Shotgun Debugging, Constitutional Law, and the Argument from Elegance

[maradydd]

As some of you know, I have a rather lengthy post in the works about the history of challenges to initiative amendments in California -- that is, constitutional amendments which are proposed by a petition of the people and decided by popular vote. It's 1500 words and counting, and will probably hit 3000 by the time it's done, but I wanted to make

Comments

[geekosaur]

I'm pretty sure "change them all to civil unions" is intended to mean "shall be considered as marriage by whatever name, minus religious issues". If the law can't actually support that concept then I suspect things get "interesting": I fully expect all of those cases you mentioned and more will be thrown up by the anti-SSM folks as examples of "rights" that will be "lost" if SSM is enacted. Or, quite possibly, be used as a large set of legal issues to be tried in court in order to delay the implementation of SSM.

A rose by any other name

[maradydd]

Just to make things clear, I support parity in both name and practice for same-sex and opposite-sex unions. If that means "they're all marriage", great. If that means "they're all civil unions", that's fine too, but I want people to understand that the name has an important meaning in the law here, and it's a meaning that no one wants to lose. Same-sex couples should get spousal privilege, and so should opposite-sex couples, so I'm wary of a solution which has the potential to remove spousal privilege from both of them. Having to clarify that "civil unions have all the privileges of marriage" is less elegant than "it's all marriage".

I have some other ideas in mind with respect to the religious issues, but I'm not going to discuss them right now; need to do more research.

Re: A rose by any other name

[geekosaur]

Right, my point is that a law of the form "all references, implicit or explicit, to `marriage' in the constitution or the body of law, written, common law, or otherwise, shall be construed to mean `civil union', which is defined as ..." (nb! this is not proper legalese) is more viable than other alternatives, and effectively becomes a global sed on the whole shebang. This is generally what the proponents of getting government out of the marriage business intend, and it's the way many emendations of law work. (It's also why lawyers charge so much; keeping track of all of this and the implications thereof is hard. But it has to be done anyway; applying it to SSM doesn't change anything on that front.)

Re: A rose by any other name

[maradydd]

Let me take a step back. Is there a reason other than same-sex marriage for the advocation of civil unions for all?

[mellowtigger]

A good metaphor. Keeping the same programmer frame of mind, what about "aliasing" or "overloading" the marriage function so that it accepts same-gender inputs? There'd be no new code underneath, just a different function call to the same ol' code.

[maradydd]

I like to think of it as pulling up the marry(spouse1, spouse2) method, myself, but I'm a refactoring junkie. ;)

[lightning_rose]

Operator overloading is the work of the devil!

[maradydd]

This can actually be handled quite cleanly in C++ using template function overloading: declare one version of the function as template and the other as template . The compiler will introspect on the argument types and determine which version of the function to call.

I think I'm officially too geeky to live.

[maradydd]

until such time as the legislature explicitly clarified the issue, to the extent possible under the state constitution.

This takes quite a lot of time, though. California's been working on it since 1999 and we haven't quite got it right yet; domestic partnerships facially do not have parity with marriages.

[maradydd]

Thus my argument from elegance: just do a pull-up refactoring already. :P

[espvivisection]

I brought the debugging issue up to my prof in my sexual orientation/gender identity and the law class last week, and it turns out that it was as simple, in Oregon, as writing in one line at the constitutional level. It was something to the effect of, "Any state law, statute, case, or local ordinance that references marriage will now read to reference marriage and domestic partnerships." Seriously. Here they just wrote in " 'marriage' = 'marriage + domestic partnerships'" somewhere near th beginning of the code (i.e. into the definitions section of the state constitution) and that did it. And since she was one of the attorneys who lobbied it for herself and her partner of like 25 years, I suspect she knew what she was doing.

((Apparently there is a 'secret' cabal of fab attys who meet biweekly in the offices of one of the richy-rich firms in the state where a member is partner to plan their legislative and legal/judicial maneuvering. Oregon actually HAS a gay agenda.))

[espvivisection]

This is, by no means, intended to imply that I thin anything less than marriage is actually equal. Separate but equal is a sham. But this is what we have in Oregon right now.

[maradydd]

Reflecting on this a bit later, I realised that there's another reason (apart from the moral argument) that I find the Oregon solution adequate but non-ideal: indirectness is confusing, especially to the layman

[maradydd]

How does the OR amendment apply to rights and obligations that survive the termination of the relationship? Cf. Lowe v Broward Co (Florida), 766 So2d 1199.

[avitzur]

Thank you. That is very helpful.