Senate eyes civil union bill for SJC (MA)

[David__77]

Would ask justices for 'clarification'
By Frank Phillips, Globe Staff, 12/11/2003

The Massachusetts Senate, hoping to find some middle ground in the divisive debate on same-sex marriage, is expected today to send a civil union bill to the state Supreme Judicial Court and ask if the legislation conforms with the court's gay marriage decision.

...

But the bill would not describe the unions as "marriage" -- a key sticking point with gay marriage advocates who say civil unions fall short of offering the full legal benefits enjoyed by heterosexual couples.

...

Polls, including one taken for the Globe and WBZ-TV after the court decision, show a majority backed the court's 4 to 3 decision. A University of Massachusetts poll taken this week reaffirmed those findings, with 59 percent of the 405 registered voters surveyed saying they agreed with the court's ruling, while 37 percent disagreed with it.

By a 51 percent to 41 percent margin, the respondents said they think gay marriages should be legalized. But they seemed split over a constitutional amendment banning same-sex marriages, with 48 percent opposed, 46 percent in favor. The poll has a margin of error of plus or minus 5 percentage points.

http://www.boston.com/news/local/massachusetts/articles/2003/12/11/senate_eyes_civil_union_bill_for_sjc/

[David__77]

1. Polls show support for marriage rights!

This is a good thing. We need to keep up the hard work of winning people to the right side of things. I really do wish that the high court in MA had simply ordered that marriage licenses by issued to same-sex couples immediately, making the existing stature gender-neutral. It's the obvious solution. But even equal civil unions would be a victory. I think more is possible though.

[TheUnknownPoster]

3. Re: Making the existing statute gender neutral.

Would that be possible with the current statute, or would it have to be re-written by the legislature.

[David__77]

5. Court's don't have to "re-write" statute.

When marriage laws that were discriminatory on the basis of race were challenged, courts didn't give time for the legislature to re-write them, they simply said that the portion pertaining to race differentiation was invalid. They certainly could have done the same with regard to gender. I think it's a very simply solution.

[bushisanidiot]

2. I'm Gay And Civil Unions Are A-OK With Me. "Marriage" Is Just A Word.

If the financial benefits are the same then we're equal under the law.

[David__77]

4. There are advantages to both routes.

It would be good if our ultimate goal is equality--meaning not "separate but equal." When right-wingers (and others) talk about the importance of abstaining before marriage, this is a de facto condemnation of homosexuality as it stands right now. If we are to be included in the word "marriage," this would not be the case. This is not merely a legal question but a broader social question. Civil unions are good though, and I will not spite the good for the perfect.

[Vikingking66]

9. It's actually not the same

The issue of separate but equal versus integration versus is that selling out is secondary. Thanks to the Defense of Marriage Act, no state in the union that doesn't have a civil union or a domestic partnership (i.e everyone but California, Vermont, and Massachusetts) doesn't have to recognize it. The financial benefits would only be good as long as you stayed in the state you got it.

If MA goes with gay marriage proper, assuming the legislature doesn't get a civil union (or a gay marriage ban, it could still happen), then you can force states like Texas or Mississippi to recognize the marriage license under the "full faith and credit" clause.

[David__77]

10. "Full faith and credit" questions.

I'm entirely unsure that the courts would overturn DOMA on constitutional grounds. There are other areas where "public policy" differences between the states are legitimate grounds for not extending "full faith and credit." A court could certainly rule that this applies to marriage law. It took twenty years from the time of the first state repealing anti-interracial marriage laws until the Supreme Court ruled that all states must recognize and perform interracial marriages. I could see a twnety year lag in this case too. While the courts act like they are immune to political change and pressures, it's obvious that they are.

[Stuckinthebush]

6. How about this from a practical standpoint

Get the civil union legislation passed. Get the benefits, etc. Then, once that has been accomplished, take a case to the SC that says that the CU legislation is not enough to guarantee the same rights as heterosexual couples.

By taking it in steps, the public has a chance to slowly come on board. If they see that civil unions aren't hurting society, then what do they have to fear from homosexual marriage? But, to push hard for the marriage proposal may result in the pushing of a constitutional amendment.

Just a thought.

[David__77]

12. However,

while much of the public is great with the "sure, make it equal, just call it something else" position, I think that the fundamental transformation to accepting same-sex marriage won't occur until after the first same-sex marriages occur. It's the same with desegregation, or other civil rights advances. It's not as if the majority is clamoring for the protection of minority interests.

[pinto]

7. Commonwealth Constitution, which SJC referred to, specifically bans

any action of the State (Commonwealth) that would deny equal rights under the laws of the Commonwealth of Massachusetts. I think they have a clear and binding stand. If marriage is a legal function of the Commonwealth (not religious, obviously, that is the various religious communities' concerns) then it can not be applied with any discrimination. Period. Way to go, Bay State!

[foo_bar]

8. I'm on their side, but

It stayed the order 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this opinion."

Why did they stay their own order with conformity to congressional timelines? Why are they issuing guidelines on unfinished legislation? Maybe it's a Commonwealth thing, but I thought justices struck down laws without giving insight into future ones. Is there a legal precedent, other than the Star Chamber, that I'm missing?

[pinto]

16. actually a good move, imho, court gave the leg. time to implement and

address their ruling. Strict compliance with seperation of powers issues. Court can not make law. Court can only rule on constitutionality of laws presented to it for question. Florida and the Supremes could take a lesson (old election grievance here).

[BellTry]

11. I think maybe they should go with it

ONLY because if they define it as marriage DOMA may be used to strike it down...

[David__77]

13. DOMA does not "strike down" same-sex marriage, it "contains" it.

DOMA does not prohibit a state from recognizing same-gender marriages--it only disallows the federal government from doing so, and allows the states, if they wish, to not recognize those performed in other states. It never nationalized the marriage question--it's a state matter.

[BellTry]

14. If that is so

Then DOMA is clearly unconstituational. (as it is clear states must recognize other states marriages just as they must drivers licenses)

That said - let us not forget who controls the congress and the white house. Do not doubt for a moment that the repubs (in conjunction with certain dems in the senate) will have a fed law banning same sex marriage in a heart beat if need be. If you are correct about DOMA (I, unfortunately, have not yet read it and have been going off of "what I have heard". Obviously I will need to read it) then they WILL get a fed law that will do the job.

I don't see what states could do about it. Fed law overrides always unless said law is unconstitutional. I don't see how the courts would rule such a law to be unconstitutional...

[pinto]

15. precisely, and DOMA may not see the light of day out of committee...states

are the appropriate venue for legal same sex marriage.

[BellTry]

17. There is no may

You can count on a federal law. Nothing will stop it from passing congress before the next election if same sex marriage becomes a "threat".

[David__77]

18. Very doubtful.

Marriage law along with all family law is a state matter. There are varying ages of consent, rules concerning what constitutes incest and so forth. I don't think this will happen. It would require a serious overhaul of federal/state relations as a matter of fact. It's worth looking into to see if that is even within the realm of the possible, but I don't think so.

[BellTry]

19. Tell me which states wouldn't go along with it?

A fed law can be used to nullify the MA ruling and slow progress for same sex marriage for the next several years at least. All it takes is a few willing fed/state judges which are in abundance.

I suspect the vast majority of courts and states will be MORE than happy to go along with it. Any conflicting state/federal power will be happily ignored just as the constitution was ignored when non-whites first got the right to vote.

Maybe MA and MAYBE Vermont will issue some kind of protest. Maybe a few dissenting judges will popup (which will then be quickly overruled by a superior court). That's about it. I can't think of ONE other state that would *really* fight it. Even CA would probably be a lost hope.

I suspect the SCOTUS would strike it down. (assuming Bush doesn't get to put a judge or two on it in the right spots) However it could very well be YEARS before a case even reached that level. We would win in the long run, but it certainly be bad to be delayed for so long.

Never underestimate the power of hate. When hate comes in to play in the majority law doesn't matter. Just take a look at the shit that went down when the civil rights movement was on.