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Christopher Wilde
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Thursday, May 22, 2008

Support For Overturning Marriage

By Christopher Wilde

On Tuesday, May 20, 2008 Tom Ashbrook on his NPR program "On Point" covered the issue of the California Supreme Court Decision overturning the Ban on Gay Marriage.  As readers of this blog know I have published three articles on the subject of abolishing marriage altogether in favor of domestic partnership.  See PART 1: Overturning Marriage, Part 2: Divorce: The Legal Reality of Dissolving Your Corporation  and, Part 3: A Proposal for Ending Marriage in Favor of Domestic Partnership.

During the program one of Mr. Ashbrook's guests was Douglas Kmiec, professor of constitutional law at Pepperdine University in Malibu, California. He served as head of the Office of Legal Counsel for Presidents Ronald Reagan and George H.W. Bush.  Mr. Kmiec strongly disagrees with the Court's ruling, however he finds their arguments and analysis reasonable.  When refering to a caller Mr. Kmiec states (audio position 38:30): 

"...is in the California Supreme Court Opinion that is worth paying attention to, and that is they suggested that maybe the way out of this is that  the state ought not be using the word marriage at all.  That to acknowledge religious believers that terminology can be given to them and the most important thing is that the law be even handed and that the terminology the state use let's say 'enduring union' ah is going to be the only thing the state allocates.  That's an interesting approach it seems to me to start toward reconciliation where you don't force anyone to change their religious beliefs because you allow them to have the special designation of marriage if they are part of a voluntary religious community, but at the same time you ensure equal justice under law in terms of the utilization of the single term for the license from the state so that stereotype and distinction is not drawn in that context."

Before turning to another member of the panel Mr. Ashbrook adds,

"Turn the concept of marriage over to the religious community and use some other language for the state."

Further supporting my idea Jeff Amestoy, a former chief justice of the Vermont Supreme Court and a fellow at the Center for Public Leadership at Harvard's Kennedy School, speaking in the Christian Science Monitor today, May 22, 2008

"The issue concisely posed by the chief justice is whether the difference in the official names of the marriage relationship – "marriage" for opposite-sex couples and "domestic partnership" for same-sex couples – violates the California Constitution."

"It is, in fact, precisely the chief justice's sensitivity to words that prompts him to indirectly suggest to the California legislature how to moderate the aftershock. He suggests that lawmakers could assign a name other than marriage as the official designation of the formal family arrangements for all couples, "perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage...."

"That invitation, coupled with the 30-day delay before the decision is effective, provides the California legislature with an unparalleled opportunity to preserve the fundamental fairness of the court's decision. An official designation of the constitutionally protected and legislatively enacted right to the benefits and protections for all couples as "marriage unions" would assuredly be constitutional under the majority's rationale."

That's two speakers on national forums suggesting that the word marriage be eliminated.  Neither go so far as to advocate as I do for an overhaul of partnership requirements to be prepared for dissolution of the union but it's a start.

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