DOMA unconstitutional?
Signs may be pointing to the idea that SCOTUS will strike down Congress’s 1996 Defense of Marriage Act (DOMA) as unconstitutionally exceeding federal power.
That’s because Justice Kennedy (who may be the only one who counts) appears to be leaning that way. Then again, we’ve learned from the Obamacare SCOTUS hearings that we can’t tell all that much from the questions justices ask under those circumstances. Perhaps they are playing devil’s advocate.
Because I believe in federalism, my opinion is that DOMA actually is unconstitutional. I also think California’s Proposition 8 is constitutional, because the issue should be left to the states and banning same sex marriage (as opposed to same sex civil unions) does not violate the 14th Amendment.
So, in the first case federalism would cut in favor of allowing SSM if a state so desires, and of applying that state law to federal rules affecting marriage (such as those involving federal tax breaks). In the second it would cut in favor of defending a ban on SSM if a state so desires.
If the nation wants to pass something like DOMA, the proper path would be an amendment to the federal Constitution. I’m not at all sure that route would have succeeded had they tried that in 1996. But instead they went the shorter, more simple, more achievable—and more vulnerable—way of working through Congress. At present a DOMA-type amendment would have no chance of passing. I don’t foresee that changing, either.
[NOTE: It will be interesting if DOMA is struck down by SCOTUS as unconstitutional. I believe that the same Court found Obamacare constitutional in part because the justices were reluctant to declare a major act of Congress unconstitutional. In DOMA is struck down, they will be doing just that.]
I am sick, absolutely sick of having a panel of nine with lifetime tenure determine what 330 million of us must or must not do. Sick.
If DOMA is declared unconstitutional, then all states will be forced to accept gay marriage. A gay couple in one state can go to Massachusetts, get married, and when they return to their home state, that state will be forced to recognize the marriage regardless of their laws.
Rick Caird: I am not absolutely sure, but I think you are mistaken.
As I presently understand it, the non-SSM state will not have to recognize the gay marriage. The federal government will have to recognize it for tax purposes. This of course may have other consequences in terms of state tax law, I suppose, or benefits. But states do not have to give full faith and credit to the marriage laws of other states if they find them objectionable or repugnant (I don’t have time to look that up now, but I read it somewhere the other day on a law blog).
A bit more here.
neo –
I think you’re right about that, but here’s what I don’t understand.
If the federal definition of marriage is ruled unconstitutional because it violates the equal protection clause, then how could it stand at the state level? I don’t see how that’s possible. It would be like saying federal racist laws (or whatever) violate equal protection for federal purposes but not for state purposes. (I’m not comparing traditional marriage to racism, but for the purposes of the case at hand, it’s the same deal).
Unconstitutional??? It depends on what constitution they are using! Justice Ginsburg may be using South Africa’s for all we know.
As separate and independent sovereigns the states should be able to define marriage how they want to, for state law purposes, and the federal government should be able to define marriage how it wants, for federal law purposes.
DOMA has two sections regarding state and federal sovereignty:
“Section 2 of DOMA allows each state to decide for itself whether to retain the traditional definition without having another jurisdiction’s decision imposed upon it via full faith and credit principles. And Section 3 preserves the federal government’s ability to use the traditional definition of marriage for purposes of federal law and programs.” -Excerpt from the opening brief to the Supreme Court
The Supreme Court could reject both sections using the same argument as Lawrence v Tribe and make ssm the incontrovertible law of the land. Only an amendment to the U.S. Constitution could reverse that law. Well, unless some President merely decided it was unconstitutional and decided not to enforce the law. That would effectively do the job as well, but hey, what President would ever expose himself to treason that way by not upholding his oath to protect and defend the Constitution of the United States?
kolnai:
It would be unconstitutional for the federal government to ban SSM under DOMA not because of the 14th Amendment, but because the federal government isn’t supposed to usurp the rights of the states to make that sort of decision. Marriage laws are not within the enumerated powers of the federal government; they are reserved to the states.
However, the 14th Amendment (equal protection) is extended to the states. Therefore the states are banned from passing laws that violate it. If denying gay people the right to be married violates their 14th Amendment rights to equal protection, then even the states could not deny them that right.
That’s a separate issue. If DOMA is ruled unconstitutional because of federalism arguments, that means the federal government can’t ban SSM universally because it lacks the right to ban it at the federal level—it lacks the right to overrule the states that wish to allow it. The 14th Amendment, however, applies to both the federal government and the state governments; the only question is whether the 14th Amendment extends to the right to SSM.
If, for example, the federal government wanted to pass a law requiring all states to recognize SSM, it would be prevented from doing that as well (in the same way it’s prevented from implementing DOMA because it exceeds its powers). However, if the Court were to find that the states cannot ban gay marriage because it violates the 14th Amendment, the whole DOMA issue would become moot (at least, that’s how I read it), because banning gay marriage would become verboten at the state AND federal level because it violates the 14th Amendment which applies to them both. If the government wanted to ban gay marriage once that ruling had been handed down, it would need either some new SCOTUS justices and a new case (not likely) or a new constitutional amendment (not likely either, IMHO).
It’s a bit like a tongue twister.
Michael C. –
I agree, and that’s why I don’t think anything in DOMA is unconstitutional.
Federalism is just what you said: imperium in imperio. Power within power. That means the states have sovereign powers appropriate to them, AND the federal government has powers appropriate to it. There is nothing constitutionally unusual about the feds defining a term used in the administration of benefits. It supersedes no state laws. It coerces none of them. The definition is the one that has always been used, implicitly.
But again, I wonder how this distinction can be allowed to stand if the federal component of DOMA is ruled unconstitutional based on the 14th Amendment. Perhaps there is some doctrinal tradition in equal protection jurisprudence that I’m unaware of here, but it’s my understanding that to rule something in violation of Equal Protection is to rule that it violates a basic Constitutional right. And if it does that, then it is automatically invalid in all 50 states.
Can neo or anyone explain how that isn’t so in this case?
kolnai: did you see my comment above?
Ok, neo, I posted just as you did.
That still doesn’t make sense to me. So if the non-equal protection challenge is accepted, then ALL federal marriage law is vacated? You’re saying the principle is “federalism,” defined in this case as “the federal government can make no laws with regard to marriage.”
I was under the impression that this was a 14th Amendment case. I know how it works, but you’re saying this is an Article I case? Really?
I don’t get it. The feds aren’t pre-empting anything in the states with DOMA. So the argument has to be, on enumerated powers/Article I grounds, that marriage law, full stop, is beyond the reach of the feds. Is that really what the anti-DOMA case is based on?
(obviously I haven’t been following it closely)
PS- to be clear, my 14th Amendment question wasn’t based on not understanding how equal protection decisions work, but on an apparent misunderstanding of what kind of case this was.
You said that that federal part of DOMA could be ruled unconstitutional but the state level part could be kept. I assumed this was an equal protection case, so I didn’t see how that could be.
Using the 14th Amendment for SSM is in itself a perversion. This opens the door for all sorts of “equal protections”.
Life is more than legalistic arguments. When we accept that outcomes of legal debates are binding, we also by implication accept such outcomes can be reversed by another debate. It would be nice to stick to a few absolutes as anchors in a sea of uncertainty.
Here’s the problem with leaving marriage solely up to the states. A ‘marriage’ can be legally valid in one state but that marriage is held to be legally invalid in another state. Not just SSM but issues of age of consent, consanguinity, plural marriage (sooner or later) and the legal status of children arise.
So, if a couple(s) move to a state where their marriage under that state’s law is invalid, do all of the prior legal, financial and perhaps parental entanglements that occurred when that marriage was recognized, now no longer apply? What if they, a few years later, then move to another state that does recognize their original marriage as valid?
The legal, financial and parental implications are staggering.
As just one example, what of military couples whose marriage is valid in one state but not another, who are being transferred around the country?
The institution of marriage is undeniably and unavoidably a federal interest that is best left to state regulation when there is a basic consensus. If that consensus is lacking, leaving marriage solely to the states is a formula for chaos.
The question which might show the main issue could be this:
Shall the states keep their sovereignty in regards to the defining of the word “marriage?”
Could the Supreme Court decide this?
This issue on appeal is:
Whether Section 3 of the Defense of Marriage Act,
1 U.S.C. § 7, violates the equal protection component of the Due Process Clause of the Fifth Amendment.
Nothing is presented about Section 2, but could the Supreme Court decide that a fundamental and inviolable right exists for all persons, without reference to gender, to marry?
That would expand the decision to cover Section 2 and this finding, which I expect, would, in effect, be a ruling that strips sovereignty from the states. If the right of SSM is the same as the right of freedom of speech, then the 14th amendment does not allow the states to abridge it.
kolnai:
I’m in a hurry, so I can’t give your question the full attention it deserves at the moment—but no, the DOMA case is not a 14th Amendment case, as far as I know. The Proposition 8 case (yesterday) is a 14th Amendment case. At least, that’s my understanding.
Here are the facts of the DOMA case. Maybe that will make it clearer. And if you’re really a glutton for punishment, here are the other legal challenges to DOMA.
I think (and believe me, I’m not an expert on this subject) that the thing can be summarized as follows: who is the federal government to impose its definition of marriage on the states? And who is the federal government to impose its own definition of marriage on itself? It should go by what each state says, for federal tax purposes (so that if a state recognizes a married same sex couple living in its jurisdiction, the feds should as well for federal tax purposes).
And if the feds want to get into the marriage-definition act, they need to pass an amendment.
Whereas (at least as best I can tell) if the federal government wants to say that states are not compelled to recognize same-sex marriages that are legal in OTHER states, the states don’t have to. In other words, both rulings are consistent with federalism—both the fact that the feds have to defer to the states on this, and the fact that each state is free to define it as it wishes, without having to worry about the other states. As I wrote in an earlier comment, I have to look it up to make sure, but I think that states do not have to recognize other states’ definition of marriage if they find the definition objectionable–although of course, that would change if SSM is found to be protected under the 14th Amendment.
sharpie: I think that 5th Amendment equal protection part is about the inter-state recognition of marriage, not about the question of whether the federal government (as opposed to the states) has the power to define marriage at all (the federalism question).
I could be wrong, but that was my impression. I find the legal issues in these two cases particularly difficult to get a clear reading on–maybe because I haven’t spent enough time studying them. (“Enough time” seems like it would be several months!)
neo –
thanks for the links. I’ll try and digest. Usually I do that before I post, but I’m bored today and procrastinating on other stuff.
I appreciate your efforts – especially in not pretending to be an oracle (which is why this blog remains tops).
I believe you may be wrong, Neo.
The issue stated by Mr. Clement in his opening brief is whether Section 3 of DOMA violates the equal protection component of the Due Process Clause of the Fifth Amendment. Section 3 refers not to the inter-state issue but whether the federal gov’t retains sovereignty to define marriage.
I’m led to the conclusion that Mr. Clement’s position is a take all or none position. If the Supreme Court finds DOMA violates the Fifth Amendment, then the 14th amendment is automatically activated (See pg 17 of the Opening Brief: “Judge Straub found that this Court’s decision in Baker resolved “the essentially identical challenge we have here,” because although Baker involved a state law, “the equal protection component of the Fifth Amendment is identical to and coextensive
with the Fourteenth Amendment guarantee.” Supp.
App. 32a, 45a.)
Here’s the dilemma: what would happen if the Court disallows the federal gov’t from defining marriage to exclude SSM?
It would depend on why they made that finding, I believe. If they made that finding that such definition was a violation of basic constitutional rights, then SSM becomes the law of the land.
On the other hand, if they made that finding because the power to define marriage is sovereign only to the states and therefore the federal definition shall apply per each individual marriage as the definition in which state the marriage occurred, then the states still define marriage, but then everyone will merely get married in Hawaii or any other state that defines SSM as marriage.
Using the 14th Amendment for SSM is in itself a perversion.
You say that as though it’s a bad thing.
sharpie –
So far, that is my understanding too. I’m reading through the oral arguments, and at one point Alito, I think, got Verrilli to concede that there was nothing about DOMA that conflicted with federalism. He subsequently tried to back up on that, but there’s no way he would have made that concession if that was the crux of the case.
To add to what you said, there was also a point at which Roberts pressed someone, maybe Verrilli, on how, if one definition of marriage is impermissible on federalist grounds, ANY definition could be permissible. Which is the point I was making – the issue is not whether THIS definition is proper to the feds, but if ANY definition is. And in that case, saying that marriage is “Between any one man and woman or man and man or woman and woman” is also invalid. The logical conclusion is that any federal regulation of marriage is void.
Verrilli also said that the federalism argument is just a support for the larger equal protection argument.
Aside from that, I can’t believe this case will be decided on federalism grounds. Roberts would have to join Kennedy and three liberals for that, and I don’t believe for a second that there are three liberals who would rest content with such a ruling. They want the equal protection ruling or nothing.
I also don’t believe Roberts will go for the equal protection ruling, because he does not make such rulings on such issues. It will come down to Kennedy. (of course I’m playing oracle here; just append, “as it seems to me at the moment” to all of this).
Rick Caird started this issue by stating, “if DOMA is declared unconstitutional then all states will be forced to accept gay marriage.
That statement could be true, I believe, depending on what the grounds of unconstitutionality are.
If at least five justices find there is a violation of civil rights, ie, of the fifth amendment, then all states will be forced to adopt and enforce SSM.
If at least five justices find there is a violation of states rights by allowing the federal gov’t to define marriage, then states will still decide SSM.
A reference to the 14th amendment is, to my view, superfluous, since the 14th amendment is not by its terms applicable to the federal government. The 14th amendment requires each state shall apply its own laws indiscriminately. Naturally, included in those “own laws” are civil rights.
(caveat emptor: the above analysis may be wrong)
sharpie:
Actually, there are quite a few ways that DOMA could be struck down. But in this post I was talking about a specific one that does not come under the Fifth Amendment. You’re talking about another one that does come under the Fifth Amendment. The issue that I was originally discussing involves the federalism question, which is basically whether the federal government has the right to define marriage at all or whether it’s reserved to the states.
The Fifth Amendment issue you mention is basically the issue of whether, by DOMA’s not honoring SSMs in those states that allow them, the federal government has denied the spouses in those SSMs equal protection of the law as compared to heterosexual married couples. You are correct that this has little to do with the interstate recognition issue, contrary to what I had erroneously (and hastily) stated. However, you are incorrect when you say it is about “whether the federal government retains sovereignty to define marriage.” It is not; it is about whether by denying federal benefits to those in SSMs and granting them to those in heterosexual marriages it has denied the former equal protection under the Fifth Amendment.
However, I don’t see this Fifth Amendment issue as being nearly as good an argument as the “federal government exceeding its powers” one I previously stated, although the SCOTUS justices may completely disagree with me on that (and they’re the ones that count, of course). For one thing, DOMA does treat everyone equally, by denying marital status to all same sex marriages no matter whether the states say they’re okay or not, and unless there is found to not be a “rational basis” for making a distinction between male-female marriages and same-sex marriages, that sort of distinction would probably be allowed to stand. Of course, as I said before, if the Fourteenth Amendment argument in the Proposition 8 case that was argued yesterday wins, then I would think DOMA would be invalidated on those grounds anyway. But it is by no means certain that SCOTUS will buy that argument.
I think the stronger argument against DOMA is that the federal government should not be defining marriage at all, except perhaps by constitutional amendment. As Sotomayor (of all people) asked, “What gives the federal government the right to be concerned at all at what the definition of marriage is?”
Unlike with the Obamacare hearings, I have not yet had time to read the oral arguments. I don’t know whether I will get the time, but I do plan to. Maybe then I’ll get clearer on all of this. But for now, that’s the way I see it.
kolnai, sharpie, et.al.:
Here’s some clarification on some of this.
Also see this, especially the part that begins after the discussion of whether the Court could hear the chanllenge at all. Start around paragraph four. I think the article makes it fairly clear that the Fifth Amendment argument isn’t the strongest one, but the federalism argument is.
That of course doesn’t mean that’s how the Court will decide.
Sotomayor asked a good but easy question (especially easy?) considering recent history. “What” she asks, “gives the federal government the right to be concerned at all at what the definition of marriage is?”
How about the will of the people expressed through a federal statute (passed without hook and crook like Obamacare?) Is that not precedent? State decisis?
Congress declared DOMA did not violate fedaralism when it passed DOMA. That gives DOMA credence because when the pre-eminent branch of government (Congress) acts, it is given deference and reversed according to those standards of scutiny according to the factual circumstances. Those circumstances provide that the greatest amount of deference be afforded to DOMA. And there’s the rub which reduces the likelihood of DOMA being struck down because of the federal question.
You stated it like this (I’m paraphrasing): If Obamacare was retained due to deference to Congressional law-making, why not DOMA?
The fifth amendment does not present this difficulty and is the easist and strongest bulwark for the gay lobby, the emerging will of the people, and the continued coherence of Justice Kennedy’s understanding of liberty.
And yet, we’re just jawing!
Fairly good article on the first link, but if you can’t find the problems with the following, then God help you:
Some thought that Justice Kennedy would want to carry forward the project of Romer and Lawrence and be remembered eternally as the hero of gay rights. But they appear not to have fully grasped the concerns of a mainstream conservative Justice with taking so fundamental a step as finding a constitutional obligation to redefine so basic a social institution based on social science that to some appears quite new.
Hint: mainstream conservative Justice! and Justice Kennedy doesn’t mind that the social science is new, it’s the morality of denying liberty which defines his judgments.
The second link.
Later on, he (Justice Kennedy) put it more bluntly, telling Clement that the question in the case is “whether the federal government has the authority to regulate marriages.”
Straw man divergence.
Justice Kennedy knows that the area of interest by the federal gov’t in this case is not regulating marriages but merely the collection of federal taxes, which, after all, the refund of which, is the whole point of Mrs. Winsor’s lawsuit.
I was robbed by the federal gov’t because I was denied my basic civil right.
And Obama was Christ once, right?
Counselor, please never, ever, state for the record that you hastily considered anything!
But then, maybe not.
And why not.
I think Garner and Scalia would say, “why not.”
Thanks again neo, I’m still chewing on all of this…
Doctor Shid, please provide your expert opinion on the flexibility of the human sexual genome.
Yes. Thank you. The male often places his instrument wherever the instrument may play. The female demands the placement must meet her demands. She benefits from inflexibility.
What is your expert opinion regarding flexibility?
The man is quite capable of flexibility.
And does this flexibility extend to natural objects?
Oh yes, quite naturally. The male will extend to all living tissue and even inanimate objects such as knotholes in trees.
Is that a personal observation, doctor?
Yes.
Are you happy with that arrangement, doctor?
No.
WHY MEN NEED WOMEN and vice versa:
http://www.youtube.com/watch?v=olw2R9RO3h8&feature=endscreen&NR=1
“If that consensus is lacking, leaving marriage solely to the states is a formula for chaos”
States are supposed he be the laboratory. Somme experiments produce chaos, others produce commonsense. others produce confusion. Let the best experiment lead the way.
To a place where we’ll be safe:
http://www.youtube.com/watch?v=O1rL6p6P1oU
What is relevant here is the broadening of “equal protection” to activities. It was on the basis of “a person”; now they are saying that acts of a person must be “protected”.
Polygamy cannot be far behind.
This whole uproar has been whipped up by the homosexual lobby to attack, specifically, Christianity. They never protest outside synagogues, or (heaven forfend!) mosques; always churches.
I used to be live and let live about gays, had many friends who are gay, but I’m fed up to the back teeth with their relentless assaults on my religion. The Bible, the Old Testament in particular, is acidly clear about homosexuality, and calls it an “abomination.” You may feel that’s cruel or mistaken, but that’s what the Book says.
Gays, the men in particular, were historically scornful of marriage: that’s something those pathetic “breeders” have to do, whilst they cavort freely with as many partners as they like. So why the sudden urge to go Donna Reed?
Gay men have also traditionally been called “woman-haters,” for a very good reason. It’s socially verboten to mention, nowadays, but I’ve asked three gay friends of mine (once I knew them well!) if it was true that gay male culture was misogynist, and they all said, emphatically, “Oh, God yes!” and laughed. David complained that he couldn’t wear a string of pearls to a party without getting a lot of grief from the butch contingent.
If you don’t believe me, get a copy of “Blue Boy” and check it out. I saw that publication when I was sharing digs with a gay theater director, and I was frankly shocked by it. The things a couple of their columnists said about women, I couldn’t repeat here, they were so vulgar, so sulfurous.
And just for the record, they’ve grossly inflated their numbers. Larry Kramer (ActUp) admitted as much before he died of AIDS: they’re nowhere close to 10% of the population. Best estimates are that just 1.5%-2% of the men are gay, and only 0.5% of women. For this tiny fraction of the population, we’re going to rip the heart out of our millennia-old social contract? Go against Nature, as clearly expressed in the law of our make? Why?
The sole reason for them to insist on having legally recognized marriage is to COERCE the rest of the people into endorsing their sexuality, against our will. This is a kind of ideological rape. It’s Orwellian, really: in “1984” they forced Winston to say that 2 + 2 make five, mainly to break his spirit and humiliate him.
They can’t have children, unless they’re given other people’s babies, so they don’t need marriage for that. They’re able to live together openly, no social stigma any more. Most churches, at least the (dwindling) mainline Protestant denominations, have caved on the issue, and there are churches they can go to as couples. They’ve always been able to visit their lovers in hospital; and you can leave your estate to your dog (hell, Leona Helmsley did it).
So it’s all about breaking our necks. They mau-maued the American Psychiatric Association in the early 1970s to bully them into taking homosexuality out of the Psychiatric Disorders category. That was pure POLITICS, not SCIENCE.
Okay, I’ve gone on as long as Artful D., but I’m so sick of being bullied about all this stuff. And so sick of their lies.
I’m with you Beverly. The one issue that you didn’t mention is money with regard to fed and state taxes, social security, etc. If it wasn’t anti-religion/anti-authority, the move would be to amend the laws based on civil unions.
To quote the cliche, the love that dare not speak its name now won’t shut the heck up.
I also think there’s an extreme anger about the fact that several religious groups (Christians only, as you mentioned) consider their actions a sin. The activists won’t be happy until we say, ok, maybe it isn’t. But it is, and there’s no way that we can ever say that (at least the Catholic Church). Do I walk around condemning them for that sin? Not really, there’s so much that stands out in other people – it’s just one of their many sins.
However, I’ve got a whole bunch myself and I’m kinda’ busy worried about taming some of the biggies I carry around that another person’s sins are at the very bottom of my list.
But that doesn’t really matter to them. They want Christians to openly agree that 2+2 =5, as you said.
I think actual reality should be considered in such issues. Problem is finding it. Used to be–I think–hard science was fact. Social science was whatever the prevailing zeitgeist wanted it to be, or what the funding supported.
With the advent of AGW, I am not at all as certain as I once was of hard science.
So expecting SCOTUS to get the correct information–which is skewed by politics, culture, funding and social intimidation–if such information is important to their decision is unlikely.
Some years back, I was in a blog discussion of SSM. I mentioned I’d seen references to people who were against marriage in toto thinking that SSM would be a tool to use against marriage.
I was challenged to provide cites. That’s webcrap for do the work or you’re lying. Of course, when you do provide cites, about the only thing that happens is the vitriol accelerates.
While I was thinking about bothering, somebody else did. Result? More vitriol.
I have no idea if the anti-marriage folks are right–seems they might be but no way to tell at this point–but it’s worth thinking about.
One of the uses of social intimidation is that more respectable sources are afraid to broach an unpopular fact, leaving only the really motivated people, who usually provide at least an excuse to be dismissed as cranks.
See the people who are criticizing AGW, for example.
We the People of the United States … secure the Blessings of Liberty to ourselves and our Posterity
The Constitution favors procreative unions.
So we are once again enmeshed a The King vs. The Church issue.
The very first problem is with terminology.
Marriage, the term.
The problem with the term is that it has a traditional meaning, and a practice thereof that is core to key religions. Marriage is in historical practice covenantal to the religious.
The King has intruded upon that term though, and the state seeks to co-opt the term “marriage” for its own uses.
Therein lies a particular difficulty for The King …particularly in the US Constitution, which also contains unbridgeable guarantees about religious freedom which are irreconcilable with the intent of the states coopting of the eons old usage of the term.
(Re: Beverly’s thoroughly accurate description of Christian & Biblical views on homosexual behavior.)
IF the King (the state) defines the term, there is NO reconciliation possible with The Church.
None.
Balancing marriage “rights” ecumenically by the secular state is simply impossible (well, for the three major monotheistic religions: Judaism, Christianity, and Islam). It can never happen.
It is also Constitutionally untenable …the necessary amendments – which would be to restrict religious freedoms – would be politically impossible.
The solution to this impossibility though, is a simple one.
The state has to get out of the marriage business.
It can substitute this by regulating contractual unions between consenting adults (yep: opens the way to lobbying by the polygamy crowd, amongst many, many others).
There would only be secular contracts of union.
But marriages (past, present, and future) performed under “religious auspices” would be recognized as fully functional contracts of union under The King’s law.
The state can then fight its battles (polygamy, anyone) on a battleground of its choosing.
It will work. It’s clean, it’s simple.
It will never happen.
Because first, it would be political suicide for any politician of either party proposing this. The polity simply isn’t there in sufficient numbers to withstand the backlash (we are a VERY religious nation).
And the gays don’t want this anyways.
They want acceptance. By the religious.
In other words, they want The King to prevail over The Church.
Not understanding – or, more accurately, not accepting – key tenants of the major Western religions, liberals want them abolished. Nullified.
Democrats and liberals aren’t quite so stupid as not to realize this. Hence, the back door approach to their progressive …well religion: for make no mistake about it, this is a religion in all but name.
…and that, in a nutshell, is why the world will burn.