Following up on Proposition 8

[kainscalia]

According to this article, apparently Kenneth Starr (now legally representing proponents of Prop 8) is now proposing that Proposition 8 not only be upheld but that it should also widen its scope and annul the marriages of all 18,000 same sex couples that married in California- essentially to retroactively apply the ban.

As an Objectivist who happens to be gay, I am of the idea that ANY contract of matrimony that two (or more) people wish to observe should be called Civil Union when it is officiated through the government, having no link to Marriage - the ceremony officiated through the individuals' private and respective churches which should have no legal consideration nor status, as it is a religious ceremony. It should have no special rights- it would be essentially a registry into civil files of your status (in convivio with so and so and sharing your properties) for legal pruposes- except for, perhaps, the ability to claim a partner for immigration purposes (which is something that heterosexual couples can do that same sex couples cannot)-- of course, in a truly free country you would have open borders, so that would be unnecessary.

I see this as a serious tactical failure in the strategy of the Prop 8 supporters- they got their day when the proposition passed, but now pushing for this will effectively make them look truly malevolent (not that they weren't before)-- after all, before that their argument was that they were "trying to save the institution of marriage", now that gays can't marry going after the only 18,000 married gay couples in existence in California seems to verge on a rather openly malicious desire- "We've deprived anyone like them in the future from ever attaining this. Now, let's take it away from the few who did." It sounds like a rather badly-written super villain in a James Bond pastiche, actually. It could be that the exhilaration of victory has gone to their heads and they're pulling a Napoleon In Russia (as immortalized by my favorite commedian Eddie Izzard as: "I'm going to kill them aaalll----It's a bit cold! It's a bit cold! It's a bit cold! Aaaah!"), and I sincerely hope this is a tactic that will work to their detriment, and perhaps even their defeat. If they get defeated, then perhaps we can start talking about what in blazes does Government have to do with marriage anyways.

[fletch]

Not at all. If the law states that only a man and a woman can be legally married, then any gay marriage would have to be voided. There is nothing necessarily malicious in that.

[kainscalia]

There is when it was a malicious agenda that advanced said law, for malicious reasons (rupture of the separation between church and state), when the law in itself is already evil on principle.

Not at all. If the law states that only a man and a woman can be legally married, then any gay marriage would have to be voided. There is nothing necessarily malicious in that.

[athena glaukopis]

except for, perhaps, the ability to claim a partner for immigration purposes (which is something that heterosexual couples can do that same sex couples cannot)--

Can you explain the reasoning behind this? I can't think of why this would be an exception.

[kainscalia]

Can you explain the reasoning behind this? I can't think of why this would be an exception.

At this point, heterosexual couples have this benefit. The current immigration laws being of an immoral nature, they are probably going to be the last thing that will eventually get reformed (or next-to-last, last being income tax). However, at this point in history there are several thousand same-sex binational couples (where one of the couples is American) that have to separate each year because of immigration difficulties (the current immigration system is as effective as Barak Obama's economic plan) and DOMA (Defense of Marriage Act), which invalidates these relationships for immigration cases. At this juncture there is an estimate of 50,000 couples of this nature who are currently undergoing difficulties because of this- yours truly being one of them.

In order to bring your partner into the US to marry them, you must grant them a "Fiancé/e visa" or K visa, which consists of the U.S. citizen showing that he and his (or her) partner:

1) have met in person at least once in the last two years (exceptions are possible),

2) have a bona fide intention to marry, and

3) are "legally able and actually willing to conclude a valid marriage in the United States" within ninety days after the partner gets there.

Obviously, lesbian and gay couples are not eligible for K visas because of the "valid marriage" criterion (point 3). Even if they have a "bona fide intention to marry," their marriage will not be recognized by U.S. law. You and your lover might have lived together for decades, or even married in countries where it is legal; it would make no difference. Even under the current definition of "Civil Union," such benefits will not be extended.

So you see, my example is not an exception as much as provided and until the immigration system has not been reformed into an open borders policy, this is perhaps one of the crucial element that attempts to mimic an open border policy that should be integrated until the time it is rendered redundant. Because this is something I have lived with every day for nine years, it is something to which I have given a lot of thought in the matter. Perhaps my solution is flawed, and if so I would appreciate a better implementation towards an open borders policy (and by that I mean gradual implementation: the gradual change of immigration laws to the final point in time in which said laws are consistent with an Objectivist philosophy- Open Borders as explained by Dr. Yaron Brook, Dr. Peikoff and Mr. Binswanger).

Edited December 20, 2008 by kainscalia

[DavidOdden]

Article I, Section 9, paragraph 3 of the Constitution reads: "No Bill of Attainder or ex post facto Law will be passed." Retroactively changing a law is morally reprehensible and constitutionally forbidden. Ayn Rand's lecture "Objective Law" explains why Starr's action must be repudiated by all Objectivists, even those who hate homosexuals.

[Miles White]

I'm not a legal expert but isn't there some ex post facto violation going on? Forcing gay couples to get annulled when it was still legal for them to get married.

Edit: Never mind. Should've read the other comments.

Edited December 20, 2008 by Miles White

[Mammon]

Article I, Section 9, paragraph 3 of the Constitution reads: "No Bill of Attainder or ex post facto Law will be passed." Retroactively changing a law is morally reprehensible and constitutionally forbidden. Ayn Rand's lecture "Objective Law" explains why Starr's action must be repudiated by all Objectivists, even those who hate homosexuals.

Excellent point, but allow me to take a cynical, pessimistic position here and ask, When has anyone cared what the Constitution says on anything? On the flip side maybe it will be stricken down in the Courts because of the ex post facto.

[Yitzhak Finnegan]

Interestingly, Peonad Peikoff on his own website has come out in favour of gay marriage, saying that he knows enough gay couples who are just as secure in their relationship as any heterosexual ones. As well, he supports it as a way to stick it to the religionists, who he regards as being even more of a threat than socialism.

[kainscalia]

Interestingly, Peonad Peikoff on his own website has come out in favour of gay marriage, saying that he knows enough gay couples who are just as secure in their relationship as any heterosexual ones. As well, he supports it as a way to stick it to the religionists, who he regards as being even more of a threat than socialism.

I myself am not interested in special treatment- though sticking it to the religionists does bring the prospect of giggles- I just wish people stopped being ever so very interested in what goes on in my bedroom and romantic life. From a logical point of view I don't see why there is such a fuss about two individuals of the same gender wishing to enter into a marital contract. It won't send Gay Voodo Waves™ into the homes of America and make Dad want to elope with the mailman- and if the religionists believe this is exactly what is going to happen (you would be surprised), I am amazed people do not take the same stance with them as they do with the elderly aunt who has taken to wear her underwear outside of her clothes and keeps fighting with 'that lady in the mirror.'

[Qwertz]

The Ex Post Facto clause applies only to retroactive criminal laws. Calder v. Bull, 3 U.S. 386 (1798).

Also, the Contracts Clause, which comes right after the Ex Post Facto Clause and prohibits the states from passing any "Law impairing the Obligation of Contracts", does not apply to marriage (as a contract). Which is why the states were able to enact laws allowing for divorce, even in marriages formed prior to such enactment.

~Q