Topic: Gay Rights
Clinton, Paul, and States Rights A response to Hilary Clintion Vs. Ron Paul by Fredby Chad_Underdonk
(libertarian)
Thursday, March 13, 2008
In a recent article Hilary Clintion Vs. Ron Paul Fred claimed that Hillary Clinton had more moral high ground than Ron Paul on the subject of gay marriage. Fred made the assumption that Gay Marriage is just another form of contract and that it MUST be honored by all states and locales...presumably because of the commerce clause of the US Constitution.
Fred likened Gay Marriage to inter-racial marriage...and there are some valid points to that comparison, but less than he might think. Inter-racial marriage has been going on for a long time in this country, even before the success of the civil rights movement. Ron Paul has said that the Civil Rights Act of 1964 may have done more harm than good in that it created some animosity that made it harder to achieve civil rights goals. There is some validity to this argument, after all the Woolworths lunch counter was won by resolve not by law. While it has and in some cases does still have a negative stigma to it, as time has gone by successive generations have realized that presumptions based upon racial color do not have enough impact or bearing on marriage to give the "old guard" valid reason to not recognize such marriages. It was a change in society, and not law which makes inter-racial marriage acceptible today.
A better comparison to the current state of Gay Marriage in this case would be common law marriages. A common law marriage is one wherein a couple who has lived together for a number of years without any form of marriage contract is then considered legally married by the state that they reside in. Today common law marriages are policy in only a handful of states, and the majority of other states not only do not "create" common law marriages, they also don't recognize them.
Ron Paul's argument essentially is that the Federal Gov't has no power over marriage, that it is a matter that must be solved at a lower level. Hillary Clinton on the other hand believes that the Federal Gov't not only has the non-enumerated power but also the responsibility to ensure that gay marriage is treated the same in all states. For the sake of this argument we can lump common law marriages in with gay marriages...they are both contracts that are questionable based upon ones personal morals. In the one case you have a couple who is being bound by law that has taken no action to become that way but local society chooses to bind them for its own ends, in the other you have a non-traditional couple that chooses to bind themselves together in a society that is amiable to the process...but then wants to make other social groups recognize that binding as well.
Is it okay to let 12 year olds get consensually married? Is it okay to recognize that the age of sexual consent could be lower than 14? Is it okay for a teenager to be "married" and impregnated by a man 40 years her senior when he already has several other wives? These are similar moral questions that are answered one way in some locales and differently in others. Simply because a contract has been made does not mean that the citizens of other states must recognize that contract if they find that contract objectionable within their society.
Personally I believe that gay marriage is just another contract between consenting adults, but until all American society recognizes that fact legally those contracts are and will be consigned to an inferior status that does not have to be recognized by other states. Furthermore this fact is widely known and understood throughout this country, when a gay couple gets married in one locale they realize that it will not have the same weight in other places...but they still choose to go through with it. We can then presume that the rights of gay marriage contracts are harmed no more in those states than those couples have chosen to be harmed.
This does not mean that gay couples should not agitate and work to further their rights and the understanding of gay marriage contracts, but rather that they have little legal right to enforce those contracts in locales that do not recognize them. Until they gain further acceptance within wider society it is unlikely that gay marriage will be widely accepted, contractually or otherwise. While writing laws "upholding" thier rights might push their legal acceptance forward, it will also very likely result in a social backlash from other groups. The good news however is that the majority of today's youth sees little reason to discriminate against gays based upon sexual preference. While this may not help to change laws and acceptance today, tomorrow is another day and I personally believe that sooner or later the wider American society will accept, if not embrace, gay marriage. And when that day comes, arguments about legal rights will quickly be resolved.
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For those who suggest that the issue of marriage is best left up to the states, it's important to remember that the federal government has a vested interest in married couples for the purposes of income taxes and Social Security benefits. From the fed's point of view, it wouldn't do for a couple to be considered married in one state, then magically "UN-married" once they decide to move somewhere else.
Posted By: Ivan from Oregon
Date: 2008-03-13 10:44:14
Chad, you might consider rethinking some of your analysis by refreshing yourself on the term "contract", preferably from Black's law dictionary. You make some good points, but you toss around the word "contract" as if the definition of the term, in the context of a particular argument you're making, is self-evident. There are many different "kinds" of contract defined over the years in common law because of the necessity of defining legal remedies for the breach of the contract.
To refresh your memory, in general, a contract is a promise made by two or more parties to do or not do some particular thing or things. Its essential elements are competent parties, subject matter, a legal consideration, mutuality of agreement and mutuality of obligation.
Chuck A.: There are a lot of things the Federal Gov't does that it is not entitled to do by the Constitution. I'm sure that it would claim a vested interest in how often I trim my toenails if some lobbyist told them it was worth money or power. If they applied taxes in one of the two forms they are allowed by the Constitution then taxation would not have any bearing on marriage whatsoever. Simply because the Fed Gov't overreaches its powers in one segment does not give it the power to overreach into another.
Ivan: I may have tossed the word contract around a bit loosely, but I don't see how that substantially impacts my statements. All of the essential elements were present in my examples. The only question is whether or not certain parties outside of the initial contracting parties (the two individuals getting married, and the official power(s) sanctioning the marriage) recognize the validity of that contract. Since a contract that is unlawful may not be enforced then if an outside party (i.e. another state) does not recognize the legality of that contract then that marriage contract cannot be enforced within that state.
Posted By: Ivan from Oregon
Date: 2008-03-13 17:16:05
Chad, you don't need to be defensive - I gave you a thumb. Article 1, Section 10 of the Constitution says that govt (at whatever level) may not impair the obligation of contracts. The issue then becomes: is the contract enforceable. All of the states have adopted the UCC which is, de facto, our "common law" for all practical purposes.
Your example of a 40-year old marrying a 12 or 14 year old female probably violates contract law in several respects (if not every one of the essential ones).
As far as subject matter of the contract, a marriage "contract" entered into purely to qualify for some federal tax exemption or other such thing would, I think, be dubious at best, since the "consideration" is coming from a third party. That would be an interesting thing to argue in a court of law. For example, would the state have some recourse to be paid if the parties decided to abrogate such a contract.
The covenant of marriage was invented for the protection of the progeny, not tax benefits. Different debate.
Heh, wasn't meant to be defensive. Again, if a state doesn't recognize the validity or legality of a contract they cannot be made to enforce it. California has medical marijuana, if two eligible people make a contract based on that law and then try to conduct a transaction here in Kentucky (Marijuana is our #1 cash crop!) they cannot expect the legal system to uphold their contract. They may in fact conduct their contract despite Kentucky laws to the contrary, but they risk official sanction for their illegal actions and have no legal recourse if either party fails to uphold their end of the contract.
As a minor aside the UCC is mostly the same for the 49 states that have adopted it, but there are some differences even between them. Louisiana is not covered by the majority of the UCC, but they have a legal system which is much more French in nature than British; and there are some major differences to conducting contracts there.
The point obviously was not to compare the morality of those other examples with gay marriage, but rather to compare their legal standing within and among the states to it. Reciprocity among the states is not limitless or automatic. The number one measure to conduct that reciprocity is that there must be a similar law on the books in the state in question. Without that similarity in law then a state has "no dog in the fight" and doesn't care whether a contract written under other jurisdictions is enforced or not. And that is precisely why it was such a good idea busines wise for the adoption of the vast majority of the UCC by each state.
As for my examples, including the one you listed, they were all based on the concept of legal consent within the state they originated in. While those examples are mostly relics of the past, they still have some basis in law (or custom) in some locales. While that youthful age of consent is not recognized in the wider states anymore, it is (in theory at least) the age of consent in those particular locales; thereby making those situations legal contracts in some places but completely unenforceable anywhere else. And that is precisely the point behind my article, the current legal standing of gay marriage today is much closer to my listed examples than it is to inter-racial marriage and it should be understood as such.
Good article. I do not agree with all of your points (I believe that a couple legally married in any state is legally married in all, although any state has the right to prohitit the marriage from taking place within its territory or under its law) But I agree that this is a question to be decided by the states rather than the federal government. I think a better comparison for the validity of a situation created by the laws of one state being binding in a state where different laws apply with regard to creating that state would be the situation existing at least into the sixties with most states forbidding divorce or allowing it only in extreme circumstances. If one party to a marriage which existed in New York (where a divorce could only be granted for adultery)went to Nevada to obtain a divorce on demand on demand, and then returned to New York, the state of New York could not insist the couple was still married.
Posted By: patrick henry
Date: 2008-03-18 12:27:19
Marriage is a religious ceremony, therefore under the first ammendmant the Congress has no right to abridge these religious ceremonies or contracts. Therefore if any other "church" sanctioned a gay marriage ceremony/ritual then gay "marriage" would be legal.
The underlying point is that the Federal government has made marriage into a "contract" being that it one has to purchase a license (ask permission) and also has to be resolved in a civil court of law like a contract.
Marriage only allows others to get tax "breaks" and spousal insurance, so naturally those lobbies will work against it. I agree with Dr. Paul that marriage needs to be placed back into the churches hands and not the government.
The thing is that it is a contract between individuals and not a contract with the entire world.The problem is that we give special treatment to groups. So if married couples get special treatment in the eyes of the law that single people do not get people will be in line to get the special treatment. It is a system that lends it self to discrimination because it is based on a social status which is where the problem is. Ron Paul understands that this entire debate is like other things only a symptom of a larger problem which is the tax / welfare system. Bottom line is that no one should recieve special treatment under the law and the law should not base its tax inharitance or social security system on descriminary basis which favors any group or individuals over others. Clintons have no high ground when it comes to Ron Paul because they only look at symptoms and they think more government control is the answer when in reality it is the government defining it and being involved to begin with that is the problem. Dr. Ron has the cure which will eliminate all of the symptoms by getting rid of the real cause. Clintonthink is like fighting cancer by putting nicotine patch bandages over it.
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