* Married couples are permitted to give an unlimited amount of gifts to each other without being taxed. * The law provides certain automatic rights to a person's spouse regardless of whether or not a will exists. * With marriage, a couple has the right to be treated as an economic unit and to file joint tax returns (and pay the marriage penalty), and obtain joint health, home and auto insurance policies.
I think there are two issues in this "same sex marriage" debate that are being confused by people on both sides. One is the special rights and privileges given to married couples, and the other is the actual word "marriage". What I was suggesting is that the government should drop the term "marriage" from their vocabulary and change it to something else, like "domestic partnership". I highly doubt that anyone employing rational thought would suggest we can do away with the concept of mutually exclusive partnership between two people in the legal realm. Part of what the people on the right are arguing for is to not have the actual term "marriage" redefined by the government. That word has a lot of tradition and meaning. If we turn the conversation towards removing that word from the government's laws and replacing it with something that has less specific meaning to people, then the conversation is purely about equal rights and not a fight over a word and the tradition behind it. I think that's more what people are getting at when they suggest that the government shouldn't be involved in marriage.
No.
My understanding of "separate but equal" historically had to do with separating students based on race into separate schools. If the government were to say, "OK, call it a marriage, call it whatever you want, but 2 people can form what we call a 'domestic partnership' that creates certain legal rights by filling out this form." How is that separate but equal?
Section 2 (specifying that the full faith and credit clause does not apply to same-sex marriage), which Law Prof Andrew Koppelman suggests is roughly as effective as a ban on hunting unicorns is not before the court and if Koppelman is right (and the section does nothing anyway), will never be before the court.
My prediction is that they will, and they will strike down this provision on the grounds that defining marriage has been a traditional role of state governments and that the federal government must defer to the states as to who is married and who can be married. They would then hold that there is no valid reason for the federal government to treat these differently. This decision is likely to be 7-1, 8-1, or 9-0 depending on whether Scalia dissents and whether Kagan recuses herself.
The result will be that it will fully revert to a state-by-state approach and that if you are in a state which recognizes same-sex marriage you can bring your same-sex spouse over, but if you are a resident of a state which does not, you may not.