives. Your issue is a non-starter based on your own argument.

Hunter Baker said...

Doctor Zycher was under the impression that businesses would not be required to do something unless compelled by the people to do so via legislation, which is the standard path of yes, we'll say it again, self-government.

James Elliott said...

And here I was under the impression that the court was merely pointing out that the Equal Protection Clause and the Civil Rights Act extend to common law marriage. Sounds like they're doing exactly what Dr. Zycher thinks they're supposed to (according to your analysis): Having businesses abide by existing legislation.

Tom Van Dyke said...

Firstly, California does not recognize common law marriage.

Secondly, although it has instituted "domestic partnerships," if the legislature had intended to legalize gay marriage, it would have legalized gay marriage.

The court, therefore, has made law, unilaterally, declaring that "domestic partnership" is for all purposes practical and symbolic, "marriage," something the legislature obviously did not intend to do.

And that is the objection.

James Elliott said...

That's nonsense. First off, California does recognize common law marriage in the form of registered domestic partnerships, as I pointed out earlier. I'm using the terms interchangeably. Don't play semantic idiot games when you know what I'm talking about.

Second, such partnerships are used to equalize the disparity created by recognizing one socially constructed pairing with another. That is to say that the state has arbitrarily decided to validate one commitment between two people (marriage) with certain legal considerations, such as determining a partner's medical care, insurance benefits, and joint tax filing.

But, by recognizing a socioreligious cultural construction with such benefits, the state runs afoul of the First Amendment's separation clause, because there will be people in an evolving culture who do not abide by socioreligious standards of having their marriage recognized and consecrated in a ceremony. However, their financial and personal commitments are just as binding and heartfelt. In order to prevent the state from running afoul of the separation clause, the state must provide an alternative to "marriage." Hence domestic patnerships, which may be entered in to by straight and gay couples.

In order to not run afoul of the equal protection clause, these alternate partnerships must have the same LEGAL standing as those benefits given to other arbitrarily recognized unions.

It's a basic question of equality. Your argument would have straight and gay couples who choose not to, or cannot, participate in a socioreligious function discriminated against. It's fundamentally unconstitutional as any idiot reading the First and Fourteenth Amendments can see. But then, I forgot who I was talking to.

James Elliott said...

You've put your finger on it here, Doctor Zycher. What we have is nothing more than an elite imposing one orthodoxy over and against a different one.

Ah, yes, the orthodoxy of the First and Fourteenth Amendments to the Constitution versus a narrow socio-religious mindset orthodoxy. I know who I'm for.

Repeat after me, Hunter: When marriage garners special treatment from the government, it ceases to be an institution living in a religious vaccuum.

James Elliott said...

TVD, Hunter, I'd like to apologize for some of the language I used. It was rude and not terribly called for. I let my passion for the subject run away with me.

Hunter Baker said...

No prob, James. Here's another point. Constitutional rights apply against governments, not businesses!!!

James Elliott said...

So then you would argue that businesses that were practicing segregation were perfectly within their rights?

James Elliott said...

To put it another way, a business owner would, under your model, be perfectly within his or her rights to say "I don't serve Hispanics" or "White folks get 15% off!"

Kathy Hutchins said...

California does recognize common law marriage in the form of registered domestic partnerships, as I pointed out earlier. I'm using the terms interchangeably. Don't play semantic idiot games when you know what I'm talking about.

Well now, hold on here pardner. By blithely declaring that legislated "registered domestic partnerships" are the legal equivalent of common law marriage, you're the one playing semantic games with an institution that has a centuries old legal framework. I don't know about California, but many states do recognize common law marriage, as does the Federal government for the purposes of assigning Social Security and Medicare spousal benefits. But if you meet the requirements of common law marriage, you are married, just the same as if you had done it the ordinary way. You cannot dissolve the marriage without divorce, the children of the union are the heirs of the joint property, etc. Why do you think states recognize common law marriage, when the people involved obviously didn't go to any trouble to legalize the marriage themselves? It's because when a man and woman live together as if they were husband and wife, for long enough that they form families, produce children, etc, the state has an interest in treating that unit the same as a standard issue family in those matters where families and state intersect, mainly property and minor custody issues.

If the state of California has legislated a category of people called "registered domestic partners" outside this common law framework, it would seem that their intention was not to create a class identical to "married couples" because it wasn't necessary. And if they included same-sex couples in the legislation, but didn't explicitly legalize same-sex marriage, then the court's decision surely came as a a surprise to those legislators. "Gotcha, sucker" is not a sound basis for interpretation of legislative intent.

Hunter Baker said...

James, businesses can't practice segregation because there is a law against segregation, not because there is an Equal Protection clause which applies to government. There is no law in Cal. or otherwise that requires businesses to treat domestic partnerships the same as legal marriages. Well, there wasn't until the Court conjured on up.

James Elliott said...

As far as I can tell, only fourteen states and the Feds recognize common law. However, the requirements for registering as domestic partners in California almost exactly mirror those for meeting common law marriage.

It seems to me that such arguments as yours are the same kind that were used to uphold Dred Scott and Plessy and against Brown. By addressing fundamental inequalities and Constitutional violations that the people, in their cowardice, have not deigned to correct on their own, the courts are acting in the finest tradition of combating the tyranny of the mob. My "15% off to white customers" analogy is perfectly on point.

Just as in ruling that the Equal Protection Clause extended to businesses as well as government in upholding the Civil Rights Act, the courts are recognizing that secular equalities between domestic partnerships and marriage extend into the marketplace.

James Elliott said...

I see this as the same fundamental issue that Roe created. Rather than address a fundamental inequality in American life that is created by the most bigoted elements of society, some people cling to the need for everything to adhere to a process, even when the alternative means used reach the same conclusion legislation would have.

In short, rather than combat discrimination everywhere through every means possible, therefore upholding the dignity and liberties of all human beings, you are arguing for blind adherence to an imperfect process.

Hunter Baker said...

James, you are essentially upholding a view of government power that destroys democracy. Brown v. Board of Education knocked down school segregation, but the key civil rights protections are all legislative in nature. Slavery was abolished via amendment. Voting rights via amendment and legislative act. End of segregation via legislative act. The Court is not in the business of defining the good community for us.

As far as Roe goes, well, you're just supporting the ownership of people by other people there. If momma wants baby, it's a person. If not, baby is just property. Just like slaves.

James Elliott said...

Nonsense. It's a view of government power that makes sure the majority doesn't abuse the minority. In a government created without explicit minority checks and balances, such checks are necessary. I refer you to the work of Arend Lijphart.

The point about Roe was that it established the same limits and permissions for abortion that have been reached by legislative consensus in other countries, limits that are acceptable to roughly 75% of all Americans.

Hunter Baker said...

Strongly dispute your figures on Roe, otherwise how do those pro-lifers keep getting elected? And why has it become so unpleasant to use the word abortion? It requires a euphemism -- CHOICE. As far as limits go, there are none. You can abort right up to birth. It's a fiction that there are any other limits.

Finally, we have lots of minority checks on government power. Judicial fiat to create a garden variety left-wing politics is not minority protection unless you wish to discount many minorities who happen never to fall under this particular protection.

James Elliott said...

No limits? Are you insane? Abortion is unrestricted in the first trimester. Roe allows states to place standards after that (with varying results for second trimesters) and no state allows abortions in the third trimester except for sheer medical necessity (such as dead fetuses or mother's health).

Choice is no euphemism, for that's the point. Where I would strongly encourage any woman I impregnated to have the child and give it up for adoption, because I find abortion to be a poor option, I am not willing to MAKE that decision for any woman, given the dangers to one's health that it entails. That's why it's called CHOICE. Your fundamental lack of understanding reflects the greater problem with the anti-abortion movement.

I challenge you to demonstrate an actual case on point to your final paragraph.

Hunter Baker said...

James, what you stated about limits on abortion is the salve to every liberal's conscience, but it just isn't true. The reality is that mother's health has been translated to mean mental health and the result is that the woman always gets the abortion. There truly are no limits and we could document that any way you wish. I'm married to a medical professional, so why don't you just stipulate that I know what I'm talking about.

As far as not all minorities being protected, we could begin by pointing to the student who was recently denied state scholarship money because he wanted to use it to study theology. If he had chosen any other subject, he would have received the funds. That was a Supreme Court decision backing up Washington State's policy.

James Elliott said...

I suppose you also believe that partial-birth abortion is routinely practiced in the U.S.? Your craziness is showing.

While I don't agree with denying any student money to study any subject, I have to say you're coming dangerously close to saying that religion (by which I'll assume you mean Christianity) is some sort of minority in this country that is oppressed, which is far and beyond nonsense and descends towards lunacy.

James Elliott said...

Via a friend more familiar with the case you cite, I have found that you are either being ignorant, disingenuous or dishonest.

The student was denied aid because of a Washington State Constitution provision that denies the use of state funds for the training of clergy. That perennial bogeyman of conservative nightmares, the liberal Ninth Circuit Court of Appeals, ruled in favor of the student. On appeal to the Supreme Court, that body reversed the Ninth Circuit, ruling that the intitial finding was in keeping with Washington's State Constitution. The people of Washington, the Court ruled, are perfectly capable of exercising self-government and changing their Constitution if they find that this was not what was intended.

This doesn't seem inconsistent at all.

Hunter Baker said...

Ah, so the people of Washington should go to the trouble of actually changing their law or constitution to remedy the problem of the student denied his scholarship to study theology, but the people of California should lay back and let their Court figure out who deserves what. I see now. Makes perfect sense.

And no, I don't think PBB is a common procedure, but the fact that it is frequently done without a compelling MEDICAL reason is evidence to make my point. Plus, you don't mention the number of post-viability abortions, which would be much, much larger than the number of PBB's.

James Elliott said...

I was unaware that something around 0 was frequent.

You miss both points, Hunter. None of those rulings were inconsistent with the law. The California ruling addressed an unaddressed inequality within California law (unrelated to Proposition 22, which was not before the court in that case). The Washington ruling upheld the state's Constitution which forbade state funds being used to educate clergy (which the student was). I fail to see how any of these things are either illegal, extra-Constitutional, or even wrong.

Hunter Baker said...

Don't be an idiot. It's nowhere around zero unless you eat Moore-On.org for breakfast, lunch, and dinner.

And on the student scholarship case, you've now taken the position that if the law says it is right, then it is so. In which case, gay marriage has not been legalized and that is quite acceptable. Glad to have you on board.

James Elliott said...

I'd appreciate your not accusing the people of MoveOn.org (which I am not am member of) of being morons with your clever little word play. My aunt is a principal member, and she could smack your behind around your little intellectual schoolyard. Likewise, I don't like being called an idiot just because I tell you facts that don't jive with your misguided world view on this subject.

Apparently you completely missed my point, or, more likely, ignored it. The point was that you were arguing that liberals and the courts are opposed to self-government by using a case whose reasoning illustrates quite the opposite.

Hunter, I know your wife is a doctor (OB/GYN, I think you've said?), but if she's failing to educate you on this, then she's doing your debate a huge disservice. "PBAs" would, by necessity AND definition occur after the 37th week of pregnancy (into the "prematurity" stage). Fully 90% of all abortions occur before week 13 (the end of the first trimester). Neonatal technology is such that any malformity or pathology that would necessitate a "PBA" is detected long before then. The likelihood that "PBAs" occur in the U.S. any longer is so small that it approaches nil.

Likewise, your "health of the mother is taken to mean mental health" is sheer propoganda and has no basic in reputable fact.

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