I think I was wrong; I think it's worse than I thought.

[solarbird]

Hm. I'm reading this again:

Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

Let's take out the constitutional and federal parts, and leave in the part that applies specifically to the possible actions of states:

[No]... state... law... shall be shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

I think I'm wrong. I think it'll be used to ban civil unions, too, because any state law that conferred legal incidents of marriage could fall under this clause. So only a state civil unions law that provided none of the benefits of marriage would be allowable under this reading.

That message will be difficult to communicate.

Comments

[kirbyk.livejournal.com]

Hmm. I think the word 'require' is pretty key in this. I think it's saying, no Constitutions would explicitly require civil unions. So, it'd be okay if a state wants to pass a civil union law, but if they don't explicitly do so, no marriage rights are available.

So, this would stop the Massachusetts situation, but not the Vermont one.

That's my take on the actual words, anyway.

[banner.livejournal.com]

This is definitely a tough one to parse so far. The 'marital status' bit I myself could care less about right now, but that 'legal incidents thereof' part has got me wondering. What exactly -are- the 'legal incidents thereof'? And can they be separated out? Must they all be together? This can have a far wider impact if they can be separated out than just marriage or civil unions. I need to look into the legal definition.

I think that phrase is the weak spot and the place to attack this amendment.

On the bright side notice it says 'unmarried couples', you're already married :-) You're grandfathered in at least.

Re:

[solarbird]

You're missing the part where it also says no law. It's not just no constitutions; it's specifically also no state or federal law.

Re:

[solarbird]

Legal incidents typically means benefits added by the status. So it would include basically everything you get from being married.

And I don't know that our loophole-marriage would stand. I don't know that at all. The people pushing for the amendment in Massachusetts specifically do not want to grandfather marriages made in the window - they want to devolve them to "civil unions" or even down to nothing. So I'm certainly not making that assumption.

Re:

[banner.livejournal.com]

Something further just occured to me on this. If you're married, this amendment doesn't apply to you.

So who defines if you're married? If you say that a ceremony at any legally (i.e. Government) recognized church makes you married, then once churches start performing same sex marraiges, this -entire- thing goes out the window, except for those people who wish to be married in a civil ceremony, or by common law.

I think I see another line of attack, one which may very well be being left open on purpose.

Re:

[banner.livejournal.com]

Yeah but they didn't say 'legal incidents in toto' (or however you spell that, but I think you know what I mean). If it's not specified, then Johnny Cochran comes along with his chewbacca defense and just tears it up. Putting fears into people about how a law may be misconstrued or abused always works with the general public, because we all see it happen all the time.

Also I think if they didn't want this to apply to couples already married, then they would not have put the word married in there. It's a definite loophole, and someone put it there for a reason, the question is: What is their reason?

Re:

[solarbird]

No; when you get a "church" marriage, that's a religious ceremony (the religious version); you also then take a couple of minutes in back, usually after the religious ceremony, to do the civil ceremony (the civil version). It's the civil version that awards you legal rights, in this country.

The MCC - a valid 501(c)(3) religious church - has been doing same-gender marriages for years. None of them are recognised by law, because the religious marriages are orthogonal to the civil marriage, no matter what church performs them. And despite the common use of the term. The confusion this creates is being used by the backers to make people think that without this amendment, their churches are going to be forced to wed gay couples, which simply isn't true.

(This is not true in other countries, but it's how it works here.)

To get the legal benefits of marriage, you have to have gone through the civil ceremony. It only takes a couple of minutes and typically involves just signing a couple of papers. That's the one they're trying to ban, constitutionally. Also, it's important to remember that laws are tried against the constitution, so therefore, amendments are immune to challenge on that basis. Once ratified and certified as ratified, it can't be challenged. (The ratification could be, but not the content of the amendment itself.)

Re:

[banner.livejournal.com]

Good point.

Okay, how about this as an attack to use publically:

The purpose of the constitution has always been to limit the rights of the state, not those of the people. In the amendments we have seen normally that rights for the people which were in question were clarified, and granted. Using the constitution and amendments to it to limit the rights of the people not only sets a bad precedent, but always backfires in ways unseen or thought of at the time of the passage. Prohibition gave us organizied crime, and nearly destroyed the judicial system thru the concept of jury nullification which refused to prosecute any related crimes. Lets not pass an amendment that takes away rights from people because we disagree with them today, for tomorrow who knows what it will be used to take away from the rest of us? Who know what greater problems it will cause?

Anyway, just the way I feel about it.