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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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« Why the FMA Would Be the Death of Marriage | Main | What is Marriage? »

February 25, 2004

The "Moderate" Position on Gay Marriage

Posted by Ernest Miller

It has now become the consensus "moderate" position, at least according to prominent members of both major political parties, that while "marriage" is only between a man and woman, some form of "civil union" for gay couples might be acceptable.

Fine.

The NOLO website has a nice, abbreviated list of rights granted to married couples here: Marriage Rights and Benefits.

Will someone endorsing the "moderate" position please point out which of these rights granted to married couples should not be given to members of civil unions and why? It is nice to talk about the purpose of marriage in the abstract and how homosexuals shouldn't get married. However, if you endorse the possibility of civil unions, then you will need some concrete arguments as to why, for example, an exemption to certain estate taxes for surviving spouses should not be part of civil union benefits.

Of course, in the end, it will only be about the word. Rather than call them "moderates" they should be called the "Hysteric-Just-Don't-Call-It-Marriage Brigade".

via Atrios

Comments (7) + TrackBacks (0) | Category: Gay Rights


COMMENTS

1. gek on February 25, 2004 06:16 PM writes...

And maybe those for gay marriage should instead be called the "Hysteric-You-Must-Call-It-Marriage Brigade". Works both ways.

Permalink to Comment

2. Ernest Miller on February 25, 2004 06:25 PM writes...

No, actually, it doesn't. Those arguing for consistency have the whole "separate is not equal" thing going for them. The argument in favor of gay marriage is based on equal rights. The argument that we should give similar rights but not use the term "marriage" is ... ?

Permalink to Comment

3. gek on February 25, 2004 10:33 PM writes...

The argument isn't the moral argument. It's the practical. If you favor equal rights for gays, then, well, they could have them now under the name 'civil union'. There is wide popular support for this.

On the other wide, there is wide popular opposition to calling it 'marriage'. If you are demand 100% of what you want, right now, no compromises, there's a very good chance you'll wind up with less. Probably some form of civil union, but ones that will be explicitly unequal.

If civil unions with equal rights are accepted today, then it's likely that some day in the future, they will conventially and official be called 'marriages'.

The fact is that the majority of people in this country currently do not want gay marriage called 'marriage', and that you can not force a change in attitude overnight. Refusal to recognize this reality is what is hysterical.

Permalink to Comment

4. Ernest Miller on February 25, 2004 10:47 PM writes...

Thank you for granting the logic and consistency of my position. I wasn't making a practical argument. Many people obviously feel uncomfortable with denying homosexual couples any rights. I am merely arguing to push those intuitions to their logical conclusion. If you are for civil unions ... then tell me, what aspects of marriage you would deny to homosexuals? Adoption rights? Inheritance rights? What?

I am merely pointing out that in the end, it will ultimately come down to a name.

What is the big deal of a name if the substance is the same? Legally speaking, it can only mean one thing: discrimination.

Permalink to Comment

5. elr on February 27, 2004 06:03 PM writes...

This is a semantic argument. Perhaps the government should only be in the business of granting "civil unions" to EVERYONE anyway. Religous organizations can then either bless such unions as "marriages" or not.

Two people should be able to enter into a life contract together no matter their sexual orientation. The idea of a contitutional ammendment PROHIBITING any citizen to his or her right to "life, liberty and the pursuit of happiness" is repugnent.

Permalink to Comment

6. clear thinker on February 27, 2004 06:42 PM writes...

Marriage is not a right. Driving a car is not a right. Adding an addition to your home is not a right. Each of these privledges may help define happiness for an individual, but the issuance of the license or permit is regulated by a test of standards. Blind people are not discriminated against by the dept. of motor vehicles. They fail to meet the test of standards. Every homosexual in America has equal rights under the law. They have the right to denounce their homosexual lifestyle, and marry a member of the opposite sex, just as I have the right to abandon my heterosexual lifestyle and become a queer. In America we have freedom to choose, but we also bear the responsibility and outcomes of our choices. Choose to drink and drive and you will lose your driving privledge. Apply for a building permit to build an addition on to your home without complying to the proper building codes, and you will be denied. Attempt to matriculate into the armed services as a herion addict, and you will be rejected. Standards are the benchmark of a productive society. The standard for marriage is biological. Nothing less.

Permalink to Comment

7. Ernest Miller on February 27, 2004 06:50 PM writes...

This is a similar argument to the one used by the anti-miscegenation folks. Black people had the right to marry black people. White people had the right to marry white people. The standard for marriage was racial. Nothing less.

Permalink to Comment


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