Thursday 16 April 2009

How to write a gay marriage law

The recent Iowa ruling told us what their gay marriage law was not. Now comes the task of legislating what the law actually is.

The trick with writing a good law, is idiot-proofing it so that the people who come along and try to abuse it, wreck it, violate it, skirt it, stretch it, violate the letter and spirit of it...can be stopped.

Conservatives are dead wrong in asserting that marriage must be only an issue between one man and one woman. But they are dead right in that if the line isn’t drawn there, it must be drawn somewhere. The people who draw the line need to draw it carefully, to account for people like this:

a. Rightwing loons who try to game the system, to make it harder for gays to marry....Ever since Roe versus Wade, anti-abortion nuts have tried every trick in the book to make certain states and counties abortion-free – harassing abortion providers, giving anti-abortion providers the option of referring service under a “conscience exception” etc. What if rightwing churches and justices of the peace try to do the same to gay couples in certain jurisdictions? Should the law stipulate that gay couples must always have access to marriage officiation? We already have some wild and woolly definitions of who can officiate at weddings – judges, ship captains, faux Elvises from Vegas with mail-order theological degrees, Uncle Ray-Ray who runs a voodoo shop, you name it – but in some cases a new provision might be needed for gay couples. You can also count on gay-friendly services to start popping up.

b. People who might want to expand the concept of marriage beyond two people....Cultures around the world have experimented with group marriages for thousands of years, but Americans might hesitate on that, particularly if it means allowing a pimp to “marry” all his girls to get them health care, or a homeless activist to do the same for a shelter full of homeless guys. In the end we will probably shift slowly from a one-man-one-woman rule to a two-adult rule.

c. Religious groups who want to expand the concept of marriage even more widely....Not just group marriages but under-age marriages and marriages which entail rights, responsibilities and rituals that some would call “religious” and others would call “criminal” – drugs, sacrifices, etc. You get into that, and suddenly you’re tangling with the First Amendment, which courts have already had to do on this issue. Are these the sort of people gays will want as their political allies in the legislative battles? Or could the rightwingers actually make common cause with those folks, to try to kill a gay-marriage bill with a poison-pill amendment that nobody likes?

d. Transgender, hermaphrodites, and other categories of in-betweener....Anybody got a plan to account for them?

e. Insurance companies that try to game the system by encouraging (bribing) state legislatures to prohibit health coverage for out-of-state gay partners, and then incorporating in those states. You never know what they will come up with.

f. States which will drag their feet on changing their gay marriage law, to wait for the toxic effect of the political power of evangelicals to wear off a bit.

g. The red states that will refuse to budge at all on this issue....Will there be “gay flight”? What happens in a state with great employment opportunities but lousy gay-rights laws, or vice versa?

We cannot leave all this up in the air. If government doesn’t take action in the form of legislation, then government will still get involved in the form of endless litigation in court. Once all these battles really begin in the legislatures, the pro-gay team needs to get in the room when the actual language is being drafted, because the rightwing loons will absolutely be in the room too. We need to change the rules so that gay couples can marry, but we also need to manage the change the right way, so we don’t have the little old lady down the road marching into church and demanding the right to marry 20 of her cats. We don’t want to give the rightwing loons a chance to bury us all in slippery-slope arguments, so we need to get to the slope before they do, and fence it off sensibly.

I see a lot of lawyers getting rich on this in the next decade or so.

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