Supreme Court puts stay on same-sex marriage in Utah

posted at 12:01 pm on January 6, 2014 by Ed Morrissey

The US Supreme Court unexpectedly intervened today to block enforcement of a federal district court ruling that invalidated Utah’s definition of marriage as between one man and one woman. The move effectively halts any same-sex marriages in the state while the case proceeds to the 10th Circuit Court of Appeals, a stay that the presiding federal judge refused to grant:

 The Supreme Court has put same-sex marriages on hold in Utah, at least while a federal appeals court more fully considers the issue.

The court issued a brief order Monday blocking any new same-sex unions in the state.

The order follows an emergency appeal by the state following the Dec. 20 ruling by U.S. District Judge Robert Shelby that the state’s ban on same-sex marriage violates gay and lesbian couples’ constitutional rights.

The stay was issued en banc from the Supreme Court — and unanimously:

The state’s stay application was made to Justice Sonia Sotomayor, who referred the decision to the whole court, according to the order issued Monday.

Is this a hint as to how the Supreme Court will rule down the line?  Probably not, although it at least expresses their desire for a more careful approach through the federal courts.  The effect of Shelby’s ruling on December 20th was to impose a federal definition for marriage regardless of how Shelby justified his ruling, rather than allow states to define it for themselves.  I’d guess that the justices wanted that kind of redefinition to take place cautiously, with a lot of scrutiny, and without the pressure of having to deal with an avalanche of faits accomplis as a complicating factor.

On the other hand, this may show how the 10th Circuit is likely to approach the issue:

Sotomayor is assigned to the 10th Circuit Court, which rejected Utah’s request for a stay three times.

This may well be a rebuke from the top court to the rest of the federal judiciary about refusing stays for obviously activist decisions. I’m not sure it says anything more than that.


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And I’m sure the Justices who wrote the Dred Scott and Korematsu decisions agree with you.

Dred Scott predates the Fourteenth Amendment and Korematsu ruled the government met strict scrutiny, not rational basis. That’s not a clear-cut comparison.

A. Polyandry has never been legal/as accepted as polygyny, so it’s not a fair analysis. You’re stacking the deck. It’s as clear a case of special pleading as you’re ever going to see.

B. 99% of that history is completely irrelevant to what the contemporary US should do with social policy. Oh no, the Hittites had demographic problems because of polygyny!

Again, I think you’re twisting yourself into a logical pretzel because you don’t want to be at odds with the cultural Mandarins. Gay marriage and polygamy both involve contracts between consenting, of-age parties, but SSM is en vogue, and polygamy is still unpopular with the chattering classes, so you need to craft a flimsy “rational basis” to accept one and not the other. If you were honestly a libertarian (small or big l), you wouldn’t try to split the baby in this manner.

Good Solid B-Plus on January 7, 2014 at 11:43 PM

Neither polyandry or polygyny are legal right now yet one of them still exists and the other basically does not. Strange, that. It’s almost like everything we’ve ever learned in every society where it was allowed still holds. And if what you say is true then why was polyandry the one that was never legalized?

alchemist19 on January 7, 2014 at 11:58 PM

Ah, so that’s why alchemist didn’t respond to my last reply to him.

sentinelrules on January 7, 2014 at 11:48 PM

I didn’t bother because you weren’t making in any sense and were failing to comprehend simple English.

I explicitly stated I did not live in San Diego which you took to mean I do live in San Diego then when I was referencing upcoming court cases dealing with same sex marriage I said “probably Michigan here in a couple weeks.” I didn’t say “here in Michigan in a couple weeks.” Have you never seen the word “here” used in this context before?

alchemist19 on January 8, 2014 at 12:06 AM

Just checking in, to see how this thread is faring ….. okay, very good.
Carry on . . . . . . . .

listens2glenn on January 8, 2014 at 12:09 AM

Have you never seen the word “here” used in this context before?

alchemist19 on January 8, 2014 at 12:06 AM

And then didn’t used “here in Pennsylvania.”

Am I taking to Michigan or Pacific Coast Alchemist now?

sentinelrules on January 8, 2014 at 12:12 AM

Neither polyandry or polygyny are legal right now yet one of them still exists and the other basically does not. Strange, that. It’s almost like everything we’ve ever learned in every society where it was allowed still holds. And if what you say is true then why was polyandry the one that was never legalized?

alchemist19 on January 7, 2014 at 11:58 PM

Women don’t make very good cult leaders, I suppose, and that’s where you find most of the polygamy in this country.

Men aren’t generally fans of polyandry, and men have made the laws for almost all of history. Again, stacking the deck.

Good Solid B-Plus on January 8, 2014 at 12:22 AM

Pardon me for getting in the way of you kids and your pointless dust-up.

All of the side-debates are ancillary and extraneous to the only question which is germaine to the decision presented in this case.

A state’s constitutional definition of marriage as between one man and one woman, introduces NO HARM to a same-gender relationship on the basis of preventing them from getting the same benefits of marriage as a traditional man-woman couple. Simply put, said definition precludes the possibility of any relationship other than the traditional from being viewed as a marriage. Now, the state is free to craft any legislation it wishes for the provision of equitable benefits to alternate relationships, and then there is no basis for complaint. The Equal Protection citation is invalid, as rhetorically an infinite number of potential relationship compositions might make the same claim. If there is no boundary established, then all those claims carry equal weight. If a boundary is defined by the constitution of the state, it precludes the claims of all relationships which do not meet the definition.

The secondary problem is that all such debates will naturally devolve to the religious, no matter how much someone wishes to avoid that. And in the current state of jurisprudence, it is far more likely that the notions of a moment will win over the bedrock of history. So before anyone attempts to counter with “well, then a state which defines marriage as between one man and one woman of the same race is equally as valid?”, I find no restriction on marriage regarding race in Scripture, but many regarding any other than the traditional gender pairing. I will spend no energy on the minutiae.

If a state declares that within their borders, any non-traditional couple is barred from being considered legally married, it is absolutely discrimination. But not illegal discrimination. Saying that a man cannot marry his pet cat is equally discriminatory. But it is not bigotry.

Freelancer on January 8, 2014 at 12:23 AM

And for that matter, most women aren’t big fans of polygyny. Most of the history you’re citing refers to situations where women were forced into polygamist relations by the harsh reality of the times. That’s simply not the case anymore.

Good Solid B-Plus on January 8, 2014 at 12:30 AM

Neither polyandry or polygyny are legal right now yet one of them still exists and the other basically does not. Strange, that. It’s almost like everything we’ve ever learned in every society where it was allowed still holds. And if what you say is true then why was polyandry the one that was never legalized?

alchemist19 on January 7, 2014 at 11:58 PM

Women don’t make very good cult leaders, I suppose, and that’s where you find most of the polygamy in this country.

Men aren’t generally fans of polyandry, and men have made the laws for almost all of history. Again, stacking the deck.

Good Solid B-Plus on January 8, 2014 at 12:22 AM

Yeah, that’s not it.

The construct is much more mechanical than anything else. Multiple women can be impregnated by one man. Multiple men for one woman cannot produce more offspring than one man. Yes, the male-dominant state of much of the world through most of its history is a very large factor, but the family growth thing is much more significant.

Freelancer on January 8, 2014 at 12:31 AM

The construct is much more mechanical than anything else. Multiple women can be impregnated by one man. Multiple men for one woman cannot produce more offspring than one man. Yes, the male-dominant state of much of the world through most of its history is a very large factor, but the family growth thing is much more significant.

Freelancer on January 8, 2014 at 12:31 AM

Men can impregnate multiple women without ever getting married. And many of them do.

That argument might make sense if alchemist admitted that marriage is only an institution for the sake of childrearing/building families. But since he denies that, the point doesn’t hold water.

Good Solid B-Plus on January 8, 2014 at 12:35 AM

And then didn’t used “here in Pennsylvania.”

Am I taking to Michigan or Pacific Coast Alchemist now?

sentinelrules on January 8, 2014 at 12:12 AM

You’re talking to the one who’s wondering why you’ve diverted the discussion into something as utterly pointless as where we all live.

alchemist19 on January 8, 2014 at 12:53 AM

Women don’t make very good cult leaders, I suppose, and that’s where you find most of the polygamy in this country.

Men aren’t generally fans of polyandry, and men have made the laws for almost all of history. Again, stacking the deck.

Good Solid B-Plus on January 8, 2014 at 12:22 AM

Ok, this is getting interesting.

And for that matter, most women aren’t big fans of polygyny. Most of the history you’re citing refers to situations where women were forced into polygamist relations by the harsh reality of the times. That’s simply not the case anymore.

Good Solid B-Plus on January 8, 2014 at 12:30 AM

And the women who are in polygynous relationships right now and who might bring a court challenge, have they been forced?

alchemist19 on January 8, 2014 at 12:56 AM

Men can impregnate multiple women without ever getting married. And many of them do.

That argument might make sense if alchemist admitted that marriage is only an institution for the sake of childrearing/building families. But since he denies that, the point doesn’t hold water.

Good Solid B-Plus on January 8, 2014 at 12:35 AM

This is getting VERY interesting.

I’ve rejected the claim that marriage is all about raising children but just based on the number of times children keep getting brought up I think I’m pretty safe in saying that children are a big part of marriage for a not-insignificant portion of the population out there. For that portion of the population who think having kids is a big part of marriage would you say polygyny is more likely or polyandry is?

alchemist19 on January 8, 2014 at 1:00 AM

Freelancer on January 8, 2014 at 12:23 AM

The thing you’re overlooking is that some of the privileges that got along with marriage come from the federal government and since the feds don’t recognize civil unions and confer benefits there is a valid equal protection claim. There are two ways a gay couple could go about this: sue the feds to get their state civil unions recognized for benefits or sue the state to get married. They’re all picking option #2 for…. some reason. If you could get a bill through Congress that granted all those rights and benefits to civil unions then you’d cut the legs out from under the equal protection claims. The thing is though I think the Democrats know that and they want same-sex marriage nationwide and for that reason they would actually oppose a bill to grant federal recognition to gay couples in civil unions while Republicans support it.

So you’d have both sides trying to cynically outmaneuver the other. Wouldn’t that be an interesting fight to watch play out!

alchemist19 on January 8, 2014 at 1:05 AM

Just checking in, to see how this thread is faring ….. okay, very good.
Carry on . . . . . . . .

listens2glenn on January 8, 2014 at 12:09 AM

You might be smarter than all the rest of us put together. :)

alchemist19 on January 8, 2014 at 1:47 AM

I’ve rejected the claim that marriage is all about raising children

Marriage came into existence because any human society needs some mechanism for requiring young men who engage in sex with young women to be responsible for providing for the inevitable offspring.

Yes, that was a period. It clearly was “all about raising children” whatever other trappings were useful for achieving that goal.

You are too smart to fail to see that.

Should we now change the definition of marriage in order to reflect advances in medicine (that both extend life expectancies and make identification of fathers easier) and the growth of the all powerful State that can force the young men who have been identified as fathers to pay for the offspring?

Where is the compelling State interest that justifies increasing the burden on single people so the State can give more people marriage preferences?

Shouldn’t we consider the possibility marriage should be shut down (as a government institution) rather than expanded? What really justifies that kind of ongoing governmental discrimination against single people?

Yes, all of you traditionalists, I know your argument. I am wondering how it is justified from the other side.

fadetogray on January 8, 2014 at 8:14 AM

You’re talking to the one who’s wondering why you’ve diverted the discussion into something as utterly pointless as where we all live.

alchemist19 on January 8, 2014 at 12:53 AM

Sorry, but your lies need to be documented. They’re on 7 pages here.

sentinelrules on January 8, 2014 at 8:59 AM

Sorry, but your lies need to be documented. They’re on 7 pages here.

sentinelrules on January 8, 2014 at 8:59 AM

Sigh…

I could go to my window and see the Pacific Ocean right now and I’m not in San Diego so I’m drowning in blue. :) I didn’t say there might not be people out there who would choose if honestly given the option, I just said I don’t understand how or why they would.

alchemist19 on January 7, 2014 at 12:17 AM

The only thing you’ve successfully documented in this thread is your own lack of reading comprehension skills. If you want to put that out there for all to see then knock yourself out, champ!

alchemist19 on January 8, 2014 at 12:44 PM

fadetogray on January 8, 2014 at 8:14 AM

I support the notion of getting the government out of the marriage business altogether but my preference for that doesn’t blind me to the fact it’s highly unlikely to happen.

Initially marriage was about securing property including women who were basically chattel bought for the bride price. Then we fundamentally altered the institution of marriage.

But what’s really most important is the way the law is applied now and for now we have no link between obtaining and maintaining a civil marriage and raising children. As I’ve pointed out, we allow octogenarians to get married. We allow young but infertile people to get married. Can we revoke a marriage license issued to a young, fertile heterosexual couple if they’ve not had kids in a certain amount of time and tell them they can have their license back when the woman gets pregnant or they adopt?

Even if the people who first wrote civil marriage into law had nothing but raising children in mind it’s not how the law has ever been enforced. But now, having never enforced the law this way before, you want to apply the notion of marriage being all about producing children as justification to deny marriage licenses to only one of the many different classes of couples who cannot produce their own biological offspring. That is arbitrary and capricious.

alchemist19 on January 8, 2014 at 1:15 PM

The only thing you’ve successfully documented in this thread is your own lack of reading comprehension skills. If you want to put that out there for all to see then knock yourself out, champ!

alchemist19 on January 8, 2014 at 12:44 PM

Sorry Pacific or Michigan boy or whatever you want to say where you are now (Fallujah?), but I “look forward” to your next fabrication.

sentinelrules on January 8, 2014 at 1:27 PM

So, tell me why three gay men should not be allowed to enter into marriage?

Well, you were not asking me, but it would be a great experiment as long as we also passed severe laws against adultery. Stoning might not be necessary, but it should really hurt.

It might be a good idea to do that, anyway, polygaymarriage or not. Make divorce even easier than it is now, but pulverize infidelity. Make it so, “I can’t. I’m married,” means something more than, “You’ll have to try a bit more, at least until I’m tipsy.”

If the married guys want a woman in the marriage, too, so they’ll have someone to give the marriage babies, could any objection to that be reasonable?

However, letting men marry more than one woman may be impractical. Women are having a tough enough time already getting men to carry their fair share of the marriage burdens.

fadetogray on January 8, 2014 at 1:33 PM

I support the notion of getting the government out of the marriage business altogether but my preference for that doesn’t blind me to the fact it’s highly unlikely to happen.

If you told people thirty years ago that gays would be getting married today, they’d have called you crazy.

Part of what keeps the Left winning is people accepting endless government expansion as inevitable.

fadetogray on January 8, 2014 at 1:37 PM

Sorry Pacific or Michigan boy or whatever you want to say where you are now (Fallujah?), but I “look forward” to your next fabrication.

sentinelrules on January 8, 2014 at 1:27 PM

You have me at a disadvantage because words are all I have to make a point and you don’t seem to understand words so I’m out of options.

Look, seriously, you made a mistake. Well two mistakes actually but whatever. We’re all human, it happens to all of us. It’s fine, let it go.

alchemist19 on January 8, 2014 at 2:54 PM

If you told people thirty years ago that gays would be getting married today, they’d have called you crazy.

Part of what keeps the Left winning is people accepting endless government expansion as inevitable.

fadetogray on January 8, 2014 at 1:37 PM

People from 30 years ago may want have done that but people from 30 years ago didn’t understand sexual orientation as well as it’s understood now. It’s understandable that with the incomplete picture those people had that they drew the wrong conclusion.

alchemist19 on January 8, 2014 at 3:01 PM

You have me at a disadvantage because words are all I have to make a point and you don’t seem to understand words so I’m out of options.

Your disadvantage is a lack of brains. Let it go.

Look, seriously, you made a mistake. Well two mistakes actually but whatever. We’re all human, it happens to all of us. It’s fine, let it go.

alchemist19 on January 8, 2014 at 2:54 PM

Look, seriously, Pacific/Michigan/wherever, your PhD is in BS.

sentinelrules on January 8, 2014 at 3:51 PM

But what’s really most important is the way the law is applied now and for now we have no link between obtaining and maintaining a civil marriage and raising children. As I’ve pointed out, we allow octogenarians to get married. We allow young but infertile people to get married. Can we revoke a marriage license issued to a young, fertile heterosexual couple if they’ve not had kids in a certain amount of time and tell them they can have their license back when the woman gets pregnant or they adopt?
alchemist19 on January 8, 2014 at 1:15 PM

There is a link between heterosexual sex and marriage. You keep asserting that there is not, but there is. It is right there in the law in some states. A couple who has been married but has not consummated their marriage can have that marriage legally annulled, and their kids can have it annulled as well.

Let’s say a 20 year old lady marries a 90 year old dude and the 90 year old has kids from another marriage that should inherit all of his estate. The old dude doesn’t have a will, so if he never gets married, the kids get it all. If the kids can prove that the marriage was never consummated (perhaps because of the medical state of the 90 year old, or the 20 year old skips out after the wedding ceremony with her friends and never comes back except once she is a widow) then the kids can get the marriage annulled and she doesn’t get half. She gets nothing.

If you take away the legal requirement that a marriage has to be consummated, then you just stripped the legal rights away from those kids.

cptacek on January 8, 2014 at 6:04 PM

cptacek on January 8, 2014 at 6:04 PM

I asserted a given couple producing children has never been a requirement for obtaining a marriage license.

So you’re going back to the old very-limitedly-practiced-almost-impossible-to-discern-and-unquestionably-ironclad-Constitutional consummations laws again are you? Ok, we can do this.

First off only 13 states have consummation laws so it’s not like they’re exactly ubiquitous or that they’re even necessary to have state-sanctioned marriages. The number is even smaller than that in practice because some of those 13 like South Carolina define consummation more broadly than sexual intercourse between a man and a woman then ends when the man finishes then rolls over and goes to sleep. In South Carolina for example you can consummate a marriage by simply cohabitating even if you don’t have sex.

Same sex marriage appears to coexist fine in states that do have consummation laws; Delaware, Connecticut and Minnesota have both and it appears to not be an issue, and Illinois will be joining them shortly. In the case of Connecticut the two laws have both been in place for years and no trouble at all so far.

Then there’s the interesting issue of whether the consummation laws themselves are even constitutional. You cited an example of what appears to be 20 year old gold digger marrying a 90 year old just to get his money but that’s not the only example where inability to consummate might pop up. If instead of a 90 year old and a 20 year old you’ve got two people in their 80s or 90s (or 70s) by your standard they could never be legally married either if they don’t manage to have sex, and even if the relationship was real it would allow adult children to disinherit a legitimate partner. Age aside, there are some people who are not healthy enough for sexual activity or have some other legitimate medical condition that makes sex impossible. By your standard, no real marriage. It could very easily be arguing consummation laws restrict marriage to the young and healthy. How sure are you that such a law is going to stand up to a challenge in court?

alchemist19 on January 8, 2014 at 8:29 PM

What? States have different laws for valid marriages? That is unheard of.

/

You say that “Same sex marriage appears to coexist fine in states that do have consummation laws.” That is only true until someone challenges them in court. If someone does challenge them, then one of two things happens. Either consummation laws are overturned, which takes rights away from heirs, or gays have a different standard of being married than straights do, due to how they have sex. That is unequal treatment, isn’t it?

So if that same 20 year old in my example decides in her widowhood that she is lesbian and tries this with a 90 year old lady, then that lady’s kids have less protection than the man’s kids, in the same state. Is that fair? Is that equal protection under the law for them?

cptacek on January 8, 2014 at 9:57 PM

By your standard, no real marriage. It could very easily be arguing consummation laws restrict marriage to the young and healthy. How sure are you that such a law is going to stand up to a challenge in court?

alchemist19 on January 8, 2014 at 8:29 PM

Not just by my standard, but the standard in those states that have that law. I’m not just spouting off here, these are real world considerations that need to be taken into account when something like SSM is discussed. Which is why it shouldn’t be forced on states by the judiciary, and instead should be deliberated on in an elected body.

I guess I’m not sure that it will stand up in court if you find the right judge. I’m very disillusioned with judges lately.

cptacek on January 8, 2014 at 10:03 PM

What? States have different laws for valid marriages? That is unheard of.

/

Sure they do, but it’s not like consummation of the marriage by sexual intercourse is a common requirement.

You say that “Same sex marriage appears to coexist fine in states that do have consummation laws.” That is only true until someone challenges them in court. If someone does challenge them, then one of two things happens. Either consummation laws are overturned, which takes rights away from heirs, or gays have a different standard of being married than straights do, due to how they have sex. That is unequal treatment, isn’t it?

So if that same 20 year old in my example decides in her widowhood that she is lesbian and tries this with a 90 year old lady, then that lady’s kids have less protection than the man’s kids, in the same state. Is that fair? Is that equal protection under the law for them?

cptacek on January 8, 2014 at 9:57 PM

The idea that consummation laws are protection from families with elderly relatives who might be in their right mind (if they’re not then that is grounds for an annulment even if a marriage is consummated by sex) but still get taken in by a gold digger is interesting but even under the current law and looking only at heterosexuals then equal protection already might not exist. Both here and the last thread you brought up consummation and you gave the example of a rich old man unable to have sex with his young trophy wife where a lack of consummation and an annulment is the only thing saving this man’s children from a previous marriage the claim to the estate they think is rightly theirs. OK, now what if we reverse the gender roles? Imagine a wealthy 90 year old widowed woman who marries a strapping young 20 year old man. That marriage can most definitely be consummated and the children of that woman in your exact same scenario would lose their claim to the estate they think is rightly theirs. So in your gold digger scenarios the heirs would be safe if it was their father they were trying to inherit from but out of luck if it was their mother.

Do we have equal protection right now?

alchemist19 on January 8, 2014 at 10:54 PM

Do we have equal protection right now?

alchemist19 on January 8, 2014 at 10:54 PM

No. Single people are discriminated against routinely in law. Some people shamelessly advocate increasing that discrimination instead of eliminating it or even just reducing it.

fadetogray on January 8, 2014 at 11:25 PM

OK, now what if we reverse the gender roles?

Ok, here is my exact scenario, with roles reversed:

Let’s say a 20 year old dude marries a 90 year old lady and the 90 year old has kids from another marriage that should inherit all of her estate. The old lady doesn’t have a will, so if she never gets married, the kids get it all. If the kids can prove that the marriage was never consummated (perhaps because of the medical state of the 90 year old, or the 20 year old skips out after the wedding ceremony with his friends and never comes back except once he is a widower) then the kids can get the marriage annulled and he doesn’t get half. He gets nothing.

Same argument. Equal protection for both scenarios.

cptacek on January 8, 2014 at 11:56 PM

No. Single people are discriminated against routinely in law. Some people shamelessly advocate increasing that discrimination instead of eliminating it or even just reducing it.

fadetogray on January 8, 2014 at 11:25 PM

You bet they are. I wrote this before I got married about 6 years ago, at my previous company:
Single people sure get hosed on insurance

At least in my company, they do. Ok, up front, my company gives good benefits. I am not comparing my benefits with someone who is self employed. I am also not comparing my benefits with someone who works for a school, or a bank, or even another IT shop or aircraft company. I am comparing my benefits with two other groups of people who work at the same company as me: married couples/families and same-sex couples/families.

I am looking through the benefits package for next year because the open enrollment is right now. I have to decide what I am going to choose for the first month for me, and what I am going to choose for my fiance and I when we get married.

I pay ~$1000 a year for health insurance for me. When I add him on, it will only be another $700. The vision insurance doesn’t go up at all. The dental plan goes up by less than half. Why is that? How come he gets a better rate than I do? I mean, that is great for US, but really, how come someone who doesn’t work for the company have to pay $300 less for the year compared to someone who does? So, the married couple gets a $300 break compared to the single person (in this company).

While looking this up, I saw a link for same-sex couples. I’d never looked into that before, but I was curious as to what the requirements were for them to get benefits and what it takes to change the benefits if they break up.

It turns out that my fiance and I either meet, or could meet within a day, all the requirements except one. Here are the requirements:

1. We have had a single relationship of at least 12 months duration and intend to remain in the relationship indefinitely. (Yep)
2. Neither of us is married to or legally separated from anyone else nor have had another same sex domestic partner within the prior one year period.
(Yep)
3. We understand that in those jurisdictions which offer registration for same sex domestic partners, the Company reserves the right to request proof of registration as a condition for or continuation of benefits. (I’d say this is a toss up. Kansas doesn’t have one, so this doesn’t apply)
4. We are both at least eighteen years of age and mentally competent to consent to contract.
(Yep)
5. We are not related by blood to a degree of closeness that would prohibit legal marriage in the state in which we legally reside.
(eew. And yep)
6. We cohabit and reside together in the same residence and intend to do so indefinitely. (The current arrangement will be the same as when we are married. I am at his house Thursday night – Monday morning, and work Monday – Thursday, so stay here Mon, Tue, Wed nights. The same will happen when we are married)
7. We are engaged in a committed relationship of mutual caring and support and are jointly responsible for our common welfare, living expenses and are financially interdependent and recognize our responsibilities for any debts incurred by each other. Our interdependence is demonstrated by at least two of the following which we agree to provide documentation of, if requested, and as a necessary condition to the initiation of benefit coverage:
a. Common ownership of real property (joint deed or mortgage agreement) or a common leasehold interest in property.
b. Common ownership of a motor vehicle (we could by tomorrow)
c. Driver’s license listing a common address
(we could by tomorrow)
d. Joint bank accounts or credit accounts
(we could by tomorrow)
e. Proof of designation as primary beneficiary for life insurance or retirement benefits, or primary beneficiary designation under a partner’s will
f. Assignment of a durable property power of attorney or health care power of attorney.
8. We are not in the relationship solely for the purpose of obtaining benefits coverage.
(yep)
9. We are of the same sex.
NOPE.

So, we meet all the requirements (or could by tomorrow) except we are not of the same sex. If it got him health insurance, since he doesn’t have any now, I would do all of those things tomorrow.

I called the benefits office to see if I was overlooking anything, and the nice lady (really, she was nice) said that there was nothing for my situation, and that she gets calls about this all the time. I said, “that’s kind of discrimination, isn’t it?” and she couldn’t say she agreed with me, but she sure did imply it.

She then said that Kansas is a common-law state, so we could declare our situation common-law married. But then, if we broke up, we would have to get a divorce…lawyer fees, court dates, etc.

Here is what the same-sex couple has to do: sign a paper saying:
1. We are no longer same sex domestic partners
2. Please cancel the coverage on this date
3. I have provided my former same sex partner with a copy of this notice
4. I understand that I may not seek to declare a new same sex domestic partner for company provided benefits for a period of twelve months from the date on which the same sex domestic partner benefits are terminated.

I think both situations are unfair to the single person. If there is a married person, a person in a same sex relationship and a single person doing the same job for this company, even if they all have the same salary, the married person and the gay/lesbian person gets more compensation than the single person does because of the benefits they receive.

cptacek on January 9, 2014 at 12:04 AM

Ok, here is my exact scenario, with roles reversed:

Let’s say a 20 year old dude marries a 90 year old lady and the 90 year old has kids from another marriage that should inherit all of her estate. The old lady doesn’t have a will, so if she never gets married, the kids get it all. If the kids can prove that the marriage was never consummated (perhaps because of the medical state of the 90 year old, or the 20 year old skips out after the wedding ceremony with his friends and never comes back except once he is a widower) then the kids can get the marriage annulled and he doesn’t get half. He gets nothing.

Same argument. Equal protection for both scenarios.

cptacek on January 8, 2014 at 11:56 PM

Are you preaching the merits of a consummation law in and of itself or are you somehow trying to tie this to marriage rights for homosexuals?

alchemist19 on January 9, 2014 at 1:08 AM

cptacek on January 9, 2014 at 12:04 AM

More likely than not that in the next decade same-sex couples will soon have the joy of jumping through all the same hoops and paperwork that everyone else does. :)

It’s not surprising that it appears that he’s getting a lower rate than you, and when you break it does he really isn’t. The lower rates you’re seeing is because married people tend to be more stable and risk-averse and insurance companies recognize that so you’re rewarded with a lower rate as a couple than either of you would pay as individual single people. It’s not just health insurance either; in many states your car insurance rate also goes down if you’re married for the exact same reason.

alchemist19 on January 9, 2014 at 1:43 AM

The lower rates you’re seeing is because married people tend to be more stable and risk-averse and insurance companies recognize that so you’re rewarded with a lower rate as a couple than either of you would pay as individual single people. It’s not just health insurance either; in many states your car insurance rate also goes down if you’re married for the exact same reason.

alchemist19 on January 9, 2014 at 1:43 AM

Exactly. They discriminate against single people. If this was being done to a different group, like gays, would you think that is something to be encouraged by government?

If, say, African-Americans tended to be less stable and less risk averse than other racial groups in America, would there be laws protecting African-Americans from the insurance companies choosing to use their being African-American to charge them more money instead of charging individuals more or less based on what they as individuals do in terms of instability and riskiness?

Grouping people to target some for discrimination instead of looking to their individual behavior can be easy and convenient, but is that something government should be encouraging?

Why is it okay to discriminate against single people? Why do you want to increase that discrimination?

fadetogray on January 9, 2014 at 6:02 AM

I think both situations are unfair to the single person. If there is a married person, a person in a same sex relationship and a single person doing the same job for this company, even if they all have the same salary, the married person and the gay/lesbian person gets more compensation than the single person does because of the benefits they receive.

cptacek on January 9, 2014 at 12:04 AM

The lower rates you’re seeing is because married people tend to be more stable and risk-averse and insurance companies recognize that so you’re rewarded with a lower rate as a couple than either of you would pay as individual single people. It’s not just health insurance either; in many states your car insurance rate also goes down if you’re married for the exact same reason.

alchemist19 on January 9, 2014 at 1:43 AM

Yes, that is probably the reason that insurance companies decided that. Their actuaries have to be pretty good, or else they would go out of business. But that doesn’t mean that the single person isn’t getting less compensation from their company. Their company could give them another $300+ in salary to make up for it, if that wasn’t declared “unfair” by everyone else.

cptacek on January 9, 2014 at 9:22 AM

There is a link between heterosexual sex and marriage. You keep asserting that there is not, but there is. It is right there in the law in some states. A couple who has been married but has not consummated their marriage can have that marriage legally annulled, and their kids can have it annulled as well.
cptacek on January 8, 2014 at 6:04 PM

Are you preaching the merits of a consummation law in and of itself or are you somehow trying to tie this to marriage rights for homosexuals?

alchemist19 on January 9, 2014 at 1:08 AM

Both. Heterosexual sex is a fundamental part of marriage, and laws reflect that, with legal consequences if it is not engaged in.

cptacek on January 9, 2014 at 9:29 AM

Both. Heterosexual sex is a fundamental part of marriage, and laws reflect that, with legal consequences if it is not engaged in.

cptacek on January 9, 2014 at 9:29 AM

By virtue of the fact 37 states have marriage laws where lack of consummation isn’t grounds for an annulment I don’t know how that passes muster as “fundamental” but whatever, let’s look at the states that do have a law.

Let’s go back to your gold digger example. You didn’t make it as simple as a lack of consummation in those states that narrowly define consummation as sex and not some other act like cohabitation. You started throwing out other potentially mitigating things like the gold digger blowing out after the ceremony and never being seen or heard from again until the old timer (who is apparently fine with this situation and never writes a will) kicks off. First off if you’re a gold digger who’s gone to all the trouble of seducing someone for the express purpose of inheriting their estate and you split the scene before consummating it in one of those few states where consummation is grounds for an annulment then you’re a pretty stupid gold digger. If it were me I would have pulled out my phone and made a video of the act just to remove all doubt, but whatever.

Rather than get bogged down with other details about the new young spouse of questionable motives and character, let’s focus on the one thing that’s germane to your argument: was the union physically consummated? I’m not aware of a consummation law that says the sex has to last for a certain amount of time or even that is has to be any good; to use a football analogy, the ball just has to break the plane. The man might also be required to finish (if so does it still count if you use condoms?). In a Viagra-free world where “Did sex occur?” is the only issue it might be possible to make a valid claim in your example because more is required of the man and at a certain age that’s something that becomes difficult for us. In the reversed gender roles though all the old woman has to do is get her legs far enough apart for the gold digging young man to cross the threshold. If the man is required to finish then he could get himself very close to ready to do that then break the plane at the last moment and all of a sudden he’s nice and legal. So if consummation laws are really all about protecting other heirs from gold diggers that law doesn’t do anything for heirs trying to secure mom’s estate. Or subtract the heirs fighting for an estate and look at what that does. A consummation law that specifically requires sex would preclude any man physically unable to have sex from being legally married, be it to a 20 year old gold digger or to a little old lady who really does love him back. And that little old lady would still be eligible for marriage because all she has to do it lay there. Is that really fair? I’m not at all confident such a law would stand up to a Due Process challenge.

Even if the notion of requiring sex to have a legal marriage withstands scrutiny it would still have little bearing on gay people and gay marriage. If access to marriage by same sex couples is found to be a right protected by the Fourteenth Amendment and a state has a statute that would absolutely preclude same sex couples from exercising that Constitutionally-protected right then that state statute is unconstitutional and would either have to be rewritten or go away entirely.

alchemist19 on January 9, 2014 at 1:40 PM

Even if the notion of requiring sex to have a legal marriage withstands scrutiny it would still have little bearing on gay people and gay marriage. If access to marriage by same sex couples is found to be a right protected by the Fourteenth Amendment and a state has a statute that would absolutely preclude same sex couples from exercising that Constitutionally-protected right then that state statute is unconstitutional and would either have to be rewritten or go away entirely.

alchemist19 on January 9, 2014 at 1:40 PM

Either way you look at this, someone is getting rights stripped away. You are ok with stripping rights away from one group (heirs, people who get married and expect to have sex but for some reason the other person won’t) in order to give it to another. You have just identified your preferred group and don’t care that another will have rights stripped away.

Why is it ok to yank rights away from one group and give it to another? Everyone always says “gays getting married won’t impact heterosexual marriage in any way.” I have identified a way that the laws will have to change in order for gays to get married that WILL impact heterosexual marriage, and your answer is “So?” Doesn’t that bother you at all?

cptacek on January 9, 2014 at 3:13 PM

You didn’t make it as simple as a lack of consummation in those states that narrowly define consummation as sex and not some other act like cohabitation. You started throwing out other potentially mitigating things like the gold digger blowing out after the ceremony and never being seen or heard from again until the old timer (who is apparently fine with this situation and never writes a will) kicks off.

I could have made it that simple. 2 38 year olds get married and after the ceremony the woman decides she doesn’t ever want sex. The man can get a legal annulment. The other details were just fluff.

cptacek on January 9, 2014 at 3:30 PM

Either way you look at this, someone is getting rights stripped away. You are ok with stripping rights away from one group (heirs, people who get married and expect to have sex but for some reason the other person won’t) in order to give it to another. You have just identified your preferred group and don’t care that another will have rights stripped away.

If the whole purpose of consummation laws is to protect the right of heirs then it’s a pretty stupidly crafted law. The standard for judging if a marriage is real is “They had sex one time for a couple seconds.”? As I pointed out, that standard would exclude a legitimately loving older couple where the man isn’t able to perform but would mean a 20 year old male gold digger would more than likely make it. Heirs *might* have a legal leg to stand on if it’s their father in question but would be out of luck if it was their mother. What sense does that even make?

We haven’t even touched on how exactly those heirs would prove their case in a court of law. Barring a medical statement that a person was completely impotent and there is no way, even with modern drugs, that a man could have possibly ever had an erection then it’s the heirs (from whom evidence would be heresay at best) against the wife saying “We had sex one time so, yes, it was consummated.”

Why is it ok to yank rights away from one group and give it to another? Everyone always says “gays getting married won’t impact heterosexual marriage in any way.” I have identified a way that the laws will have to change in order for gays to get married that WILL impact heterosexual marriage, and your answer is “So?” Doesn’t that bother you at all?

cptacek on January 9, 2014 at 3:13 PM

If you think my answer was “So?” then you’re not understanding what I’m saying. I have said I think the laws are of questionable constitutionality even before we get to how they might apply to same-sex couples. But let’s assume they are in fact Constitutional and go from there.

If a state is bound and determined to have a consummation law and same sex couples are granted access to marriage as well and the current state law defines consummation in a way that a same sex couple cannot consummate their marriage then we would have to broaden the definition of consummation a bit. If the law describes a sex act that’s specific to heterosexuals then add on a similar specific description for homosexuals. A more intelligent approach would be the one taken by South Carolina who has broadened it so that cohabitation is a form of consummation (sex also still is) and that’s the sort of thing other states could do not only to protect the rights of same sex couples but also to protect the rights of older heterosexual couples as well so their marriages are also totally legitimate and without question.

alchemist19 on January 9, 2014 at 3:55 PM

I could have made it that simple. 2 38 year olds get married and after the ceremony the woman decides she doesn’t ever want sex. The man can get a legal annulment. The other details were just fluff.

cptacek on January 9, 2014 at 3:30 PM

Okay so you want to give the man in this case a lot of protection to get out of a marriage even if it means stripping away the right of a legitimately loving 78 year old heterosexual couple who are not physically able to consummate their relationship from having their marriage made official, and having one partner risk losing property if their new spouse’s kids want to take it all from them.

alchemist19 on January 9, 2014 at 4:00 PM

Okay so you want to give the man in this case a lot of protection to get out of a marriage even if it means stripping away the right of a legitimately loving 78 year old heterosexual couple who are not physically able to consummate their relationship from having their marriage made official, and having one partner risk losing property if their new spouse’s kids want to take it all from them.

alchemist19 on January 9, 2014 at 4:00 PM

I would actually rather have the person in the marriage have more protection than the heirs. If my example was too pro-male for you, then how about:
2 38 year olds get married and after the ceremony the man decides she doesn’t ever want sex. The woman can get a legal annulment.

This woman should be able to expect that she will have vag

inal intercourse in her marriage. If her husband refuses, she should be able to get out of it as if a marriage has never taken place.

You are right that it might be difficult to prove that someone’s marriage could be annulled because of this law. My grandma married my step grandpa probably 7 or so years ago. She is in her 80s and he is 93 right now. I don’t know for sure if they are having sex, but probably, because she is a horny old broad and they are both very physically fit, going dancing 3-4 times a week. But just because it is difficult to prove consummation never has taken place doesn’t mean that in the case that it can be proven it shouldn’t be protected.

By you proposing new laws and new standards to this kind of law proves my point: SSM will change heterosexual marriage.

cptacek on January 9, 2014 at 4:21 PM

Well, that didn’t work. Please ignore the random quote tags there.

cptacek on January 9, 2014 at 4:21 PM

ugh. The man decides HE doesn’t ever want to have sex.

cptacek on January 9, 2014 at 4:22 PM

I would actually rather have the person in the marriage have more protection than the heirs. If my example was too pro-male for you, then how about:
2 38 year olds get married and after the ceremony the man decides she doesn’t ever want sex. The woman can get a legal annulment.

This woman should be able to expect that she will have vaginal intercourse in her marriage. If her husband refuses, she should be able to get out of it as if a marriage has never taken place.

The sex of the 38 year old in your example really doesn’t matter either way. It’s not like our poor sexless person is trapped and completely without options; if someone (male or female) gets married and their partner starts withholding sex that’s abandonment and it’s grounds for a fault divorce, at least for the civil marriage. If religion is an issue a religious annulment can always be granted by a church according to church rules.

What you’re advocating is essentially that we create a secondary escape hatch for a person who got themselves into a situation completely by their own personal choice, even if the creation of that secondary escape hatch means we must also exclude other couples (seniors, homosexuals, people no healthy enough for sexual activity) who have done nothing wrong but are unable to make the unions legal for the sake of anyone who might find out a little too late that they married the wrong person and who doesn’t want to get a normal divorce. That’s justified?

You are right that it might be difficult to prove that someone’s marriage could be annulled because of this law. My grandma married my step grandpa probably 7 or so years ago. She is in her 80s and he is 93 right now. I don’t know for sure if they are having sex, but probably, because she is a horny old broad and they are both very physically fit, going dancing 3-4 times a week. But just because it is difficult to prove consummation never has taken place doesn’t mean that in the case that it can be proven it shouldn’t be protected.

By you proposing new laws and new standards to this kind of law proves my point: SSM will change heterosexual marriage.

cptacek on January 9, 2014 at 4:21 PM

As a quick aside, that’s an awesome story about your grandma. Too many older people, generally women, aren’t able to have something like that if they find themselves alone later in life so hearing stuff like that always makes me smile.

Anyway, back to it.

If a state wants to keep a consummation law and such laws are in fact constitutional there is no reason the law for heterosexuals can’t continue to exist exactly as it’s written. If the law currently spells out exactly what must happen for a marriage to be valid (i.e.: penis must enter vagina) then tack on at the end something like “for opposite sex couples.” Then after that make an addendum with a similarly specific requirement of what two men must do for consummation and what two women must do. Nothing about heterosexual marriage or what goes into the legal validity and recognition of one has to change at all.

alchemist19 on January 9, 2014 at 5:39 PM

You are proposing a change to the law in order to be able to include homosexuals. I am saying that the fact that the law exists (and other laws similar also exist) underscores how important heterosexual sex is to marriage.

We disagree and we will continue to disagree. Thanks for the debate.

One last point. You would have never even thought it all the way out to your conclusion if we hadn’t had this debate. That is the way laws should be crafted…not just slammed through because a judge says so.

cptacek on January 10, 2014 at 1:34 PM

cptacek on January 10, 2014 at 1:34 PM

It appears I may have been wrong. It doesn’t happen often but when it does I’m man enough to admit it, and I think that’s the case here. I had been operating off the assumption that consummation laws, assuming they even are constitutional and a good idea, would have an effect on same sex couples so I took a little time to look at what the laws actually state and I think I messed up so I’m here now to set the record straight.

The first thing I did was try to find the list of states that have consummation laws and it looks like there are 13: Alaska, Colorado, Connecticut, Delaware, Idaho, Illinois, Michigan, Minnesota, Montana, Ohio, South Carolina, Vermont & Wisconsin. In 37 states it would seem that heterosexual sex isn’t important to marriage (I kid, I kid. Sorry, just had to get that in). So then I took a look at how the remaining 13 states might have their laws affected when gay marriage becomes the law of the land in all 50 states.

It’s worth pointing out that if any of these 13 states were effectively prohibiting the exercise of a constitutionally protected right by making marriages between same-sex couples inherently invalid then that state statute would be unconstitutional and would have to change. So let’s see how many of those 13 will have issues.

We can cross South Carolina and Vermont off the list immediately because in those states you can consummate a marriage by cohabitating. So we’re down to 11.

Two recent court cases out of Connecticut have ruled that not having sex alone isn’t grounds for an annulment so heterosexuals are fine there, too. Down to ten.

You can cross Colorado, Delaware, Illinois, Minnesota and Wisconsin off the list as well because there lack of consummation is only grounds for an annulment if one party expected consummation and it didn’t happen. By that standard even if the statutes require heterosexual sex (I didn’t bother to check if they did) neither party in a same-sex marriage would be expecting heterosexual sex so the current law could stand without alteration and same-sex marriages are still legal. From the sound of things Connecticut looks like they should probably be groups with these states as well. Down to five.

Alaska, Idaho, Montana and Ohio also are fine because they speak of consummation but don’t describe it as an explicitly heterosexual act so those laws wouldn’t need to change and gay couples could still be married. Ohio’s even a bit stricter because after two years you’re out of luck getting an annulment even if the union isn’t consummated. Down to one.

So now we are left with Michigan. This one confused me because I couldn’t find the consummation requirement there. I see they require out-of-state common law marriages to be consummated but that’s it (Michigan got rid of their common law in the 50s). I also saw references to cohabitation as well so unless I missed something this one might belong with South Carolina and Vermont.

So in short it looks like current consummation laws are not a legal impediment to granting same-sex couples access to the legal status of marriage. You’re quite right that if we hadn’t had this exchange I never would have answered this question for myself and that in my mind made this whole thing worth it; I learned something new today.

Just to close it down, thanks for being an honest, upfront, forthright and good faith debate partner. It’s always appreciated.

Until our next disagreement. :)

alchemist19 on January 10, 2014 at 11:58 PM

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