Tom Ramcigam (magicmarmot) wrote,
Tom Ramcigam

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legal beagle

Listening to something on the radio this morning having to do with Pawlenty saying he will veto a bill that would provide for domestic partner benefits for unmarried couples because "the majority of minnesotans don't want that".
While I do agree that the majority of voters in Minnesota did not want gay marriage, that is not the same thing as offering domestic partner benefits. It brings up an issue with the "defense of marriage" concept, in that allowing domestic partner legal benefits somehow dilutes the strength and sanctity of traditional heterosexual marriage. I think that Pawlenty & co. are sweeping broadly that those who are against gay marriage are also against domestic partnership benefits.

There is a point buried here. Domestic partner benefits would dilute the privelege of the legal state of marriage.

The big question is whether the dilution of privelege is a bad thing or not. I personally don't think that it is: I believe that that privelege is based around a divisive and intolerant moral and theological mindset that is the core of the debate. However because it comes down to a decision of personal values, I think having it be law is a bad idea because there are no moral absolutes.

There will of course be a sticking point here for some. Many conservative Christian folk believe that there are moral absolutes as handed down by God to Moses in the form of the Ten Commandments; however, the actual commandments differ in order and content depending on which version of the holy book that you subscribe to, and even with that, there are a hell of a lot more non-Christian than Christian folk in the world.

Let's focus on one commandment: Thou Shalt Not Kill. Sounds awfully absolute, doesn't it? Then how do you explain the Crusades? The Inquisition? Thou Shalt Not Suffer A Witch To Live? Stoning? War?

I have heard the argument that we are a Christian Nation. In context, this indicates that of the people in the nation that claim a religious belief, some sect of Christianity is the most likely association. What it does not mean is that our nation must as a rule follow the mores of "Christian Society": this was made perfectly clear by our founding fathers in their early debates at the birth of the country. They specifically created a nation where religious and secular freedom was not only allowed, but required. Freedom of religion includes freedom from religion.

Now I will agree that there are a set of acceptable behaviors, but in every case there is some relativism to it. Thou shalt not kill, except when it's the best choice. Thou shalt not, steal except when its necessary to survive. Thou shalt not covet thy neighbor's wife's ass, except that she be a hottie.

You get the idea.

So let's for a moment say that there is a codified set of behaviors that is generally accepted in modern society, and let's call those laws. Laws most certainly aren't absolute: just look at the difference in city codes between Minneapolis and Richfield, and you will see differences in things like the allowable size of your garage, the fines associated with having your grass too long, the price of parking tickets, and so on.

Laws are put in place by men (and women), and their intent is to make life bearable for the most number of people in a given societal construct. Federal, state, county, city; each have their own set of laws to live by. The laws don't always succeed, but for the most part they at least intend to.

There is already a law in the state of Minnesota that makes marriage illegal for a same-sex couple:

Marriage, so far as its validity in law is concerned, is a civil contract between a man and a
woman, to which the consent of the parties, capable in law of contracting, is essential. Lawful
marriage may be contracted only between persons of the opposite sex
and only when a license has
been obtained as provided by law and when the marriage is contracted in the presence of two
witnesses and solemnized by one authorized, or whom one or both of the parties in good faith
believe to be authorized, so to do. Marriages subsequent to April 26, 1941, not so contracted
shall be null and void.
History: (8562) RL s 3552; 1941 c 459; 1977 c 441 s 1; 1978 c 772 s 1; 1997 c 203 art 10 s 1
Subdivision 1. General. (a) The following marriages are prohibited:
(4) a marriage between persons of the same sex.
(b) A marriage entered into by persons of the same sex, either under common law or statute,
that is recognized by another state or foreign jurisdiction is void in this state and contractual rights granted by virtue of the marriage or its termination are unenforceable in this state.


and some more interesting reading on the subject:

While it is abundantly clear in the wording of the legislation that marriage is specifically excluding same-sex couples from being recognized as a marriage, there is nowhere in the entire section dealing with marriage where the intent is to exclude same-sex couples from reaping the benefits of a domestic partnership. Nowhere is there even an indication of excluding same-sex couples from any privelege offered by marriage other than the marriage contract itself and related issues of termination.
So, the dilution of privelege argument has no legal basis. It is quite simply exclusionary and discriminatory based on religious/moral convictions.
Unfortunately, my grasp of contract law in Minnesota isn't sufficient to give me an answer on whether a contract could be refused based on moral discrimination. My first instinct is that it depends on the case: a business contract would have a more rigid stricture than a personal contract (like selling you my car).

BTW, this went in an entirely different direction than I had originally planned. I'll try to get to that later.
Tags: gay, law, marriage

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