On Tue, 3 Aug 2004, BklynMagus wrote:
> I do not like civil unions because they are not portable. If civil
> unions provided every benefit marriage did, but without the name, I
> would not care. You could call it a civil cheeseburger for all it
> matters to me.
and
> [I]f one member of the couple is moved by her job to another state, they
> can sue in the new state for recognition of their marriage. I think it
> is called the full faith and credit clause. Such a suit can be used to
> attack DOMA.
Well, there are legal theorists who say this is true. And there are also, as I'm sure you're aware, a vast conservative legal counter-literature that say it isn't. I respect your faith in your theory, even though I don't share it, but I hope we can agree that so far it is just that, faith. Not a single state has yet recognized gay marriage on this basis.
I realize there are even more involved and ingenious (and IMVHO, slightly Rube Goldbergish) theories which say the very process of challenging such state laws will lead to the invalidation of clause 2 of the Federal DOMA which will then lead to the invalidation of clause 1 of the Federal DOMA, which will then lead to . . . but if it's okay with you, I'd like to leave that aside for the moment, and just concentrate for the moment on the practical aspect of portability which was your main focus. Is gay marriage at the moment more portable than civic union? No. Does it have better prospects of being portable someday? I think no and you think yes. But surely, since it's purely hypothetical at this point, we can agree that it's a question upon which reasonable people can differ?
IMHO, civic union has better chance of being more portable sooner than gay marriage. I think this is true if we parse the question in any practical terms you care to offer. For example, if we set as a benchmark that within the next 10 year there should be at least 10 states in the US where gay couples have the full substantial state's-level rights and benefits of marriage, I think we have better odds of attaining that goal in that time span by passing 10 state level civic union laws than of depending on the courts to deliver 10 states through the full faith and credit clause through all levels of appeal.
The reason is simple: if we fight for portability down the civic union path -- solving the limitations of civic union by extending civic union -- the majority of the American people are on our side (and overwhelmingly on our side in the top ten states). And because civic union can only be opposed on extremist grounds, the more we fighting to attain portability this way, the stronger our side will get. It will frame the inevitable coming culture war in terms we can win.
This means that not only will we have better odds of attaining our substantial practical goal of extending portability, but the process of attaining that goal will progressively change the political landscape in our favor. The end result will be that not only will we be closer to our ultimate goal; not only we will be better positioned to extend our gains farther in the decade after; but we will gain other substantial benefits in addition. And chief among them will be more federal regulations and executive orders that will secure and extend more substantial federal entitlements to gay people.
And, last but not least, the more judges we will get to appoint.
The other course, depending on courts to extend portability through the full faith and credit clause, seems to me to be counter-indicated on every front. It's never worked yet, and it is perfectly possible that it never will work. We can discuss the ins and out of that in further emails if you'd like. But certainly we can agree that it can only work if there exist gay marriages to extend -- and it is perfectly possible that by 2006, there will be no gay marriages to extend. At the moment, the majority of Massachusetts legislators are pledged to role it back and replace it with civic union by then. And if that happens, it will basically be a replication of what happened in Hawaii.
The wildfire outbreak of courthouse confetti has obscured the fact that there is no equivalent legal outbreak to go with it. Most of those marriages were beautiful but imaginary -- so far this has been a glide path to stasis. On the one count by which gay marriage is supposed to have the advantage of civic union -- portability -- there has so far been zero trace of progress. And therefore zero real difference between them.
Given those starting points -- no results so far, and the majority of the country starting out prejudiced against it (rather than, as with civic union, prejudiced in its favor) -- it seems to me the odds are high that if we follow the full faith and credit path to portability, we will not only have comparatively less to show for ourselves in the way of substantial gains a decade hence than if we went the civic union route -- and quite possibly *no gains at all* -- but we'll also be in a substantially worse position politically than we are now.
The reasoning is the same as before but in reverse. Since we are in the minority on this question, we'll lose every election based on it. And every such electoral loss will increase the ranks of our enemies and worsen the political climate. So instead of accruing substantial additional benefits, such electoral losses will lead to substantial losses of gay rights.
That is to say, a worse political climate would in all probability lead to an increasing number of micro-restrictions at the federal level, setting back gains that have already been made in, e.g., immigration law. And as I'm sure you well know, just because we haven't won any dramatic victories on federal fronts like that doesn't mean there aren't substantial things to lose. There are life and death issues in the details. For example, AIDS is presently a ground for attaining political asylum in this country. It is not only a path to couple unification but to life itself. I know several gay people who have gotten it on that basis in New York, a state in which they have been able to get their AIDS care paid for by the state for years even as they remained here as non-citizens. A worsening climate could take things like that away, and people like that could be dead. Whereas an improving climate could add to them.
So the choice of a strategy that would lose elections should only be taken if you think for sure it's going to deliver more results. On my reckoning, the full faith and credit strategy fails on all counts: it's delivered less (i.e., goose egg) so far; the odds are worse for it going forward; and it worsens the political climate. Conversely, by my reckoning, the civic union strategy wins on all three counts.
So it seems to me that if you really don't care about the name but only the substance -- and specifically in this case, the substance of portability -- you should support the civic union over the gay marriage approach.
I realize this goes against the current consensus. I'm all ears if you see points I'm leaving out.
Michael