The Volokh Conspiracy - The Constitutionality of Same-Sex Visitation Rights:

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.

	[Todd Zywicki, October 3, 2008 at 5:27pm] Trackbacks The Constitutionality of Same-Sex Visitation Rights: 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.