Thursday, July 09, 2009

Some help for Senator Cruz

In his July 8, 2009 interview with Ray Gibson on K57, Senator B.J. Cruz gave us an overview of some of the particulars of what the substitute bill for Bill 138 would look like.

Here are some of the main points:

1. The words "marriage" and "union" will not be a part of the bill.
2. The bill will request for the "benefits and protections" currently applicable to legally married couples.
3. The bill will not specify gender.

Senator Cruz mentioned that he had been approached by members of the homosexual community who were concerned that the substitute bill would not recognize "the spiritual relationship" between same-sex couples and, in effect, be a step back for homosexuals.

Senator Cruz's reply was that the intention of the substitute bill would be to first pursue the "end goal" of Bill 138 and wait for a more favorable environment to put forth more progressive legislation.

(He is hoping that Obama will overturn the Defense of Marriage Act and that the Supreme Court will rule in favor of same-sex marriage. Just a note: Obama cannot overturn the DOMA. Congress will have to. But given the folks running things now, there might be a pretty good chance.)

According to Senator Cruz, the "end goal" of Bill 138 is the annexation of the same "benefits and protections" legally accorded to heterosexual married couples. Senator Cruz knows that this is not the "end goal" of Bill 138, or he should know after four weeks of town hall meetings.

The commentary, questions, and discussion which accompanied the presentation of the bill at each meeting rarely, if ever, dealt specifically with "benefits and protections", but with the true "end goal" of the bill which is the legislative authentication of homosexual behavior. Talk of "benefits and protections" was but a pretext for what in effect turned out to be little more than 4 weeks of gay pride rallies, despite the much exaggerated opposition. (For the record, I have no personal issue with gay pride rallies, but let's not call them Town Halls.)

There are two giant issues that Senator Cruz and the proponents of whatever bill he comes up with will have to address:

1) The legal, social, and moral (not religious) foundation for the requisition of the rights and benefits they seek.
2) Adherence to and adoption of all the laws currently applicable to marriage since, as of now, the new bill will simply appropriate the current marriage laws, and in effect, setup what amounts to a parallel marriage.

The legal, social, and moral (not religious) foundation for the requisition of the same rights and benefits accorded to legally married heterosexual couples to be also granted to partners of a legally recognized non-marital entity

As stated elsewhere in one of my posts, the government is not in the business of arbitrarily distributing "benefits and protections". Legally recognized corporate entities are granted certain benefits and protections - be they marriages, businesses, association, or otherwise - based on their relationship to the larger community in which they exist and their contribution to the common good. Thus, certain tax benefits or exemptions may apply to a business or an association that would not apply to individuals or even other businesses or associations. It is dependent on the aforementioned criteria.

Thus, proponents of this new non-marital entity will need to justify their claim to the same social benefits and protections currently accorded legally recognized married couples by arguing convincingly that this new non-marital entity can attain to the same role marriage fulfills in its relationship to the community and its contribution to the common good.

This is the question that law makers must first ask otherwise there is no boundary to the claims individuals or legal entities may make on its government.

Adherence to and adoption of all the laws currently applicable to legal marriage.

We have heard much from the proponents about rights, benefits, privileges, and protections. We have heard next to nothing about duties, obligations, requirements, and obligations.

Senator Cruz must know that the creation of a new legal institution of persons, especially one that attempts to parallel an institution that predates, engenders, and sustains the very society that has historically and in every generation and culture sought, in turn, to nurture and protect it, will not be a simple task.

A cursory review of Chapter 3 of the GCA, Articles 1-3, will reveal a legal maze that will consume legislative resources far beyond the introduction of this bill. Let's look at a few:

Consummation of the Marriage: The law states that "Any unmarried person of the age of eighteen years or upwards, and not otherwise disqualified, is capable of consenting to and consummating marriage." The law assumes and requires both consent and consummation for marriage to be valid. While the new bill will not specify gender, it would have to eliminate the requirement for consummation since it would discriminate against same-sex couples. Either that or it would have to redefine "consummation".

(Perhaps this could lead to a debate over why the law requires consummation in the first place. After all, aren't we supposed to be "keeping the government out of our bedrooms?" What business is it of the government'? Well, for now, it is.)

"Husband and Wife": Current marriage law refers in several places to "husband" and/or "wife". Will the new law simply appropriate these terms without regard to their historical context within traditional marriage? The problem becomes more obvious when same-sex couples are involved.

Minors: The law allows persons below the age of 18 and above the age of 16 to contract marriage with parental consent. Will the new law appropriate this condition directly? Will we have same-sex 16 year old high school sophomores living in a legal entity that despite the nomenclature parallels and approximates marriage? I isolate the problem with same-sex couples because the law already allows 16 year-old's to marry.

The law further allows females as young as 14 to marry with appropriate permissions. How will this apply to lesbian girls. The law assumes that the 14 year old female will be marrying a male that is at least 16 years old. Direct appropriation of the marriage laws would allow two 14 year old girls to enter into a legally recognized lesbian relationship with all the benefits of legally married couples.

One might argue "what parent would allow their children to do any such thing?". Parents are already allowing the children to do "many such things", with or without their knowledge. But one can easily see how same-sex couples who have legal custody of their children could certainly allow or even encourage their children to take advantage of a law that authenticates same-sex unions and furthers the agenda that we all know is there.

Incompetency of Parties: The law reads: "Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning whether the relationship is legitimate or illegitimate."

How will the new law handle this? Incest assumes sexual intercourse between opposite sex persons and the detrimental effects on offspring of close blood relations. Same-sex relations are sterile. With no possibility of offspring there is no possibility of the detrimental effects associated with incest, so this section of the law would have no basis if applied to same-sex entities.

(Again, it is instructive to note that despite the many objections to procreation as the reason for marriage, our law, with regards to such things as incest and consummation assumes that procreation is the "ends" of marriage.)

Senator Cruz, in attempting to distinguish his proposed non-marital entity from marriage made several references to the word "ceremony", stating that the proposed institution would not require a "ceremony" but would simply be a registration process and "they wouldn't have to go through the whole ceremony".

I think the word Mr. Cruz is looking for is "wedding". The marriage and the wedding are two different things. A marriage according to Guam law does not require a ceremony/wedding. A legal marriage requires a license, solemnization, and authentication, but no party. Two people can simply get a license, have their marriage solemnized by the appropriate public official in the presence of one or more witnesses, and authenticated or certified at the Office of Vital Statistics.

There is no "ceremony" unless one wants to refer to "solemnization" as a ceremony (which it is).

1 comment:

  1. Tim,
    I'm still off-island, but your post goes to the heart of the matter (as usual). Well done.


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