Civil Rights, Discrimination, and Gay Marriage
Political Columnist
APLEBLOG
Homosexual marriage has been a contentious, divisive topic that has played into race, politics and elections. Into race: when the campaign for homosexual marriage is pegged with the plight of racial minorities and the civil rights movement; into politics: when representatives propose legislation to redefine or protect marriage; and into elections: when candidates state their opposition or support for electoral gain. By any measure, it is an issue that could forever stain or adorn one who dares to take a stand. Nevertheless cries of discrimination and challenges similar to the argument presented before the California Supreme Court which led to an overturn of the state’s ban on homosexual marriage, continue to resonate in federal courts throughout the 50 states.
The stance taken by proponents of homosexual marriage as presented to the California Supreme Court was based on the U.S. Supreme Court’s ruling on Loving vs. Virginia, where the U.S. Supreme Court ruled the statues that limited marriage by race was unsupportable, steeped in prejudice and enacted to perpetuate white supremacy; furthermore, the statues were subversive of the principles of equality at the heart of the Fourteenth Amendment, was not grounds to limit a basic right of man to marry, and that Virginia only prohibited interracial marriages involving white persons. Nevertheless, the California Supreme Court weighed heavily on the constitutionally guaranteed civil protections that protect persons from discriminatory exclusionary factors, which not only includes race, but also includes sexual orientation.
Therefore, the California Supreme Court took a relatively linear approach to the U.S. Supreme Court decision in deciding that just as in the Loving vs. Virginia decision, where persons cannot be denied participation on the basis of race, likewise a person could not be denied on the basis of sexual orientation.
However, in the case of Loving vs. Virginia, blacks and whites where not allowed to marry as they choose. To expand, blacks and whites were denied the right to gain a marriage license, rather, were denied the right to engage in a contract between one man and one woman. More specifically, was denied access on the basis of race to freely take part in a state-sanctioned institution that has always [traditionally] been defined to be between one man and one woman, without prejudice to race. It was not something new, as in to invent the practice interracial marriage, but rather a fundamental right that has been present with mankind and sanctioned prior to the statues that constrained blacks and whites from marrying. Moreover reinstituting the right of blacks and whites to participate in marriage, would not affect the institution of marriage in principle. The institution remains intact.
It is not the case with homosexuals. Homosexuals are not denied the right to marry, to gain a marriage license, to participate in a contract between one man and one woman. A declared homosexual can still marry, as the institution of marriage has been defined. Furthermore, there is no married couple of man and woman, in which one is a homosexual threatened legally of their right to their marriage license; neither does any man [generally, mankind in American society] have the right to marry — to gain a marriage license in which the contract is equal to that of a standard marriage license between one man and one woman including all the blessings and rights entailed in such a marriage license, to enter into a contract that entails one man and one man. Frankly, there is no institution that is equivalent to marriage between one man and one woman that is same-sex and denied to homosexuals.
Marriage is essentially a state sanctioned contract by which its participants receive a license. For the sake of simplicity, define the process of obtaining the license as an institution. To determine if there is discrimination, the process to gaining that license must comply with law as to not deny participation on the basis of any of the constitutional guaranteed rights – sexual orientation, race, religion, sex, age, nationality, etc. Furthermore, the fundamental purpose of the institution must be upheld in principle, as to preserve the intent of the institution and all its blessings and rights.
More specifically examine contracts that allow persons to become a legally recognized business. Though all contracts form businesses that are legally recognized by the state, there are a variety of contracts persons can enter by which businesses can define, organize, structure and protect themselves. Each contract persons choose to enter is subjected to stipulations; they require different structures, rules, regulations, liabilities, disclosures, tax exemptions, and manner by which assets are collected, accounted and dispersed – to name a few. Each contract is tiered by requirement and responsibility to the state.
To continue with simplicity, compare and contrast a limited liability company (LLC) to a partnership, both of which are contracts that form a legally recognized and state sanctioned business.
Limited liability companies, according to residual-rewards.com, are “a relatively new type of hybrid business structure that is now permissible in most states. It is designed to provide the limited liability features of a corporation and the tax efficiencies and operational flexibility of a partnership. Formation is more complex and formal than that of a general partnership. The owners are members, and the duration of the LLC is usually determined when the organization papers are filed. The time limit can be continued if desired by a vote of the members at the time of expiration. LLC’s must not have more than two of the four characteristics that define corporations: Limited liability to the extent of assets; continuity of life; centralization of management; and free transferability of ownership interests.”
Partnerships on the hand, as defined by residual-rewards.com, are “two or more people share ownership of a single business. Like sole proprietorships, the laws do not distinguish between the business and its owners. The Partners should have a legal agreement that sets forth how decisions will be made, profits will be shared, disputes will be resolved, how future partners will be admitted to the partnership, how partners can be bought out, or what steps will be taken to dissolve the partnership when needed;. Its difficult to think about a “break-up” when the business is just getting started, but many partnerships split up at crisis times and unless there is a defined process, there will be problems. They also must decide up front how much time and capital each will contribute.”
Clearly, these contracts grant participants the license to become a business, yet they are different in role, responsibility and duty. Because an LLC in general, not in principle, goes through a similar process as well as enjoys some of the benefits, duties, and responsibilities of a partnership, it does not give the LLC the right to act in all powers of a partnership, even though the partnership has most of the rights of an LLC.
Is it discrimination if the LLC where to claim the rights and powers of the partnership? Or does the LLC want to redefine the role and responsibility of an LLC/partnership simply because they are both businesses and the roles of the partnership and LLC as well as the process by which they become businesses are similar. An LLC is not denied the right to reorganize as a partnership; but rather the LLC, in its claim to the rights of a partnership, wants the benefits granted to partnerships without the responsibility of being a partnership, nor does the LLC want to abide by the stipulations that sets a partnership apart from being an LLC; responsibility which includes a standard that is much more demanding than that of a LLC. Though there is good reason for an LLC to act as a partnership, they are two different institutions and are established to serve different roles within society and business.
Likewise, homosexuals are not denied access to the institution of marriage, but want to redefine the role of an established institution to encompass a principle that it was not established to accomplish. Institutions must across the line be fair and open, however the institution does not, in most cases, have to change the longstanding principle of its founding. When discussing marriage one must erase prejudices whether religious or cultural, and discuss the matter in its purest form, in terms of licenses and contracts; black and white. Treating it as such will allow oneself to evaluate the process objectively and determine if discrimination is truly being delegated to any person. My analysis is clear. There is no discrimination.
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Jackass.
1“There is no discrimination”
You sure go a long way to deliver such absolute BULLSHIT.
2APLEBLOG, it took you over 13 (long-winded and contradictory) paragraphs to basically say, “Homosexuals are not discriminated in State Marriage Laws. They are free to marry whoever they want… as long as they marry someone of the opposite sex.” This ideal is—in itself—conflicting logic.
Your argument (in a nutshell):
STATEMENT (your own quotes):
“Marriage is essentially a state sanctioned contract by which its participants receive a license. For the sake of simplicity, define the process of obtaining the license as an institution. To determine if there is discrimination, the process to gaining that license must comply with law as to not deny participation on the basis of any of the constitutional guaranteed rights – sexual orientation, race, religion, sex, age, nationality, etc.”
PROOF:
You present specific arguments of various “State Sanctioned” license procedures (all, of which, you mention there should be NO DISTINCTION of gender).
CONCLUSION (your own quotes):
“When discussing marriage one must erase prejudices whether religious or cultural, and discuss the matter in its purest form, in terms of licenses and contracts; black and white. Treating it as such will allow oneself to evaluate the process objectively and determine if discrimination is truly being delegated to any person. My analysis is clear. There is no discrimination.”
Okay… so, let me understand your “circle of logic.”
STATEMENT:
Homosexuals have the freedom to marry, as long as they marry “whom” the religious and cultural majority deem appropriate according to their personal, traditionalist view (which is someone of the opposite sex).
FACT:
The above statement IS the true definition of the word “discrimination”, which you—yourself—state, “When discussing marriage one must erase prejudices whether religious or cultural, and discuss the matter in its purest form, in terms of licenses and contracts; black and white.”
CONCLUSION:
So —according to your theory— a Jew is allowed to marry a Christian, a black man is allowed to marry a white woman, a 72 year old man is allowed to marry a 17 year old girl (in over , and an Irishman is allowed to marry a Pakistani Woman. Yet, if one adult male (no matter his race, religion, age, nationality) wants to marry another consenting adult male (no matter his race, religion, age, nationality), they are singled out and denied this right for their “sexual orientation” because it doesn’t comply with “fundamentalist views.”
How is that NOT discrimination?
3I have process objectively your article and my only comment is that you are an ignorant bigot.
4“Likewise, homosexuals are not denied access to the institution of marriage, but want to redefine the role of an established institution to encompass a principle that it was not established to accomplish.”
I reread your writeup a few times, but I simply could not find where you laid out the principle(s) that marriage was established to accomplish.
Is it to produce children? What about infertile couples, should they not be allowed to wed? Or perhaps it is to promote community stability by forming long-term commitments, which gay marriages also support? It could be that the marriage promotes a sense of family and ensures a more stable environment for children. Research suggests that, in fact, same-sex marriages are more stable than traditional marriages, with a lower rate of both divorce and spousal abuse.
It is my own personal belief that a child adopted by two same-sex adults will fair better than a man and woman who marry simply because they accidentally got pregnant, and are determined to “make it work” (however noble their intentions may be). Though I have not seen studies on this (how would you even measure something as complex as “quality of childhood”?) I feel certain that the same-sex couples that adopt provide an above-average environment for their children.
You argue that the LGBT movement is trying to ‘redefine’ marriage, because you say that marriage has “always [traditionally] been defined to be between one man and one woman.” Not long prior to Loving v. Virginia, it would have been just as accurate to say that marriage has “always” been defined to between a man and a woman of the same sex.
Neither black people nor white people were “denied access to the institution of marriage.” They simply were denied the right to marry the person that they loved, because of something they could not change about themselves. Gays and lesbians are not “inventing the practice” of marrying the person that you love. It is “a fundamental right that has been present with mankind and sanctioned prior to the statues that constrained” gays and lesbians “from marrying.”
“When discussing marriage one must erase prejudices whether religious or cultural, and discuss the matter in its purest form, in terms of licenses and contracts; black and white.”
You’d like to discuss marriage as a social contract, as would I. Can you point me to any definition of a certain kind of contract that restricts participants to one gender, or race? Perhaps the definition of a LLC specifies “Exactly 50% of partners must be women, and the remaining 50% must be men.” Or “It is acceptable for non-whites to sublet to Latinos and Inuits, but Pacific Islanders may only sublet to people of African descent.” I believe that you would be hard-pressed to find any example of this type (save the U.S. government’s relation with the Native-American nations, who are excepted due to their tribal sovereignty, not their race).
In fact, either of my examples above would be recognized very quickly as discrimination. Why shouldn’t two lawyers be able to start an LLC, simply because they share the same type of genitals? Do those genitals preclude them from being excellent lawyers? Shouldn’t they be allowed to defend clients of the same gender? The answers here are obvious, because we haven’t been raised in a culture that condemns same-sex law practice. It is only once we get into questions of marriage that we ask ourselves “Does having the same sex as another person mean that they are incapable of loving each other? Does it mean that they will raise their children to be immoral?” Again, such answers are clear once we remove our irrational bias for “tradition.” Simply because something is “the way it’s always been done” does not make it right.
“Frankly, there is no institution that is equivalent to marriage between one man and one woman that is same-sex and denied to homosexuals.”
You’ve worded this almost exactly right – what you should have said, is “there is no equivalent to marriage that is allowed to [gay and lesbian people].” And in fact, there can be no equivalent. As Justice Warren famously ruled, “Separate… [is] inherently unequal.”
5What’s the matter? Can’t take intellectual criticism from a stranger… then don’t have a public blog.
6If you think gays are trying to undermine the original purpose of the institution, perhaps you could enlighten us as to what that purpose is. You also have to show that the purpose hasn’t already changed across time and different cultures. Did you know the wife used to be considered the property of the husband? If we changed that silly tradition here in the U.S., we can change it again. I’m tired of this ridiculous excuse that something can’t be changed just because it has been tradition, popular belief, or limited to a certain definition for a long period of time. I believe the definition of citizen in this country used to be white male.
Not giving gay couples/families (which will exist whether you condone them or not) the 1,000+ rights and protections of marriage is discrimination. Since you can’t show a rational or proven reason as to how that discrimination is justified, I suggest you stop endorsing it. I’m sure you cling to the myth that being gay or bisexual is not an innate personality characteristic which gives people the ability to be sexually attracted and experience romantic, emotional connections to members of their own sex. Your nonsense about them being allowed to marry as long as it is someone of the opposite gender is evidence you probably still believe that they simply choose certain behaviors, and can change those behaviors at any time. While it is true a person can change their behavior, it doesn’t change the feelings/attractions they experience. Also gay people should have the same opportunity to have a recognized relationship and family with their loved ones, just like straight people. They shouldn’t have to change because, again, there is no truthful or rational reason their behavior harms themselves or anyone else.
Someone’s subjective view of morality is not a valid reason. Yes cold-blooded murder is immoral (not that there is even a slight comparison), but for everyone it is immoral because it causes harm to another and most likely leaves any person with a conscience a feeling of guilt. Other people simply add religious doctrine to their list of reasons why it is immoral. With homosexuality, it causes no one harm, provided it is between 2 consenting adults, and it allows the gay/bisexual person to engage in romantic/sexual activity with the person they are attracted to/ romantically linked to/ in love with- a privilege straight people have. Perhaps to some, religious doctrine may make it immoral, but that has (or at least should have) ZERO place in the laws of this country.
7Wives were not originally considered property of their husbands. They were equals in the beginning; it was man who changed the tradition to fulfill their selfish needs. Just look at Afghanistan. So your point about changing that tradition is of no effect, rather we learned that we cannot deviate from marriage’s original purpose and structure, and attaching “fixes” like “women are property” only breaks marriages.
Also as the state recognizes marriage as a contract regardless of religion, custom, or belief. Therefore the issue is whether anyone is barred from entering the contract. Furthermore, my reason why discrimination is justified is largely because like any contract or business deal, I have…rather society has the right to weigh/value a contract, just as like in any contract. Look at the stock market, are the stocks on the DOW being discriminated against because they are not on the S&P 500? No we as a society value S&P 500 more. My friend heterosexual marriage is the S&P 500.
8Well, you sure lit a fire with this one.
Can you spell B I G O T ?
9These arguments were rejected by Walker, and rightly so.
Denying the right to marry based on the relative sexes of the spouses is unconstitutional discrimination on the basis of sex, and because the people who wish to do this tend mostly to be gay or lesbian, it is also unconstitutional discrimination on the basis of sexual orientation.
If you look at the depositions of the Intervenor’s OWN WITNESSES, they admit that same-sex marriage (marriage, not other relationships) is neither new, nor limited to far off lands.
10Bravo,
You have managed to, in summation, removed the human perspective out of marriage. By your long and dry diatribe, the tradition of marriage, removed from cultural or religious prejudices, is nothing more than a contract akin to a business. As such, there should be nothing wrong with a father marrying his pre-pubescent daughter or mother marrying her pre-teen son. Because no such age-restrictions are explicitly stated in business contracts like an LLC. Consenting adults? Nay, that’s not part of the agreement, because in long-standing tradition, arranged marriages were far more the historic norm (as were men marrying children) than binding contracts agreed upon by consenting individuals. Not to mention that offspring produced from familial reproduction, once the historic norm, is historically documented to be fraught with health and genetic problems, but we shouldn’t bring our scientific prejudice into this argument, right? After all, it’s traditoin! Likewise, any offspring produced from this or any other type of business arrangement of marriage should also be immediately split in half upon it’s dissolution, become solely the owned property of one party or another, or can be sold to the highest bidder like any commodity acquired or procured from said business arrangement, but would you really ever consider the 3rd option?
Ahh but wait, it gets better, the business arrangement of marriage explicitly states that they should stay joined in life-long binding contract, “In sickness and in health, till death do [them] part.” Regardless of cultural or religious viewpoint, variations of that statement are made as verbal vows when the marriage contract is made. No LLC I know of gives such gravitas of obligation to the personal health of a business partner. If we were to follow the logic you so verbosely put forth, then all divorces are in violation of the tradition you fight so hard to preserve and, same-sex marriage aside, the tradition/institution has already undergone change to allow for the dissolution of a binding contract that should’ve only been dissolved when one partner has died.
Again, kudos for trying though.
11