I
suppose that is one of the positives that Bush has going for him: You know where
he stands on many issues.
-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
Sent: Wednesday, November 19, 2003 1:05 PM
To: [EMAIL PROTECTED]
Subject: Re: [Futurework] Bush's impossible problem of same-sex marriageKeith,I heard the argument this morning that this was actually a plus for Bush since his position is well known and Democratic candidates risk losing support no matter what position they take.BillOn Wed, 19 Nov 2003 10:36:15 -0500 [EMAIL PROTECTED] writes:Great posting.Most things seem to be ending in parody. This seems to include marriage.arthur-----Original Message-----In addition to the impossible problem of Iraq, Bush now faces another impossible problem -- this time not of his own making. Same-sex marriage is now legal in England and in most of western Europe (I think) but now it looks as though the courts are going to have to push this through in America in the interests of the individual versus the state -- in this case a state which is currently headed by a man who avers that he is a fundamentalist Christian.
From: Keith Hudson [mailto:[EMAIL PROTECTED]
Sent: Wednesday, November 19, 2003 3:00 AM
To: [EMAIL PROTECTED]
Subject: [Futurework] Bush's impossible problem of same-sex marriage
Most of the problem -- in fact, all of the problem -- is due to the fact that the whole notion of marriage has been obscured and complicated by the intrusion of both the church and the state into private affairs.
What is marriage? It is nothing more and nothing less than a publicly-witnessed business contract. I am not well-versed enough to go back in history to the beginnings of marriage thousands of years ago (of quite different sorts in different cultures) but we can clearly see the practice of western marriage in its essentials in medieval England when it was a matter of ensuring that the intended wife would have full claims to the worldly goods of the putative husband if he died -- "with all my goods I thee endow" and so forth. (And vice versa. In Tudor England, women controlled more wealth than men.)
It was witnessed in church and recorded by the minister of the church because the latter was one of the few in those days who could write, and thus be able, if necessary, to communicate with any other churches in the following years if a dispute ever arose as to the validity of the marriage. In turbulent times when kings, princes and local barons could come and go overnight, the medieval Church was the one universal constant from horizon to horizon throughout Europe. Many different cultural variants of the Christian business ceremony occurred in other parts of the world with different dominant religions, and each would have clear provisions concerning the destination of any worldly goods if the marriage broke up or one of the participants died.
The medieval marriage ceremony was but a grander version of what frequently goes on even now in southern Italy and parts of Russia where a business contract is best witnessed by the Mafia (for a suitable commission!) because the state cannot be relied upon to enforce the contract in case of dispute. The Mafia can -- and does -- enforce the contract in the case of either party defaulting. The medieval Church also had the ultimate sanction of excommunication and the threat of the flames of hell if a marriage partner divorced his wife or tried to dispossess her when he died. And, of course, that was a very real fear in those days.
I used to know a couple called Billy and Flo who had a cottage next to me in the hamlet I lived in when I was was first married. They were in their 80s and got on in just the way that you'd expect. I would often chat with Billy, a retired farm labourer, over the garden fence as he pottered about in his greenhouse at the end of his long garden to which he used to escape as frequently as possible. If Flo called him from the kitchen for a meal, Bill would mutter to me : "Silly old cow". Sometimes, if I bumped into Flo, she would be looking for Billy: "Where's Billy? I've got a job for him to do in the house but I can't find him!"
As I say, it was a normal sort of marriage. Except it wasn't a marriage in the normal way. One day I saw them getting off the bus from town at the end of the country lane leading where we lived. She was wearing a beautiful costume and Billy was wearing a suit! They had carnations in their buttonholes. "What's all this?" I said. "We've just got married," they replied. They had got married because they would then be entitled to some sort of extra state benefit to which they were not qualified before. However, in the eyes of the world (that is, in the hamlet of about 30 people in which we lived) they had already been validly married for over half a century. Billy and Flo had been living in a common law marriage, of course.
For centuries, common law marriages were far more common than church marriages for ordinary people without much by way of worldly goods when they set up home together. In an everyday sense they were quite as "valid" as church marriages. The only difference between a common law marriage and a church marriage was that in the case of dispute or death there was no authority to insist on the appropriate allocation of any wealth that had accumulated between the partners. It was up to local public opinion to make life difficult if one party to the original marriage tried to welch on the deal. This type of dispute was frequently the subject of public humiliation during local festivals and medieval charivaris.
But since the rise of the nation-state, the secular authorities have been muscling in on all sorts of public and social activities by means of legislation, and medieval Church law now has long lost any powers over people. At the time of Billy and Flo's civil marriage, the state had finally outlawed the receipt of some benefit or other unless they were married in the eyes of the state. But common law marriage itself has never been outlawed by statute even though senior civil servants often say that common law marriage has no legal standing as though to wave it out of existence. However, any legislation forbidding a man and a woman to live together would have been impossible to enforce and so it has not been attempted. If it had been possible to impose it in the same way that children, for example, are forced to go to school, then the authorities would certainly have done so.
In the last few years in developed countries we have been passing the peak of governmental interference in the matter of marriage and the number of couples who live together in common law marriage, such as the writer and his better-half, is increasing greatly. I don't know the figures offhand but is is a substantial percentage.
Homosexuals who wish to live together should be quite entitled to do so, of course. However, in their current phase of trying to persuade the public at large that homosexuality is normal -- which, of course, it isn't by mathematical definition -- many homosexuals want the state to witness their union as man-and-man or woman-and-woman and, presumably, lay on the full gravity of the law in if there were subsequent disputes in the matter of the division of possessions.
Meantime, though, teh controversy is tying at least two churches, the Church of England and the Episcopalian Church in America in knots -- even as I write some Anglican churches are splitting from the Canterbury communion. From the item shown below from the New York Times it looks as though it's going to tie America in knots also. God forbid, it might even interfere with the smooth unfolding of Bush's electoral campaign in the coming months as he shows around his photographs of meetings with Asian and European leaders and chatting with the Queen of England recently. Considering that the homosexual lobby in America, while still a minority, is still a sizeable one, it is going to be interesting to see whether Bush will make a definite statement one way or another. My guess is that he'll fluff it. His script writers will have devised a suitable form of words for him when he's asked at press conferences.
Keith Hudson
<<<<
MARRIAGE BY GAYS GAINS BIG VICTORY IN MASSACHUSETTS
Pam Belluck
Boston -- Massachusetts' highest court ruled on Tuesday that gay couples have the right to marry under the state's Constitution, and it gave the state legislature 180 days to make same-sex marriages possible.
The 4-to-3 decision was the first in which a state high court had ruled homosexual couples are constitutionally entitled to marry, and legal experts predicted it would have ramifications across the country.
"The question before us is whether, consistent with the Massachusetts Constitution, the commonwealth may deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry," wrote Chief Justice Margaret H. Marshall of the state's Supreme Judicial Court. "We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens."
The decision, which did not explicitly tell the state legislature how to carry out the ruling, sent lawmakers and legal experts scrambling to determine what options exist short of legitimizing gay marriage. Other experts said that the court appeared determined to extend full marriage rights to gay men and lesbians.
The decision ignited a storm of reaction throughout the nation, with gay groups and some liberals heralding the ruling, and conservatives and some religious groups denouncing it.
"We're thrilled and delighted the highest court in the state of Massachusetts confirms that our community has the right to enter into civil marriage the same as other couples," said David Tseng, the executive director of Parents, Families and Friends of Lesbians and Gays, who noted that three of the four justices in the majority were appointed by Republican governors. "This is a tremendous victory for fairness and for families."
Tony Perkins, president of the Family Research Council, a conservative group, said "it is inexcusable for this court to force the state legislature to `fix' its state constitution to make it comport with the pro-homosexual agenda of four court justices."
Mr. Perkins and other conservatives said the decision underscored the need for a federal constitutional amendment banning gay marriage.
"We must amend the Constitution if we are to stop a tyrannical judiciary from redefining marriage to the point of extinction," he said.
It also seemed likely that the court ruling would catapult same-sex marriage into a major issue in the presidential campaign. Virtually every Democratic presidential candidate issued a statement on Tuesday that tried to find a middle ground on an issue that is nothing if not polarizing. Most did not express support for gay marriage or a constitutional amendment banning it, but said they supported giving gay couples the benefits heterosexual couples receive.
President Bush, who has opposed same-sex marriage but not embraced the idea of a constitutional amendment, said in a statement "Marriage is a sacred institution between a man and a woman. Today's decision of the Massachusetts Supreme Judicial Court violates this important principle. I will work with Congressional leaders and others to do what is legally necessary to defend the sanctity of marriage."
In defending the current practice of restricting marriages to heterosexual couples, Massachusetts officials had argued that the main purpose of marriage was procreation, that heterosexual marriage was best for child-rearing, and that gay marriage would impose a financial burden on the state. But Justice Marshall dismissed those arguments, saying that the state "has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."
Some legal experts said they thought the ruling might allow room for Massachusetts to embrace a parallel system like the civil unions allowed by Vermont. Other experts said the 34-page ruling left little doubt that the court intended that full-fledged marriage be extended to gays and lesbians. Robert E. Travaglini, president of the State Senate, who has said he supports civil unions but not same-sex marriage, said on Tuesday that "the strength of the language and the depth of the decision" makes it clear that marriage, and not civil unions, "is the wish of the court."
Because it is based in state law, the ruling cannot be appealed to the United States Supreme Court. And it cannot be overturned by the legislature. But the legislature could try to amend the state Constitution to ban gay marriage, an option that Gov. Mitt Romney said on Tuesday that he favored. Such a process, though, would take at least three years.
Polls show that many Americans, while more tolerant of homosexual relationships, still do not support homosexual marriage. And some experts predicted that the court decision would increase support for laws banning gay marriage in states and at a national level. Already, 37 states have passed measures defining marriage as between men and women.
"This comes pretty close to an earthquake politically," said Alan Wolfe, a professor of political science at Boston College. "I think it's exactly the right kind of material for a backlash."
The decision was a personal victory for at least 14 people the gay and lesbian partners who were plaintiffs in the court case. The seven couples from across the state, most of whom had lived together for years and some of whom are raising children, all sought marriage licenses in 2001 from their town or city offices.
A lower-court judge dismissed the case in May 2002 before it went to trial, ruling that because same-sex couples cannot have children, the state does not give them the right to marry.
"Without a doubt this is the happiest day of our lives," said one plaintiff, Gloria Bailey, 62, of Cape Cod, as she stood, teary-eyed, at a news conference with her partner of 32 years, Linda Davies, 67. "We've been wanting to get married practically since the day we met. We didn't know if it would happen in our lifetime. We're planning a spring wedding."
Several of the couples told stories of being denied access to their partners when they were hospitalized.
Hillary Goodridge, 46, of Boston, had to say she was the sister of her partner, Julie Goodridge, 45, to see Julie when she was rushed to the neonatal intensive care unit after giving birth to their daughter, Annie.
David Wilson, 58, was not able to say he was the brother of his partner, Robert Compton, 53, because Mr. Wilson is black and Mr. Compton, who has been hospitalized five times in the last five years, is white.
"We never have to worry about going to the hospital and negotiating our way through hospital teams because now we have the opportunity to protect ourselves through marriage," said Mr. Wilson, smiling at Mr. Compton.
Being legally married in Massachusetts would entitle same-sex couples to numerous other rights and benefits, including those related to property ownership, insurance, tax consquences and child custody. The marriage would not automatically be considered valid by the federal government or other states, which would probably have to decide on their own whether to recognize a Massachusetts gay marriage.
In the ruling, Justice Marshall wrote about the benefits of marriage for children and said that not being allowed to marry "works a deep and scarring hardship" on homosexual families.
"It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of state benefits because the state disapproves of their parents' sexual orientation," she wrote.
In the dissent, Justice Robert Cordy wrote that the marriage law was intended to apply to a man and a woman, and "it furthers the legitimate state purpose of ensuring, promoting and supporting an optimal social structure for the bearing and raising of children."
As it considers how to respond to the ruling in the next 180 days, the legislature will most likely consider several options. Already, in recent months, three different efforts have begun in the legislature a drive to amend the state Constitution to ban gay marriage, a bill to establish civil unions and a bill that would allow for same-sex marriage.
The politics of Massachusetts make the issue especially tricky. The legislature is majority Democratic, but also largely Catholic, and the Roman Catholic Church is strenuously opposed to gay marriage. On the other hand, the Democrats are rarely aligned with Governor Romney, a Republican, who indicated on Tuesday that he would support some effort to extend benefits and rights to gay couples, though he would not support marriage.
"Marriage is an institution between a man and a woman," he said. "I will support an amendment to the Massachusetts Constitution that makes that expressly clear. Of course, we must provide basic civil rights and appropriate benefits to nontraditional couples, but marriage is a special institution that should be reserved for a man and a woman."
Arthur Miller, a Harvard law professor, said he thought that given the closeness of the court decision, there might be room for the legislature "to create a relationship that might not necessarily be called marriage but allows for the recognition of property passage and joint ownership and insurance and even child custody."
But Elizabeth Bartholet, a family law expert at Harvard Law School, said the extensive discussion of marriage in the decision made it unlikely the court would allow civil unions.
If the legislature did nothing or failed to comply, Professor Bartholet said, "I would assume after 180 days the Supreme Judicial Court would say this is law and the state would have to issue marriage licenses."
New York Times -- 19 November 2003
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Keith Hudson, Bath, England, <www.evolutionary-economics.org>
