08 July 2010

Okay. Now what?

Hmmm

I'm not really sure this will achieve much. The Prop 8 trial was probably more of a punch to the whole issue because it forced people, those who paid attention at least, to confront the facts of the case. And the facts as disclosed at trial were pretty much against those who support the status quo of not extending marriage rights and benefits to homosexual couples. That is, there were no credible experts capable of factually defending the current "popular" positions of bigotry or intolerance that might state that homosexuals are more likely to be paedophiles, or in some way produce troubled children and homes for adoptions, and so on.

When the only thing that's left is a few scrawled lines in an old book, and no real principles to draw from those lines (which could be just as easily ignored and superseded by newer lines written in a very similar book, often the same one), it's hard to see what people are fussing over. So at some point, that will win out.

But I'm not quite sure that the 10th amendment was the way to go on that, nor would I be at all sure that somehow the federal government by virtue of needing a law to pass to accomplish some perceived need is appointed with the ability to simply say that it is Constitutional to do what it needs to do. It is true that it probably will do what it needs to do anyway, yes. But that doesn't make it Constitutional or legal to do it in all cases. It doesn't however necessarily make it Unconstitutional either. There isn't some federal right to recognize marriages with federal legal benefits, only some vague legal castle in which the federal government is seen as having a compelling interest in promoting them and the federal amendment does not nullify state contracts of marriage or civil union anyway (it does if you move somewhere that doesn't recognize such unions as legally valid). So I'm not sure that it automatically gets nixed on those grounds. To be sure it would be a serious concern on things like Medicare/Social security benefits for spouses. But I'd rather simply abolish or seriously reform those programs anyway. In the intermediate term, I suppose extending them properly along the same sorts of contracts is appropriate.

And in any case, challenging this on 14th Amendment case, especially that whole useless Privileges and Immunities clause, seems more likely to get something like this through, at the very least overturning the discriminatory federal recognition system and replacing it with nothing or an equal rights setup.
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