Friday, June 12, 2009

Dismissed and dissed.

The Department of Justice just filed yesterday for a motion to dismiss a Federal same-sex marriage case. While a simple motion to dismiss doesn't sound like a big deal, wait until you read the document.

Analysis at AMERICAblog:

Obama defends DOMA in federal court. Says banning gay marriage is good for the federal budget. Invokes incest and marrying children.

Just a few thoughts on the matter, related to the argument below:
DOMA ensures that evolving understandings of the institution of marriage at the State level do not place greater financial and administrative obligations on federal and state benefits programs. Preserving scarce government resources — and deciding to extend benefits incrementally — are well-recognized legitimate interests under rational-basis review.
Here's the thing about human rights in relation to this topic. After the UDHR was signed in 1948, they were then divided into two groups, or as they're called, "Covenants." One contains political and civil rights, and the other economic, social and cultural rights. It's easy the State to ratify the political and civil covenant, as it doesn't require them to spend any money. All they have to do to implement the treaty is to ensure that laws and policies upholding political and civil rights are in their constitutions. However, States are hesitant to ratify the conventions that derive from the economic, social and cultural covenant, because implementation and upholding those rights requires governments to create social programs (unemployment, social security, health care, etc.). Civil marriage, and all the rights that come with it, unfortunately falls under this category.

A point of reference: The Yogyakarta Principles: The Application of Intl. Human Rights Law in Relation to Sexual Orientation and Gender Identity (link at right)

PRINCIPLE 24. The Right to Found a Family: Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in different forms. No family may be subjected to discrimination on the basis of sexual orientation or gender identity of any of its members.

States shall:
[a . . . d]
e) Take all necessary legislative, administrative and other measures to ensure that in States that recognise same-sex marriages or registered partnerships, any entitlement, privilege, obligation or benefit available to different-sex married or registered partners is equally available to same-sex married or registered partners;
f) Take all necessary legislative, administrative and other measures to ensure that any obligation, entitlement, privilege or benefit available to different-sex unmarried partners is equally available to same-sex unmarried partners;
g) Ensure that marriages and other legally-recognised partnerships may be entered into only with the free and full consent of the intending spouses or partners.

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