November 16, 2009 • 26 mins
In this episode of Stuff Mom Never Told You, Cristen and Molly explore the differences between marriage and civil unions from a legal perspective.
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Speaker 1 (00:00):
Brought to you by the reinvented two thousand twelve Camray.
It's ready. Are you welcome to Stop mom? Never told you?
From house Stop works dot Com. Hey, and welcome to podcast.
This is Molly and I'm Kristen. Kristen. We are in
(00:20):
the first week of November. This time we're recording this podcast.
We had big elections this week. It was an off
your election, but still lots of things that garnered headlines,
including a vote in Maine. Yeah. Kind of well, depressing
vote in Maine. It depends on your point of view.
That's what we're gonna get into. Voters decided to repeal
Maine's new law allowing gay men and lesbians to wed
(00:42):
and it was kind of a shock. People thought, you know, Maine,
pretty liberal state, very libertarian. Uh, they're gonna be okay
with with staying out of this debate. Yeah, because New
England has been the hub so far of the gay
marriage movement. Um So, like you said, they thought that
Maine would be pretty solid, especially when you consider or
that someplace like Iowa, which we would think Midwest a
(01:03):
little more conservative just past um uh same sex marriage
law as well. This year, But there was no no
referendum on that, so christ And obviously this is a
contentious issue. We can't make any sort of case about
whether what's right what's wrong, And we definitely want to
stay out of religious reasons for why people may support
or not support this type of marriage. But we wanted
(01:23):
to talk today about the difference between a civil union
and marriage. Yeah, and this I was curious about this.
I've been curious about this for a while because, for instance,
you hear a lot of politicians, including Obama, say things
on the campaign trail like, you know, I'm all for
civil unions. I think that's great, but I think that
(01:45):
marriage is between a man and a woman, and so
it kind of makes it sound like it's just an
argument in semantics, like who cares whether or not marriages
applies to a man and a woman or a man
and a man or two women. Doesn't really matter. So
I wanted to know legally, what is is the background
of all of this, So, like you said, we're not
We're gonna stay out of politics and religion as much
(02:06):
as we can and really focus on the legal background
to marriages, civil unions, and a little bit of domestic
partnership thrown in as well. Yeah, we don't want to
offend anyone religiously today. We just want to offend lawyers
with our with our interpretation of the law and the Constitution.
So let's start off just with the stuff we found
(02:26):
about definitions of civil unions versus marriage. Yeah, and a
lot of this starts in with the passage of the
Defense of Marriage Act, and that was signed it a loss,
surprisingly by the very liberal um Bill Clinton, and it
basically stipulated that for all federal legal purposes, marriage is
a union between one man and one woman defined as spouse.
(02:49):
And not only that, but it's stipulated that states cannot
um basically enforce their same sex marriage laws onto other states.
So for instance, if I go to Iowa and I
get married, if I come back here to Georgia, Georgia
does not have to recognize my same sex marriage right.
And because it's on the federal level, you also don't
(03:10):
get the right to federal benefits that married couples do. Yeah,
there are This is according to fact checked up dot org.
There are three main provisions UM that differentiate marriage and
civil unions, and the first one is taxes UM. Because
couples in a civil union can file a joint state
tax return, but they must file federal tax returns as
(03:32):
single people. Right, And that's just one of the one thousand,
one thirty eight federal laws affect married couples that wouldn't
affect someone who got married in Iowa, let's say. And then, UM,
you also have issues with health insurance UM. According to
uh GLAD organization, it comes down to what's governed by
state law and what's subject to federal oversight. So it
(03:53):
gets a little complicated, but basically, if a private employer's
health plans are subject to let's say Massachusetts state insurance laws,
then the benefits have to be extended to the same
sex spouse or if the health plan is governed by
the federal law, on the other hand, the employer can
choose whether or not to extend such benefits. So you're
gonna see this theme a lot state versus federal law.
(04:13):
And the last big one is social Security survivor benefits.
You know, if you're a married couple, then you have
the right to the social security based on earnings that
the married couple rather than just the person who's still
livings earnings, and so you're not eligible for that UM
if you have the same sex marriage in a state
that allows it. Yeah, And um, like you said, this
(04:33):
is these are just broad categories because there are over
a thousand different federal laws in the books that have
um provisions specifically for married people, which under the Defense
Marriage Act, applies only to a man and a woman
who are spouses. Now, Christen said, there are three things
that differentiate civil unions and marriage, And those first two
(04:55):
they're prey concrete. The third one is a little bit
more nebulous because it all comes down to the terminology
of marriage. And I think that this will be the
aspect we spend the least amount of time, because this
is when you get into maybe a religious viewpoint on
what is the marriage? You know, is a marriage specifically
for a man and woman to raise a child as
it's sort of historically been. Um, is it a religious
(05:15):
sacrament because you're doing it in a church or religious setting. Yeah,
So what exactly does the word mean to a person
who can do it and a person who is prohibited
from doing it? Now, you know, some people say, well,
I want this word to apply to me because it
has all this cultural weight, and others are saying, well,
this civil union should be good enough for you because
you have these rights and not those rights, right, But
(05:37):
at the same time, like if you don't allow someone
to I mean, a marriage is the most public pronouncement
of your commitment to someone that you can make. So
by virtue of that, like a civil union is kind
of like just having a civil union seems like second place. Yeah,
second place, just leftovers of you know, it's not it's
(05:57):
not quite there. But I don't think we can make
any sort of you know, decision on this terminology. We
really can't change the cultural weight of marriage. So we
wanted to look at what we could look at just
from you know, the least biased point of view, and
we decided that that was to go over the old bass. Yeah.
The Constitution. Yeah, I was kind of surprised. I'm looking
at the legal precedents that have led us up to
(06:19):
um this big landmark cases UM in Massachusetts for instance,
where they first uh legalized civil unions, and I was
surprised that it all comes down to this question of
whether or not the Constitution grants us a right to privacy,
because there is no place that explicitly states, you know,
citizens the US are have a right to privacy. Yeah,
(06:42):
so it all has to do with judicial interpretation of
the constitution right. And this is you know, like Kristen said,
I was surprised that it all came down to this
right as well, because I'm used to hearing about right
to privacy UM in relation to abortion often. I've got
legal scholars whould tell me, you know, a case like
row b. Wade is not well structured because we have
no constitutional right to privacy. And this is the same
argument that UM underlies this whole issue. So let's start
(07:06):
off with one of the biggest cases that says that
we do have some sort of fundamental privacy as US citizens,
and that's Grizzwold to be Connecticut. And we should say
that this information is coming from the Pew Research Center,
which is a nonprofit, nonpartisan research group. So with that
Grizzwold versus Connecticut nineteen sixty five, this is all about
(07:29):
Connecticut law prohibiting the sale and use of birth control.
And so this was the case charging that that was
unconstitutional because it intruded on the right to marital privacy right.
And so in ryan this majority opinion that Justice Waymo
Douglas asserts that that that married couples. Do you have
a right to privacy? Not because the Constitution says it,
(07:50):
but because that there are provisions sort of relating to
it that you could say now applied to this modern standard,
like if we have a third Amendment right to refuse
to quarters all just during peace time, then that means,
you know, you have some sort of right to close
your door to the world and say, you know, I'm
not letting you in. And he says that what amendments
like that do are cast pannumbras or shadows onto where
(08:14):
we can reasonably believe them to exist, the home being
one of them. And then in nineteen sixty seven, we
have another famous case UM Loving versus Virginia, and this
was a challenge to a Virginia law banning interracial marriage.
And I thought that this case was really interesting because
some people have compared UM the this question over gay
(08:34):
marriage to um uh interracial marriage back in the day
when it was illegal for UM blacks and whites to mary.
It was sort of the same argument of separate med
equal being treated like second class citizens and UM. The
court ruled that the law violated the Fourteenth Amendment equal
protection clause, and I thought that this was um interesting
(08:56):
from Chief Justice Earl Warren. He wrote, the freedom to
marry has long been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness by
free men. Marriage is one of the basic civil rights
of men, fundamental to our very existence and survival. Yeah,
so some pretty weighty stuff. That weighty stuff. But then
(09:17):
I mean, you've got people who come in and say
survival means that it's a man and a woman having
children to continue the species. So it's still I don't know,
so it's it's so loaded. Still get down to semantics.
Semantics alright, Christen, let's turn away from semantics to everyone's
favorite subject, sodomy. Alright, something that happened in our own
backyardsnomy and Georgia. Sonomy and Georgia. That is where we're
(09:39):
doing our podcast today. So it so let's give our
our history a shout out with the case case of
Bowers versus Hardwick. Yeah, not the not the best historical
shout out to Atlanta because basically, the Atlanta police arrested
um a gay couple for having consensual sex um in
their in their homes. Awesome Atlanta. Unfortunately, Georgia at the
(10:01):
time had some anti sodomy laws, as did many states.
Uh leftover relics and um, you know, the state dropped
its case against Hardwick, but Hardwick suthed the state, alleging
that it was a criminal act to come into his
home violates his constitutional right to privacy if he's doing
this in his home consentually, And in a five to
four ruling, the Supreme Court rule that the constitutional right
(10:22):
to privacy did not protect the right to have private,
consensual sex with a person of the same gender, which
to me, that kind of blows my mind because it
is not until two thousand three with the case of
Lawrence v. Texas that it takes on the similar sodomy laws.
And then the Supreme Court finally overruled the Bowers decision
(10:42):
and invalidated not only texas Is anti sodomy laws, but
all state anti sodomy laws two thousand and three. Molly, Well,
they're saying that in that time, that was when states
were like, oh, we didn't realize we had all these
sodomy laws. You know, times have changed. Okay, now we'll
admit sodomy's okay, but I do want to go back. Um,
you know, it was a bitterly divided opinion Powers versus Hardwick,
and I did like this thing from the dissent of
(11:05):
in that opinion, Justice Blackman, who wrote that by just
focusing on the homosexual aspect of the sodomy you were
distorting the ultimate question before the court by ignoring the
fact that the George's Statue outlooks outlaws sodomy between heterosexuals
as well as homosexuals. But the case actually concerned, he wrote,
was the most comprehensive of rights and the right most
valued by civilized men, namely the right to be let alone.
(11:28):
So by focusing the case on whether you could in
fact have sodomy, it just it distorted the cases his opinion. Yeah,
And then, um, I think there's also an interesting point
that Justice Kennedy makes when he was writing on the
Lawrence versus Texas decision in two thousand three, and he
said that gay people have quote liberty under the due
process clause. It gives them the full right to engage
in intimate conduct without intervention of the government. Now, the
(11:52):
thing is that all these cases of course garnered attention
and criticism because you're always going to have this argument. Um,
of how much a edge can change law and how
much a judge is just supposed to interpret the law.
And a lot of these cases that we've mentioned have
been criticized um as cases of judicial activism, where these
judges are finding things that really don't exist in the
(12:12):
Constitution and and putting them in place. So it's worth
mentioning that even though we're citing these as, you know,
the standards, not everyone who agree that these are the
best standards. Yeah, I mean, I also don't know how
you how a judge can on at some point revise
the law based on interpretation, not because of what is
explicitly stated in the Constitution, because or else we would
(12:35):
have so many antiquated laws on our books and our
society would be even more backward than it already is.
But that's the kind of statement that I'm hoping the
constitutional people write in and tell us why, why that's
a wrong idea? Yeah, what's what's so come on constitutional leverage?
What's use? Um So, that though, takes us up to
a very landmark case just Goodridge versus the Massachusetts Department
(12:58):
of Public Health. And this is when the Massachusetts Supreme
Judicial Court rule that the state's constitution requires the government
to offer quote the protections, benefits, and obligations conferred by
civil marriage. Civil marriage. Note that's civil to two individuals
of the same sex who wish to marry. Big deal.
(13:21):
This is a big deal. And in writing for the
majority of the Chief Justice Margaret Marshall held that denying
marriage benefits to same sex couples violated the state constitution
because it didn't accomplish a legitimate government goal. And by that,
the Court explained that the reasons the government offered for
banning same sex marriage um in terms of like promoting procreation,
(13:41):
ensuring good child rearing environment, and preserving the state's financial resources,
which are all basically why we have the government institution
of marriage right now. Um, it would not be promoted
by prohibiting same sex couples to marry, because you can't
say that two people of the same sex in a
marital relation and ship could not still provide all of
those things, even though some of them just claim that
(14:04):
it will. Yeah, but again, that's not the argument we're
gonna make. So they're saying that you can't condemn a
lifestyle as a constitutionally adequate reason for denying marriage benefits
it doesn't affect these other couples. So if you were
to say no, you can't do this, that is a
constitutional violation. Yeah. And so then after after Massachusetts, we
(14:24):
have UM other states in New England who also UM
pass laws allowing civil unions. And now we also have
states that like Iowa, that allow same sex marriage. And
most recently, I think the most famous UM court case
that has come up was UH in last year's elections
with a very contentious Proposition eight issue, where California had
(14:46):
passed a law to allow same sex marriage, and then
UM anti gay marriage activists UM pushed the sing called
Proposition eight onto UH the ballot that year, and they
had a referendum and the people voted down the same
sex marriage legislation. Yeah, and I thought that you pointed
(15:07):
out a pretty interesting difference between the good Ridge and
California decisions. UM. The Massachusetts court and good Ridge found
a right to same sex marriage on the ground that
there's no rational basis for denying marital rights to same
sex couples, but the California court went significantly further, elevating
gays and lesbians to have the same protected legal status
as racial minorities and women. So it just ties in
(15:28):
how you view this battle, I think. But you know,
one thing we kind of scripped over christen Um was
what happened in Hawaii in the ninety nines, and that's
how we we sort of got DOMA in the first place.
The Defensive Marriage Act, yes that you had read earlier. UM. Basically,
Hawaii had interpreted their constitution to show that same sex
couples did receive the same rights and benefits of marriage.
(15:48):
And this sort of freaked people out because they thought
everyone would just fly to Hawaii and come back with
a merritor certificate that they were going to have to
honor as a state. I mean, that sounds like it
could be really good for Hawaii tourism, but I be
not so good for people when they came back and
wanted you know, the tax breaks, um, the Social Security benefits, etcetera.
So that's why there was this push to have this
(16:08):
federal mandate that you know, if if you came back
with the marriagtuch to gate from Hawaii, you know it's
not go. CRASCA didn't have to recognize it. UM. So
that brings us pretty much up to Maine in the
present day and so right now on the books, what
we've got in the United States, our Massachusetts, Connecticut, Iowa, Vermont,
and New Hampshire begins in January one, two thousand and ten,
(16:30):
to allow same sex couples to marry and have no
residency requirement. In addition, the Netherlands, Belgium, Spain, South Africa, Norway,
and Sweden allows same sex couples to marry, but most
of these countries have requirements, so you really can't fly
in just for a Belgian wedding and some and some
fries and some beer and then leave and and have
it recognized. But Canada has become this icon of a
(16:54):
place where you can get married, have no residency requirement
and then um, if you go home, the mary will
be recognized in Massachusett, Connecticut, Iowa, Vermont, and New Hampshire
starting in yeah and right now at least six states
outside of New England have same sex marriage bills before
their legislature for this legislative term, but uh, none are
(17:15):
expected to pass. And see this gets into you know,
there's I think this conversation right now about how you
go about getting um gay marriage to be allowed more places.
They're trying to do this state by state thing, and
you know, the New York Times is trying that this
main decision has some people thinking that this is not
the right tap to take, But you don't want to
(17:36):
just go straight to the Supreme Court and risk of
them outlying it forever. More right, It's such a complicated
UM issue when you start looking at all of the
legal background, because while it does seem like, you know,
the best fixed would be something akin to Roe v. Wade,
you know, making a federal statue that legalizes gay marriage
across you know, all fifties states at the same time.
(17:57):
That would also take away from state sovereignty, which is
very important for our democracy as well. Yeah, but we're
no legal scholars, which is why I thought this was
pretty you know, interesting to look back at the history
of the lego part. And I'm hoping our listen listeners
will write in not so much with a religious defense
of one position or another, but just how you think
this shakes down legally. Samalia I ran across also UM
(18:20):
an interesting paper written by a Yale legal scholar who
suggested that instead of same sex marriage, she thinks that
the language is just it's it's it's problematic. Um and
she suggests that and says, same sex marriage, we should
call it genderless marriage. UM. And she says because for
two reasons. She says, first, nowhere in the world is
marriage defined legally, socially, or otherwise as a union of
(18:42):
two persons of the same sex. Is defined either as
the union of any two persons, as in Massachusetts, or
as the union of a man and a woman, as
in UM with the forty forty nine states outside of Massachusetts.
And she says, second, when people confront the marriage issue,
the term same sex marriage and others like it will
offer and prompt them to think of a new, different
and separate marriage arrangement or institution like civil unions, UM,
(19:06):
that will co exist with the old man woman marriage institution.
But she thinks that with generalist marriage there can really
only be it can apply to everyone. Right, although you
did send me um some information UM from the other
side about how opening up that definition is like a
slippery slope of you know, according to some people, will
eventually people want to marry like a horse. Right. That
(19:26):
was from Yeah, that was a clip from the family
very Conservative Family Research Council that says, quote, but once
marriage is no longer confined to a man and a woman.
It is impossible to exclude virtually any relationship between two
or more partners of eater sex, even non human partners,
which sounds ridiculous. I mean, we we're trying to present
(19:46):
us in an unbased way. But but once again, you
know that that that also gets into the very contentious
political debate um and and religious debate. I think it
all kind of ties to together because marriage is something
that is so central to human culture right everywhere, right,
(20:07):
and so it should be a big deal. Yeah, But
treating people as second class citizens by not extending them
the same basic civil rights um as other people, does
seem a little messed up, may I say? And you know,
we've been trying to avoid going into various religious viewpoints
on this, but you know, I was raised that marriage
(20:29):
was a sacrament of the church, and it seems that
there are people who are not religious who get to
use the word marriage. So I wouldn't mind everyone getting
to have the civil union and then religious people getting
to have the marriage. And if you're too people of
the same gender, if you've got a church that's willing
to recognize that, that's one thing. And if you know
(20:51):
if you're not religious in your mail and a woman
man and a woman, just go down to the courthouse yourself.
See that still complicates things, because why do we need
to have separate categories in the first place. I mean,
I just don't I don't think we're ever going to
be able to get rid of replace marriage with something else.
You know, it's it's been around far too long. But
you know, if you just want to just cut through
(21:12):
all the all the bs, just get a domestic partnership,
well it tastes you just have to go and say
that you're over eighteen and I love each other and
sign some papers. Yes, it's so romantic, and then you
go on to get your domestic partnership and then if
you want to, if you want to break up, because
if you this was one thing I was wondering, how
do you dissolve a civil union? Is it the same way?
And according to Vermont law, sattled in the exact same
(21:35):
way as as a divorce. You know what I liked
is that, um, let's say you you have this crazy
idea to run off to Canada and get married, and
then all of a sudden you want to get divorced.
One of you has to live there for a year.
So it's very easy to get married in Canada, very
hard to get divorced, but you gotta hang out there
for a while. Year's not bad, Molly, I think, definitely
the year in Canada. But again that's OK. That's just
(21:58):
a personal thing way like Canada, which is why Molly,
I think that we should do away with husbands and
wives and spouses just call your little lovers. Oh, I
worry about marriage anyway, that's too short because of all
this cultural pressure. That's the kind of stuff we unload
every week on mom's stuff. Yes, but you know, again,
we tried to be unbiased, but I'm sure there are
(22:19):
people thought there was some strong opinions. Let us know
where we may be screwed up with our interpretation of
the law. Yeah, what you think the word should be?
Should it be lover like Kristen suggests, or should it
be something like? I don't even have a suggestion. That
we're not asking you, but if anything, we hope that
you all did find it. The legal background to its
interesting is Molly and I did because now I know
(22:40):
the difference between a marriage and a civil union, and
it's all about state and Federal Disunion. I guess yeah,
and I know a lot more about the laws regarding sodomy.
Always handy, always a good party conversation trick. How about
that sodomy? Do you know your laws regarding sodomy? Okay,
on that note, let's just yeah, let's do it is
a subject because it's getting it's getting awkward in this studio.
(23:03):
Let's do some listener mail. Okay, all right, I have
um an email here from a young man Andy. So.
Andy was circumcised as a baby and he is now
in the process of regrowing his foreskin, which we uh
talked about in the show. We said that it was possible,
but we really didn't go into too much detail about it.
(23:24):
So Andy says that he wears a silicon device that
pulls his foreskin taught and slightly stretches it. Said, over time,
a period of a year or two, this constant stretching
will actually grow new skin. As the foreskin cells are stretched,
new ones actually grow in the gaps, making the stretching permanent.
The tugger that he wears can be comfortable, uncomfortable at times,
and sometimes he has to take it off, and in
(23:45):
general he tries to wear it close to twenty four
hours a day if possible. He says, I'm in the
middle of the process and can see a distinct and
remarkable growth of the foreskin, the glands change from a cracked,
dry skin ouch to a smoother, healthier looking and feeling skin,
and overall he was very dispointed that he was circumcised
as a child and hopes that parents will leave the
(24:06):
decision to their baby boys when they grow up. Kind interesting. Thanks, Andy,
I've got another circumcision email from Stewart who says, unlike
my father, I was not circumcised. Our family doctor at
the time recommended against it, and at this point in
my life, I'm very grateful my parents listened to the
medical professional. But I did not always have this opinion.
Growing up in the mid eighties as an uncircumcised, uncircumcised boy,
(24:28):
I was very awkward. The first time I used the
communal showers after gym class was traumatic of my entire class.
I was then only boy with hoar skin, so I
was the freak for quite a while. However, with the
number of circumcisions steadily decreasing and access to information far
greater than back then, I surmised that the new generation
of men won't suffer the same treatment. So to those
fathers out there insisting on circumcising their sons so they
don't suffer the same hum humiliation they witnessed dished out
(24:50):
or themselves received, times have changed, don't worry about it.
He writes that from my experience, I concur with your
statement that cleanliness is the most important thing for a
parent to teach their new baby boy. And then this um,
why do you write sipping a little bit, Stewart, remember
your old circumcision index that you formulated. Christen Stewart writes that,
you know, we mentioned that circumcisions were done in the
(25:12):
US partially because of the recession, but they're also dramatically
done in Canada, which, as you know, has a social
health care system where the procedures free. Here, it would
indicate that a lack of money may not be a
major reason more parents and Western cultures are choosing to
forego the procedure. So much for the circumcision index, But
if there are other things that we've said you'd like
to prove or disprove, send us an email. Mom Stuff
(25:34):
at how stuff works dot com. Check out our blog
how to stuff, where we write daily on how to
do things. Should you ask for anything more useful? No,
I'm shaking my head and she has. And if you
just want to learn more about marriage and all the
cultural weight that that implies, head on over to how
stuff works dot com for more on this and thousands
(25:58):
of other topics. Is a how stuff works dot Com.
Want more how stuff works, check out our blogs on
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Brought to you by the reinvented two thousand twelve Camray.
It's ready. Are you welcome to Stop mom? Never told you?
From house Stop works dot Com. Hey, and welcome to podcast.
This is Molly and I'm Kristen. Kristen. We are in
(00:20):
the first week of November. This time we're recording this podcast.
We had big elections this week. It was an off
your election, but still lots of things that garnered headlines,
including a vote in Maine. Yeah. Kind of well, depressing
vote in Maine. It depends on your point of view.
That's what we're gonna get into. Voters decided to repeal
Maine's new law allowing gay men and lesbians to wed
(00:42):
and it was kind of a shock. People thought, you know, Maine,
pretty liberal state, very libertarian. Uh, they're gonna be okay
with with staying out of this debate. Yeah, because New
England has been the hub so far of the gay
marriage movement. Um So, like you said, they thought that
Maine would be pretty solid, especially when you consider or
that someplace like Iowa, which we would think Midwest a
(01:03):
little more conservative just past um uh same sex marriage
law as well. This year, But there was no no
referendum on that, so christ And obviously this is a
contentious issue. We can't make any sort of case about
whether what's right what's wrong, And we definitely want to
stay out of religious reasons for why people may support
or not support this type of marriage. But we wanted
(01:23):
to talk today about the difference between a civil union
and marriage. Yeah, and this I was curious about this.
I've been curious about this for a while because, for instance,
you hear a lot of politicians, including Obama, say things
on the campaign trail like, you know, I'm all for
civil unions. I think that's great, but I think that
(01:45):
marriage is between a man and a woman, and so
it kind of makes it sound like it's just an
argument in semantics, like who cares whether or not marriages
applies to a man and a woman or a man
and a man or two women. Doesn't really matter. So
I wanted to know legally, what is is the background
of all of this, So, like you said, we're not
We're gonna stay out of politics and religion as much
(02:06):
as we can and really focus on the legal background
to marriages, civil unions, and a little bit of domestic
partnership thrown in as well. Yeah, we don't want to
offend anyone religiously today. We just want to offend lawyers
with our with our interpretation of the law and the Constitution.
So let's start off just with the stuff we found
(02:26):
about definitions of civil unions versus marriage. Yeah, and a
lot of this starts in with the passage of the
Defense of Marriage Act, and that was signed it a loss,
surprisingly by the very liberal um Bill Clinton, and it
basically stipulated that for all federal legal purposes, marriage is
a union between one man and one woman defined as spouse.
(02:49):
And not only that, but it's stipulated that states cannot
um basically enforce their same sex marriage laws onto other states.
So for instance, if I go to Iowa and I
get married, if I come back here to Georgia, Georgia
does not have to recognize my same sex marriage right.
And because it's on the federal level, you also don't
(03:10):
get the right to federal benefits that married couples do. Yeah,
there are This is according to fact checked up dot org.
There are three main provisions UM that differentiate marriage and
civil unions, and the first one is taxes UM. Because
couples in a civil union can file a joint state
tax return, but they must file federal tax returns as
(03:32):
single people. Right, And that's just one of the one thousand,
one thirty eight federal laws affect married couples that wouldn't
affect someone who got married in Iowa, let's say. And then, UM,
you also have issues with health insurance UM. According to
uh GLAD organization, it comes down to what's governed by
state law and what's subject to federal oversight. So it
(03:53):
gets a little complicated, but basically, if a private employer's
health plans are subject to let's say Massachusetts state insurance laws,
then the benefits have to be extended to the same
sex spouse or if the health plan is governed by
the federal law, on the other hand, the employer can
choose whether or not to extend such benefits. So you're
gonna see this theme a lot state versus federal law.
(04:13):
And the last big one is social Security survivor benefits.
You know, if you're a married couple, then you have
the right to the social security based on earnings that
the married couple rather than just the person who's still
livings earnings, and so you're not eligible for that UM
if you have the same sex marriage in a state
that allows it. Yeah, And um, like you said, this
(04:33):
is these are just broad categories because there are over
a thousand different federal laws in the books that have
um provisions specifically for married people, which under the Defense
Marriage Act, applies only to a man and a woman
who are spouses. Now, Christen said, there are three things
that differentiate civil unions and marriage, And those first two
(04:55):
they're prey concrete. The third one is a little bit
more nebulous because it all comes down to the terminology
of marriage. And I think that this will be the
aspect we spend the least amount of time, because this
is when you get into maybe a religious viewpoint on
what is the marriage? You know, is a marriage specifically
for a man and woman to raise a child as
it's sort of historically been. Um, is it a religious
(05:15):
sacrament because you're doing it in a church or religious setting. Yeah,
So what exactly does the word mean to a person
who can do it and a person who is prohibited
from doing it? Now, you know, some people say, well,
I want this word to apply to me because it
has all this cultural weight, and others are saying, well,
this civil union should be good enough for you because
you have these rights and not those rights, right, But
(05:37):
at the same time, like if you don't allow someone
to I mean, a marriage is the most public pronouncement
of your commitment to someone that you can make. So
by virtue of that, like a civil union is kind
of like just having a civil union seems like second place. Yeah,
second place, just leftovers of you know, it's not it's
(05:57):
not quite there. But I don't think we can make
any sort of you know, decision on this terminology. We
really can't change the cultural weight of marriage. So we
wanted to look at what we could look at just
from you know, the least biased point of view, and
we decided that that was to go over the old bass. Yeah.
The Constitution. Yeah, I was kind of surprised. I'm looking
at the legal precedents that have led us up to
(06:19):
um this big landmark cases UM in Massachusetts for instance,
where they first uh legalized civil unions, and I was
surprised that it all comes down to this question of
whether or not the Constitution grants us a right to privacy,
because there is no place that explicitly states, you know,
citizens the US are have a right to privacy. Yeah,
(06:42):
so it all has to do with judicial interpretation of
the constitution right. And this is you know, like Kristen said,
I was surprised that it all came down to this
right as well, because I'm used to hearing about right
to privacy UM in relation to abortion often. I've got
legal scholars whould tell me, you know, a case like
row b. Wade is not well structured because we have
no constitutional right to privacy. And this is the same
argument that UM underlies this whole issue. So let's start
(07:06):
off with one of the biggest cases that says that
we do have some sort of fundamental privacy as US citizens,
and that's Grizzwold to be Connecticut. And we should say
that this information is coming from the Pew Research Center,
which is a nonprofit, nonpartisan research group. So with that
Grizzwold versus Connecticut nineteen sixty five, this is all about
(07:29):
Connecticut law prohibiting the sale and use of birth control.
And so this was the case charging that that was
unconstitutional because it intruded on the right to marital privacy right.
And so in ryan this majority opinion that Justice Waymo
Douglas asserts that that that married couples. Do you have
a right to privacy? Not because the Constitution says it,
(07:50):
but because that there are provisions sort of relating to
it that you could say now applied to this modern standard,
like if we have a third Amendment right to refuse
to quarters all just during peace time, then that means,
you know, you have some sort of right to close
your door to the world and say, you know, I'm
not letting you in. And he says that what amendments
like that do are cast pannumbras or shadows onto where
(08:14):
we can reasonably believe them to exist, the home being
one of them. And then in nineteen sixty seven, we
have another famous case UM Loving versus Virginia, and this
was a challenge to a Virginia law banning interracial marriage.
And I thought that this case was really interesting because
some people have compared UM the this question over gay
(08:34):
marriage to um uh interracial marriage back in the day
when it was illegal for UM blacks and whites to mary.
It was sort of the same argument of separate med
equal being treated like second class citizens and UM. The
court ruled that the law violated the Fourteenth Amendment equal
protection clause, and I thought that this was um interesting
(08:56):
from Chief Justice Earl Warren. He wrote, the freedom to
marry has long been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness by
free men. Marriage is one of the basic civil rights
of men, fundamental to our very existence and survival. Yeah,
so some pretty weighty stuff. That weighty stuff. But then
(09:17):
I mean, you've got people who come in and say
survival means that it's a man and a woman having
children to continue the species. So it's still I don't know,
so it's it's so loaded. Still get down to semantics.
Semantics alright, Christen, let's turn away from semantics to everyone's
favorite subject, sodomy. Alright, something that happened in our own
backyardsnomy and Georgia. Sonomy and Georgia. That is where we're
(09:39):
doing our podcast today. So it so let's give our
our history a shout out with the case case of
Bowers versus Hardwick. Yeah, not the not the best historical
shout out to Atlanta because basically, the Atlanta police arrested
um a gay couple for having consensual sex um in
their in their homes. Awesome Atlanta. Unfortunately, Georgia at the
(10:01):
time had some anti sodomy laws, as did many states.
Uh leftover relics and um, you know, the state dropped
its case against Hardwick, but Hardwick suthed the state, alleging
that it was a criminal act to come into his
home violates his constitutional right to privacy if he's doing
this in his home consentually, And in a five to
four ruling, the Supreme Court rule that the constitutional right
(10:22):
to privacy did not protect the right to have private,
consensual sex with a person of the same gender, which
to me, that kind of blows my mind because it
is not until two thousand three with the case of
Lawrence v. Texas that it takes on the similar sodomy laws.
And then the Supreme Court finally overruled the Bowers decision
(10:42):
and invalidated not only texas Is anti sodomy laws, but
all state anti sodomy laws two thousand and three. Molly, Well,
they're saying that in that time, that was when states
were like, oh, we didn't realize we had all these
sodomy laws. You know, times have changed. Okay, now we'll
admit sodomy's okay, but I do want to go back. Um,
you know, it was a bitterly divided opinion Powers versus Hardwick,
and I did like this thing from the dissent of
(11:05):
in that opinion, Justice Blackman, who wrote that by just
focusing on the homosexual aspect of the sodomy you were
distorting the ultimate question before the court by ignoring the
fact that the George's Statue outlooks outlaws sodomy between heterosexuals
as well as homosexuals. But the case actually concerned, he wrote,
was the most comprehensive of rights and the right most
valued by civilized men, namely the right to be let alone.
(11:28):
So by focusing the case on whether you could in
fact have sodomy, it just it distorted the cases his opinion. Yeah,
And then, um, I think there's also an interesting point
that Justice Kennedy makes when he was writing on the
Lawrence versus Texas decision in two thousand three, and he
said that gay people have quote liberty under the due
process clause. It gives them the full right to engage
in intimate conduct without intervention of the government. Now, the
(11:52):
thing is that all these cases of course garnered attention
and criticism because you're always going to have this argument. Um,
of how much a edge can change law and how
much a judge is just supposed to interpret the law.
And a lot of these cases that we've mentioned have
been criticized um as cases of judicial activism, where these
judges are finding things that really don't exist in the
(12:12):
Constitution and and putting them in place. So it's worth
mentioning that even though we're citing these as, you know,
the standards, not everyone who agree that these are the
best standards. Yeah, I mean, I also don't know how
you how a judge can on at some point revise
the law based on interpretation, not because of what is
explicitly stated in the Constitution, because or else we would
(12:35):
have so many antiquated laws on our books and our
society would be even more backward than it already is.
But that's the kind of statement that I'm hoping the
constitutional people write in and tell us why, why that's
a wrong idea? Yeah, what's what's so come on constitutional leverage?
What's use? Um So, that though, takes us up to
a very landmark case just Goodridge versus the Massachusetts Department
(12:58):
of Public Health. And this is when the Massachusetts Supreme
Judicial Court rule that the state's constitution requires the government
to offer quote the protections, benefits, and obligations conferred by
civil marriage. Civil marriage. Note that's civil to two individuals
of the same sex who wish to marry. Big deal.
(13:21):
This is a big deal. And in writing for the
majority of the Chief Justice Margaret Marshall held that denying
marriage benefits to same sex couples violated the state constitution
because it didn't accomplish a legitimate government goal. And by that,
the Court explained that the reasons the government offered for
banning same sex marriage um in terms of like promoting procreation,
(13:41):
ensuring good child rearing environment, and preserving the state's financial resources,
which are all basically why we have the government institution
of marriage right now. Um, it would not be promoted
by prohibiting same sex couples to marry, because you can't
say that two people of the same sex in a
marital relation and ship could not still provide all of
those things, even though some of them just claim that
(14:04):
it will. Yeah, but again, that's not the argument we're
gonna make. So they're saying that you can't condemn a
lifestyle as a constitutionally adequate reason for denying marriage benefits
it doesn't affect these other couples. So if you were
to say no, you can't do this, that is a
constitutional violation. Yeah. And so then after after Massachusetts, we
(14:24):
have UM other states in New England who also UM
pass laws allowing civil unions. And now we also have
states that like Iowa, that allow same sex marriage. And
most recently, I think the most famous UM court case
that has come up was UH in last year's elections
with a very contentious Proposition eight issue, where California had
(14:46):
passed a law to allow same sex marriage, and then
UM anti gay marriage activists UM pushed the sing called
Proposition eight onto UH the ballot that year, and they
had a referendum and the people voted down the same
sex marriage legislation. Yeah, and I thought that you pointed
(15:07):
out a pretty interesting difference between the good Ridge and
California decisions. UM. The Massachusetts court and good Ridge found
a right to same sex marriage on the ground that
there's no rational basis for denying marital rights to same
sex couples, but the California court went significantly further, elevating
gays and lesbians to have the same protected legal status
as racial minorities and women. So it just ties in
(15:28):
how you view this battle, I think. But you know,
one thing we kind of scripped over christen Um was
what happened in Hawaii in the ninety nines, and that's
how we we sort of got DOMA in the first place.
The Defensive Marriage Act, yes that you had read earlier. UM. Basically,
Hawaii had interpreted their constitution to show that same sex
couples did receive the same rights and benefits of marriage.
(15:48):
And this sort of freaked people out because they thought
everyone would just fly to Hawaii and come back with
a merritor certificate that they were going to have to
honor as a state. I mean, that sounds like it
could be really good for Hawaii tourism, but I be
not so good for people when they came back and
wanted you know, the tax breaks, um, the Social Security benefits, etcetera.
So that's why there was this push to have this
(16:08):
federal mandate that you know, if if you came back
with the marriagtuch to gate from Hawaii, you know it's
not go. CRASCA didn't have to recognize it. UM. So
that brings us pretty much up to Maine in the
present day and so right now on the books, what
we've got in the United States, our Massachusetts, Connecticut, Iowa, Vermont,
and New Hampshire begins in January one, two thousand and ten,
(16:30):
to allow same sex couples to marry and have no
residency requirement. In addition, the Netherlands, Belgium, Spain, South Africa, Norway,
and Sweden allows same sex couples to marry, but most
of these countries have requirements, so you really can't fly
in just for a Belgian wedding and some and some
fries and some beer and then leave and and have
it recognized. But Canada has become this icon of a
(16:54):
place where you can get married, have no residency requirement
and then um, if you go home, the mary will
be recognized in Massachusett, Connecticut, Iowa, Vermont, and New Hampshire
starting in yeah and right now at least six states
outside of New England have same sex marriage bills before
their legislature for this legislative term, but uh, none are
(17:15):
expected to pass. And see this gets into you know,
there's I think this conversation right now about how you
go about getting um gay marriage to be allowed more places.
They're trying to do this state by state thing, and
you know, the New York Times is trying that this
main decision has some people thinking that this is not
the right tap to take, But you don't want to
(17:36):
just go straight to the Supreme Court and risk of
them outlying it forever. More right, It's such a complicated
UM issue when you start looking at all of the
legal background, because while it does seem like, you know,
the best fixed would be something akin to Roe v. Wade,
you know, making a federal statue that legalizes gay marriage
across you know, all fifties states at the same time.
(17:57):
That would also take away from state sovereignty, which is
very important for our democracy as well. Yeah, but we're
no legal scholars, which is why I thought this was
pretty you know, interesting to look back at the history
of the lego part. And I'm hoping our listen listeners
will write in not so much with a religious defense
of one position or another, but just how you think
this shakes down legally. Samalia I ran across also UM
(18:20):
an interesting paper written by a Yale legal scholar who
suggested that instead of same sex marriage, she thinks that
the language is just it's it's it's problematic. Um and
she suggests that and says, same sex marriage, we should
call it genderless marriage. UM. And she says because for
two reasons. She says, first, nowhere in the world is
marriage defined legally, socially, or otherwise as a union of
(18:42):
two persons of the same sex. Is defined either as
the union of any two persons, as in Massachusetts, or
as the union of a man and a woman, as
in UM with the forty forty nine states outside of Massachusetts.
And she says, second, when people confront the marriage issue,
the term same sex marriage and others like it will
offer and prompt them to think of a new, different
and separate marriage arrangement or institution like civil unions, UM,
(19:06):
that will co exist with the old man woman marriage institution.
But she thinks that with generalist marriage there can really
only be it can apply to everyone. Right, although you
did send me um some information UM from the other
side about how opening up that definition is like a
slippery slope of you know, according to some people, will
eventually people want to marry like a horse. Right. That
(19:26):
was from Yeah, that was a clip from the family
very Conservative Family Research Council that says, quote, but once
marriage is no longer confined to a man and a woman.
It is impossible to exclude virtually any relationship between two
or more partners of eater sex, even non human partners,
which sounds ridiculous. I mean, we we're trying to present
(19:46):
us in an unbased way. But but once again, you
know that that that also gets into the very contentious
political debate um and and religious debate. I think it
all kind of ties to together because marriage is something
that is so central to human culture right everywhere, right,
(20:07):
and so it should be a big deal. Yeah, But
treating people as second class citizens by not extending them
the same basic civil rights um as other people, does
seem a little messed up, may I say? And you know,
we've been trying to avoid going into various religious viewpoints
on this, but you know, I was raised that marriage
(20:29):
was a sacrament of the church, and it seems that
there are people who are not religious who get to
use the word marriage. So I wouldn't mind everyone getting
to have the civil union and then religious people getting
to have the marriage. And if you're too people of
the same gender, if you've got a church that's willing
to recognize that, that's one thing. And if you know
(20:51):
if you're not religious in your mail and a woman
man and a woman, just go down to the courthouse yourself.
See that still complicates things, because why do we need
to have separate categories in the first place. I mean,
I just don't I don't think we're ever going to
be able to get rid of replace marriage with something else.
You know, it's it's been around far too long. But
you know, if you just want to just cut through
(21:12):
all the all the bs, just get a domestic partnership,
well it tastes you just have to go and say
that you're over eighteen and I love each other and
sign some papers. Yes, it's so romantic, and then you
go on to get your domestic partnership and then if
you want to, if you want to break up, because
if you this was one thing I was wondering, how
do you dissolve a civil union? Is it the same way?
And according to Vermont law, sattled in the exact same
(21:35):
way as as a divorce. You know what I liked
is that, um, let's say you you have this crazy
idea to run off to Canada and get married, and
then all of a sudden you want to get divorced.
One of you has to live there for a year.
So it's very easy to get married in Canada, very
hard to get divorced, but you gotta hang out there
for a while. Year's not bad, Molly, I think, definitely
the year in Canada. But again that's OK. That's just
(21:58):
a personal thing way like Canada, which is why Molly,
I think that we should do away with husbands and
wives and spouses just call your little lovers. Oh, I
worry about marriage anyway, that's too short because of all
this cultural pressure. That's the kind of stuff we unload
every week on mom's stuff. Yes, but you know, again,
we tried to be unbiased, but I'm sure there are
(22:19):
people thought there was some strong opinions. Let us know
where we may be screwed up with our interpretation of
the law. Yeah, what you think the word should be?
Should it be lover like Kristen suggests, or should it
be something like? I don't even have a suggestion. That
we're not asking you, but if anything, we hope that
you all did find it. The legal background to its
interesting is Molly and I did because now I know
(22:40):
the difference between a marriage and a civil union, and
it's all about state and Federal Disunion. I guess yeah,
and I know a lot more about the laws regarding sodomy.
Always handy, always a good party conversation trick. How about
that sodomy? Do you know your laws regarding sodomy? Okay,
on that note, let's just yeah, let's do it is
a subject because it's getting it's getting awkward in this studio.
(23:03):
Let's do some listener mail. Okay, all right, I have
um an email here from a young man Andy. So.
Andy was circumcised as a baby and he is now
in the process of regrowing his foreskin, which we uh
talked about in the show. We said that it was possible,
but we really didn't go into too much detail about it.
(23:24):
So Andy says that he wears a silicon device that
pulls his foreskin taught and slightly stretches it. Said, over time,
a period of a year or two, this constant stretching
will actually grow new skin. As the foreskin cells are stretched,
new ones actually grow in the gaps, making the stretching permanent.
The tugger that he wears can be comfortable, uncomfortable at times,
and sometimes he has to take it off, and in
(23:45):
general he tries to wear it close to twenty four
hours a day if possible. He says, I'm in the
middle of the process and can see a distinct and
remarkable growth of the foreskin, the glands change from a cracked,
dry skin ouch to a smoother, healthier looking and feeling skin,
and overall he was very dispointed that he was circumcised
as a child and hopes that parents will leave the
(24:06):
decision to their baby boys when they grow up. Kind interesting. Thanks, Andy,
I've got another circumcision email from Stewart who says, unlike
my father, I was not circumcised. Our family doctor at
the time recommended against it, and at this point in
my life, I'm very grateful my parents listened to the
medical professional. But I did not always have this opinion.
Growing up in the mid eighties as an uncircumcised, uncircumcised boy,
(24:28):
I was very awkward. The first time I used the
communal showers after gym class was traumatic of my entire class.
I was then only boy with hoar skin, so I
was the freak for quite a while. However, with the
number of circumcisions steadily decreasing and access to information far
greater than back then, I surmised that the new generation
of men won't suffer the same treatment. So to those
fathers out there insisting on circumcising their sons so they
don't suffer the same hum humiliation they witnessed dished out
(24:50):
or themselves received, times have changed, don't worry about it.
He writes that from my experience, I concur with your
statement that cleanliness is the most important thing for a
parent to teach their new baby boy. And then this um,
why do you write sipping a little bit, Stewart, remember
your old circumcision index that you formulated. Christen Stewart writes that,
you know, we mentioned that circumcisions were done in the
(25:12):
US partially because of the recession, but they're also dramatically
done in Canada, which, as you know, has a social
health care system where the procedures free. Here, it would
indicate that a lack of money may not be a
major reason more parents and Western cultures are choosing to
forego the procedure. So much for the circumcision index, But
if there are other things that we've said you'd like
to prove or disprove, send us an email. Mom Stuff
(25:34):
at how stuff works dot com. Check out our blog
how to stuff, where we write daily on how to
do things. Should you ask for anything more useful? No,
I'm shaking my head and she has. And if you
just want to learn more about marriage and all the
cultural weight that that implies, head on over to how
stuff works dot com for more on this and thousands
(25:58):
of other topics. Is a how stuff works dot Com.
Want more how stuff works, check out our blogs on
the house. Stuff works dot com home page. Brought to
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