Tuesday, May 5, 2009

"Separate But Equal"?

Fellow NQ writer, Ani, had a very good post entitled, "Like Putting Lipstick On A Pig: Olbermann, Musto, and Yes, Jay Leno." One of the issues that came up in the post and comments was about same sex marriage and civil unions, courtesy of Perez Hilton and Carrie Prejean (once again, Prejean's stance on same-sex marriage is IDENTICAL to Obama's).

Coincidentally, I received the following letter from an old friend of mine living in NH in response to the recent Press Release from Gov. Lynch of NH. With her permission, I have reprinted it below, with her letter in italics:

Press Release
For Immediate Release Contact:
April 29, 2009 Communications Director
Office of the Governor

Gov. Lynch Statement Regarding Passage of Same-Sex Marriage Legislation

“I recognize that the issue of same-sex marriage is intensely passionate and personal, and raises strong emotions on all sides.

"I still believe the fundamental issue is about providing the same rights and protections to same-sex couples as are available to heterosexual couples. This was accomplished through the passage of the civil unions law two years ago. To achieve further real progress, the federal government would need to take action to recognize New Hampshire civil unions."

Dear Gov. Lynch:

Please do NOT veto the gay marriage bill. Institutionalizing the concept of “Separate but Equal” – even if it were equal, which it’s not -- of the civil union law doesn’t cut it, sorry. Every single gay person I have known or do know just wants to make a home and a life, love their partners, raise their kids (yes, kids), without constantly tippy-toe-ing around an arcane and archaic legal and social structure that hinders them – directly or indirectly -- at every important turn. I mean, what box does a former or presently civilly-unionified person check on every standard form that asks: Married, Single, Divorced, Widowed, etc.? Are we really going to ask for all forms be redone or for gay people to once again metaphorically check “Other”? In chit-chat, or a job interview, when asked “Are you married?,” what do they say? “Sort-of?” When, in reliance on the civil union law, an employee checks “Married” on their health insurance form, do they risk disqualification? Even termination? What if a transaction is out of state or interstate where our marriages are recognized but civil unions aren’t even mentioned?

If the right to marry is a fundamental right under the pursuit of happiness clause in our Constitution, as it has been declared time and again, below this request please find an off-the-top-of-my-head outline of the interrelated reasons why we can’t deny it to any person under our jurisdiction. Suffice to say that I look at your impending executive decision – as I hope you do - not as one of personal beliefs but as our Governor, our Chief Executive. A veto effectively “sends it back” or, worse, tacitly tables it. The civil union law was a great dress rehearsal, but we’re not done.

This unfair and unnecessary separation – this literal discrimination (“The ability or power to see or make fine distinctions; discernment.” The American Heritage Dictionary of the English Language, 4th ed., pub. Houghton Mifflin), will never survive much more constitutional or moral scrutiny anywhere. A quick read today of the public comments on the Union Leader website on the topic reveals - ironically in an “opposed” (to the bill) remark – just this. Someone said, I paraphrase, that you can’t make a horse a cow by calling it a cow. Well, you certainly can’t make an animal a cow by calling it an animal either.

Can New Hampshire achieve, fully, as we must, gay persons’ equality through civil unions? No. The term and use of “marriage” is so deeply and pervasively embedded in our legal and social framework that full equality is, if only as a practical matter, impossible under the “union” rule. As written, the civil union law, as it purportedly relates to the marriage law, is entirely incoherent. On its face, the civil union law allows people to enter these unions in a manner similar to marriage, but remains painfully silent on the myriad of rights, privileges and immunities available to married people referenced elsewhere under the New Hampshire code and beyond. See, for example, the inherent contradictions between the civil union law and the marriage law at NHRSA s. 457:39 regarding cohabitation. Aside from that, the reference in your Press Release relating to and relying on the federal government is – sorry – at best premature, even irrelevant, until we make our own laws coherent. Under current federal law, all the more reason, not less, to call all our unions marriages.

Or, I suppose, as an alternative toward full equality under civil unions, we could remove all references to marriage (married, marital, spousal, spouse, husband, wife, bride, groom, etc.) not only from all our statutes (including the marriage law at sec. 457), but also all regulations, public policies and directives, and all private entities’ policies and documents subject thereto. Golly, the gay marriage bill seems a lot easier.

In the interest of space and time - I’ll leave it to your legal and policy teams, and your obviously keen intellect, to flesh this list out easily in support of my considered position.

Demographic Note: I am (by personal, legal, and political choice), white, female, and raised in the non-practicing Christian “tradition.” I am a voting Democrat, social progressive, fiscal conservative, favoring libertarian practices unless and only unless outweighed by a compelling public need that cannot be met by less restrictive means.

"Concerned Citizen," Esq.

Facts and Social History
Nature of Protected Minority: DSM-IV, Cultural and Sub-Cultural Norms and Practices
Civil Institutions
Legal Institutions Created by the State
Global Religious Tenets and Traditions (including multi-disciplinary exegeses on Judeo-Christian Biblical interpretation)
De Facto Public and Private Discrimination

Comparative Legal History
Interracial Marriage: Loving v. Virginia
Common Law Marriage
Bigamy and Polygamy; Patriarchy, Mistresses and Concubines
Presumptive Legitimacy of Children: Patrilineal and Matrilineal
Public Policies by “Least Restrictive Means;” Majority Rule
The Male Vote and Women’s Suffrage (14th & 19th Amendments)*

Constitutional Issues
Freedom of Religion (or non-recognition thereof); Establishment Clause
Equal Protection and Fairness; Privileges and Immunities; Due Process*
Federalism and Full Faith and Credit**

Separation and Balance of Powers
Legislative Role: Civil Union v. Marriage**
Executive Role: Administration and Populism
Judicial Role: Constitutional Review

Legal Issues**
Property Ownership
Personal Proxy (e.g., medical, child care)
Spousal Privilege
Public and Private Marital Benefits and Liabilities

Yeah. What SHE said.

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