The U.S. Supreme Court heard oral arguments on two cases related to gay marriage today. One deals with California’s Proposition 8 which prohibits gay marriage in the state, the other with the federally-enacted Defense of Marriage Act (i.e. DOMA). Both bans not only prohibit gays and lesbians from marrying but the statues also give legal recognition to only married heterosexual couples. Already in the circles I peruse the issue of marriage-state separation is coming up, respectfully. As much as I sympathize with the idea of getting government out of marriage, the reality is quite different. A marriage license is the only document governments and many insurance companies will accept for a union of two people to be legitimate.
Presently it is prohibitively expensive for couples (gay or straight) to establish trusts to legally protect their assets, wills or even signed agreements can be contested in a court of law. Oft times gay couples are subject to humongous tax rates in order for their partners to inherit the deceased loved one’s wealth provided that a relative of the deceased does not challenge the inheritance. With the licenses gay couples can meet those requirements in which the pursuit legal recognition of their marriages is being done in addition to challenges to the laws since gay couples legally obtaining marriage licenses can also invalidate bans like Proposition 8 and DOMA. However, because of the broadness or vague manner in which the contested gay marriage laws are written, anything involving relations on the part of gays and lesbians can be subject to legal prohibition or scrutiny. I wish they didn’t have to resort to court challenges but in light of the legal nonsense gays and lesbians have had to endure, who could blame them?
Consider some examples of how difficult it is for same-sex couples due to their relationships being outlawed. A lesbian couple decided to take a cruise with their children to celebrate their eighteen year relationship. The one woman had a stroke as then got on the ship. She was rushed to the hospital where she was dying. Her partner, and their children, were forbidden access to her because the couple was not legally married. A medical power of attorney was shown but the hospital said that since Florida law bans gay relationships they were forbidden to recognize the document as valid. Only at the last second did a priest get the woman’s partner in to see her as she died. The children never got a chance to say good-bye. At the same time the sister of the dying woman was given immediate access since she was recognized as “family” while her partner was not. A private contract was powerless here.
Patrick Atkins met his partner Brett Conrad in college in 1978. Almost 30 years later he was on a business trip when he had a stroke and was incapacitated. Brett rushed to him, but so did Patrick’s anti-gay religious parents who were legally next-of-kin. A legally married spouse supplants parents as next-of-kin, but as per Indiana law Patrick and Brett weren’t allowed to marry. Not only was Brett was banned from seeing Patrick the parents went as far as saying they wanted their son to die, before going back to his gay partner.
The religious mother took control of Patrick’s business because she was next-of-kin. She evicted Brett from the house, though the judge later ruled she had to pay Brett for his half, but she got the other half—something she couldn’t do if they were married. She also had Patrick moved to her home and banned Brett from seeing Patrick. (A judge said Brett could visit in a later court case.) But Brett lost his partner, his home, the income of the business, his bank account, etc. It went to court and the judge said the law specifically said that gay couples may not be treated as married or allowed to marry and about a dozen laws controlled what he was allowed to do. The parents took half of all the furnishings, two-thirds of the bank account during the process. None of this would have been possible if they were allowed to marry.
As to the claim by some libertarians and conservatives that private contracts are all that is needed this is not the case. First, gay couples who go the private contract route incur costs anywhere from $5000 and $10000 per couple and only gets people part of the way there. A gay person can leave his pension to his spouse, that is not a contractual matter (though it should be) but under federal law. The same gay person can leave his property to his partner but the partner is taxed at a higher rate than straight spouses. No private contract changes that.
A straight person can sponsor their spouse for citizenship but gay Americans can not, no matter what private contract they sign. Fortunately, plenty of employers are happy to cover health insurance for spouses of employees, even gay employees. Except the gay employees have to pay extra taxes on that, which straight employees do not–no matter what a private contract says. The examples can on for some time. They are just meant to illustrate that facts get messy while ideology seems so clean–but it always easy to evade reality, but somebody lives with the consequences.
Hopefully, the Justices will not dodge the issue (as some have observed) and take this opportunity to strike down these liberty-destroying laws. A marriage is a contract and, henceforth, one can expect government involvement up to and including a license. I can understand the argument for lack of a license and people just doing marriage based on signed agreements between two parties. Ultimately they would be legally binding and, contrary to what may libertarians assert you cannot enforce contracts without a government. You can arbitrate privately but if there are still 2 or more parties that disagree then the people involved in the dispute will go to court. If neither party agrees under a private arrangement that is essentially a denial of justice and an abridgement of individual rights.
Despite this coming from a parody of the case, I would like this kind of rhetoric if not expressed logic coming from the Supreme Court Justices:
I’m a strict Originalist, Mr. Cooper, and I’m looking at a 14th Amendment that forbids any state from denying any person equal protection of the law,” Associate Justice Antonin Scalia said. “So, unless we are the most uncivilized society on the face of God’s green earth, I think we can all agree that a gay person is in fact a person. So what I’m saying is, who the [expletive deleted] are we to tell a person who he or she can get married to? This is dumb. Can we talk about a real case now, please?