Thursday, April 29, 2010

Debate on Bill 185 - Rotary Club of Guam 8/6/09

When Mr. McCully called and asked me to do this, the first thing I did was congratulate him and your organization for being the first to provide an appropriate forum for an issue of such gravity. Mr. McCully also asked me to frame the debate in terms of policy. I’m not sure I have done that to his satisfaction but we’ll give it a go.  

As some of you may know, I am not an attorney, a politician, or in the employ of a church. I am a former music teacher that was forced into selling real estate and sales to feed a growing family. And while I may own a bookstore, all that means is that I’m too busy running the store to read the books.  

Also, for the record, I am not personally opposed to people who choose to live an alternative lifestyle. I only got involved with this issue because I was alarmed that the media was relying on the easy story of Church vs the Gay Community instead of examining  
the central civil issue which is the claim to equal rights.

The Legislative Findings and Intent of Bill 138, the Same-Sex Civil Unions Bill, began with these words:
"...there exists on Guam a large group of disaffected persons who have been denied one of the most basic rights ever given to law abiding citizens; the right to enter into a marriage"
The section then proceeds to make a claim for civil unions to "all the benefits, rights, and
Thus for the purposes of this brief presentation, I would like to address same-sex marriage, same-sex civil unions, and same-sex domestic partnerships as a single issue. I have 2 points and a proposition.

Point 1: The current legislation is reckless
First I'd like to call your attention to a practical concern that shows just how thoughtless, hodge-podge, and reckless this legislation is in the hopes that responsible citizens will at least demand a clear-eyed, methodical, and deliberate examination of the issue before us.
If you take the time to read Bill 185 you will see much about the application of the law to domestic partnerships but you will find nothing in the bill that would actually create that partnership. Section 16105 is only about the application for and the requisition of a license.

However, it is just a license to form the partnership, just as a marriage license does not mean you are married but that you have a license to get married. There is nothing that follows that would in fact create the partnership for which the license is issued. The omission is astounding.
I don't point this out for the purpose of identifying a technicality because the bill can be amended. But I point this out to demonstrate that the proponents of this legislation, in their rush to impose on our community a wholly new societal form that is sure to have far reaching and unintended (ormaybe even intended consequences), have, in the midst of highly charged emotional bluster, grabbed the frosting and left the cake.

The excited new domestic partnership applicant will walk away with a piece of paper, $30 poorer, and nothing more. … Read the bill. Point 2: The civil right to marital status is conditional. Gay Marriage would not meet those conditions.
It would seem that the proposed legislation, which would introduce the biggest societal change on Guam since the Christianization of the Chamorros, should demonstrate a bit more evidence of deliberation and thought.

First it must be understood that civil rights are granted to persons, not to corporate entities. In the eyes of the law, the minute two or more people form a legal entity, be it a business or a marriage, that entity is subject to a different set of rules than those that apply to individual persons.
Rules governing corporate bodies are determined by the relationship of that entity to the community and its relative contribution to the common good. Thus businesses are granted certain protections and incentives that are not available to individual persons. The reason is obvious.
The same is true in the case of marriage. The state has learned through millenia of societal evolution that the traditional marital unit is the most cost effective way of producing, socializing, and educating the next generation upon which the survival of the state depends.
Thus the state, because it has a vested interest in its own survival and flourishing, has chosen to protect and incentivize the societal engine we call the family, understanding that the cost to protect and incentivize the family is far less than the cost the state would incur should the family fail and the burden fall to the state, us, the tax payers.
It's just simple economics. And while proponents of alternative familial forms will point to the failure of many marriages to live up to their commitments, the question that must be asked is: do we as a society find a way to shore up and revitalize the most fundamental of all societal institutions or do we simply discard it, which Bills 138 and 185 would have us do.

The proponents of Bills 138 & 185 claim that because they too are capable of committed loving relationships they too should be accorded the same status as married persons. However, as we just saw, the state does not grant a special status to married persons because two people love each other, but because of the function the marital unit is expected to provide for the state.
Whether domestic partnerships, same-sex, or otherwise, can fulfill the same expectations the state expects of married couples is cause for study. But one thing we know for sure is that Bill 185 will not require the same public commitment as it does of married couples.
Thus on that note alone, however trivial that may seem to you, domestic partnerships as defined by Bill 185, would be asking for more than they are willing to give. In short, for a bill that makes a claim on equality, we should be able to at least expect equal commitment for equal privilege. But that's not what we get.

Next, it must be understood that while there may be a right to marriage, marriage itself, in the eyes of the state is not an automatic right.

1. The state already controls many aspects of marriage:Laws regarding consanguinity,affinity,and minimum age determine who you can marry.

  • Laws governing residency determine where you can marry and when.Laws concerning the contract of marriage govern the proper legal form.

  • The state can also determine the capacity or mental fitness for marriage

  • Then there is the whole list of things that can determine whether or not a
  • marriage is valid or invalid.
  • Laws (in some states) may require a blood test, proof of immunity or vaccinations for certain diseases, and a physical exam before a license can be issuedLaws concerning your current marriage status determine if you can marry,

 In fact marriage is a naturally occurring societal institution that pre-exists the political order. The state did not create marriage. It only recognized and codified it.  
Thus, since the state did not create marriage, it cannot create gay marriage either.
Proponents are asking for equality for an entirely artificial construct with an organic institution that not only pre-exists our society, but is the basis for it. There's something very unequal about that.

However, having said all that. I am not opposed to same-sex couples forming their own version of marriage and even according themselves all the same benefits (whatever those are). Why do you even want to call it a marriage when at best it will only be seen as a modern appendage, an artificial construct of the state grafted onto the code like an afterthought, aDon’t just add a chapter and leach off marriage. Create your own brand new institution with its own rights and responsibilities. But leave marriage alone. Anything less than that would be a parasite, a fraud, a counterfeit, and hardly worth the dignity the gay community claims to seek.
What I am opposed to, and the gay community should be opposed as well, is the
parasitic leaching on to Title 19, Chapter 3 of the GCA, that defines both Bill 138 & 185. I urge the gay community to do the hard work of fashioning a wholly new societal institution.  
Why are you willing to settle for some second rate deal called a domestic partnership that would create a separate but equal status that could be proven unconstitutional anyway? 
mere asterisk.
No. Come up with your own legislation that gives you everything you seek in terms of incentives, protection, and legal recognition, but don’t touch Title 19 GCA, Ch 3. 

I have lived on Guam for 22 years. And as of now, have no plans to leave. But this is not my home, not in the way that it is a home for Chamorros, all Chamorros. The blood of my ancestors is not mixed with this soil as is the blood and sweat of your ancestor's. This is your home.
To the Chamorros. Search your ancestral memory. Ask yourself if what these bills propose is something your ancestors would be proud of. Ask yourself if this is the Chamorro way. Or did these ideas, like so many other things alien to the Chamorro way, come from other shores?
Legislate the teaching of the Chamorro language, build and sail the ancient flying proas. But in the end, the law, this law, will shape your culture and determine what sort of island your children, for those who will still have children, will grow up in.
This debate is not between two men who are not native to this place. This debate is between your past and your future. And the question before you is whether by embracing this legislation your ancestors would be just as proud of your future as you are of their past.
 The essential premise of both bills is that same-sex couples have a civil right to be married or at least to the status of marriage. However, we first need to ask why the state grants a privileged status to marriage in the first place.
responsibilities given to married couples."

In the 2 months that followed the introduction of Bill 138 and its replacement, Bill 185, there was much chatter about these so called "rights and benefits of marriage". While the language of Bills 138 and 185 hide behind the terminology of civil unions and domestic partnerships, in essence both bills advocate for and imitate marriage in every way except for Bill 185's omission of the requirement for solemnization.
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