Anonymous, at 7/1/05, 8:56 AM

You won't stand for it. But we will.    

 

Oh really? Anonymously just like this comment... what are you afraid of?    

 Anonymous, at 7/1/05, 11:26 AM

No person, regardless of their sexual orientation should be given special privileges, etc., just because they are straight.

It remains an internally inconsistent argument to link sexual neutral language with either special privileges or special punishments based on private sexual activity.

It is analytically sound to argue that straights must confine their demands for public privileges (gifts earned only by publicly announcing private sexual behavior) to those identified in the proposed Reciprocal Benefits law. So long as the outspoken gay community refuse to acknowledge this analytical option I cannot look upon your demand for special privileges as anything but something other than a demand for equal rights.

The legal remedy for a statute that violates a provision of the constitution includes merely voiding the offending provision. He marriage law today still violates the equal privileges and immunities clause and you must seek to have it voided.

SB 1000, the portion that extends benefits for private sexual behavior, is no more and no less offensive than the present statutes for giving public money to straights for publicly announcing their sexual preference. If you demand some inherent right to public rewards for sex then you are making the argument that the straights are making, and making it on their behalf, in the interest of some notion of religion or just to achieve political fragmentation.

No consenting adult needs a license to engage in sexual conduct with another consenting adult. The effort to seek public approval is just plain odd, no matter the private sexual behavior of the parties, as if sex itself brings shame.

nag    

 

This comment has been removed by a blog administrator.    

 

Nag’s argument assumes that a homosexual relationship is based solely on sex. It assumes, that homosexuals are seeking special rights for their sexual behavior. This poster clearly demonstrates his lack of understanding of Gay Marriage and Civil Unions.

First let me start with the last paragraph, just to knock that out of the way.

"No consenting adult needs a license to engage in sexual conduct with another consenting adult. The effort to seek public approval is just plain odd, no matter the private sexual behavior of the parties, as if sex itself brings shame."

No homosexual is seeking a license to engage in sexual conduct with another consenting adult. Frankly, I could care less what the public thinks of my private sexual conduct. However, once living in Texas, I could have been arrested for my private sexual conduct, fined, jailed, and forced to register in the Sex Offender Database all for sexual conduct with another consenting adult. Thanks to Lawrence v. Texas, I no longer have to worry about public approval of my private sexual behavior. Thank God for that. You see, it appears that the Government and the hetero public were very much concerned with my private sexual behavior. Frankly, it is none of their business, and the Supreme Court made the correct decision to remove the Government from my bedroom. Sex itself, does not make a person a criminal. Sex itself does not bring shame.

What homosexuals know, that this poster does not, is that Gay Marriage and Civil Unions are not about sex. Would anyone say that the purpose of Marriage as it stands today is so that heterosexuals can have sex? Is that the only reason for Marriage? Of course not, it is about two people coming together to live their lives in love, recognized by their community and conferred upon them all the rights inherent with Marriage. We want to make sure we can gain access to a hospital should our partners become ill, or make medical decisions for them if that is unfortunately necessary. We want the same tax benefits that are given to married couples. We want access to the myriad of other rights given only to married couples, all of which have absolutely nothing to do with private sexual behavior.

"The legal remedy for a statute that violates a provision of the constitution includes merely voiding the offending provision. He marriage law today still violates the equal privileges and immunities clause and you must seek to have it voided."

Are you saying this is the only legal remedy? Seriously? I do believe it is possible to change, or modify laws so that they do not violate a provision of the U. S. or Oregon Constitution.

Having read SB 1000, I seem to be unable to find the portion that relates to private sexual behavior. I see a lot about ending discrimination, and creating civil unions. I see that the word Spouse appears to be reserved for married couples, whereas the word Partner will denote couples in Civil Unions. I see the section that defines marriage to be between a male and female. Perhaps someone can post for us the section of SB 1000 that deals with Private Sexual Behavior. Anyone???

Adam T    

 Anonymous, at 7/1/05, 2:46 PM

Go ask Mr. Hinkle why he thought it was important to clarify whether M36 did or did not alter the Equal Privileges and Immunities clause. He was preserving the the argument for use later.

Marriage, as a license for sex, is not new, even if fallen into disuse. There have been many attempts to ban cohabitation -- a simple attack on private sexual conduct where there is no marriage. This stuff was applicable to opposite gender couples.

I am not saying that a relationship is exclusively about sex, indeed many partnerships have little or no sex at all. What I am saying is that the law pertaining to relationships can be drafted so as not to even mention sex or sexual orientation at all.

Kids owe a duty to their parents in kind to that which they themselves obtained when growing up. This is written right there in the statutes today. If one assumes that sex is not not part of such a mutual aid relationship then one can also isolate out the notion that the duty is not one from the state to the partners but between one partner to the other. The mutuality is between the partners and not between them and the state; as to the parent-child relationship the state is merely noting a duty between two private parties.

Two partners have a mutual duty between themselves. This has nothing to do with sex at all.

You might ask Mr. Hinkle too whether the routine remedy for a void law is to simply declare the law void. The legislature can simply go redraft a law. The outer limits request for a remedy is to ask a judge to sit in the shoes of the legislature and presume to know what the subsequent legislative choice might be in response to judicial declaration of a statue as void, and then make that choice in their stead. The judicial over reach, is by choosing NOT to void the statute if it was found to be in violation of the equal privileges and immunities clause.

M36 does not preclude such a legal action today, and a declaration of the current marriage law as void. Go ask Mr. Hinkle, again. He will not tell you otherwise.

We can strip out the reference to sex, straight or gay or otherwise. What we have left, if anything, is public registration for commercial purposes as a single legal entity; perhaps as a mere accommodation of religious recognition of the single unit.

Stick to the Lawrence case. Better yet let all straights rely on Lawrence too, while the facts of the case involve gays the right that was vindicated was a privacy right that is equally applicable to straights.

My instructor, my civil liberties instructor is known to be the brightest around. From personal experience I would have to agree. You ought to meet him and chat. From the Bowers case, the hypothetical he posed, in class, was how might the result have been different if the sexual act had been engaged in by a straight couple rather than a by two men.

The hypothetical, that of cohabitation and a sexual neutral law is fully and completely in the same vein as that hypothetical offered by the best authority we have on such matters in these parts.

I just find it dizzyingly absurd to write into law things pertaining to sexual acts as it is so radically at odds with the notion in Lawrence that private sexual conduct is none of state's business. Unless and until the day arrives that folks are allowed to do it in the street as a public freak show then it remains a private act and the only public display is "words" asserting to have one preference or another or none.

The proponents of the Reciprocal Benefits law expressly wish to make it unavailable to cohabitators of the opposite gender; thus confining the option of mutual monogamous opposite gender folks to have only marriage as an option. But I view the word marriage as a religious term. I view civil unions too as religious. Both go well beyond a mutual duty between two private parties and seek to pay public assistance for the union.

Can you put yourself in my shoes? I presume that you can. Or would it be too much of a stretch, for then you might have to acknowledge that I too might be able to put myself in your shoes?

The word gay implies a union where there will be sexual conduct that will comport with such a term. It is self defining. The man woman coupling in M36 is also self defining as involving sexual relations. These are simply class distinctions, a prerequisite and obvious finding (so obvious as to not warrant the need to say gay means gay sex) which precedes in inquiry into whether the class of folks such as at issue in Tanner can be treated differently under the Equal Privileges and Immunities clause. One need not describe the acts to make the class distinctions. If there were no implicit acknowledgment of the sex act then there would be no basis for distinguishing the class based on sexual orientation and thus no occasion then to apply the Equal Privileges and Immunities clause, which is based on differential treatment of definable classes, let alone a heighten scrutiny based on a determination of invidious descrimination based on the underlying sexual orientation.

nag    

 

nag,

After reading your blog... I don't quite understand you. Are you a-sexual and are against anyone else having sex? You seem to have this fascination with people not having sex at all. Having sex is not the issue. You are wasting our time here. Go back to "boobylaw".    

 

Nag, I don't understand what shoes you are trying to fill. Are you saying you think there should be no marriage or civil unions period for anyone?

And you have not convinced me that Civil Unions is religious.

We debated Bowers too in my Civil Liberties class. Asked the same questions, the same questions they probably ask at every university. Taught by people who went to Ivy League schools. So what. What is the point with Bowers in this argument, especially now that Bowers is no longer controlling? We can even trace this back to Griswold if you like. Might as well drag up the all the cases dealing with the expansion of sexual freedoms and personal liberties.    

 Anonymous, at 7/1/05, 9:58 PM

Adam,

Whether we should or should not have either marriages or civil unions at all is a distinctly different inquiry than whether same-sex couples are accorded the same privileges, under the equal privileges and immunities clause, as opposite gender couples. If there was no marriage statute or the current statute were voided, even if only temporarily, this would fully comply with maintaining equal privileges. Analytically, some folks seem to be mixing up the notion of some inherent right to have a marriage with the limited set of remedies that are available through the assertion of a violation of equal privileges and immunities. It sounds almost like some folks believe that the existence of the equal privileges and immunities clause can be bootstrapped to reach the conclusion of an inherent right to a marriage.

The current marriage statute defines a marriage as a civil union. It could just as soon say that a civil union is a marriage. They are one in the same, at least for purposes of a secular government.

I read M36 to mean that a civil union between a man and a woman can be called a marriage and a civil union between a same-gender couples cannot be called a marriage. It does not require that the word marriage be inserted anywhere in the statutes. Whether a marriage is religious or not and whether a civil union is religious or not seems to be a matter of semantics as even a marriage for purposes of state action is confined to recognition only of the civil union notion of a civil union, regardless of the name attached. In this sense M36 says and means absolutely nothing. The only cloud caused by M36 results from alternative versions of legislative history, here that would be the diversity of views expressed in the election debate, which are all over the map.

The reconciliation of M36 and the equal privileges and immunities clause, if one thinks the word marriage is different than civil union (and if SB 1000 were to pass), is to strip the word marriage from the statutes. The state constitution is largely a document of limitation. The legislature can do whatever it likes provided it is not prohibited from doing so by the state constitution. That is, the legislature does not derive any additional authority via passage of M36 that it did not previously have. If there had been some inherent right to state recognition of a marriage I do not believe that such a search for a resolution of the issue (for opposite gender couples and perhaps for an the exclusion for same-sex couples) is displaced by M36's limited declaration about the name we attach to a civil union based on the gender pairing.

The Bowers point was that the rule was not dependent upon the particular pairing of the parties even though the factual setting involved a particular pairing of parties. The rule derived from Lawrence is itself also independent of the gender pairing, even though the factual setting again involved a same sex pair. Both involved a search for the limits of government to prohibit private activity. SB 1000, includes not merely prohibitions upon discrimination but extends privileges (pretty much everything under the rubric of civil unions to match that of marriage), but importantly does so in a manner that is not neutral to sexual orientation. It suffers precisely the same flaw, in terms of equal privileges and immunities analysis, as the man woman only thing in the present marriage (civil union) law for straights only.

I already view the marriage statute as void and M36 is inconsequential to the equal privileges and immunities analysis. The Supreme Court in the Multnomah County case so much as invited relitigation but without the infirmity of process flaws. A gay person could go demand a marriage license so as to obtain equivilant benefits as straights, and then get denied rather the piece of paper purporting to grant a license, and then go over to a judge and then demand as a remedy that the current marriage statute be declared void and without continuing force of law. The legislature would then have to hammer out a new deal, but from the position that there is no more marriage law at all. Imagine then that it is the House, controlled by the Republicans, that is trying to get something on the books to recognize some form of civil unions for the straights and it is the Senate that is standing in the way demanding that the proposed legislation conform to a sexual orientation neutral principal.

My motivation is really to point out the tactical error by the lawyers who thought that they could swing a deal by convincing Multnomah County to issue the licenses rather than to follow the traditional procedures for challenging government action. The debate over SB 1000 could have been entirely different. I spotted the MC4 tactical blunder and posted comments on it before even the Benton County folks came up with their creative solution; a solution that could instead have been issued by a judge via a declaration that the marriage statute was void.

Bryan, what my personal beliefs are and what my personal life is remain irrelevant. Attacks on my personal character are just a grunt of frustration. But it need not be made into a personal matter. And your frustration need not result in a hit-and-run tactic which is more like a classic error in any simple interpersonal relationship as well. I have used sexual conduct references in a sexual orientation neutral frame so as not to induce any bias at all about how I would resolve the issue.

I would instead be proposing legislation that assumes that the marriage statute has been struck down (or that itself strikes out the current marriage laws) and fully replace it with a bill that would not reference the gender of the pairing at all, just "two people," and that is satisfactory to a segment of the Republican base. The goal here, at this time, is not actual passage (as that has already been written off) but rather it is in the political realm and the target audience is not the left but a subset of the right. Set out a replacement bill that would be appropriate in the event that the marriage statute has been declared void.

Personally I do not want to see the word marriage in the law pertaining to civil unions for opposite gender couples, as it connotes a religious reference in my mind. I also want a clear demarcation between those elements of civil unions that are nothing more than a mutual duty between a pair and instances where the government actually coughs up dough for the formal public recognition of the pairing.

nag