A Question for Our Lawyers and Policy Wonks

Tim’s post on Eric Holder reminded me of something I’ve been meaning to ask y’all.

Over the past two weeks I have heard a new talking point repeated on all the talk radio stations, and I’ve been trying to puzzle out whether it is a valid but obscure legal point or just making s**t up.  Bear in mind that my question has less to do with whether or not SSM should be legal, and more to do with the precise way in which the law works.

The talking point has to do with what people (myself included) refer to as “Same Sex Marriage Bans.”  The point being made lately is that the GOP does not support these bans, and furthermore that these “bans” are mythical and do not exist, either as law or policy proposals.

As a way to illustrate their talking point, the law in my own state (that I think of as a ban) is the following amendment to our state constitution which was implemented in 2004:

It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”

The argument I am hearing conservatives make says, correctly, that there is nothing in that amendment’s wording that  mentions same-sex marriages, and that nothing is explicitly banned. Therefore, they continue, there is no ban on SSM in Oregon; further, the GOP has never supported such a ban.

Now, I have little doubt that practically speaking this argument is an attempt for conservatives to have their cake and eat it too — a kind of precarious set-up where they can provide each of their warring sides with bumper-sticker signs of solidarity.

But I am hearing it so often these past few weeks that I’m actually starting to wonder — does such a law not legally ban same-sex marriage in a strict legal sense?  Is there some way that the state of Oregon can tell a previously legally married couple that they are no longer legally married, and no longer have access to the rights and privileges associated with married couples — and still not ban SSM?  Or is it all just cynical BS?

Lawyers and policy wonks, educate me…

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37 thoughts on “A Question for Our Lawyers and Policy Wonks

  1. I’ve heard conflicting accounts and not closely researched it myself, but it’s my understanding that polygamy is banned — not just that they can’t receive state and federal benefits, but you can actually be prosecuted for participating in the ceremony. (This leads to free exercise questions that have caused the issue to be raised again recently.) SSM, on the other hand, is not banned. You can engage in the ceremony and live together and receive whatever benefits may be available for civil unions, etc. So in that technical sense, there is a difference, and SSM is, to my knowledge, nowhere actually “banned.”

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    • I would be an idiot to disagree with Tim about the law, but …

      It was my understanding that Utah (for obvious historical reasons) had a law that made participation in a polygamous marriage ceremony illegal, even if that ceremony did not any way claim to have legal force, but that

      1. This law was unique, and
      2. It was struck down this past December.

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    • You can engage in the ceremony and live together and receive whatever benefits may be available for civil unions, etc.

      In Texas, you cannot receive the benefits, though it is true that you could have the ceremony. It would just have no legal implications whatsoever. I assume that this is not the case with bigamy — the ceremony itself is against the law, even if it would result in no change in legal status?

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      • Gays can — and have — married in purely religious or secular ceremonies is hardly ever mentioned in all the chaos and screaming about churchs being ‘forced’ to marry gays.

        That churchs could not be forced to do so, and that some cheerfully DO so even when the state explicitly refuses to recognize such as a marriage, for the exact same reasons, is an irony lost on many of the loudest clamoring against gay marriage.

        I always found it funny, insofar as I knew a Unitarian church that was happily marrying gays for years before Vermont started.

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  2. I’d have to see a specific example of this argument being made to fully respond, but from what you’re saying, it seems like the argument is that no one has ever banned SSM – people have always been free to engage in whatever relationships they wished and to call their relationships whatever they wished; instead, all these alleged “bans” do is restrict the legal benefits of marriage to one particular type of relationship.

    If this is the argument, it’s true as far as it goes – none of the alleged bans threaten to criminalize people living together in same sex unions, nor do they seek to prevent same sex couples from entering into religious marriage by, say, prohibiting religious authorities from celebrating same sex marriages.

    I just don’t think this is a particularly powerful or relevant argument, as the question is and always has been why only heterosexual marriage ought to be entitled to the rights and privileges that come with legal recognition.

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  3. I am going to echo what Mark said. The argument on conservative radio is completely irrelevant and largely a great example of Orwellian double-speak. Everyone knew what the purpose of the 2004 legislation was and what the purpose of Prop 8 was.

    I further admire your ability to listen to right-wing talk radio and not have your blood pressure raise. I do not have this ability.

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    • Oregon’s law is worded very similarly to California’s Prop. 8. Which was (correctly) characterized as a SSM ban in intent and effect.

      This law, and the right wing media argument about it, bans everything but monogamous heterosexual marriage. It is not only a SSM ban but also a polygamy ban. No reason it can’t be both.

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  4. Here’s the 1883 statute on anti-miscegenation that was upheld by SCOTUS in Pace v. Alabama:

    “If any white person and any negro, or the descendant of any negro to the third generation, inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary or sentenced to hard labor for the county for not less than two nor more than seven years.”

    I think it’s fair to say that same-sex marriage is not banned in this way in any US state (at least since Lawrence v. Texas). At the same time, I don’t believe gay right’s advocates really ever argue that current bans criminalize the act, just that they deny certain rights.

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  5. Its a very weasily argument thats technically correct. None of the laws in question prevent same-sex couples from holding ceremonies, referring to themselves as married, and living as a married couples. Marriage is legal institution as well as an emotional one though. Legal marriage comes with a lot of benefits from the state. Married couples even have the advantage of state appointed mediator in helping them end the relationship if it goes sour. The laws might not prevent emotional marriage but they do prevent same sex couples from receiving the state services that heterosexual married couples do.

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    • I would note that that sort of “technically correct” answer, when utilized by my son in response to “Why did you just do X” does not, in fact, prevent him from being grounded.

      It’s right up there with “You didn’t say WHEN to clean the kitchen” and “When you asked where I was going, I told you Mark’s. You didn’t ask if I was going to go somewhere after” and other such teenage foolishness.

      So yes, they are correct in exactly the same way and with exactly the same weight of argument that a teenage rules lawyer is — and with, I would hazard a guess, exactly the same amount of success at convincing anyone else they’re serious.

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  6. I’m in general agreement with most everyone here that the argument is technically true, beside the point and pretty weasely. There is, also, an opposite side to this. When pro-SSM laws are passed, it’s kind of wrong to say that the state/country/whatever now allows or legalizes SSM. What they do is recognize SSM.

    But, just for fun, I’m going to turn on the contrarian mode.

    If you live in a jurisdiction that does not recognize SSM, and if you’re gay and (non-governmentally-recognized) married, and if in the course of your affairs you are compelled to complete paperwork or answer government questions about your marital status, and if saying (truthfully) that you are married would be considered a lie that would have legal ramifications (crime, misdemeanor, fine, application rejected, etc), then there is an argument to be made that, yes indeed, SSM has been banned.

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  7. I’m pretty sure it just means that when a hospital denies visitation or when a partner signs a will talking about her wife, the state can refuse to allow grounds to challenge or sue afterwards.

    After all, you’re just this guy.

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  8. Cynical BS on the part of those advancing that argument. Here’s Michigan’s 2004 constitutional amendment,

    To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

    By focusing on one thing, to the exclusion of others, the state need not use the words “ban” or “same sex marriage”. The consequences still amount to making same sex marriage a nullity.

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  9. IANALorPW, nevertheless…

    1. There is no telling what 5 outa 9 in Warshington will do. But,

    2. The argument that tradmar laws don’t ban gay marriage so therefore everything’s hunkydorey would make sense if *that* was the objection (both moral and legal) to current anti-SSM laws. But it isn’t. It’s that those laws are discriminatory, and those laws clearly are.

    Of course, I know from experience that the argument isn’t as quick as that. Thanks to George Turner (what ever happened to him?) we’ve been exposed to an elaborate defense of this view. Apparently the argument is that since the law makes no mention of inherent properties of individuals it applies equally to everyone and everybody and therefore isn’t discriminatory. For example, claiming that it prevents gays from getting married (and is therefore discriminatory) fails because even gays could marry under this definition of marriage. The law is “gay blind” to use the current vernacular.

    I’m not too persuaded by that argument myself, but George was. At least rhetorically, anyway. Seems to me that if sexual orientation is intrinsic then the law is discriminatory since it accords a privilege which only straights could avail themselves of in the normal course of events given a particular conception of marriage. So the argument seems to me circular.

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  10. Since the state will not consider you actually married, I’d say it’s actually a ban on marriage.

    Those things that look like marriage, ceremonies, living together, and such? The state doesn’t consider those to constitute marriage, so allowing them has no bearing on whether the state bans same-sex marriage.

    Some states allow common-law marriage, recognized by a couple’s living together for some time. Only opposite-sex couples get that recognitiom as marriage, though. Gay couples doing the same would not. So again it looks to me like a ban on same-sex marriage.

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    • Right, and this is much of the whole point. The state recognizes certain marriages in the sense of bestowing benefits: medical decision-making authority without previous documentation, privileged tax status, parental rights through adoption, etc. And obligations as well, of course: community property in divorce proceedings comes to mind. That’s much of what the SCOTUS decision was about, as I understand it: the federal government (and in subsequent cases, state governments as well) have not shown any compelling reasons why some couples should be able to marry and receive these benefits and other couples can’t.

      That said, it seems like limiting the arrangements to two people would be the next thing to fall. Why can two people create a “partnership” that bestows certain tax privileges but three people can’t enter into the same type of agreement? Why can’t a child have three parents with the same rights and obligations?

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  11. It’s a hyper technical correct statement, which correctly pointed out, tends to divert attention from the greater issue. What would you expect from lawyers? Now, given my profession and personality, I find it quite delicious-mainly because it does vex the other side. I employ such techniques in my job. My job is very precise. To quote Futurama, “you are technically correct, the best form of correct”.
    As to Morat’s comments “So yes, they are correct in exactly the same way and with exactly the same weight of argument that a teenage rules lawyer is — and with, I would hazard a guess, exactly the same amount of success at convincing anyone else they’re serious.” Deal with auditors or the gov’t and maybe you’ll change your mind. The questioner is responsible for asking the question in a way to get the information they need. I’m responsible for answering the question ASKED, not interpreting it. One assumes the questioner knows what they are talking about (that they might not is another issue) and if they don’t, that’s their problem.
    By the way, should you find the above objectionable, talk to your gov’t procurement offices or contracts people. They are the ones that wrote the contracts.

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  12. On a night’s sleep, this occurs to me:

    We face this frequently. For instance, the calls of Conservatives™ as racists.

    “I’m not racist.”

    But you support policies that produce measurable racism.

    The calls that Liberals™ are anti-business.

    “I’m not anti-business.”

    But you support policies that measurably harm the amount of profit one can make from a business.

    Etc. etc. etc.

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  13. You could make the argument that “marriage is only recognized between a man and a woman” isn’t technically a ban. But surely the various unenforceable sodomy and indecency laws are a ban on gay marriage. Were Roemer v. Evans and Lawerence v. Texas overturned tomorrow, there would be a pretty solid chunk of stats that could immediately arrest gay couples that legally held themselves out as married. So yeah, gay marriage is still banned in many states, by laws that, while perhaps were passed with bipartisan support, remain on the books only because republicans actively oppose their repeal.

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