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Is the Defense of Marriage Act (DOMA) Indefensible? A Federal Court Says Yes, in Golinski v. OPM

Mark In Irvine 2012/03/07 03:05:17

During the brief window in 2008 when the state of California permitted same-sex couples to marry, Karen Golinski and her longtime partner, Amy Cunninghis, were wed. Golinski, a staff attorney for the United States Court of Appeals for the Ninth Circuit, then sought, as most newly-married employees would, to add her new spouse to the health insurance plan. (The couple’s minor adopted child was already covered under Golinski’s “family” benefits.) The federal administrative office in charge of such matters refused the request, however, because of Section 3 of the Defense of Marriage Act (DOMA). Section 3 provides that, for any federal law purpose, only a union between one man and one woman can be treated as a “marriage.”

Golinski sued, alleging that this provision of DOMA is unconstitutional. The federal district court that heard the case just ruled in her favor, in Golinski v. OPM. The court ruled, importantly, that statutory classifications that are made on the basis of sexual orientation—for example, a statutory rule that heterosexuals can marry but homosexuals can’t—deserve heightened judicial scrutiny. And, the court reasoned, the federal government’s refusal to recognize same-sex marriages cannot survive such scrutiny.

Some Background on DOMA, the Defense of Marriage Act

As I have explained in greater detail in prior columns (here and here), Congress passed the Defense of Marriage Act (DOMA) in 1996, amid a growing fury over the possibility that Hawaii might legalize same-sex marriage, and that proponents would then somehow manage to foist it upon the rest of the country as well. DOMA was designed to prevent full faith and credit principles from being invoked to compel states to recognize same-sex marriages from other states, and also to protect the federal government from being compelled to recognize such marriages.

Section 2, which dealt with interstate marriage recognition, was at best a redundancy that purported to grant states a right they already had: the right to refuse recognition to marriages from sister states on grounds of public policy. And for many years after DOMA was enacted, Section 3 lay dormant because no state actually authorized same-sex marriage.

Then, in 2004, the first U.S. gay marriages took place, in Massachusetts. Since then, additional states have legalized same-sex marriage, including, in the last month, the State of Washington. (I discussed that development here) And in the last week, the State of Maryland, via this bill. Now, eight states and the District of Columbia have legalized same-sex marriage.

The Impact of—and the Challenges to—Section 3 of DOMA

Section 3 of DOMA matters very much, now that several states, including very populous ones like New York, allow the celebration of same-sex marriages. Also, because states do not restrict marriage to residents, anyone in the U.S. who can travel to one of those eight states or the District of Columbia can contract a valid same-sex marriage. There are now thousands and thousands of same-sex marriages that are valid in some states, but not in others, and that—due to DOMA—are not valid for any federal law purpose.

That last point is highly significant, since marital status matters for a huge number of federal laws and programs—such as immigration, Social Security, estate and income tax liabilities, eligibility for Medicaid, and burial in military cemeteries, to name just the most obvious examples. A report by the General Accounting Office in 2004 concluded that 1,138 federal laws provided benefits, rights, protection, or responsibilities that turned in some way on marital status. For federal employees, the rule of non-recognition for same-sex marriages means that employees cannot take advantage of benefits like spousal health insurance, as happened to Karen Golinski.

As a general matter, federal statutes do not provide their own definition of marriage. Federal laws, instead, typically defer to state determinations of marital status, as they do to state definitions of parent-child relationships. DOMA thus represents a departure from the usual rules, one that means that a person’s marital status may differ depending on why that status matters. As one might expect—but as Congress did not sufficiently anticipate—this presents a bureaucratic nightmare. It also is discriminatory, in that federal law picks and chooses among marriages based solely on the sex and sexual orientation of the parties involved, for little reason other than animosity towards the excluded group. Thus, not surprisingly, there have been several challenges to DOMA’s validity.

In two companion cases, Commonwealth of Massachusetts v. HHS and Gill v. Office of Personnel Management, which I analyzed in prior columns available here and here, a federal district judge in Massachusetts invalidated Section 3 of DOMA on the grounds that it infringes on state sovereignty. An appeal in these cases is pending, as are similar federal court challenges, Peterson v. OPM and Windsor v. United States.

In addition to these pending challenges, Section 3 of DOMA has been attacked from both the legislative and executive branches of the federal government. A bill to repeal DOMA, the Respect for Marriage Act, is pending in the U.S. Senate. Moreover, the Obama Administration declared in the “Holder Memo,” in February 2011, that it will no longer defend Section 3 challenges in court, at least in jurisdictions where there is no binding precedent regarding the appropriate level of scrutiny for sexual-orientation classifications. The federal government has also weakened DOMA by allowing exceptions to be made in specific administrative situations, or in individual cases.

The Ruling in Golinski v. OPM

The Golinski case is important, in part because of the government’s fractured role in it. The Department of Justice (DOJ) not only refused to defend Section 3, as it had promised in the Holder Memo, but it also took the anti-DOMA position one step further: It filed a brief arguing, affirmatively, that Section 3 is unconstitutional because it discriminates against gays and lesbians.

Readers may wonder, since DOJ was not defending the law, who was? The answer is the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), which is comprised of certain members of Congress who support DOMA. BLAG was granted permission by the court to intervene in the case and to defend the challenged provision.

The case also began with a complicated set of procedural twists and turns. Golinski originally sued on the theory that the denial of insurance was a violation of her government employer’s “employment dispute resolution” plan, which prohibited discrimination on the basis of sex and sexual orientation. Judge Alex Kozinski, a libertarian/ conservative Ninth Circuit judge who was sitting as administrator over this plan, agreed with Golinski and ordered the judiciary to add her wife to the insurance plan. That order then set off a complicated back-and- forth with the federal Office of Personnel Management, which said that it could not follow the order because of DOMA. Eventually, Golinski’s complaint was dismissed.

In an amended complaint, Golinski alleged that Section 3 of DOMA violates the equal protection component of the Fifth Amendment’s Due Process Clause because it discriminates on the basis of sexual orientation by refusing recognition to same-sex marriages. (The Fourteenth Amendment’s Equal Protection Clause was not invoked here, because it only applies to the states, not the federal government.)

Same-Sex Marriage in California

Recall that Golinski and her wife married in 2008, during a brief window when same-sex marriages could be contracted in California. Here, in summary, is the history of same-sex marriage in that state:

In response to a series of early gay-marriage challenges in the 1970s, California, in 1977, added the phrase “between a man and a woman” to its definition of marriage, which had previously only defined marriage as a “personal relation arising out of a civil contract.”

The California legislature then passed bills in 2005 and 2007 to grant same-sex couples the right to marry, but both were vetoed by then-Governor Arnold Schwarzenegger.

By referendum in a 2000 election, voters adopted Proposition 22, which amended the marriage statute to provide that “Only marriage between a man and a woman is valid or recognized in California.” This provision created an additional obstacle for advocates of same-sex marriage: Because it was adopted by referendum, the legislature could not repeal it without voter approval.

The California ban on same-sex marriage was invalidated, however, by the California Supreme Court, in In re Marriage Cases. In that case, the court held, among other things, that the ban constituted unconstitutional discrimination on the basis of sexual orientation. Central to that holding was the court’s conclusion that classifications on the basis of sexual orientation are “suspect” and therefore deserving of the highest form of judicial scrutiny.

For about six months after this ruling was issued, marriage licenses were issued to same-sex couples in California. About 14,000 gay marriages were solemnized. (These marriages are often referred to as the “interim marriages.”)

Then came the infamous Proposition 8, in which California voters, in the November 2008 election, amended the California constitution to ban same-sex marriage. That was the end—at least for the time—of same-sex marriage in California. (Golinski and her partner married after the court’s ruling, but before the passage of Prop 8. A later court ruling held that the marriages contracted during the window were valid.)

Prop 8 is the subject of its own litigation. A federal district court invalidated Prop 8 on federal constitutional grounds in Perry v. Schwarzenegger. A federal appeals court recently affirmed that decision in Perry v. Brown, ruling that there was no rational reason to restrict marriage to heterosexuals. It’s likely that the case will end up in the U.S. Supreme Court, but will likely first be reviewed en banc by the Ninth Circuit. (En banc review is review by a panel of judges larger than the three-judge panel that rendered the initial appellate decision in the case. This extra level of review only occurs if the appellate court so decides.)

What Level of Judicial Scrutiny is Warranted for Sexual-Orientation Classifications?

Under standard equal protection analysis (whether that analysis is conducted under the Fifth or the Fourteenth Amendment), a court must first identify the appropriate level of scrutiny, and then apply it to the challenged law. Classifications on the basis of race, national origin and religion are entitled to strict scrutiny (the highest form of judicial scrutiny); however, classifications on the basis of gender and illegitimacy are entitled to intermediate scrutiny, a lesser level of scrutiny. Finally, most statutory classifications are entitled only to rational basis review, a highly deferential standard that results most of the time in a win for the government.

The U.S. Supreme Court has never directly ruled on the level of scrutiny that is applicable to sexual-orientation classifications. In Romer v. Evans (1996), the Court struck down a Colorado referendum that prohibited municipalities from adopting anti-discrimination provisions to protect gays and lesbians. The Court, however, did not rule on the level of scrutiny per se; rather, it held that a law borne only of animus towards a particular group could not survive even the lowest level of scrutiny. The Court took a similar approach in Lawrence v. Texas (2003), in which it invalidated a Texas law banning same-sex sodomy without clearly articulating a heightened level of scrutiny.

Several of the cases challenging state bans on same-sex marriage have taken up the question of the proper level of scrutiny for sexual orientation classifications, but those challenges have all been brought under state law, rather than under the federal constitution. The federal court of appeals for the Ninth Circuit, however, has had the occasion to take up the scrutiny question in a gay marriage case that was brought under the federal constitution, but dodged the question.

The Golinski court proceeded through the traditional four-part test for heightened scrutiny: (1) existence of a history of invidious discrimination against those who have the characteristic at issue; (2) irrelevance of the characteristic to an individual’s ability to contribute to society; (3) the immutability of the characteristic; and (4) the degree of political powerlessness of the group of those who possess the characteristic. On all four prongs, the court found justification for heightened scrutiny of laws classifying on the basis of homosexuality.

In so finding, the court distinguished a prior ruling of the Ninth Circuit, High Tech Gays v. Defense Industrial Security Clearance Office, which held that homosexuals “lack the indicia of a suspect or quasi-suspect category.” But, the Golinski court explained, the foundations for that 1990 decision have “sustained serious erosion by virtue of more recent decisions” of the U.S. Supreme Court, such that it has been “effectively overruled by such higher authority.” The key shift was from Bowers v. Hardwick (1986), in which the Supreme Court refused to find a violation of substantive due process in a Georgia law banning sodomy, and its ruling in Lawrence v. Texas, in which it did find such a violation.

With High Tech Gays out of the way, the district court noted the lack of any binding precedent on the question of what the appropriate level of scrutiny was. It thus applied the traditional test, and concluded that gay men and lesbians “have experienced a long history of discrimination”; that “sexual orientation has no relevance to a person’s ability to contribute to society”; that whether or not sexual orientation is immutable, it is “so fundamental to one’s identity that a person should not be required to abandon it”; and that although gays and lesbians are “not completely politically powerless,” the “basic inability to bring about an end to discrimination and pervasive prejudice, to secure desired policy outcomes and to prevent undesirable outcomes on fundamental matters that directly impact their lives, is evidence of the relative political powerlessness of gay and lesbian individuals.” Being forced to fight the consequences of an anti-same-sex-marriage law that the executive branch deems unconstitutional would seem to be at least some evidence of this last point.

Why Section 3 of DOMA Failed Heightened Scrutiny

After establishing that sexual orientation classifications trigger some form of heightened scrutiny—the ruling does not specify whether strict or intermediate scrutiny is appropriate—the court proceeded to apply the test for intermediate scrutiny. To survive this level of scrutiny, the government (here, BLAG) must show that the classification is substantially related to an important governmental objective. Although Congress was clearly motivated by animus and moral disapproval of homosexuality, it identified four interests that were purportedly advanced by DOMA: (1) encouraging responsible procreation and child-rearing; (2) defending and nurturing the institution of traditional, heterosexual marriage; (3) defending traditional notions of morality; and (4) preserving scarce government resources.

These interests may have seemed novel in 1996, but after more than 16 years of litigation over the validity of state bans on same-sex marriage, they seem tired. Courts have hashed and re-hashed these same interests, in cases that have reached diametrically-opposed conclusions. (Compare, for example, the reasoning of the Iowa Supreme Court, discussed here, with that of an appellate court in New York, discussedhere.) But here, the Golinski court found each of these interests to have little merit.

First, the court found that concerns about child-rearing provide no justification for DOMA. All available evidence shows that gays and lesbians are “equally capable at parenting” as heterosexual parents, the court noted. And even if they weren’t, the court added, excluding homosexuals from marriage would have no effect on whether they became parents or not.

Second, the court found that “tradition alone . . . cannot form an adequate justification for a law.” And, even if it could, Section 3 of DOMA has no effect on whether marriage remains “traditional” or not. States control the issuance of marriage licenses. DOMA merely makes life difficult for same-sex couples who avail themselves of that right in various states. It does nothing to encourage heterosexual marriage, nor, realistically, does it do anything to deter same-sex marriage.

Third, the court found that basing “legislation on moral disapproval of same-sex couples does not pass any level of scrutiny.” As the Supreme Court has articulated in cases like Romer and Lawrence, neither the desire to “harm a politically unpopular group,” nor mere moral objection, can justify a law for equal protection purposes.

Fourth, and finally, the Golinski court found that there was no evidence in the record to suggest that denying federal recognition to same-sex marriages “would adversely affect the government fisc.” Even if it did, moreover, the court reasoned that the preservation of government resources cannot justify a discriminatory law under any form of heightened scrutiny.

The court went on to conclude, as an alternate basis for its holding, that Section 3 of DOMA would fail rational basis scrutiny as well. “[N]either Congress’ claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. . . . [T]he Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.”

In the end, the court granted Golinski’s motion for summary judgment and permanently enjoined the judiciary, her employer, from “interfering with the enrollment of Ms. Golinski’s wife in her family health benefits plan.”

As I have argued in the past, DOMA is on its way out. Whether by repeal, by administrative undercut, or by judicial invalidation, it will disappear eventually, and most likely in the near future. The bottom line is that Golinski is a defensible ruling, while DOMA is not a defensible statute.

Read More: http://verdict.justia.com/2012/03/06/is-the-defens...

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  • Zamboni - Madoka Magica fan... 2012/03/22 00:28:56
    Zamboni - Madoka Magica fan BN0
    +1
    Now, at a faster pace than ever, rally is changing into a good direction.:) Finally.
  • Mark In... Zamboni... 2012/03/22 00:33:45
    Mark In Irvine
    +1
    freedom for all is a coming thing!
  • Zamboni... Mark In... 2012/03/22 23:27:27
    Zamboni - Madoka Magica fan BN0
    +1
    As now, more than ever, we are openly talking about it. The deaths of all those who were sacrificed for freedom shall be avenged... with liberty and justice.
    Same sex marriage Justice
  • Eccles 2012/03/08 10:33:37
    Eccles
    +2
    Same sex marriage legal in South Africa and surprise we have not all been struck down by righteous wrath go figure. Perhaps we have been abandoned and left to our own demise.
    And this is in a country once under the spell of the so called righteous, we dealt with change and it made no difference.
  • Steve J~PWCM~JLA 2012/03/08 06:02:26
    Steve J~PWCM~JLA
    +2
    So............... Mark? Does this have a vested interest?

    Full disclosure IS important. You know my position and my family.
  • Mark In... Steve J... 2012/03/08 07:13:53
    Mark In Irvine
    +3
    as an American citizen and a lawyer and a recovering catholic, I have a vested interest in the civil rights of minorities ...
  • Steve J... Mark In... 2012/03/08 15:44:55
    Steve J~PWCM~JLA
    +2
    As an American, I have a vested interest in the civil rights of everyone. Guess, I have a bigger plate to defend than you. And I defend all you do, plus more.
  • Mark In... Steve J... 2012/03/08 18:28:32
    Mark In Irvine
    +1
    let's recall that demographic changes can make today's majority a minority tomorrow ...
  • Steve J... Mark In... 2012/03/08 18:29:39
    Steve J~PWCM~JLA
    +2
    Certainly, and I would still be representing all. You would not.

    So what's your point?
  • Mark In... Steve J... 2012/03/08 18:52:26
    Mark In Irvine
    +1
    of course i would:

    if today's Muslim-American "minority" increases in number to the point that its population exceeds the American-Christian community, today's majority would become tomorrow's minority. the equal treatment under the law which I am advocating be provided to EVERYBODY would prevent "tomorrow's Muslim majority" from imposing its rules on "tomorrow's Christian minority".

    the only way to make sure that tomorrow's majority (whatever its make-up) cannot lawfully disadvantage tomorrow's minority is to make sure that today's majority cannot legally disadvantage today's minority.
  • Steve J... Mark In... 2012/03/08 18:57:28
    Steve J~PWCM~JLA
    +1
    Here in the US with the number of Christian Hispanics here illegally, that will take a long time. That is the reason I represent all, so that all, whether majority or minority, is treated the same. Too often Government picks winners and losers based on their being bought dogs of special interest.

    It is never right and always wrong.
  • Mark In... Steve J... 2012/03/08 18:29:20
    Mark In Irvine
    +1
    do I know your position and your family?
  • Steve J... Mark In... 2012/03/08 18:35:00
    Steve J~PWCM~JLA
    +1
    Maybe.
  • Mark In... Steve J... 2012/03/08 18:53:32
    Mark In Irvine
    +1
    you're the one who said to me, and i quote: " You know my position and my family."

    I don't recall getting to know your family (but I think I ahve a pretty good idea about your "position").
  • Steve J... Mark In... 2012/03/08 18:59:20 (edited)
    Steve J~PWCM~JLA
    +1
    Because you and I have discussed this issue too many times, and you know the fate of my brother.

    And judging from your posts, which closely parallel my position, you must have forgotten totally.
  • Mark In... Steve J... 2012/03/08 21:33:31 (edited)
    Mark In Irvine
    +2
    i have forgotten totally ... i have been absent from SH more lately than I have been present, and there have been many exciting events in my personal life: get up; go to work; work; go home; eat dinner late and alone (wife eats early; kids are rarely home); sleep; lather, rinse, repeat; change jobs; drive 55 miles to work; work; drive 55 miles home from work; eat dinner late and alone (wife eats early; kids are rarely home); sleep; lather, rinse, repeat; on weekends ride bike [odometer turns over past 5,000 kilometers], go to movie - maybe with friends and maybe including dinner; argue with wife about something inconsequential; try to talk to kids when they deign to pass through the house and do not otherwise approach me (usually for money); lather, rinse, repeat;

    ha ha ha ...

    so, as i said: i have forgotten totally ... and i apologize for having forgotten the fate of your brother.
  • Steve J... Mark In... 2012/03/08 21:35:44
    Steve J~PWCM~JLA
    +2
    No problem. Thanks
  • iamthemob ~ the 444th Guru ~ 2012/03/08 05:05:20
    iamthemob ~ the 444th Guru ~
    +2
    Thanks for sharing this - Joanna Grossman's article is extremely thorough. And...the court's opinion hits the nail on the head. I wish there was more emphasis on the problem of creating a federal definition of marriage for the first time - it's not often discussed what a huge expansion of federal power into states' territories this actually is.
  • Steve J... iamthem... 2012/03/08 06:09:35
    Steve J~PWCM~JLA
    +2
    Marriage is a Religous term.

    Do you want religion to rule you? Civil Unions is a Government term that doesn't recognize marriage.

    Weird, so what are they fighting? Government or those that believe?
  • iamthem... Steve J... 2012/03/08 07:04:56
    iamthemob ~ the 444th Guru ~
    +2
    (1) Marriage is not solely a religious term. In this case, we're talking about legal, civil marriage. Religious and civil marriages do not have to, and often don't, have the same requirements (e.g., civil divorce is not recognized in Catholic churches in many cases, and subsequent marriage after divorce would not be performed or recognized by the church).

    (2) The problem with multiple terms is that it creates the possibility of different treatment based on whether one has a marriage, civil union, etc. when travelling in or to places without distinctions.

    (3) That said, my personal solution would be to eliminate marriage as a term wholly from the civil context, and replace it with something akin to civil unions. Marriage would only have social and religious significance, and having a religious marriage ceremony would not carry any legal weight.

    (4) There are many religious gay couples who also want to get married in a church ceremony and belong to accepting congregations. Those religious groups are in fact being discriminated against by being prevented by the government from being able to treat their congregation in a manner consistent with their religious convictions. So there is no battle on this issue against those that believe because the side arguing against DOMA co...

    (1) Marriage is not solely a religious term. In this case, we're talking about legal, civil marriage. Religious and civil marriages do not have to, and often don't, have the same requirements (e.g., civil divorce is not recognized in Catholic churches in many cases, and subsequent marriage after divorce would not be performed or recognized by the church).

    (2) The problem with multiple terms is that it creates the possibility of different treatment based on whether one has a marriage, civil union, etc. when travelling in or to places without distinctions.

    (3) That said, my personal solution would be to eliminate marriage as a term wholly from the civil context, and replace it with something akin to civil unions. Marriage would only have social and religious significance, and having a religious marriage ceremony would not carry any legal weight.

    (4) There are many religious gay couples who also want to get married in a church ceremony and belong to accepting congregations. Those religious groups are in fact being discriminated against by being prevented by the government from being able to treat their congregation in a manner consistent with their religious convictions. So there is no battle on this issue against those that believe because the side arguing against DOMA contains people that believe.

    (5) Regardless, it is always troubling in a society such as ours when laws are passed that prevent people from enjoying the same protections and privileges as other people, based on a class distinction. Such laws should always be subject to the most rigorous scrutiny. It cannot be solely or mostly based on the assertion that one group must be excluded because they historically have been, or because some merely feel it's not right to include them.
    (more)
  • Mark In... iamthem... 2012/03/08 07:15:39
    Mark In Irvine
    +2
    exactly correct, IATM!!
  • Steve J... iamthem... 2012/03/08 15:47:19
    Steve J~PWCM~JLA
    +3
    Well, seeing that this is what I have been pushing for as a solution for the last 30 years, "That said, my personal solution would be to eliminate marriage as a term wholly from the civil context, and replace it with something akin to civil unions. Marriage would only have social and religious significance, and having a religious marriage ceremony would not carry any legal weight. "

    I guess we agree.
  • iamthem... Steve J... 2012/03/08 16:01:17
    iamthemob ~ the 444th Guru ~
    +2
    At least on the most reasonable solution...

    ...however, there are plenty of straight people and gay as well that would resist suddenly being in a "civil union" and want to keep marriage. I argue that, if we're to respect a diverse society, legally the institution can't belong to one group or the other, and if the term is to be marriage it should be open to both groups.
  • Steve J... iamthem... 2012/03/08 16:16:35
    Steve J~PWCM~JLA
    +1
    Civil Unions as long as it is framed as the Government NOT wanting to be in the Marriage business, would be the far easiest path, because there are so many religious straight people that define marriage as, between a MAN and Woman only.

    As my brother told me frequently, "their are many, in the gay community that base their gayness on being able to shove it down the throats of straights."

    Hopefully, and I know many straights that really don't care as long as it isn't termed as marriage. One will never satisfy the unsatisfiable.
  • iamthem... Steve J... 2012/03/08 16:30:40
    iamthemob ~ the 444th Guru ~
    +2
    But if it's legally called marriage, that doesn't mean that people socially must recognize it as such, or religiously.

    And there will always be denominations and communities that recognize such a thing as a marriage regardless of the legal term.
  • Steve J... iamthem... 2012/03/08 16:34:29
    Steve J~PWCM~JLA
    +2
    The church can have it's Marriage, and each denomination can define it anyway it wants, under the freedom of religion clause. The Government wouldn't have any say in it.

    The Government only acknowledges civil unions for tax purposes. Which includes what to do when someone dies. The Government only cares about it's share of the "spoils".
  • iamthem... Steve J... 2012/03/08 16:49:37
    iamthemob ~ the 444th Guru ~
    +2
    My problem, though, is not that I don't like civil unions as the solution - rather, it's that I don't see what the significance is in having a legal definition of marriage that includes same sex couples ... I don't see why if religions are calling marriage what they want to now, why there is any implication that a legal change must be an affront to them.
  • Steve J... iamthem... 2012/03/08 16:57:04
    Steve J~PWCM~JLA
    +2
    Because we have the Government then deciding the definition, which in essence is the Government telling a religion that defines it differently, that it is wrong and must comply. It's like the whole stupid Contraception thing.

    The Constitution strictly forbids the establishment of religion and allows freedom of religion. Government should STAY out of religion.

    So, calling it a civil union for Government purposes does that. Don't you think we have given Government enough power over our lives?
  • iamthem... Steve J... 2012/03/08 17:06:31
    iamthemob ~ the 444th Guru ~
    +2
    No: the government is deciding the legal definition, and nothing else.

    Religious institutions have not been required to perform any marriage that it finds against its conscience. Divorce means nothing, again, to the Catholic Church.

    Marriage has a term has not always been associated with religion, nor religious authorities. The idea that the government defining marriage in a different manner than a religion defines it is an assault on religious freedom requires that the government in fact define marriage ONLY in accordance with religious authorities approval (it is the religion dictating what the government must say and how to say it). That is in fact the more violent intrusion on First Amendment rights.

    Your argument about power is besides the point. How does the government calling it marriage or a civil union, in any way, demonstrate power over how you use whatever terms in your daily life?
  • Steve J... iamthem... 2012/03/08 17:10:40
    Steve J~PWCM~JLA
    +2
    If my faith tells me that marraige is between a man and woman, and the Government tells me, I and my faith are wrong. Isn't that the Government excersising it's power over me and my religion?

    It doesn't matter if some think it is and some think it is not. But when the whole issue can be avoided, isn't that a better option?
  • iamthem... Steve J... 2012/03/08 17:18:39
    iamthemob ~ the 444th Guru ~
    +2
    Absolutely not: that is the government attempting to apply the law equally to all belief systems. It is the government, at most, disagreeing with you.

    However, the government does not also mandate that you change your beliefs in your church to fit its laws in this case. Although the government definition would disagree with yours, the government would still be required to recognize that your definition exists, and is based on important things in your life.

    The fact that your definition is not the one the government must have is in many ways the essence of religious freedom.

    As to the better option, I stated earlier that I didn't mean to debate that. My question is why you think there is an issue that needs to be avoided. Because in my view, if the church wants to keep the word marriage from the government or else have it be the one deciding what it meant, it is not exercising a freedom but a privilege not afforded to other beliefs.
  • Steve J... iamthem... 2012/03/08 17:36:43
    Steve J~PWCM~JLA
    +2
    Haven't you noticed that there has been outrage made by BOTH sides over the last 30 years? That the subject of "Marraige" has cause division?

    Were you just born? So, if there is a better option that totally avoids THAT issue, wouldn't it be better?

    It doesn't matter what you think the Government states. Each person out there is going to have their own interpretation. You are dealing with humans that listen to other human and there are going to be those that twist the meanings as there always has and will be.

    So, avoiding it is better.
  • iamthem... Steve J... 2012/03/08 17:58:55
    iamthemob ~ the 444th Guru ~
    +2
    None of that really applies to what I'm asking, though. And again, I've already said what I think is the best, most practical option (civil unions for all, as we seemed to agree).

    What I'm asking is how the fight over the word from those with "traditional" religious convictions can be supported if we just change the name to CUs. If it were still marriage, the effects on those who would refuse to perform them are the same, really - they just have their marriage, and the government has its marriage.

    The point is nothing is lost if we just keep calling it marriage...and I'm wondering if you have a solid legally based argument as to how it has anything to do with freedom of religion...
  • Steve J... iamthem... 2012/03/08 18:10:29
    Steve J~PWCM~JLA
    +3
    Again, it is not how you or I look at it. It would be how those that want to define it as such and those who don't want to define it as such.

    Just creating something to enrich lawyers, so they have something to sue is silly.

    Unless you are a lawyer.

    Because the gays that need it to be called Marriage would celebrate and shove it down the straights throats, and those that don't want it called marriage would be angered unnecessarily and try to stop it.

    Again it doesn't matter if there is, or isn't, a legal argument or not. It is just pointless to go there if one doesn't have to.
  • iamthem... Steve J... 2012/03/08 18:26:35
    iamthemob ~ the 444th Guru ~
    +2
    Why do you argue that they would shove it down straight's throats? Wouldn't gaining marriage rights be something to celebrate?

    I push the point because this issue is couched in the First Amendment argument...but there aren't really any First Amendment implications.
  • Steve J... iamthem... 2012/03/08 18:33:13
    Steve J~PWCM~JLA
    +1
    That is using my brother's word. He had an inside view so to speak. There are some that do get into the faces of straights, just trying to create discomfort. He never kept them around long.

    He thought it was counter productive to his cause.

    Technically telling a religion it's definition is wrong, there is. It would be used, ala contraception, as a stick by some to beat religions.
  • iamthem... Steve J... 2012/03/08 19:03:46
    iamthemob ~ the 444th Guru ~
    +1
    There sure are. But there are bad apples in all the bunches.

    Again, the problem is that religions are not prevented in any way from defining marriage themselves. The government is simply using its own definition...however, accepting that they might be telling the religion its wrong, that's not an assault on religious freedom as it does nothing to limit or inhibit the practice.

    The government would have to take action preventing the religion from performing it's type of marriages. As the government supports the marriages the church performs right now, expanding marriage does nothing to limit the continued performance of marriages by churches.

    Religious freedom is implicated in situations involving marriage, for instance, in the case of polygamy for Mormons. It was outlawed even though it was a fundamental tenet.
  • Steve J... iamthem... 2012/03/08 19:06:58
    Steve J~PWCM~JLA
    +1
    Why go there? For what purpose?
  • iamthem... Steve J... 2012/03/08 19:17:36
    iamthemob ~ the 444th Guru ~
    +1
    Because I think this is an example of the Christian majority really mistaking the removal of some privilege that they had (e.g., having the legal definition of marriage match what they thought it should) as an assault on their religious liberty.

    The problem is it's not THEIR religious liberty - and the fact that I can't see any real reason or threat to their systems of religious marriage makes their position baffling to me.
  • Steve J... iamthem... 2012/03/08 19:24:47
    Steve J~PWCM~JLA
    +1
    People always find reasons to disagree. Just take the reason away, then they can't disagree

    Why do people that know that, still want to do it the disagreeable way? Personal power over others. They like it.

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