Bichon Frise wrote:
DH, since it's a slow day, so I'll throw this out there.
I'm happy to engage in a thoughtful discussion on the issues you raise.
First I'll tackle the legal "mechanism." I'm not suggesting a strategy, just a reality. Marriage is a contract. States do not have the power under the constitution to disregard contracts entered into in other states. Refer to Article IV and 226 years of case law. This essentially means that each state may have its own marriage laws (provided they are not otherwise discriminatory) but they must also respect marriage contracts entered into in other states just as they must respect commercial contracts and so forth. The "Defense of Marriage Act" (DOMA) was an attempt by Congress at an end-run around the Constitution to give states the right not to honor marriage contracts of other states. DOMA is working it's way through the courts and has already been struck down by two federal appeals courts. It will get to the Supreme Court soon and few legal scholars expect it to survive for various legal reasons regardless of ideology of the justices.
In general, the legal arguments on both sides of this issue are strikingly similar to the arguments made regarding bans on interracial marriage. Those laws were ultimately struck. It is very difficult to draw a distinction when looking at the issue objectively.
DOMA itself was a reaction to a Hawaii court decision that analyzed the legal test that would have to be applied by other courts in deciding the issue. The Hawaii court ruled that federal precedent required the government pass the strictest constitution test ("strict scrutiny"). Few believe that a ban on same-sex marriage could pass that test for numerous reasons so Congress responded with DOMA. DOMA has not survived a court challenge except on procedural grounds such as lack of standing.
Regarding who gets sued...well, it depends on the specific situation. You can't normally sue to overturn a law. You must sue to demonstrate a harm and then the court might find a law unconstitutional. The defendants have been the Secretary of Defense, Hilary Clinton, and so forth. It just depends on the harm alledged.
Regarding the limits I would personally place on marriage, I would stick with the usual rules regarding consent. I don't want the 60 year old marrying the 13 year old any more than anyone else. But that should be prevented under age-based consent laws. The reason most of us would find that situation objectionable is because we don't believe young teens have the maturity to consent so let's base our law on that concern.
Cousins marrying? Brother and sister? That's not something I would advocate either. But I'm not sure I would actually make it illegal as long as they are old enough to consent. It's the libertarian in me I guess.
I would also not ban polygamy among consenting adults...that old freedom thing again. I can't for the life of me understand why anyone would want to have more than one wife but if everyone is happy, why do I care?
I don't agree that those issues would have any place in challenging a state law regarding marriage. People brought up all that when states banned interracial marriage. But those issues are irrelevant unless the specific same sex couple happen to be cousins.
The fact is, we do not let states decide whether to respect and enforce contracts and we never have. It is required under Article IV of the constitution. States can define procedures, for example, a state can define waiting periods or blood test requirements for a marriage license or can specify which court a commercial dispute is heard in, but a state does not have the power to abrogate or refuse to enforce a contract.
I do foresee issues. The situation I alluded to of the Brazilian "partnership" where 3 people recently got married, certainly presents challenges regarding the "rights" that go along with marriage (such as spousal benefits). But I think those issues can be dealt with simply by giving everyone the right to designate a beneficiary or multiple beneficiaries the way people already do if they don't like the default. Basically, we already have systems in place to deal with many of the complexities and will just have to adapt to the new ones.
Anyway, just food for thought...For the record, I don't oppose gay marriage if they want to be "legally" married. Although, for all intents and purposes, they are in terms of benefits and what not. It's just a title...
I appreciate your interest in discussing this issue intelligently. It is not something that impacts me personally. I have a couple of gay friends who are legally married in some state and they don't really even care much about the issue in the scheme of things. You won't see me out carrying a protest sign or lobbying my congressman on the issue. But the more I think about it the more I have come to believe that the bans are complete anachronisms and unsustainable under our Constitution.
And really, we have plenty of serious problems to address in this country and in the world. Is fighting to force two guys to refer to their commitment as a "civil union" rather than a "marriage" really the best way to spend our resources?