More gay marriage stuff

[kengr]

Yet another editorial

A quote:

"If those seeking to ban gay marriage prevail, Seidman notes, we will be left with a country where casual sex between gay strangers is entitled to absolute constitutional protection, while long-standing relationships between committed partners are afforded none.

Talk about a resounding victory for family values."

Comments

[kengr]

Thing is, there have to be *reasonable* defaults for stuff like inheritance, custody, visitation rights etc.

Please don't confuse law and government.

[gentlemaitresse.livejournal.com]

Why do their have to be defaults for that stuff? What happens to the estate of someone with no heirs?

In what way did I confuse law and government?

[kengr]

The fact is is that there are (and have been for thousands of years" defaults as to what happens in those situations (and many others, that's where Emglish "common law" comes from).

That's *not* going to change. Requiring everyone to go to the considerable effort, time and expense to get all those contracts drawn up is not going to fly.

Also, there are *legal* aspects of things like marriage that *no* contract can cover. A contact between two people is not binding on third parties unless the laws *say* it is. So you can cover inheritance. You can't cover child custody that way unless you want to define children as property (a very bad legal principle in my opinion).

And you can't do the ability to make lregal or medical decisions for your partner *at all* that way except that the laws *say* you can. If they didn't, you'd have to draw up sa *seperate* contract with each party you expected your partnner to have to make decisionss for you with.

*No* contact could grant you visitation rights in hospital, etc. Nor keep *out* relatives that you might not want near you. Because "close relatives" often trump "power of attorney" in medical situations (or so many gays have found).

You'd also have to negotiate *seperately* with an insurance company regarding coverage of your partner, because they wouldn't be covered under your employer's group plan.

And so, and on.

And there are defaults because (and *so*) people know what to expect. Make everything a contract would mean that you might overlook obscure situatioins and then get bitten by them when they happened to you and it was too late to do anything about it.

That's where the defaults created over *centuries* come in. And it's why "marriage" is inherently unequal with "civil union". Cvil union will only have the rights and priveleges that a law or laws give to it, and can have those changed at any time by new laws. And it won't have any rights or priveleges not givemn by law (ie by existing contracts and practices that refer to "marriage").

But marriage already has all these rights and priveleges, and they can't be taken away from just *one* sort of marriage. The most that can be (and has been) done is state that certain classes of people may not narry. It iused to be mixed race marriages that were illegal. But once they were made legal, the couples got all the rights of any other married couple. And anyone trying to treat them differently had to just why they treated them differently (as opposed to civil unions, where couple would have to justify why they should be treated the same as married couples).

I wasn't saying that there *had* to be defaults. I was taking that for granted, because there are and have been for thousands of years.

I said the defaults have to be *reasonable*. Currently, they aren't for some people.

And confusing law and government is soimple enough. Many of the defaults go clear backl to English common law, and before. And that law was *not* defined by any government. And even now that principle applies to some extent.

That's where the courts get the "reasonable man" test. If a "reasonable man" in a situation would think X was the right thing to do, then the courts generally rule that doing X is not punishable (though laws to the contrary *can* change this, but Jury nullification comes into it there too).

More importantly, if a "reasonable man" would think X is *not* the right thing to do, then you are apt to be held liable for your actions,, even if the government hasn't drafted a law on the subject.

Government may create and enforce laws, but law is also precedents in courts which are based on the people.