Ruth Marcus of the Washington Post points out another moment that had me rolling my eyes and asking "What the heck is he talking about now?" in his free-form constitutional explorations last night:
In every debate, there are odd moments that tend to pass unnoticed because they do not concern the central issues of the day. Thursday night’s vice-presidential debate featured two such episodes. In one, Sen. Joseph Biden was illogical on the matter of gay rights.
“Look, in an Obama-Biden administration, there will be absolutely no distinction from a constitutional standpoint or a legal standpoint between a same-sex and a heterosexual couple,” Biden said in answer to a question about whether he supported equal benefits for same-sex couples. He went on to invoke the Constitution three more times. “The fact of the matter is that under the Constitution.... same-sex couples should be able to have visitation rights in the hospitals, joint ownership of property, life insurance policies, et cetera. That's only fair.” And, “It's what the Constitution calls for. And so we do support it. We do support making sure that committed couples in a same-sex marriage are guaranteed the same constitutional benefits as it relates to their property rights, their rights of visitation, their rights to insurance, their rights of ownership as heterosexual couples do.” Italics added.
Biden cannot actually mean what he says -- because the implications of his statement contradicts his (and Barack Obama’s) asserted position opposing marriage for same-sex couples. (They support civil unions, which Biden forgot to mention.) Alternatively, he may mean what he says -- but simply be unwilling to acknowledge that the consequence of that view is that the constitution protects the right of same-sex couples to marry. Either way, it’s inconsistent to make the argument that there is a constitutional right to be free of discrimination as a gay or lesbian person and to oppose gay marriage.
Leaving aside the point Marcus makes, I was not aware that there was a constitutional right to same-sex hospital visitations. I was even less aware that such a constitutional right existed because "it is only fair." Or, at least, I think that's his argument, isn't it?
She also notes the incoherence of his answer on the Vice President point.
I thought the same thing. Turns out, maybe not so much.
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BIDEN: No. Barack Obama nor I support redefining from a civil side what constitutes marriage. We do not support that. That is basically the decision to be able to be able to be left to faiths and people who practice their faiths the determination what you call it.
The bottom line though is, and I'm glad to hear the governor, I take her at her word, obviously, that she think there should be no civil rights distinction, none whatsoever, between a committed gay couple and a committed heterosexual couple. If that's the case, we really don't have a difference.
IFILL: Is that what your said?
PALIN: Your question to him was whether he supported gay marriage and my answer is the same as his and it is that I do not.
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IFILL: The next round of -- pardon me, the next round of questions starts with you, Senator Biden. Do you support, as they do in Alaska, granting same-sex benefits to couples? BIDEN: Absolutely. Do I support granting same-sex benefits? Absolutely positively. Look, in an Obama-Biden administration, there will be absolutely no distinction from a constitutional standpoint or a legal standpoint between a same-sex and a heterosexual couple.
The fact of the matter is that under the Constitution we should be granted -- same-sex couples should be able to have visitation rights in the hospitals, joint ownership of property, life insurance policies, et cetera. That's only fair.
It's what the Constitution calls for. And so we do support it. We do support making sure that committed couples in a same-sex marriage are guaranteed the same constitutional benefits as it relates to their property rights, their rights of visitation, their rights to insurance, their rights of ownership as heterosexual couples do.
IFILL: Governor, would you support expanding that beyond Alaska to the rest of the nation?
PALIN: Well, not if it goes closer and closer towards redefining the traditional definition of marriage between one man and one woman. And unfortunately that's sometimes where those steps lead.
But I also want to clarify, if there's any kind of suggestion at all from my answer that I would be anything but tolerant of adults in America choosing their partners, choosing relationships that they deem best for themselves, you know, I am tolerant and I have a very diverse family and group of friends and even within that group you would see some who may not agree with me on this issue, some very dear friends who don't agree with me on this issue.
But in that tolerance also, no one would ever propose, not in a McCain-Palin administration, to do anything to prohibit, say, visitations in a hospital or contracts being signed, negotiated between parties.
But I will tell Americans straight up that I don't support defining marriage as anything but between one man and one woman, and I think through nuances we can go round and round about what that actually means.
But I'm being as straight up with Americans as I can in my non- support for anything but a traditional definition of marriage.
IFILL: Let's try to avoid nuance, Senator. Do you support gay marriage?
BIDEN: No. Barack Obama nor I support redefining from a civil side what constitutes marriage. We do not support that. That is basically the decision to be able to be able to be left to faiths and people who practice their faiths the determination what you call it.
The bottom line though is, and I'm glad to hear the governor, I take her at her word, obviously, that she think there should be no civil rights distinction, none whatsoever, between a committed gay couple and a committed heterosexual couple. If that's the case, we really don't have a difference.
IFILL: Is that what your said?
PALIN: Your question to him was whether he supported gay marriage and my answer is the same as his and it is that I do not.
IFILL: Wonderful. You agree. On that note, let's move to foreign policy.
I will try to create what Biden might have been thinking. (1) There should be civil unions. We can all agree he supports them. (2) They should be identical in legal rights to civil marriages. I think this is right; it is definitely Obama's position. (3) If such unions exist, it would be unconstitutional for the law/state to distinguish between civil unions and marriages. This would not apply to private hospitals or life insurers, however, but it would to enforcement of contractual rights. This would at least, I think, be a coherent position. His actual answer didn't make a ton of sense. (Of course, her answers were either banalities on top of banalities or completely incoherent.)
By claiming her answers are 'incoherent,' it leaves folks wondering whether the accuser might be incapable of grasping the concepts she explained.
That's like, you know, the other side of the coin.
Alaska does the same for state employees, which was the starting point for the question.
The "hospital visitation" thing seems somewhat far afield, unless he's talking about Walter Reed or other federal hospitals visitation policies.
It's interesting to consider whether or not it would be unconstitutional not to provide these benefits to federal employees in same-sex domestic relationships but that a ban on gay marriage would not be unconstitutional. I can't see how one is unconstitutional and the other isn't, and would be interested in hearing Biden's view on how the Constitution forbids one but not the other.
Actually, I'm not saying it's a bad thing--it's always being argued as a concept--but let's not kid ourselves on how judges think.
Under the 14th amendment, this is indeed arguably the case. These attacks on Biden have now gone into the "making shit up" realm.
It's not really that difficult. Vermont has civil unions, Mass. and CA both have SSM. SSM means that the couple gets all the same rights as hetero couples, but not at the federal level, because the fed gov't doesn'[t recognize any SSM. One big difference is that employers and other companies bestow certain benefits to spouses that they do not to civil unionized coupels.
"Exactly which hospitals forbid same sex partners from visiting?"
IF you go to a hospital, and your condition is grave enough, the hospital will often only allow spouses and/or members of the immediate family to access the patient. Therefore gay couples who are not married are barred from visiting their loved one. Additionally, if the patient is unable to make decisions for him or her self, then the hospital will only allow closest kin to make that decision. If the couple are not married, then closest kin could be a parent, or a sibling.
Oh, and she 'tolerates' us. I guess that Christian love, Pentecostal variety.
Whether this extends to marriage is a complicated question that Marcus skips right over.
Hopefully, in the interests of equality, the answer would be "yes". The "no same-sex marriage, only same-sex civil unions" position seems to be a disingenuous game of semantics with supporters of this position lacking the gumption to actually say what they mean (for fear of offending traditionalists among their base).
Perhaps a better question would be:
To wit, if this debate had been between Palin and Erwin Chemerinsky, the critical focus would still be on the errors hidden in Chemerinsky's answers rather than the vacuousness flaunted by Palin's.
Whatever gets you through the day, I guess.
I've taken classes with Chemerinsky and like the guy, but he's far from the sharpest liberal legal academic out there. But even supposing he was, I don't know what would be wrong with that. Chemerinsky would trounce Palin in a debate, of course, but a reasonable observer could still come away from the thing and say, "I still feel that Palin is right about these issues, however inarticulately she expresses her views, and Chemerinsky is dead wrong."
I don't think barring visitation rights in a serious situation as you describe it is very common [unless the family doesn't like a particular partner, which could happen irrespective of orientation]. But if it is in fact a common problem, then I don't agree with barring a partner for one last reacharound, same sex or not.
And may I point out something you may not even be aware of? Thank you:I'm sure you didn't mean to be insulting. But what if someone had said, "...the couple gets all the same rights as homo couples"?
See?
Would a living will take care of that?
Or looking at it from a different angle, wouldn't the same be true of any non-married couple regardless of sexual orientation?
Possibly. But how many people carry around their living will with them at all times? People get into serious car accidents, or have unexpected heart attacks. Trips to the emergency room are rarely anticipated. Furthermore, living wills can actually be challenged by parents who don't like the fact that their child is gay and has a partner. There in fact is a long drawn out court case in Maryland where a gay couple had all the paperwork, but he still wasn't allowed to see his partner as he was dying, and when dead, the parents tried to challenge the burial place. Although the parents keep losing in the courts, it still racks up a lot of legal bills that no married couple would have to endure.
Smokey: "what if someone had said, "...the couple gets all the same rights as homo couples"?
Point taken. Although there isn't the stigma attached to the word hetero as there is to homo, I don't think, I agree there are better words. Thanks for tip.
Is the first assertion true? I would think that hospital administrators would be crazy to make up and enforce such a rule, and it wouldn't surprise me if there are statutes mandating spousal visits, but is there really a constitutional right to visit your wife/husband in a private hospital hiding in all those penumbras and emanations?
How does their situation differ from gay couples'?
What does tolerance mean to you?
How does their situation differ from gay couples'?"
They are in the same boat. However, if you can find an example of a hospital refusing unmarried couples the right to visit or make medical decisions, I'd be happy to hear about it. But I haven't heard of any, which may mean that hospitals give straight couples more leeway than gay couples. Certainly, when it comes to Catholic hospitals, they have been much more callous towards gays than others, although even that is changing for the better.
"What does tolerance mean to you?"
It means she has no intention of killing me.
And if you think that is an over the top response, please bear in mind that in Washington DC, we have seen a number of beatings recently and even a killing against gay people by young men, who were heard to yell 'die, faggot' and whatnot. I would characterize that as 'intolerance.'
How does their situation differ from gay couples'?"
Their choice of whether to get married was their own, not a choice the government imposed on them.
Tell me, Randy, where in the Bible does it say that Christian love entails jumping up and down and saying what a wonderful lifestyle choice sin is?
They also didn't ask to see ID. I suspect a girlfriend who claimed to be the patient's sister, or a partner who claimed to be the patient's brother, would be admitted.
None of that helps from a dignity standpoint. A close friend of my wife was hospitalized and later passed away. His partner of 25 years was prevented from seeing him before he died, because the parents didn't approve. Pissed her off for years.
Not if you say that the term 'marriage' is inherently heterosexual, e.g. they think 'gay marriage' is like talking about a man's right to gestate a fetus.
Actually in Washington state the Supreme Court in their convoluted reasoning upholding the state DOMA said much the same thing - that the legislature can restrict the term 'marriage' to opposite gender couples if they choose. What they can't do is say that the rights that term implies can be withheld from same gender couples. As one justice put it 'go to the legislature and ask for these rights, if they don't provide them come back and see us.'
And the federal government should acknowledge all legal marriages regardless of their gender combination and hopefully all civil unions as well. If marriage is a state level contract than the federal government should just react to them, not suddenly start picking and choosing which ones they are going to recognize. Shoot the federal DOMA is preventing the Census from even accurately publishing information about same gender marriages - it has to pretend they don't exist.
Well, my post did ask exactly that question; I certainly don't know how the courts would rule, or even if they already have. I would answer yes, the freedom of association provides for a right of visitation, even against a private hospital; but it's not cut-and-dry, and I can understand why someone would consider it vague enough to not pass constitutional muster.
Anyway, on to a less abbreviated argument. The freedom of association generally allows Adam to choose to spend his time with Brian. This right is not limited in space or context except inasmuch as it conflicts with the property/associational rights of some third party Cameron, in which case we must balance the competing rights. Generally we resolve in favor of Cameron on the assumption that (1) it is relatively easy to associate in a way that does not infringe upon Cameron's rights and therefore that (2) resolving against Cameron would diminish his rights much more than resolving in his favor would diminish those of Adam and Brian. But if Adam is in Cameron's hospital --- particularly if Adam is confined to bed --- then Adam's ability to freely associate without imposing on Cameron's rights is low-to-nil; this makes the conflict much more direct and justifies a comparison of interests. I believe that positive rights of association are very strong, particular between intimate associations like spouses; certainly I think they're strong enough here to require the hospital to make reasonable accommodations.
It's been a while since Con Law I, but I don't think this would just apply to federal or state run hospitals either. Isn't it true that large amounts of government funding for a private hospital can transform it's actions into quasi-state actions?
The freedom of association argument is interesting, but I think unnecessary to make the case.
I actually think it's a good idea to remove the debate from the religious implications from the debate. I'm sure there's some out there for whom the idea of legal gay marriage implies some Federalis sitting around their Church willing to arrest the pastor if he doesn't marry a pair of dudes.
First, it isn't a sin, certainly not in my book.
Second, it isn't a choice. Get with the program.
Third, I'm not asking for that anyone jump up and down and say what a wonderful life I lead.
Fourth, Actually Christian love does in fact state that we are to love all our brothers, not just the ones we like or approve of.
However, even if you disagree with all that, I would hope that if a child of Sarah Palin's came out as gay, that Sarah would not merely tolerate her son or daughter, but would continue to love him or her as she always has.
Afterall, Bristol sinned by having sex outside of marriage and then got pregnant, and Palin has espressing stated how this has brought the family together and the love is still there. I would expect no less if Bristol came out as gay.
It more than someone. It's actually an entire campaign. Many of the really hateful anti-gay groups have placed ads stating that if SSM is legal, then churches will be required to marry two guys, even if it's against their religion. Of course, it's totally false, and they know it, but it scares people into voting against SSM. I guess in their mind, the only way to beat the devil is to act like one.
This is the norm, as far as I have experienced, and for good reason. Personal example: my father was the one making medical decisions for my grandfather, as opposed to my grandfather's girlfriend at the time taking on this role. It would have been entirely inappropriate for her to have done that, since if my grandfather had wanted her to act in that capacity, he could have married her or signed a power of atty. for her.
You seem to conflate the recipient of this "love" (whatever kind it might be) with the actions and behaviour of that recipient. Perhaps you don't believe it's possible to distinguish between the two.
No, actually, I don't.
In my life, I find that my entire family, all my friends, my co-workers and most of my colleagues know that I am gay, and they treat me no differently than they do others. My family and friend, particularly, love me and I love them back, and not all are Christians -- some are atheists or other religions. It's isn't really hard for them or for me. Sarah Palin could easily do it for any friends or family of her's that might be gay.
It's so easy, in fact, that even you could show Christian love to people. I hope you try it sometime.
That just about sums up the reasoning of much of liberal jurisprudence in the last half century or so.
There was a case where a printer, I think it was, lost a discrimination case because he refused to print invitations for a gay couple.
Catholic charities are forced to choose between abortion and funding, gay adoption and funding.
The idea that churches might be required to marry a gay couple is only silly until gay marriage is legal and the churches...have to marry gay couples.
Besides, churches would never qualify as a defendant for an EP suit suit they're not state actors. The charities are required to play by the rules because they want the funding, and are only allowed to have federal funding in the first place because they are not providing explicitly religious services. If the church itself was relying on federal funds to provide religious services, I think the establishment clause might have something to say about it.
And again, free exercise makes the whole thing moot. I'm surprised to see someone actually trying to peddle this nonsense here.
Yes, in Arizona. So after almost twenty years of nondiscrimination laws in many states, and even more jurisdictions, you have one case where the judge ruled expansively. This example has been beated about for several years now (Clayton Cramer always brings it up). It that's the only case in 20 years that you can point to where the decision is arguably not fair, then that's a pretty darn good record.
"Catholic charities are forced to choose between abortion and funding, gay adoption and funding."
And this case has been thoroughly discussed in the past. The Boston Catholic Charities used to always allow adoptions to gay couples, and they recieved public funds in order to run their adoption agency. Then when Mass. allowed gay marriage, suddenly decided that gay couples were no longer good enough for the kids, so they stopped placing them in gay households. Boston said that if you accept public funds, you must play by public rules, which is that you cannot discriminate against gays. Or, you have a another choice: Continue your adoption agency, decline any public funds, and you can choose to discriminate against whomever you choose.
Instead of doing either of those two options, Catholic Charities decided to end all adoptions by them. That was their choice. And most people agree -- if you want public funds, you have to play by public rules. If you don't want to play by the rules, then don't accept the money. It's really quite simple.
I pay taxes too, and I don't want my tax dollars going to an organization that discriminates against me. Don't like it? Then don't accept tax dollars.
And yet they do. Again, Mass has had SSM for several years, and there is not one case of any gay couple demanding that a church marry them that didn't want to, let alone having that an actual case.
Do you have a special Bible where homosexuality is not referred to as an abomination? Or do you simply have a special decoder ring?
Second, it isn't a choice. Get with the program.
Even for behaviors linked to a genetic predisposition, there is always choice. It's called free will. Get with the program.
Third, I'm not asking for that anyone jump up and down and say what a wonderful life I lead.
Of course you are. You treated Palin's comment that she tolerates her homosexual friends with disdain. So obviously, it is not tolerance you are seeking but approval and celebration
Fourth, Actually Christian love does in fact state that we are to love all our brothers, not just the ones we like or approve of.
Yep. But we're talking about actions, not people. One can have Christian love for an individual but not their sinful actions. No less an authority on Christian love than Christ shows us this. He told the adulteress to go forth and sin no more. He obviously had Christian love for the sinner but not the sin.
How do you respond to the recent California case forcing doctors to engage in elective treatment that goes against their religious principles, specifically fertility treatments for a lesbian couple?
First of all, my comments were in response to yours. So any the only "bait" here is de-"bait," which you apparently don't want to engage in even after you start it. This is America, there's football on and that's your right.
However, your assertion that I hate individuals when nothing I said indicates that underscores my point that what you seek is not tolerance but instead active support and adulation of homosexuality. Anything less is "hate."
And that is something I cannot debate with you either.
So have a good weekend. May your team win, unless it's Miami versus my Chargers or the Patriots against anyone.
This is yet another question that falls into the "Hoosier wishes that people would agree with him, but the Constitution doesn't require it." (Cf. the capital punishment thread bellow.) To repeat myself, yet again, I want people to come over to my side, but I care about the process by which that happens.
Randy--My dear friend and his partner have living wills, if I remember correctly. (And since I put Mike onto VC, I'm sorry if describing you as my "dear friend" makes you embarassed. As "Other Mike" would say, I bet you're looking at your shoes now. ) It seems like an absolute necessity for both committed gay /and/ normal couples.*
*I'm just being a dick with that last adj-n. combo.
Please, I thought the Conspirators agreed to ban all talk of professional sports. As a special kindness to me, after the Trolley-Dodgers swept my Cubs.
PLEASE--NO MENTION OF PRO-SPORTS! I CAN'T TAKE IT ANYMORE!
STOP THE HATE!
(PS--I hyphenate now. I generally call myself a "process-conservative." Or, only at the university: An Oakeshottian-Conservative." (Not that faculty at universities have read Oakeshott. But that confers tremendous advantage in debates to those of us who have.)
Thus, I am tempted to think marriage is a statutory matter, or one of contracts and not a constitutional right.
Be kind. IANAL.
"I was unaware of any ban on sports talk'
That's probably because I just made it up. But I appreciate the sympathy.