Obama must know this won't work

President-elect Obama has posted his Civil Rights Agenda at his change.gov site. Among the items are these two which are relevant to this blog:

• Support Full Civil Unions and Federal Rights for LGBT Couples: Barack Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.


• Oppose a Constitutional Ban on Same-Sex Marriage: Barack Obama voted against the Federal Marriage Amendment in 2006 which would have defined marriage as between a man and a woman and prevented judicial extension of marriage-like rights to same-sex or other unmarried couples.

Regarding Civil Unions, how could he seriously be proposing Civil Unions with all the rights of marriage after every state court that has addressed the issue has said that is unconstitutional to use a different name for same-sex unions with the same rights? He said he "respects" the California court's decision, but that's hard to reconcile with supporting the very solution that they rejected as harmful and unconstitutional. The fact is, almost no one supports civil unions that are "marriage in all but name", even if they were constitutional, so it's not going to work. But he can still accomplish federal recognition of Civil Unions that give all those 1,100+ federal legal rights, and, he can do it in a way that preserves marriage and makes the Federal Marriage Amendment unnecessary: by enacting the Egg and Sperm Civil Union Compromise to prohibit genetic engineering and same-sex conception by limiting conception to a man and a woman's sperm and egg, preserve marriage as conception rights, and recognizing Civil Unions that are defined as "marriage minus conception rights".

New Scientist Editorial: Getting ready for same-sex reproduction

I wish I had seen this New Scientist editorial when it came out in February: "Getting ready for same-sex reproduction". It's no surprise that New Scientist magazine is smugly in favor of it and calls the "fears" of same-sex reproduction "largely irrational", as they have editorialized for same-sex marriage and against the irrational religions that oppose "science" many times in the past, but at least they called for a public discussion of the issue, right now. Too bad I hadn't seen this during the election.

Thanks to Dr. Maurice Bernstein at his Bioethics Discussion Blog for starting a discussion of the issue there and pointing his readers to the New Scientist editorial. I don't know Maurice's position as I just came across his long-running blog recently, but I think tries to be neutral on issues and just host a discussion. I hope he gets some interest and generates good discussion there.

California should be the first to enact Recognition-Ready Civil Unions

In addition to the speculation about what happens to existing same-sex marriages in California (the options are: turned into the old DP's, voided, left standing but not 'recognized' in California, or, unlikely but suggested by some, still recognized but no new marriages issued), there is also the question of what prop 8 does to DP's if they want to go back to them. Does Prop 8 make DP's unconstitutional also? Well, no, it doesn't, but even so, they can't go back to those old DP's as they'd been defined either, because those were already unconstitutional.

The court said it is unconstitutional discrimination to call identical legal institutions different names for same-sex couples. Proposition 8 didn't amend the constitution to say that it was OK to now call identical institutions by different names, it said that only a man and a woman can be recognized as legally married. So it would still be just as unconstitutional now as it was seven months ago to use a different name for the same rights. If that opinion was right then (and I think it was) then it is still right today.

So uh-oh, it looks like there is a bit of a bind here. The only constitutional option is to make them unequal institutions, with different legal rights and protections. The best way to do that is with a "marriage minus one" formulation, so that all the other rights are known to be included. The right has to be intrinsic to marriage in order for it to be subtractable from marriage, such as the right not to self-incriminate your spouse, or the right to inherit property. It wouldn't work to say "marriage minus the right to vote", because that is an individual right, something done by individuals. It has to be something marriages have a right to do together, and something that same-sex couples don't want or need, or it would defeat the purpose.

How about...the right to conceive a child together using the couple's own genes? This has the advantage over other possibilities because it's something we need to ban as soon as possible anyhow, and there would be lots of long lasting benefits to banning it.

California should be the first state to enact "Federal Recognition Ready" Civil Unions that are defined as marriage minus the right to conceive children together, so that when Congress enacts the Egg and Sperm Law and repeals DOMA, their Civil Unions will match the necessary definition to be recognized as marriage and they could qualify immediately. Then other states would follow suit soon after.