Every time I'd attempt an argument in any direction, I'd end up in a circle. And after a crash course in tax break regulation, I'm convinced there's a lot more to this argument than people from either side are letting on and that acknowledging those untalked about incentives (*cough! cough! **FINANCIAL!) would actually simplify the debate enormously. And I also wanted to completely ***overhaul the tax code.
I believe in tolerance. I also believe in morality. But discussion and studies about homosexuality and its impact or lack thereof are irrelevant here because that's not what the case is about. Those things may be what Prop 8 were about and they are certainly what all the buzz and debate and exchange within the marketplace of ideas surrounding the case are about. The actual lawsuit, though, has to focus on legal, not social principles. So it's about whether or not a referendum held to a public vote and then passed by only a slight majority (52.24 percent) of Californian residents does or does not violate Constitutional guarantees. And for law students, legal scholars, and hopefully, for all Americans, that is a very important question to have answered.
I know where I stand on the irrelevant stuff -- morals and tolerance and the balance between the two. But I still haven't decided what I think the Constitutionally-acceptable solution should or will be. Good thing I'm not in charge.
Thoughts? Does someone out there have a better grasp on the Due Process clause and is certain they know how it should be interpreted? Is anyone else as lost as I am? Or does no one want to touch this?
** I am not referring only to proponents of gay marriage here -- financial incentives play into both sides. Nor am I implying the only reason homosexual couples want to be married is because of a tax break. There are certainly important emotional aspects to this issue. I am referring here, however, to the fact that one of the main arguments that current marriage laws are discriminatory is that heterosexual couples who are married are given different tax breaks than heterosexual couples that are not married and that current marriage laws force homosexual couples into the unmarried category.
***(Warning: I ramble here. You may want to just read the main post and move on to the comments if you're not in the mood to make sense of confusion.)
Marriage as an institution has historically been about children. That does not mean that your marriage has to be about children. You may choose to be married and not have children (my husband and I are fully in that category at the moment) and you may choose to have children and not be married. But governments and societies have typically offered incentives (and really, what other form of incentive does the government have other than tax breaks and some sort of government-recognized title distinction) to people who are willing to commit to long-term relationships because it is an effort to reduce the number of children born to single parents.
If the incentive works (or if the incentive creates a culture where marriage is valued), this reduces the percentage of children who will need government assistance to make up for a missing parent and significantly reduces other social ills that have been statistically linked to poverty due to single parenthood. That's good for society as whole. The government recognizes that not all married couples will have children. But they do recognize that the majority of heterosexual people will procreate and they want to encourage as much of that to happen within committed and stable relationships as possible so marriage has traditionally been offered to heterosexual couples.
This line of reasoning is used as by some as an argument against extending marriage to committed homosexual couples: The only reason the government cares at all about heterosexual marriage is because heterosexual marriages usually produce offspring and governments have a valid interest in parental care provided to the children born into their country. If children were not usually a product of heterosexual relationships than the government could care less whether or not the two adults in the relationship wanted formal recognition of their lifelong commitment to each other. Because no homosexual couple will ever spontaneously reproduce, the argument is there is no valid reason for the government to get involved. Homosexual couples may adopt, just as others who are not married may adopt, but other tax credits are offered to parents regardless of marital status and if unmarried people (regardless of sexual orientation) are willing to go to the lengths that it takes to adopt a child, then their families are probably not the kind that threaten societal harmony like lots of children from uncommitted relationships do and so there is no need to offer incentives against it like there is with unmarried couples.
The Supreme Court, in some cases, seems to agree with at least the line of reasoning which leads to this argument because it has repeatedly let the American people know that they can have sex and be committed and spend there lives with whoever they want, but marriage the institution is about children and families, not just about two adults who love each other. That does not mean they won't extend marriage to homosexual couples at some point, because they might. It just means that they say the reason America cares about marriage is because marriage is about kids.
Now how does this all relate to financial incentives and a complete overhaul of the tax code? I follow the purposes and reasoning for tax breaks for married couples to a point. But I also see where it seems completely unfair that when my friend's dad bailed on her mom and asked for a divorce, that her mom now pays more in taxes (because she doesn't get to file jointly with anyone), which actually leaves her with less income to support her daughters just when she needs the extra income the most. It also seems totally bogus to me that I get more of a tax break than my unmarried friends who are dating. How is that fair? And it seems bogus to me that heterosexual couples without kids should get more of a tax break than homosexual couples without kids. But I also think the government should be encouraging marriage because it is good for kids and what other ways can the government do that than offering tax incentives? And can we really afford to offer ALL parents, regardless of marital status, the same huge level of tax breaks? It's not like this money just magically appears if it's not collected. The people who don't qualify end up making up the difference. So now everyone who is childless would be footing a much larger bill. But, on the other hand, then the tax break would be even for all parents regardless of marital status. It's one reason this friend is against gay marriage because the money lost to all the new tax breaks for married homosexual couples will fall largely on unmarried people, a large portion of them single parents. Why should they get a tax break when the whole purpose is to benefit kids and right now unmarried people WITH kids don't even qualify. But don't we want parents to be married, so shouldn't we continue to give tax breaks to married couples because they most likely will have children? Most married people do have children. You could argue that we should only give it to couples who are married with kids if kids are the ones we're trying to help in the first place. But is it fair for one marriage to receive a tax break when another doesn't based on child status? Do we give a tax break for people trying to have children? Or only once they actually have a child? What would would happen if we just overhauled it all and didn't give a married tax incentive? What if, since kids are the ones we are trying to help, we just gave a bigger child credit? Would that somehow be interpreted as government approval of people choosing to have children outside of committed relationships even though that has been shown to be bad for society? Would Prop 8 have even have happened if there was no married tax break? Would as many homosexual couples want to be married if non-marriage wasn't keeping them from equal treatment in the eyes of the law because not even married people were being given the break? The fact I can come up with so many questions and I absolutely loathe talking about tax law is a big sign to me that there needs to be some kind of tax reform. But, again, I won't be the one to do it.