05-18-12: Same Sex Marriage – State’s Rights: No Problem

Posted: May 17, 2012 in Conservative Policy Neighborhood

Same sex marriage is a right that should be acknowledged everywhere.  After all, it has no impact on people’s lives.  It’s not a problem.  Or as gay pandering (I vote present), Barrack Hussein Obama opines, Same sex marriage is a state issue, not a Federal issue.

1600 Watch is a huge proponent of state’s rights over Federal jurisdiction, but sometimes less is more and this may be the case with same sex marriage.  1600 Watch views same sex marriage as primarily a question of fair and equal treatment under the law for all citizens.  Pigeonholing this issue as primarily moral or relegating it to the political dung heap does a disgraceful dis-service to gay citizens.

The callous disregard for the daily lives of gay citizens as thoughtlessly put on display by many supposed gay supporters or by Obama himself in statements similar to the ones paraphrased above is astonishing.  I don’t care what side of the same sex marriage issue you’re on – same sex marriage is not a simple issue and YES, it does have enormous potential impact on a person’s life.  Depending where you are currently living and where you’ve been as a gay, you could easily step into a nightmare quagmire of civil (legal) issues regarding property rights, medical authority, taxation, probate, benefits such as Social Security, disability, insurance and in most states today, potential criminal felonies (usually 3rd degree) such as bigamy (two spouses) or polygamy (more than two spouses).

There are more than enough serious legal issues lurking within this disconnected snake pit of interstate jurisprudence to cause any gay person to quite appropriately feel discriminated against, if for no other reason, lack of reasonable care in the practice of law or the negligent drafting of careless legislation.  Historically, in ancient Greek and Roman times, cities and city-states were created primarily for protection of the citizens against foreign enemies.  This led directly to laws within the city-states for the protection of property, which historically is the legal basis of individual freedom.  Same sex marriage is an issue, which can easily penetrate all the way back to the time before Christ and the basic rights of inheritance and the underlying rights of private property ownership.  This is not a simple matter and does not bear trivial discussion if you care about people and individual liberty.

Imagine the following scenario.  Jake, a wealthy, bi-sexual Manhattan businessman marries Henry, a strikingly handsome gay man with blue eyes to die for in the State of New York.  Jake’s not so well off, attractive partner, Henry turns out to be an opportunistic gold digger fishing with his smile for a meal ticket.  They pretty quickly have an emotional falling out.  Jake is vulnerable, not stupid, so they consequently go through an ugly break-up and Jake decides to  relocate safely in North Carolina, where he nurses wounds, reunites with and marries Julia, his high school sweetheart in the middle of a whirlwind, rekindled infatuation.

Under current North Carolina law Jake’s previous marriage to Henry is null and void, so Jake chooses not to go through the pain, distraction and expense of a long, protracted, very messy, New York divorce before marrying Julia.  (I’m not a lawyer by the way and I’m not providing legal advice here.  I’m just telling a hypothetical story.)  As luck would have it, Jake’s beautiful new wife and friend of old starts finding his open bi-sexuality distasteful and decides to vamoose.  Jake again does not divorce and relocates to Massachusetts, taking advantage of a promising business opportunity and a new beginning.  Unfortunately, in Massachusetts, which cooperatively recognizes both his marriages in New York and North Carolina, Jake is now potentially a bigamist and may be liable to criminal prosecution for a 3rd degree felony.  Jake has complied with state law everywhere he has lived, but now having crossed the Massachusetts State Line, he may be in big time trouble and doesn’t even realize it.

On Saturday morning, en-route to Starbucks for an early morning cappuccino with an important business associate, Jake’s black Porsche is T-boned by a Nissan Armada doing 50 through a red light. After being laboriously cut out of his crushed sports car with the FD jaws-of-death, Jake is transported to a Cambridge hospital trauma center.  Eight hours later, Jake lies near death, cabled, hosed, ventilated and casted in an ICU traction rig while the hospital folk seek next of kin or appropriate parties for notification.  Jake, an astute, well organized businessman is a great record keeper and the hospital is quickly able to helpfully contact both his New York and North Carolina spouses.  As it turns out, both spouses are interested in getting their mitts on what appears to be Jake’s soon to be available, rather substantial estate.  Jake’s will leaves his entire estate to his surviving spouse and children to be shared equally, none of whom are identified by name.  (Jake doesn’t have any children he knows of.)

The very next day, Henry and Julia, as you might imagine, meet adversarially, just short of violently, in a face to face ICU collision, immediately attacking each other as rapacious sharks trying to take advantage of poor Jake.  One short, but hectic week later both have filed civil lawsuits claiming to be Jake’s spouse and demanding all rights to his estate.  Just to make sure, both have also lodged criminal complaints against Jake with the Cambridge District Attorney’s office for alleged bigamy under Massachusetts law;  a careless breach from which each of them is now suffering horribly.  To make doubly certain of their claims,  Henry and Julia also file charges of bigamy against Jake in Federal District Court, since bigamy is a felony under current Federal statutes.

At this point Jake is hoping he never wakes up and is going straight to the bright light shining at the top of his ICU suite.

Granted, it isn’t necessary to marry twice to cause some of these problems and my story may be a bit much, but we can plainly see what could happen if some states take on a liberal view regarding same sex marriage and some states take a more conservative view.  Jake and his two partners are now potentially caught up in a complicated, emotional, potentially expensive legal trap that borders on endless and may potentially hold criminal ramifications for Jake.  If the legislative process has not been previously conducted in a thoughtful, responsible manner, the judges and/or juries hearing this mess will be caught themselves in a murky morass of jurisprudential chaos.

Our situation spans three state jurisdictions, all knotted beneath the Federal umbrella.  Technically, Jake believes he has done nothing wrong.  He married in New York.  That marriage was not recognized by the State of North Carolina when he remarried in North Carolina and he has not yet married anyone in Massachusetts.

Is Jake now a criminal as a felony bigamist?  If you marry a man and a woman is that bigamy?  Where is this defined?  Who is Jake’s legal spouse?  If only his spouse and immediate family are allowed to visit in ICU, which spouse holds that right?  Do they both have that right?  Which spouse has the right, if any, to Jake’s estate?  What if Julia is pregnant?  Does her child have any claim on Jake’s estate?  If Jake lives, is he the legal father of this child?  Does Jake have parental responsibilities such as child care?  What about Social Security benefits, disability benefits, other insurance benefits, or accidental death benefits, which happen to pay out to both Jake’s surviving spouse and children equally?  What if Jake, patriot he is, decides to enlist in the Marines and is shipped off to Saudi Arabia, Afghanistan or Iraq?  How does all this play out under the Military Code of Justice?

My point in all this, is simply that same sex marriage is an enormously complicated legal issue reaching all the way to the primeval bones of individual freedom and it ought not be trivially and thoughtlessly sold to young gays as a trivial, inconsequential matter for the purpose of political pandering and uninformed vote solicitation.  Same sex marriage should be given the thoughtful consideration and full legislative debate it rightfully requires.  Anything less potentially undermines the Rule of Law we all depend on for freedom.  If our Rule of Law, State and Federal, fails to adequately and clearly define legal parameters for gay life, specifically same sex marriage, then it likely fails to define proper conduct for any of us.

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