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ophelia
February 24th, 2005, 12:04 AM
Due March 7th

The 2000 census found that 2.5 percent of the population is composed of gay men and 1.2 percent is composed of lesbians. Studies show that about 7.6 percent of the male and female populations claim a sexual interest in the opposite sex. Apparently, more men identify themselves as homosexuals than women. Today, more and more same-sex couples are seeking to solemnize their unions publicly. As a result, Massachusetts, Vermont, California, New Jersey, Hawaii have created an arrangement to formally recognize same-sex unions and grant them rights under law. The Massachusetts legislature was order by the State Judiciary to allow same-sex couples to marry. Vermont npermits same-sex couples to enter into civil unions. When California began to work toward granting “domestic partners” marriage-like status for both same-sex couples and opposite couples sex the voters took initiative and defined marriage by statute as a union between a man and a women. Like California, New Jersey created a Domestic Partnership Act that grants legal status to same-sex couples and opposite-sex couples over age 62. Hawaii flip flopped its position on the issue and developed a “reciprocal beneficiary” status. Meanwhile, municipal executives and judicial officers are trying to define marriage.

Conflicts abound, the problem lies in the fact that thirty-seven states have enacted laws to ban same-sex marriage while other State’s are moving to redefine marriage in varying ways. In a nutshell, the States would like to maintain their traditional right to regulate marriage, and they do not see eye-to eye. Some states have altered the definition of marriage; whereas other states have expanded the marital concept leading to civil unions and domestic partnerships. Every state is running to its legislature to exercise its power to define marriage. Even the Federal Government has taken steps to define marriage as a union between a man and a woman under The Defense of Marriage Act (DOMA). Slowly but surely the judiciary is defining the marriage of the future without consent of the People.

Among the many voices clamoring to define marriage are the people. A large majority have defined marriage as a union between a man and a woman. However, a minority of the People would like the Supreme Court to rule on issues of equality, and are pushing cases through judicial hierarchy. Finally, many people see Congress as the national law maker, and want a Federal Marriage Amendment to the Constitution.

Society’s view of long-term committed domestic relationships, otherwise referred to as marriage, in relation to our legal system needs to be clarified by Congress, or it will be clarified by the Judiciary. Many people in society recognize alternative lifestyles and same-sex marriage, but our legal system is behind in the times, and needs some udating.


Do you think that Congress should clarify marriage, or the Judiciary, or neither?


I've decided have you?

You opinions are welcome.
This is a partial posting of my draft

FruitandNut
February 24th, 2005, 01:44 AM
At present things are quite clearly a bit of a mess. Official stats on the percentages of gay men can be open to question - there are issues of social pressures and consequent 'admission' or even 'internal' acceptance. On looking at figures, surveys, opinions and experiment, it seems that the figure fluctuates mainly between 5-10% and has a consistency and tenacity that leans toward it being a naturally occurring phenomena. We have trad. (pseudo)religious and social claims of this being deviant, wrong, immoral etc. that appears to clash with some scientific and genetic findings.

The long held purpose and understanding of marriage is that it is a civil and/or religious sanction for a heterosexual couple to indulge sexually in order to produce the next generation. It may be argued at this point that this came about because of the early repression of homosexuality. This repression may be seen as a natural law - that of a herd rejecting fellow herd animals that exhibit different behaviour patterns - the instinct for conformity in conflict with the underlying natural law of diversity. There is also another argument that in a world before modern medicine and when the populations were small, homosexuality was both wasteful to the 'need' to procreate and compromised resources (food etc. in times of famine). Religion and society in general were seen as being holistic in nature and issues of homosexuality, food hygiene (kosher) found themselves as Biblical items of 'importance'.

The general consensus is moving towards a greater tolerance in regard to homosexuality. In marriage the idea of bonding for life has also changed. In marriage increasing numbers of couples have no intention to attempt to have children (for a diversity of personal and socio-economic reasons). Marriage is becoming transient, many couples don't even marry.

It would seem 'reasonable' and 'rational' for the greater acceptance of homosexuals in general society to be reflected in some sort of socio-economic accomodation in their relationships also. In religion, I can see the argument dragging on for along time yet, but as civil legislation should reflect the reality of the whole community, I feel that a civil service/ceremony/contract of marriage should not be out of the question, even at the present. But, as in most things that involve the due process of politics and human irrationality, I would advise many homosexual couples around the world not to hold their breath.

Here in the UK, we are beginning to accept homosexuals in civil contracts that allow them all the rights of inheritance, taxation and other benefits that would go to a married couple, but there are still a few glitches to iron out and issues to be tested in court.

ophelia
March 1st, 2005, 07:36 AM
Let me try:
1) Marriage is not a purely religious tradition in a historical sense.
2) Marriage is a tradition under Natural Law and under Positive Law.
2a) Marriage is a bifurcated concept.
2b) Positive Law and Natural Law have over-lapping magisteria.
3) Marriage has two traditions
3a) The first and older tradition belongs to Natural Law.
3b) The second tradition belongs to Positive Law.
4) Marriage has two institutions.
4a) The first and older is a religious institution.
4b) The second is a legal institution.
5) Marriage has been governed by two over-lapping authorities
5a) Marriage has been governed by the Church under Natural Law and religious institutions.
5b) Marriage has been governed by the State under Positive Law, and civil institutions.
6) The People disagree about the regulation of marriage
6a) The People wish to define/redefine marriage.
7) Separate The Church and The State
7a) The Church will continue to govern marriage as it existed prior to the State.
7b) The State will continue to govern civil union as these existed under the State.



I'll use your example of Nero here.


In ancient Rome, for example, the Emperor Nero is reported to have married, at different times, two other men in wedding ceremonies. Other Roman Emperors are reported to have done the same thing. The increasing influence of Christianity, which promoted marriage for procreative purposes, is linked with the increasing intolerance of homosexuality in Rome.

http://www.answers.com/topic/same-sex-marriage

Do I get more green boxes now?

ophelia
March 1st, 2005, 07:38 AM
How can the term marriage be applied to people of the same sex?

Marriage - "to join as husband and wife."

Let’s see are we going to re-define man and woman too?

ophelia
March 1st, 2005, 07:39 AM
Is marriage a right?

So what kind of right is marriage, so that government can take procedural steps to alter its form and function?

In order to legitimately, alter the form and function of marriage as a right government must claim that it is a civil right. Can government legitimately make this claim?

Rights are correlated with duties and responsibilities. According to Rawls "a person's obligations and duties presuppose a moral conception of institutions and therefore … the content of just institutions must be defined before the requirement of individual can be set out." Let us don Rawls “veil of ignorance” and attempt to define marriage apart from knowledge about the parties’ moral judgment. Applying a Rawlsian perspective, a government that takes "original position" to claim a right ought to determine and select in a “definite order not only a concept of justice” but also a concept of the right, as well as, the duties and any correlated responsibilities associated with the right prior to allowing the parties to enter into the marriage contract. Otherwise, how can couples enter in to a marriage contract owning property and having financial commitments without knowing that they have commitments? They cannot. Hence, it is for this reason that children who cannot comprehend the meaning of marriage are barred entry into the social civil institution. Hence, government can legitimately claim that the present defintion of marriage is -- a basic civil right -- in a social civil institution. However, is this claim exclusive?


No, government cannot exclusively claim that marriage is a basic civil right under a social institution. Why? Marriage existed before government. This pre-existence bars government from claiming that only government can alter and define marriage. The whole of society has an interest in the definition if society because it is an inalienable (natural) right. If marriage is an inalienable (unalterable) right that existed before government, then government cannot redefine that right because to do would be an alteration of that right -- marriage.

Marriage is more than a basic civil right regulated and licensed by government. And government does an injustice when its judicial bodies attempt to innovatively and haphazardly define that right case by case.

So, in response to the question, is marriage a right? It is a basic civil right and an unalterable natural right, which has been seize upon by government for the purpose of regulation.

ophelia
March 1st, 2005, 07:40 AM
If forgot about the history of marriage in America.

Marriage in America prevented the bastardization of the States and guaranteed inheritance and property rights to martial offspring.

In England, the ecclesiastical courts had jurisdiction over marriage. America had no such courts because American’s viewed marriage was a contract between a man and a woman. Hence, American law recognized two types of marital contracts: the formal and the informal. The formal marriage contract was documented publicly and came to be called the civil or religious ceremony. The informal marital contract was a private oral agreement, and was referred to as "common-law" marriage.

Now, let’s look at marriage as a basic civil right and as an inalienable right in the context of Early American marriage practices. Recall, that many people came to America to make a new life and get away from another life or society. This included getting away for the religious views of others. Therefore, this will not be a discussion about morals. In colonial times, men and women often lived to together as man and wife by agreement without the slightest pretense of marriage. Cohabitation led to informal marriages by a verbal contract known as the "common-law marriage." This practice closely resembles the concept of marriage as an inalienable right. However, not all States recognized the common-law marriage, and while viewing marriage as a contract they follow English tradition and mandated religious or civil ceremonies.

As with marriage, states differed on divorce. In the 1700 and 1800's, England was a divorceless society. The Aristocratic South held to English tradition. A Southern divorce was granted by the legislature. North of the Mason-Dixon Line divorces were judicial proceedings. Due to the conflict about marital contracts our nation has relied upon the Full Faith and Credit Clause of the Constitution.

ophelia
March 1st, 2005, 07:41 AM
"Marriage" utterly value laden. Society needs a generic term, such as Civil Union, which is completely set apart any associate moral or religious values. If we stick with "marriage" we're stuck in whirlwind of judgmental positivism. This is hypocrisy too.

If our Government, here in America, is truly separate from the churches then the Government has no business endorsing "marriages" by issuing "marriage" licenses. It's simple. Just change everything to Civil Union. There is no hypocrisy here. If the states want to designate these unions as Homosexual Elderly Union, Homosexual Union, Heterosexual Union, or Heterosexual Elderly Union for statistical purposes then they may exercise that right as compelling state interest.

ophelia
March 1st, 2005, 07:43 AM
Let us not forget what happen during the Depression when FDR pushed through all sorts of legislation with the backing of a Court that he threatened to pack. The Commerce Clause is now used to justify everything as necessary and proper.

The difference between what happened during the Depression and now is that the entire nation was suffering. People were jumping out of windows and starving when their crops turned to rust. We needed those agencies at that time. Now States just chose not to rely on themselves. They justify wastefulness to obtain a larger pie of the federal budget pie. It will take hundred of years to return power to the States who have now become grants-in-aid junkies of all the federal agency pushers created during the Depression.

An innovative judicial flight of fancy over an ideology does not compare to a Presidential bull wrangling session during the Depression. FDR's wrangling with the Depression has lead to many problems. This lesson should cause trepidation because once powers are granted the effects of the powers cannot be completely foreclosed. I say separate church and state. The government would not perform "marriages" they should be termed civil unions.

ophelia
March 1st, 2005, 07:53 AM
Back to Value Judgments – Only opinions are value judgments.

Natural Facts: Same-Sex marriages will lead to an increase in out-of wedlock births

Mystical Facts: God disapprove of Same-sex Marriages.

Opinion: Same-sex Marriages are bad. “ I hate same-sex Marriage.”

ophelia
March 1st, 2005, 10:34 AM
Homosexuality increases the incidence of HIV and AIDS
Same-Sex unions increase the incidence of illegitimate children (Netherlands Study)

The State has a compelling reason to ban same-sex marriages.

ophelia
March 1st, 2005, 10:50 PM
Due March 7th
Draft 2

When Separate is Constitutionally Equal


Marriage is a union between a man and a woman. However, some argue that marriage is not a purely religious tradition in a historical sense, and wish to redefine marriage to meet the needs of gay and lesbian couples in America. Both natural law and positive law philosophies have enveloped the tradition of marriage. Natural law is associated with the will of God, and makes moral judgments. Conversely, positive law is emphasizes an “institutional rule of law,” and is “distinguished form morality” (Koerselman, 1998). Modern marriage is a bifurcated concept because positive law governs the civil activities, and natural law governs the religious. Today, under our present system these two realms of activity, religious and civil, have “non-overlapping magisteria” (Gould, 1999). Neither magisterium can envelope the panoply of the value-judgments and traditions related to marriage. Marriage has two traditions. The first and older tradition belongs to natural law. The second tradition belongs to positive law. Furthermore, marriages today have two institutions. The first and older is a religious institution; whereas, the second is a legal institution. Thus, marriage has been governed by two over-lapping authorities: the Church and the State. Under Positive law, the State through its civil institutions governs marriage and issues marriage licenses. However, since time immemorial, religious beliefs have governed marriage and shaped its sacraments for later congregations and the State. When governments arose they began to record and regulate marriage through ecclesiastical courts and civil institutions, and in time developed their own traditions related to marriage.

In the American legal system, marriage has traditionally been regulated by the States. Today people disagree about how to define marriage and its regulation. Many people wish to constitutionally define marriage as a union between a man and a woman. However, others wish to redefine marriage as a union between two adults of any gender. A whirlwind of value-laden dialog is sweeping across our nation, and igniting a firestorm of legislation in the States as the people rush to preserve or create institutions that will protect their philosophical point of view and life style. Our constitution forbids the establishment of a religion. While issuing marriage licenses is not establishing “a religion” the term marriage has lead to conflict among the states about their right to prohibit or reject same-sex marriages with in their jurisdiction. Under the canopy of religion, the Church should govern the sacrament of marriage because it existed before the State, and the State should continue to regulate civil unions. However, the State should not issue marriage licenses. States should only issue licenses for civil unions. To solve these issues related to marriage an amendment should be proposed in Congress defining marriage as a union between a man and a woman, and prohibiting the issuance of marriage licenses by any State.

CliveStaples
March 1st, 2005, 11:01 PM
Are you looking for constructive criticism? Because I've got some to offer:

Overall, your essay makes sense. Coherent. There is a conspicuous lack of sources cited, and if I were writing the essay, I'd change the organization. Also, when you write things like, "The first and older is a religious institution", you might want to provide an example.

Are these the sort of comments that you're looking for?

ophelia
March 1st, 2005, 11:30 PM
I cited my quotes, do you want me to use the dictionary to cite, "panoply"?

The outline is mine. Logical, coherent, and tight just like a mathematical proof.
Let me try:
1) Marriage is not a purely religious tradition in a historical sense.
2) Marriage is a tradition under Natural Law and under Positive Law.
2a) Marriage is a bifurcated concept.
2b) Positive Law and Natural Law have over-lapping magisteria.
3) Marriage has two traditions
3a) The first and older tradition belongs to Natural Law.
3b) The second tradition belongs to Positive Law.
4) Marriage has two institutions.
4a) The first and older is a religious institution.
4b) The second is a legal institution.
5) Marriage has been governed by two over-lapping authorities
5a) Marriage has been governed by the Church under Natural Law and religious institutions.
5b) Marriage has been governed by the State under Positive Law, and civil institutions.
6) The People disagree about the regulation of marriage
6a) The People wish to define/redefine marriage.
7) Separate The Church and The State
7a) The Church will continue to govern marriage as it existed prior to the State.
7b) The State will continue to govern civil union as these existed under the State.


I guess you are asking me to cite myself.
I will not change the organization.
However, I will change the DRAFTED language later, as it's my custom.

CliveStaples
March 1st, 2005, 11:49 PM
1) Marriage is not a purely religious tradition in a historical sense.

Cite a source for this info.


2) Marriage is a tradition under Natural Law and under Positive Law.
2a) Marriage is a bifurcated concept.
2b) Positive Law and Natural Law have over-lapping magisteria.

Same.


3) Marriage has two traditions
3a) The first and older tradition belongs to Natural Law.
3b) The second tradition belongs to Positive Law.

Same.


4) Marriage has two institutions.
4a) The first and older is a religious institution.
4b) The second is a legal institution.

Same.


5) Marriage has been governed by two over-lapping authorities
5a) Marriage has been governed by the Church under Natural Law and religious institutions.
5b) Marriage has been governed by the State under Positive Law, and civil institutions.

Same.


6) The People disagree about the regulation of marriage
6a) The People wish to define/redefine marriage.

Same.


7) Separate The Church and The State
7a) The Church will continue to govern marriage as it existed prior to the State.
7b) The State will continue to govern civil union as these existed under the State.

I have a few questions, unrelated to the structure/writing of your essay: are married couples granted the same rights, privileges, etc., as couples in a civil union? Are you advocating the end of morals legislation? What about laws banning bestiality, adult incest, public nudity, etc.?

CliveStaples
March 1st, 2005, 11:52 PM
Organization: I'm old-school. I like the classical structure: Present your thesis, give reasons, support with evidence. Present counter-arguments, and counter-counter-arguments. Your paper isn't bad. It isn't lacking. I merely stated that if I were writing it, I'd change the organization. That's all. It's not even a criticism, really, just a statement of preference.

ophelia
March 2nd, 2005, 05:14 PM
Are yee picky!

Clive, that is the intro. I have not posted any arguments.

I disagree about citing what is common knowledge. Here, let me get the dictionary, and cite this word or that word. Or better yet, let's get the encycleopedia, and cite concepts. Here, here, let me find someone who thinks just like me, and quote them.

Why must I cite someone else's idea when the idea is mine. Furthermore, if it is not common knowledge, well then, who does someone like Stephen Hawking cite when it is his idea, and not the idea of another person?

CliveStaples
March 2nd, 2005, 05:23 PM
Why must I cite someone else's idea when the idea is mine.

Well, with terms like "Natural law" and "Positive Law", it sounds like you're referencing specific conceptions that are not of your own creation. Like if I started talking about Phenomenology.

When you say, "Marriage has two traditions: One in positive law, the other in natural law" (paraphrase), it sounds like you are referencing history. You are referencing the tradition of marriage, which, presumably, is not merely an idea of your own. When you talk about history (such as the history of marriage), you are referencing a work. Certainly, no one needs to provide citation for statements like, "The American Civil War began in 1861." However, I'd certainly like to see some sources, as the philosophical, political, and religious traditions of marriage are not common knowledge to me. Of course, if you're writing the paper for a class titled "Marriage and its historical roots", then I'm just blowing hot air.

Nouvelian
March 3rd, 2005, 05:45 AM
as for the first: marriage is (not) a traditionally religious tradition, i know many animals mate for life. as for the word itself, would y'all be pleased if the queer-folk called it: "fairrage"? so that people could say: "we're going to get fairried"... rather than we're going to get civilly united, which sounds like Victorian sex.

ophelia
March 3rd, 2005, 01:33 PM
LOL Nouvelian, thanks for the laugh.

And.. who has been civilly married anyway?

ophelia
March 3rd, 2005, 01:48 PM
Well, with terms like "Natural law" and "Positive Law", it sounds like you're referencing specific conceptions that are not of your own creation. Like if I started talking about Phenomenology.

When you say, "Marriage has two traditions: One in positive law, the other in natural law" (paraphrase), it sounds like you are referencing history. You are referencing the tradition of marriage, which, presumably, is not merely an idea of your own. When you talk about history (such as the history of marriage), you are referencing a work. Certainly, no one needs to provide citation for statements like, "The American Civil War began in 1861." However, I'd certainly like to see some sources, as the philosophical, political, and religious traditions of marriage are not common knowledge to me. Of course, if you're writing the paper for a class titled "Marriage and its historical roots", then I'm just blowing hot air.


Obviously, I am a student. Let's see, my initial post has a due date and says draft. Thus, you're points are will made. However, forums posters do not generally cite their sources, except maybe you. Furthemore, it seems as if you would like to see my cites. Why? Will, you give me more rep points if I cite my sources? :rolleyes:
Clive, surely, you realize that you are asking me to make extra efforts just for you? Why?

Finally, while your suggestions as to form and content are insightful and helpful, I did not ask you to help. So .....why are you intersted in helping me?

ophelia
March 4th, 2005, 07:42 PM
We should amend the Constitution to recognize “marriage” as a union between a man and a woman. When the American people freely assembled together as a body and committed themselves to one another as United States, they, by their actions formed one body of People by consent of all the people. Whether the power to govern is granted to an entire body of people as in our democratic States, or to a republic, by representation as with our United States, the understood social norms of the People and the rules of governance are set at inception by the ratification of the Constitution and its Bill of Rights. If this is not true, then why do we refer to the copious writings of the Framers for understanding and reference? It is because these documents constitute our evidence as to what was accepted during that period of time.

What were the understood social norms of the People at the inception of our United States? With regard to marriage the People understood it to be a union between a man and a woman. In colonial times, men and women often lived to together as man and wife by agreement without the slightest pretense of marriage. Cohabitation led to informal marriages by a verbal contract known as the "common-law marriage." This practice closely resembles the concept of marriage as an inalienable right. However, not all States recognized the common-law marriage. Viewing marriage as a contract they followed English tradition and mandated religious or civil ceremonies.

In England, the ecclesiastical courts had jurisdiction over marriage. America had no such courts because American’s viewed marriage was a contract between a man and a woman. Hence, American law recognized two types of marital contracts: the formal and the informal. The formal marriage contract was documented publicly and came to be called the civil or religious ceremony. The informal marital contract was a private oral agreement, and was referred to as "common-law" marriage. Marriage in America whether it was formalized by the churches or by the states, or whether is was an informal oral contract, it has always been a union between a man and a woman in this nation. This accepted social norm prevented the bastardization of the States and guaranteed inheritance and property rights to martial offspring.

Some State Supreme Court justices claim that the definition of “marriage” is discriminatory. The mantra of the gay and lesbian movement is “separate is never equal” because exclusion form the institution of marriage violates due process and equal protection. Others, claim that Congress is seeking to give “preferential treatment only to spouse of heterosexual marriages” (O.Damslet 1993).

The issue is not discrimination is not because neither men nor women are discriminated against. The real issue is redefining the marital union. Marriage, as a type union has never barred privileges of the Fourteenth Amendments. States bar marital privileges. Furthermore, constitutionally defining marriage as a union between a man and a woman neither grants nor limits the powers between the States and the People.

If we rely upon our Constitution and the known historical record of our nation, to define governmental branches of power and their relationships with one another, then, how can we not also rely upon the historical record and the understood prevailing social norms of the colonial day to define the relationship between men and woman united in marriage by the States of the Union? Shall we redefine the marital union through the judiciary without consent of the People? Will the justices of our great states, continue to offend logic and our democracy on the pretense of due process and equal protection in order to redefine both man and woman? A man is a man, and a woman is a woman; the union of the two is a marriage.

The social norms related to marriage predate the Fourteenth Amendment, and do not suspend its privileges. Marriage proceeded from the union of men and women prior to the existence of governments. Over time, governments began to legalize and regulate the union of a man and woman, as husband and wife. Our society has relied upon the definition of marriage to define social roles, distribute property, and raise its children. At no time since the inception of this great nation has “marriage” barred due process of law; or denied equal protection to its citizens. Marriage is not discriminatory. States are discriminatory. A constitutional amendment will not expand, alter, nor restrict the meaning of marriage. Neither will a constitutional amendment defining marriage intruded into the realm of consensual adult intimacy and the choice of one’s intimate partner (Lawrence v. Texas, 539 U.S. 558 (2003)).

DISCLAIMER---This post contains information about the law for a STUDENT ESSAY. The information contained in this post cannot meet any individaul's legal needs. This legal information is not the same as legal advice---the application of law to an individual's specific circumstances. This INFORMATION MAY BE INACCURATE and NOT USEFUL! If you want professional assurance that any information contained in this posting is appropriate for your particular situation you should contact an attorney.

ophelia
March 5th, 2005, 10:06 AM
CRS REPORT FOR CONGRESS

The Effect of State-Legalized Same-Sex Marriage on Social Security

July 28, 2004

Laura Haltzel and Patrick Purcell
Specialists in Social Legislation
Domestic Social Policy Division

http://www.ilr.cornell.edu/library/downloads/keyWorkplaceDocuments/CRS/CRSSameSex.pdf


SUMMARY
With the recent legalization of same-sex marriage in Massachusetts, [1]
Many have questioned how the legalization of such marriages at the state level may affect the eligibility for and payment of federal Social Security benefits and private pensions. Social Security benefits are currently paid to the spouses of disabled, retired, or deceased workers entitled to Social Security.

[FN 1] In Goodridge the Massachusetts Supreme Judicial Court rules that under the state on constitution, same-sex couples have the right to marry. The court later advised the state legislature that civil unions would not meet the requirements of the Goodridge decision.

Social Security
The Social Security Act generally defers the determination of whether a marriage invalid for the purpose of qualifying for spousal or survivor benefits to the state of residence of the worker. [2]

[FN2] 42 U.S.C.416(h)

One might interpret this deferral to the state-level definition of marriage as permitting a same-sex spouse to be eligible for Social Security spousal benefits if such marriages are legal in that state. However, the definitions of “wife” and “husband” in the Social Security Act rely on gender-specific pronouns. ...The Social Security Administration (SSA) interprets this use of gender-specific pronouns as an indication that Congress did not intend same-sex spouses or survivors to be eligible for Social Security benefits. [5] Regardless of the SSA position, the Defense of Marriage Act of 1996 (DOMA, P.L. 104-199) established the legal definition of “marriage” as only legal union between one man and one woman as husband and wife, and defined a “spouse” as only a person of the opposite sex who is a husband or wife when determining the meaning of any act of Congress, ruling, regulation, or interpretation by federal agencies. The SSA must use this federal definition of marriage when interpreting the Social Security Act. Therefore, the legalization of same-sex marriage at the state level has no effect in determining the validity of marriage for Social Security purposes. [6]

[FN6] Some have challenged the constitutionality of the Defense of Marriage Act. This legal question is beyond the scope of this report. Readers interested in this issue should refer to CRS ReportRL31994, Same-Sex Marriages: Legal Issues , by Alison M. Smith


Federal Employee Pensions
Federal employees with permanent appointments are eligible for retirement and disability benefits under either the Civil Service Retirement System (CSRS) or the Federal Employees Retirement System (FERS). .....Because federal employee retirement benefits under both CSRS and FERS are subject to the statutory interpretation required by the Defense of Marriage Act, in determining eligibility for survivor or dependant benefits under CSRS or FERS, “the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife."...

Civil Service Retirement System (CSRS)
Federal Employees Retirement System (FERS).

Private-Sector Pensions
Employers in the private sector are not required to offer pension benefits, but those that do must comply with the Employee Retirement Income Security Act (ERISA, P.L.93-406). Section 514(a) of ERISA provides that the law preempts all state laws relating to employee benefits that are covered by ERISA.

In administering federal income taxes, the Internal Revenue Service (IRS) has historically maintained that an individual is considered to be a “spouse” if the applicable state law recognizes the relationship as a marriage. If, for example, state law recognizes common-law marriages as legal, an employer in that state will be required to recognize an employee’s common-law spouse as his or her legal spouse and IRS will recognize the marriage as valid. The IRS has never recognized same-sex marriages for income tax purposes, and the Defense of Marriage Act prohibits it from doing so, regardless of any state law. Moreover, while an employer may voluntarily extend benefits to the same-sex domestic partners of its employees, the DOMA supersedes state or local laws that would require an employer to recognize a same-sex partner as an employee’s spouse for purposes of administering employer-sponsored retirement plans. … However, whether ERISA alone would preempt state laws recognizing same-sex marriage is irrelevant because DOMA prohibits recognition of same-sex spouses in the interpretation and application of federal law....

Bills in the 108thCongress....(H.J.Res. 56,S.J.Res. 26, S.J.Res. 30, S.J.Res. 40) have been introduced that propose establishing a constitutional amendment defining marriage as only a union of a man and a woman....One Senate resolution (S. Res. 275) seeks to affirm the Defense of Marriage Act. A bill introduced by Representative Barney Frank, H.R.2677, the “State Regulation of Marriage is Appropriate Act,” seeks to eliminate a federal policy on the definition of marriage, essentially repealing the Defense of Marriage Act (DOMA). ...
--------------------------------------------------------------------------------
Concludes at Page 5 of Report

DISCLAIMER---This post contains information about the law for a STUDENT ESSAY. The information contained in this post cannot meet any individaul's legal needs. This legal information is not the same as legal advice---the application of law to an individual's specific circumstances. This INFORMATION MAY BE INACCURATE and NOT USEFUL! If you want professional assurance that any information contained in this posting is appropriate for your particular situation you should contact an attorney.



Search Commands
1 USC §7. 10.
29 USC §1144(a).
Domestic partners
DOMA supersedes state or local

ophelia
March 5th, 2005, 11:50 AM
Excerpts from Wednesday's Supreme Court arguments challenging Ten Commandments displays on government property, as recorded by the Alderson Reporting Co. Inc.:


http://www.dfw.com/mld/startelegram/news/state/11034654.htm

ophelia
March 5th, 2005, 12:09 PM
Chambers v. Marsh 463 U.S. 783 (1983)
Recognized the long historical practice of legislative prayers

"It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable. In applying the First Amendment to the states through the Fourteenth Amendment, it would be incongruous to interpret that Clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government.

This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged. We conclude that legislative prayer presents no more potential for establishment than the provision of school transportation, beneficial grants for higher education, or tax exemptions for religious organizations."

DISSENT:
That the "purpose" of legislative prayer is pre-eminently religious rather than secular seems to me to be self-evident. "To invoke Divine guidance on a public body entrusted with making the laws," is nothing but a religious act. Moreover, whatever secular functions legislative prayer might play - formally opening the legislative session, getting the members of the body to quiet down, and imbuing them with a sense of seriousness and high purpose - could so plainly be performed in a purely nonreligious fashion that to claim a secular purpose for the prayer is an insult to the perfectly honorable individuals who instituted and continue the practice....

"Finally, and most importantly, the argument tendered by the Court is misguided because the Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers. We have recognized in a wide variety of constitutional contexts that the practices that were in place at the time any particular guarantee was enacted into the Constitution do not necessarily fix forever the meaning of that guarantee. To be truly faithful to the Framers, "our use of the history of their time must limit itself to broad purposes, not specific practices." Our primary task must be to translate "the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century . . . ."


http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/marsh.html

By analogy, recognize the long historical practice of opposite sex marriage, but allow civil unions. Marriage is historically recognized as religious sacrament. A divine institution authorized and established by God in Eden, which is permissible under the free exercise clause of the First Amendment. Marriage is unique because its role in our society influencing our laws related to family, property, taxes, benefits and government. Therefore, the states and the government have a compelling interest to regulate marital unions.


DISCLAIMER---This post contains information about the law for a STUDENT ESSAY. The information contained in this post cannot meet any individaul's legal needs. This legal information is not the same as legal advice---the application of law to an individual's specific circumstances. This INFORMATION MAY BE INACCURATE and NOT USEFUL! If you want professional assurance that any information contained in this posting is appropriate for your particular situation you should contact an attorney.

ophelia
March 5th, 2005, 01:55 PM
“An Established Religion”
Means the Government will create and support an official state church…often tax dollars support that chosen church.

• that church’s laws become the law of the land.
• the Nation’s leader usually appoint the leading clerics.
• often other religions are often excluded.


The Establishment Clause
The Establishment Clause of the First Amendment guarantees that the government will not create and or support an official state religion.

Separationists vs. Accomodationists
How high should the wall between church and state be?

Accomodationists contend that the state should not be separate from religion but rather should accommodate it, without showing preference.

Seprartionists argue that a high “wall” should exist between the church and state.

To be Constitutional the Challenged Law Must
• Have a secular purpose
• Neither advance nor inhibit religion
• Not foster excessive government entanglement with religion.

ophelia
March 5th, 2005, 03:31 PM
"Congress may not exercise the judicial power to revise final judgments," Clinton v. Jones 520 U.S. 681 (1997)(citing Plaut v. Spedthirftt Farm, Inc.).

KevinBrowning
March 5th, 2005, 04:05 PM
Wow, this whole page only has posts from you. It would seem you're winning the debate.

ophelia
March 5th, 2005, 07:17 PM
this is a test

ophelia
April 8th, 2005, 11:38 AM
Is justice carried out by discarding the licensing of marriage while instituting the instituting the licensing of civil unions? Will instituting this practice allow "marriage" for heteros while barring "marriage" for homos? Will bigotry be promoted by the state tending to cause further harm to homosexuals? No, it will not because all civil unions may be recognized by one’s religion of choice or social circle of choice, or choice of association. If a partnered couple chooses to get married then that religious organization will recognize that marriage, but the State will not. The State will only recognize the civil union.

ophelia
April 8th, 2005, 01:24 PM
The Defense of Marriage Act (DOMA) defines marriage as a “legal union between one man and one woman as husband and wife.” DOMA embraces natural laws concepts regarding marriage. Since marriage predates government it can be referred to as an inalienable right. However, the judicial branch of our Government claims that marriage is “one of the ‘basic civil rights of man,’” Furthermore, our justices have recently “reaffirmed the substantive force of the liberty protected by the Due Process Clause of the Fourteenth Amendment” with regard to “intimate personal choices”. This means that same-sex couple may form intimate relationships and that these relationships should have a right to due process under law, which allows same-sex couple to marry. Thus, we have conflict as to whether society under natural law or jurisprudence under positive law will define or redefine marriage, which in turn leads to conflicts between the States and the Federal Government regarding the regulation of marriage. The question is whether marriage as an inalienable right predating government under natural law can be legitimately redefined by jurisprudence or Government under positive law, or more specifically civil law?

The document which guides our nation is the Constitution. Our Constitution and the Declarations of Independence contained the concept of an inalienable rights derived from natural law. Natural law is law that is higher than human law. Marriage can no longer meet the definition of ‘inalienable’ if it is redefined by civil law. The term “marriage” defined as the basic civil right of a couple of either opposite sexes or same the sex it is no longer marriage, it is simply a union. Unions are not inalienable rights. Unions are fundamental civil rights. If unions are fundamental civil rights then government may regulate unions. If uniting opposite-sex couples is a union. Then uniting same-sex couples is a union. Therefore, uniting any couple is a union. Consequently, both same-sex couples and opposite-sex couples should be united in unions, and the term “marriage” ought to be discarded by the State for the purposes of licensing the unions of couples.

Uniting same-sex couples in unions bars same-sex couple from obtaining the legitimacy that ‘marriage’ registration and licensing offers opposite-sex couples. Moreover, it fosters bigotry towards same-sex relationships. Marriage is a contract between two consenting adults and both society and the state insert themselves into that contact. The People’s interest in either civil unions or marital unions will always impact a same-sex union. Therefore it is of paramount importance that same-sex couples receive social recognition.

Social recognition impacts emotional welfare of same-sex couples. The word marriage is not left intact for opposite-sex couples. Marriage is left intact for emotional and spiritual purposes. The Supreme Court has recognized the “emotional” and “spiritual” benefits of marriage. Neither the State nor the Federal Government can define the benefits of marriage in their entirety. Both the emotional and spiritual benefits of marriage and the definition of marriage existed prior to government. Therefore, neither the Federal Government nor the States ought not to redefine this basic moral concept. The definition of the marriage in the Defense of Marriage Act should stand. However, DOMA should not be used to preclude same-sex couples from equal protection or due process. Federally defining “civil unions” for the purpose of licensing and legally recognizing the joining of couples is secular, neutral, fair, and equitable. The phrase ‘civil unions’ allows the Government and the States to grant equal protection and due process to same-sex couples under the Constitution. Civil unions will not foster bigotry. Couples joined by the State will be recognized by the Federal Government. Furthermore, the Federal Government will uniformly recognize civil unions for tax, property, divorce, and inheritance purposes. In turn this will promote the general welfare of the People. Finally, although the Federal Government has sought to establish a uniform basis for codifying “civil unions” under the General Welfare Clause of the Constitution it does not seek to preempt the States from regulating civil unions.

The Equal Protection Clause of the Constitution does not forbid classifications. The clause prohibits government officials and states from treating person who are generally alike in all relevant respects – differently. Therefore, it is inappropriate for the Federal Government or the States to attempt to regulate the beliefs systems of private individuals who classify people according to their opinions. The Government and the State will not regulate the sexuality or the opinions of the People.

ophelia
April 8th, 2005, 05:01 PM
The Federal government may exercise its Constitutional power to build a “necessary and proper” wall between Church and State to prescribe general laws that state the effect that shall be given by the States to the public acts, records, or proceedings of other States relating to same-sex ‘marriage’.

Under the Tenth Amendment, the States have traditionally regulated the status of relationships. If the Federal government began to determine the “legal status of relationships” with regard to marriage then the rights of the States would be “derogated.” Degrading the power of the States to regulate their own territories impedes federalism. Furthermore, impeding federalism facilitates the tyranny of the majority.

In times past “tyranny of the majority” primarily referred to unitary governments that did not have a bicameral legislature. Furthermore, it is true that our confederated states created federalism, which checks the tyranny of the greater society. However, when you refer to tyranny of the majority you are referring to the tyrannical majority of a bicameral legislature that happens to be predominately Republican. James Madison critically observed the vices of “rival parties” and the “superior force of an interested and overbearing majority.” Thus it is true that an overbearing party can exert force on a minority. However, in rebuttal, Madison also noted that “factious leaders” can and often do “kindle a flame with in their particular states,” and when this occurs “our national leaders can check the spread of the ‘conflagration through the other states.’”

Factions arise from with the states and not only form unitary systems of government or political parties. When Madison referred to a faction he was referring to “a number of citizens.” Madison had observed the rise of faction in both “a majority and a minority of the whole.” The characteristic traits of these factions were that they “are united and actuated by some common impulse of passion, or of interest.” Therefore, according to Madison, a faction is a special interest group or a political party. In our present marriage debate we have both a minority faction in the same-sex marriage camp and a majority faction in the opposite-sex marriage camp.

The same-sex minority has arisen in a few States while the opposite-sex majority has arisen in the remaining States and the Congress. When Hawaii sought to legalize same-sex marriage Congress quickly defined marriage as a union between a man and a woman under the Defense of Marriage Act . The question is who is best situated to resolve the issue. The states cannot impose their will on the nation without representation. As Madison pointed out, federalism offered advantages to conflicts between State’s rights and the rights of the Federal government. Allowing the Federal government to resolve the conflict places the issues in the sphere of a heterogeneous people, which make is “less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult.” Furthermore, since Congress “does not have the power to suspend the Fifth and the Fourteenth Amendments.” Therefore, Congress must act to protect Due Process and Equal Protection. It is the responsibility of Congress to define marriage while preserving the rights of the citizenry. Finally, while the states have traditionally been the keeper of the keys to the marriage sanctuary; the Federal government is the guardian to the wall of separation of Church and State. The Federal government may exercise its Constitutional power to build a “necessary and proper” wall between Church and State or marriage and unions as it invokes is authority to prescribe the “effect that shall be given by the States to the public acts, records, or proceedings of the States relating to homosexual ‘marriage.’”