Asymmetrical Information

Yet the Kerry-Edwards argument remains better. There is no need for a Constitutional Amendment banning gay marriage. Individual States are free to decide for themselves. Bush's argument that states are helpless against their own runaway judges is so much nonesense since each state is free to amend their own Constitutions, if necessary.

Oh, silly me. And here I thought that the Full Faith and Credit Clause has been interpreted in the past to require States to recognize marriages deemed valid from other states. For instance, if a state recognizes Common Law marriage, and a man and woman in that state meet the requirements for common law marriage, they are still considered married when they move to a state that doesn't recognize common law marriage. Why would gay and lesbian marriages be treated any differently?

Not quite. Back in the old days there were plenty of states that banned interracial marriages & full faith & credit didn't require that those states recognize the marriages from states that didn't have an interracial ban. Generally an exception has been recognized for public policy exceptions.

But even if you thought the Full Faith & Credit clause was too much of an opening to live with then the obvious solution to the problem would not be an amendment banning gay marriage (and probably even civil unions) but one stating that states can make their own marriage law.

> For example, a gay couple now has a very difficult time, one, visiting the other when they're in the hospital,

Umm, this isn't law, it is hospital policy. Want to bet that it isn't policy at hospitals in SF, NYC, and lots of other places?

> or, for example, if, heaven forbid, one of them were to pass away, they have trouble even arranging the funeral.

No, they wouldn't - many/most funeral homes don't care and funeral homes aren't like public schools - you can take your biz&money elsewhere....

The only place where there's a potential problem is in getting the body, and in those places where wills don't currently work, that's solvable through legislation.

Of course, if you're unwilling to work for legislation, you don't really have a beef when other people do....

I got the impression that the VP's silence was intended to contrast with the verbal gymnastics that Edwards was forced to go through..

no matter what Edwards said, he was gonna anger somebody, so Cheney let him babble for awhile and then let it go, thereby angering nobody..

it looked pretty smart to me ..

> or, for example, if, heaven forbid, one of them were to pass away,[pause] they have trouble even arranging the funeral.

He paused (where I wrote pause =) and I thought he was actually going to say collecting life insurance. It was like he changed thoughts midstream and went with the more lame (safer) approach.

Better shmetter. The right answer is "people are free to decide how and with which adults they would like to partner and the government should neither subsidize nor penalize them for it."

Paraphrasing Edwards - "we don't really believe in your kind of marriage, but we'd be happy to extend some pork". Great. Marriage lite, all the perks with none of the 'recognition' (or responsibility?).

Then again, I obviously have no future in politics.

"It was entirely transparent that Edwards was making fun of Cheney for not talking about his daughter and implicitly questioning their love for her. Cheney must have been fuming. I suspect Edwards was hoping he'd blow his cool."

To quote the Professor, "Indeed." Everyone keep in mind that John Edwards was the quy who boasted at his convention that he was going to take the high road. And is now promising to be straight with the American people.

Mindles:

"It was entirely transparent that Edwards was making fun of Cheney for not talking about his daughter and implicitly questioning their love for her."

Man, are you angry or what? I didn't see the whole debate, but I saw that part, and you misread it. Edwards was taking the high road, because you can't slap a man for choosing his daughter over his party, especially on something as stupid as gay marriage. He made the comment to make sure tha people knew (a) he was taking the high road, and (b) Cheney's got a lesbian daughter. This is EZ politics at its best; there really wasn't any attempt to be mean to Cheney.

Being a Pub in The Land of the Good has made you paranoid.

The Gay marriage issue is an issue the Administration is using to pander to the far right evangelicals. Bush knows theres no chance of getting the super majority needed in the Senate to ammend the Constitution. This is the only bone Bush can throw to the far right evangelicals without appearing completely out of the mainstream on the major evangelical issues, like abortion, stem cell research, or evolution.

I agree Edwards used Cheneys gay daughter issue to make Cheney squirm. I believe this was the issue that Cheney said "no mas" to when offered his rebuttal time by the moderator. Edwards also really flustered Cheney when he responded to Cheneys lie of never having met Edwards prior to the debate, by giving a run down of Cheneys votes against Head Start, the MLK holiday, Medicare, etc. The next topic was jobs and the economy and Cheney was so flustered he talked about education nearly the whole time and Edwards twisted the knife with his comments to the moderator.

Tim, I just think it's wonderful the way you can you can just let your emotions loose and freely accuse me of being angry and paranoid, or employ partisan lingo like "'pub" to anyone with whom you disagree.

See - I'm taking the high road. I do believe irony or praeteritio was intended. No, I would not accuse either candidate of taking the high road last night.

I come to bury Caesar not to praise him...

This all reminds me of my great uncle, who used to visit us and say "I just think it's marvelous the way you can be so informal and wear your bare feet around the house". Also of some classic moments from Brideshead Revisited ("you mustn't be so obsessed with money Charles...")

"They were both threading legalistic needles and both so clearly uncomfortable with their own tickets' arguments.

And, just for the sake of discussion should they not be? The Republicans have embraced more-or-less outright gay-bashing as a political issue (although masked behind a facade of religiosity and bromides about "the family") in order to fire up their base. I'll give VP Cheney some credit, at least: he is probably conflicted over his Party's public position vs. his private feelings.
The Democrats, though, IMO, have erred in the direction of hypocrisy: they have tended to run away from "gay" issues, usually retreating behind abstruse States'-rights legalisms rather than (whatever their true feelings on the civil rights of gays) confront the issue (i.e. prejudice) head-on.

Quick point, I think its possible Edwards was trying to take the high road. But the tone of the debate was nasty, Im cynical, and I believe Edwards is so smooth the comments about Cheneys daughter could be taken either way.

Boonton,

I used to work in Boonton, on the Boonton Times Bulletin. Is it still there?

As for the FF&C, I think you have at the least drastically oversimplified the law, and certainly Edwards's statement of the law was flat out wrong. Indeed, it's so wrong it's hard to believe he's a lawyer.

The degree to which a state can refuse to recognize the legal acts or judgments of a sister state nothwithstanding the requirements of the FF&C is a difficult constitutional question. There is no "public policy exception" in the text of the FF&C - to the extent it exists at all it's a purely judge-made rule. At the very least, it requires a valid, legitimate public policy.

In the instant case, many legal scholars (as well as all of the gay-rights activists) believe that under the Lawrence case, courts will decide that it is irrational and bigoted for states to refuse to recognize same-sex marriages performed in other states and accordingly will both strike down the Defense of Marriage Act as unconstitutional and refuse to recognize opposition to same-sex marriage as a valid public policy exception to the FF&C. Edwards's claim that states have no obligation to recognize marriages performed in other states is simply wrong, and his implication that states will not have to recognize same-sex marriages performed in sister states, are both just flat out wrong.

Mindless wrote:

The strangest few minutes of the evening followed the question on gay marriage. What I heard was the Vice President make a technical argument and then open a bit of daylight between himself and the President:

Here was the “technical argument” made by Vice President Cheney last night:

CHENEY: Gwen, you're right, four years ago in this debate, the subject came up. And I said then and I believe today that freedom does mean freedom for everybody. People ought to be free to choose any arrangement they want. It's really no one else's business.

That's a separate question from the issue of whether or not government should sanction or approve or give some sort of authorization, if you will, to these relationships.

Traditionally, that's been an issue for the states. States have regulated marriage, if you will. That would be my preference.

In effect, what's happened is that in recent months, especially in Massachusetts, but also in California, but in Massachusetts we had the Massachusetts Supreme Court direct the state of -- the legislature of Massachusetts to modify their constitution to allow gay marriage.

And the fact is that the president felt that it was important to make it clear that that's the wrong way to go, as far as he's concerned.
Now, he sets the policy for this administration, and I support the president.

Which Mindless somehow interpreted as:

He really couldn't have made it clearer he disagrees.

Andy Freeman wrote:

The only place where there's a potential problem is in getting the body, and in those places where wills don't currently work, that's solvable through legislation.

Just out of curiosity, are there any places where “wills don’t currently work”? It seems to me that while some States might have different laws regarding what happens if a person dies intestate (dies without leaving a will) pretty much all of them recognize wills in some capacity or another. Or at least, I am not aware of any that do not.

The Republicans have embraced more-or-less outright gay-bashing as a political issue (although masked behind a facade of religiosity and bromides about "the family") in order to fire up their base.

Has it occurred to you that the "religiosity" and "bromides about the family" are, in fact, honestly-felt objections to the official sanctioning of gay relationships (at least on the part of many of these objectors)? "Gay bashing" is nothing but a one-trick-wonder slur designed to shut down the debate without a fair hearing.

"he sets the policy for this administration, and I support the president"

"That's my story, and I'm sticking with it."

anony-mouse wrote:

Has it occurred to you that the "religiosity" and "bromides about the family" are, in fact, honestly-felt objections to the official sanctioning of gay relationships (at least on the part of many of these objectors)? "Gay bashing" is nothing but a one-trick-wonder slur designed to shut down the debate without a fair hearing.

Mindles:

Tetchy, tetchy. I meant "taking the high road" in the symbolic sense - he wanted people to see him taking the high road. Few politicians who rise to the VP candidate level of a major party have a soul, so actually taking the high road is probably not in the cards (for either of them - I'm sure Cheney knows that obliquely attacking his daughter's lifestyle does him no good, either).

"Pub" is shorthand in the same way "Dem" is - there's that paranoia I mentioned.

Anony:

As if "honestly-felt objections" made bad policy into good policy by means of good intentions. Welcome to Republican (not "Pub") hippiedom.

I use a similar rhetorical device to the one employed by Edwards and Tim calls it touchy.

Q.E.D.

here's where this is headed.

I think the real problem is that since gay is a matter of sex, people lie about it. Gays often say there not gay, homophobes deny being homophobic, and some very liberal people are secretly very homophobic. The gay community doesnt want to accept it, but their the first ones thrown overboard by most liberals when it comes to fighting for their issues. But on the otherhand, gays have proven to be very adept at gaining funding for things like AIDS. I recently read a breakdown that the money spent in AIDS research is easily the greatest amount of money thrown at a disease when you consider the number HIV positives. I guess I drifted off topic here, but the biggest enemy to gay marriage is gays are about 7-10% of the population, and theres no real benefit for heterosexuals to support it.

"Gay bashing" is nothing but a one-trick-wonder slur designed to shut down the debate without a fair hearing.

How much of a fair hearing are anti-gay right wingers supposed to get? Andrew Sullivan, for example, has hosted extended discussions on homosexuality on his blog and in his writing. The Catholic Church has also examined the issue deeply (although not all will agree with their conclusions). The gist of many anti-gay types often appears to be only slightly more intelligent than Jimmy Swaggart's recent 'I'll kill (them) and tell God it was an accident' rant. If social Conservatives want to be taken seriously then they should present serious arguments, including those that can speak to not just the feelings of someone opposed to homosexuality but also homosexuals and agnostics on the matter.

In the instant case, many legal scholars (as well as all of the gay-rights activists) believe that under the Lawrence case, courts will decide that it is irrational and bigoted for states to refuse to recognize same-sex marriages performed in other states and accordingly will both strike down the Defense of Marriage Act as unconstitutional and refuse to recognize opposition to same-sex marriage as a valid public policy exception to the FF&C. Edwards's claim that states have no obligation to recognize marriages performed in other states is simply wrong, and his implication that states will not have to recognize same-sex marriages performed in sister states, are both just flat out wrong.

DBL, I'm not sure about the Boonton Times Bulletin. I live close to Boonton, NJ are you near another Boonton? It's difficult to extend Lawrence to same-sex marriages. Lawrence dealt with a law that prohibited same-sex sodomy. Since the law specifically permitted straight sodomy (married or not) it was difficult to defend such an extreme act. IMO the best guide to the implementation of the Full-Faith & Credit clause would be to examine how interracial marriages were handled back in the days when some states banned them. The ban on interracial marriages was not overturned with the FFCC.

But leave aside the issue of how the clause would be read today. The fact remains that if the concern is that the Federal Courts will use the clause to force gay marriage then the least radical way to address it would be to put the issue in the hands of the states. The sweeping amendment that the President supports would take that away but also leave open a Constitutional ban on Civil Unions and other 'marriage alternatives'. In fact, some readings of the proposed amendment might even prohibit courts from enforcing private contracts between gay couples if they appear to be providing them the 'benefits' of marriage.

Actually it looks like Vice President Cheney agrees that governmental sanction and approval of a relationship is not a “freedom” issue (since it in no way prevents anyone from choosing whatever private relationships they want) and that by “leaving it [the definition of “civil marriage”] up to the States” (as Bush had said earlier) meant “leaving it up to the (democratically-elected State legislatures” rather than allowing a State court to arbitrarily redefine civil marriage for the nation.

Thorley, the fact remains that what the President is doing is trying to pull a fast one on the American people. If Bush/Cheney support leaving this issue up to the state legislators then why propose an amendment that would prohibit them from making state law? Why not pass an amendment stating that marriage law is up to the states? The 'arbitrary state court' argument is also a red herring. States supposedly being held hostage by lunatic state judges can resolve the problem internally by amending their constitutions or even impeaching their judges if necessary.

As if "honestly-felt objections" made bad policy into good policy by means of good intentions. Welcome to Republican (not "Pub") hippiedom.

OOOOOHHHH, so we were addressing ONLY "bad policy" then? Also, I wonder who gets to declare the final definition of "bad policy." Is this one of those things where pretty much everyone agrees it's bad, or one of those things where I get to declare it "bad" because my priorities differ from those of the arguer? You see where that gets us?

Boonton's response is essentially a different version of the same thing. Rather than actually address the individual arguments on a case-by-case basis as they come up, all "social conservatives" can be preemptively dismissed out-of-hand because the evaluating party has no use for them. How conveneient.

I still say "gay bashing" is far too often employed merely as a poisoned incense (including the post to which I responded), polluting the nostrils of all present so that alternative arguments can't be given a fair sniff test.

If social Conservatives want to be taken seriously then they should present serious arguments, including those that can speak to not just the feelings of someone opposed to homosexuality but also homosexuals and agnostics on the matter.

And here I thought "serious arguments" were supposed to appeal to our sense of logic. Apparently I was wrong, they're actually supposed to "speak to [our] feelings"...

If social Conservatives want to be taken seriously then they should present serious arguments, including those that can speak to not just the feelings of someone opposed to homosexuality but also homosexuals and agnostics on the matter.

OOOOOHHHH, so we were addressing ONLY "bad policy" then? Is this one of those things where pretty much everyone agrees it's bad, or one of those things where I get to declare it "bad" because my priorities differ from those of the arguer?

Actually I get the final say on what's a bad policy...but seriously...

Boonton's response is essentially a different version of the same thing. Rather than actually address the individual arguments on a case-by-case basis as they come up, all "social conservatives" can be preemptively dismissed out-of-hand because the evaluating party has no use for them. How conveneient.

Present the argument and I'll refute it.

Actually, since the overwhelming majority of the public agrees with social conservatives on keeping the definition of civil marriage as between one man and one woman, the burden is on those who wish to change it to make a serious argument as to why we should change it. So far they have failed to do so which is why they rely on nonsense like crying “gay bashing.”

It's the social conservatives trying to change the Constitution with dubious reasoning and being deceptive about the change they want to make. Sorry, Bush is the one trying to change the status quo here and he hasn't even tried to make a half-assed argument in favor of it.

I find the comment that the only problem is getting the body to duck the real problem. How do you handle divorce? If a couple is married in a state that allows gay marriage and they have to move to a state that does not allow gay marriage and then they decide to divorce. Your argument is that since the couple are married according to the state where they did live that the other state has to hear the divorce even though the state does not recognize gay marriages. The permutations of the problems with that are almost endless. The residents of the state cannot marry but the residents who move in from another state can divorce. You are asking for a huge debacle with that one. That is where the amendment would be useful. How also do you handle child support? If the child is born by artificial insemination, then the "father" is not really the father and the marriage is not recognized by the state so there is no child support in that case? Then you have the problem of different rules for your own citizens vs citizens from out of state. How do you handle that one. Sounds as if you would be trying to force the new state to change its laws to agree with your old state against the will of the people of the state. You get a couple of your liberal activist judges who decide the cases based on their political beliefs rather than the Constitution of the state and you have opened up another can of worms.

Actually I really don't care if gays marry or not. I just feel that there has to be some mechanism in place to even out the playing field and the amendment is better than nothing. How else are you going to make it work.

Present the argument and I'll refute it.

Enough (unintentional?) irony to re-sheet an aircraft carrier, I see.

dick, your points have been addressed. Gay marriage isn't the first time differing marriage laws get tested when couples move around. Ditto for child support. In fact there is a whole body of law dealing with competiting jurisdictions. For example, some states let 15 yr olds marry and others don't. I'm sure a 15 yr old has, at one time, gotten married in such a state and then moved to another state and asked for a divorce. The legal system has been able to handle questions like this without imploding for hundreds of years without the aid of Bush's amendment.

Comments are Closed.