Mass Supreme Court Ruling legalizing gay marriage

[BoneQuint]

Why does "the state" promote marriage in the first place? I'm definitely for consenting adults of either gender having a "spiritual marriage," or agreeing to share their lives together. Nothing "the state" says or does can prevent that, and it shouldn't.

But why does the state promote more legally-binding male-female relationships specifically? Are the reasons for that still valid? And would the state be promoting legally binding same-sex relationships for the same reasons? Marriages would still happen whether there are state-sanctions "perks" or not. Wouldn't abolishing all "state benefits" from marriage also make straight and gay marriages equal under the law? (I'm not saying this is what should happen, but it's an interesting way to think about the question.)

What are the very biggest legal benefits married couples get that unmarried couples don't get? (I'm just kinda ignorant here.)

[DCrom]

What are the very biggest legal benefits married couples get that unmarried couples don't get? (I'm just kinda ignorant here.)

Child custody. Division of propety. Inheritance. And - the biggie - legal next of kin status.

There are cases that occasionally make the newspaper out here of long-term gay couples (totally at odds with one or both of their birth families). Then one is incapacitated and in the hospital. The birth families have ALL the legal rights, the life partner none. They can be denied visitation rights, the birth family may move their partner out-of-state, if they die the birth family can bar the partner from any involvement with the funeral . . .

As long as you are healthy and mentally competent you can make your own life choices. But if you're incapacitated, your family does. And if the person you most care about is forbidden, by law, to become "family" it's going to be decided by blood relationships, even if you've not been in contact (or agreement) with them for most of your adult life. Imagine, say, you're gay and your legal next of kin is the Rev. Fred Phelps. See the problem?

To me the last, alone, justifies a changing our marriage laws. (For that matter, why the sexual component? Why not a law allowing "families of adoption"?)

[glauber]

What are the very biggest legal benefits married couples get that unmarried couples don't get? (I'm just kinda ignorant here.)

Somebody else will probably answer this better than i can, but my wife benefits from my health plan at work, and she automatically gets to inherit my material possessions when i die. If i kick her out of the house she can sue me for alimony for herself and for our daughter, plus she has a shot at keeping legal custody of our daughter too. I'm sure there are more. Some of these things can be worked out (e.g. in a will and testament document), but straight couples get them automatically. Other benefits can't be worked out at all.

[jim stone]

What are the very biggest legal benefits married couples get that unmarried couples don't get? (I'm just kinda ignorant here.)

Child custody. Division of propety. Inheritance. And - the biggie - legal next of kin status.

There are cases that occasionally make the newspaper out here of long-term gay couples (totally at odds with one or both of their birth families). Then one is incapacitated and in the hospital. The birth families have ALL the legal rights, the life partner none. They can be denied visitation rights, the birth family may move their partner out-of-state, if they die the birth family can bar the partner from any involvement with the funeral . . .

As long as you are healthy and mentally competent you can make your own life choices. But if you're incapacitated, your family does. And if the person you most care about is forbidden, by law, to become "family" it's going to be decided by blood relationships, even if you've not been in contact (or agreement) with them for most of your adult life. Imagine, say, you're gay and your legal next of kin is the Rev. Fred Phelps. See the problem?

To me the last, alone, justifies a changing our marriage laws. (For that matter, why the sexual component? Why not a law allowing "families of adoption"?)

Very interesting. But I think all of this can be readily
circumvented by giving your gay partner, or whomever
you chose, medical and legal power of attorney.
Some sort of measure like this is worth considering
whether or not you're gay--many of us would prefer
someone other than birth family handling our affairs
or directing our medical care if we're incapacitated.
Setting up a power of attorney is already routine,
simple, and inexpensive. By writing a will,
you can determine who gets your property.

Child custody--I need to learn more.
I have a child, divorce. I find a homosexual
partner or I remarry heterosexually.
I die. The ex-wife gets custody, whether
or not I'm married.

What about if my wife
dies, I keep my child, I find a homosexual
partner. I die. My partner moves to adopt
the child; competition comes from
grandparents, say. May be prudent for
the partner to adopt while I'm alive.

My suspicion is that generally there are already
was about for gay partnerships to accomplish
what they need; must get more info, Thanks

Best

[jim stone]

Concerning health care coverage, increasingly employers
are adopting policies for domestic partnerships. Insurance
companies are glad to sell such policies.
My partner can position himself to sue for
custody by adopting the child. I don't know
how alimony claims could be triggered
in such a case, though; however there's been
plenty of litigation for other relations,
e.g. palimony. One anticipates that litigation
of this sort might well prevail (George says
'He left me and the child penniless, for
another man! I sacrificed my career
to childcare.'

I suspect that the argument that gays simply
are unprotected here, only marriage will do the
trick, is weak. But it certainly seems true that
gays would have to put together piecemeal
what is bundled for marrieds. Best

[DCrom]

Jim, your second post ("piecemeal") was precisely the point I intended to raise.

And if you get any piece of the other paperwork wrong (or if the court decides they want to set it aside, or, in the case of adoptions, deny it) you are out of luck.

As far as I know, if you are both of legal age, it takes proof of fraud on your part (or a petition of the involved parties) for them to annull a marriage.

I will admit I am somewhat biased here (and, though I would prefer the legislatures to act, also think that at times the court needs to). Under the California anti-miscegenation laws (overturned by the Califurnia Supreme Court in 1948) I would been forbidden to marry my wife - after all, we belong to different races, and "everyone knows" intermarriage is wrong.

I hear many of the same arguments that supported anti-miscegenation laws being raised again. Not quite the same thing - agreed - but close enough to disturb me.

[Jack]

Jim, one thing that there is no "way around" is Social Security benefits. The only way you can get them is if you are married. Civil unions don't do it, and next of kin status doesn't do that, either. There are more things that only marriage can get you, too, including all types of benefits from your places of employment. Some places of employment offer, but the vast majority don't. With marriage, they would.

Many heterosexual people don't realise all that gay people are still denied because heterosexual people already have all the rights and don't have to worry about them.

Also, it's not only the two adults who are being denied rights here, it's also their children and family. Can't loose sight of that.

[jim stone]

Several weeks ago I called social security and talked to an expert
on all this. Very bright and well informed. She
says that Congress can legislatively extend SS survivor benefits
to partners in civil unions, and that there is considerable
discussion of so doing. We may end up with that
happening while marriage remains reserved for
man/woman relations. Rather hard to see how
it's going to happen without at least civil
unions, though. Best

[Bloomfield]

We may end up with that
happening while marriage remains reserved for
man/woman relations. Rather hard to see how
it's going to happen without at least civil
unions, though. Best

Let's do it right then, and restrict man/woman marriage to fertile couples who have not been previously married, because that's what marriage means after all. The infertile and divorced can form civil unions if they must, and do the next-of-kin paperwork.

[Jack]

jim, even if Congress would legislate Social Security benefits to people in a civil union (and you and I know they won't, at least for many years to come - especially with the makeup of the current Congress), I think we'd both agree that civil marriage like we will have in May is so much more simpler, cleaner, and yes, more do-able than all the multiple routes you suggest, some which work, others which don't.

I say just give things time and the country will see that allowing gay people to marry will not be the end of the world. I promise.

[Duckrasta]

Call me old fashioned, or worse if you prefer: I thought these were the kinds of things that We the People should decide through our elected representatives.

Alexis de Tocqueville would like a word with you.

[jim stone]

And if you get any piece of the other paperwork wrong (or if the court decides they want to set it aside, or, in the case of adoptions, deny it) you are out of luck.

I just talked with an attorney in Massachusetts, my mother-in-law,
a Democrat, by the way. The chances of courts being picky
about paper work or setting aside powers of
attorney are remote, she says.

Back to the scenario
where my wife dies, I have the child, I find a homosexual
partner. I die. What about custody of the child?
First whether or not I'm married to him, custody doesn't
automatically go to him (or her, if I remarry a woman) unless
he's adopted the child. Marriage doesn't secure custody.
Even if I marry a woman, she needs to adopt.
Also I can put it in my will that custody will
go to my gay partner which will be
counted by the court (along with the fact that
he's been functioning as a parent) but may notnecessarily
be determining.

This attorney says that to her knowledge adoption
procedures aren't determined by law. Social services
will determine my suitability, looking at a wide range
of features, e.g. stable relationship, absence of criminal
record or violent history, generally upstanding
citizen. If I'm homosexual, it's possible that this will
be a factor, but typcially this is looked past to a larger
picture. Once again, being married isnt the magic
bullet.

Two lesbian friends of ours in Mass gave birth to a boy by
artificial insemination. Mary's egg in Kelly's body.
Kelly had to adopt; no problem.

I rather agree with Cranberry's hope that people
will accept that gay marriage isn't the end of
the world--my concern is that court rulings like
these, which smack of judicial arrogance and
have no reasonable legal basis, IMO, postpone
that day indefinitely. It's so much better when people get to
put in their two cents, even if they lose, than when what appears
to be a radical policy is imposed by the courts
without legal warrant and virtually nobody gets to
be counted or heard. Also there's less chance of
backlash. I believe the state of Hawaii amended the
state constitution to prohibit gay marriage after
the state supreme court pulled the same
maneuver, and the prospect of this now
happening in Mass is real. Best

[Jack]

Quote @ jim stone

This attorney says that to her knowledge adoption
procedures aren't determined by law.

One word: Florida.

Gay people can't even adopt there, no matter what the circumstance.

I don't know all the other 49 state's laws, but I can't help to think some would be the same, or at least similar.

[jim stone]

Simply don't have this info. Thanks, Jim

[Darwin]

Regarding what's often referred to as "judicial activism":

At the Federal and State levels, there are constitutions and ordinary laws. Constitutions are harder to change, and are set up to keep legislatures from easily making certain kinds of law. This is done to insulate fundamental rights and structures from whim, passion, and fashion. Constitutions are generally written so that no ordinary law is permitted to contradict them. The result is supposed to be that much more thought must go into changing constitutions.

One of the jobs that a Federal or State court has is to determine whether a particular law contradicts the relevant constitution(s). As far as I know, courts don't create their own cases. They respond to cases brought by citizens. Ideally, they look at the law in question and determine whether it is unconstitutional or not. Whether any particular court does a good job of this, or not, the process does not seem to equate to "activism".

Also, constitutions and laws must be interpreted as written. There's a lot of talk about "original intent". Judges aren't mind readers. If legislators want their constitutions and laws to be interpreted according to their intent, then they'd best write them in the most precise language possible. If the Founding Fathers of the United States wrote in language that is open to misinterpretation, then it's their own darned fault, and if current legislators are of the opinion that this sort of thing is happening, then they are certainly free to try to amend their constitutions to contain less ambiguous language--if they can.

As for legislatures failing to deal with certain questions, it may not be obvious that there is a question that needs to be dealt with until a court has ruled on a particular law. If the law is found to be unconstitutional, then the options seem to be to either rewrite the law or to amend the constitution to make the currently unconstitutional law constitutional. The latter is more difficult, more time consuming, and generally more expensive.

The system is a lot of trouble, but that's good. It should be difficult for governments to change fundamental rights and structures. I'm not formally a Libertarian (rather a registered Republican), but I do believe that governmental enthusiasms should be restrained.

One thing that bothers me a lot is talk of "the interest of the state". Sometimes this phrase seems to be invoked to permit abrogation of constitutions. I think that this can be a "slippery slope". A good example is the clearly unconstitutional internment of US citizens of Japanese descent during WW2. Attempts to treat citizens as enemy combatants without first proving this status in court seems to be in the same category. Another example is "undeclared wars" launched by the Executive. A major point of the US Constitution is that the US is to be ruled by law, not by the whim of a ruler. If this is seen as inconvenient or dangerous, then it's up to the legislators to revise the Constitution to cover specific cases, rather than for everyone to simply stand by when its provisions are being violated.

(Edited to correct Texas dialectal spelling.)