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February 27, 2005

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Pietro Armando

If marriage can be redefined to include same sex couples, can it also be redefined to include polygamous relationships? Is barring such legal recognition a form of discrimination?

Pietro Armando

Is a "father" by definition a male parent? If so then a woman cannot be, by definition, a father. Is a "mother" by definition a female parent? If so then a man cannot, by definition, be a mother. Should such gender restrictive words be stricken from the law? Should father's day and mother's day be replaced with gender neutral parent's day?

Galois

If marriage can be redefined to include same sex couples, can it also be redefined to include polygamous relationships? Is barring such legal recognition a form of discrimination?

The marriage laws cannot be read in a "number"-neutral fashion they way they can be read in a gender-neutral fashion. Of course it may be possible to come up with a whole new system of marriage laws to satisfy polygamous relationships, but that is a far cry from keeping the laws we have and letting them apply equally regardless of gender. It might be possible to view barring polygamous relationships as discrimination on the basis of marital status, but it is rather difficult to argue that marital status should not used to classify in order to ask the court to recognize one's marital status.

Is a "father" by definition a male parent? If so then a woman cannot be, by definition, a father. Is a "mother" by definition a female parent? If so then a man cannot, by definition, be a mother. Should such gender restrictive words be stricken from the law? Should father's day and mother's day be replaced with gender neutral parent's day?

There is no need for the gendered words to be stricken, just for them to be interpreted so that either word generally means "mother or father". The great news is that in most states they are already read this way. This is a common practice of statuatory interpretation. A policy which drew distinctions between mothers and fathers would be generally be suspect. As for Mother's Day and Father's Day I don't think they cause any more of a problem than Black History Month. It is hard to see anyone who is being hurt by the holidays.

Johnny Moral

>how much more burdensome is it for the man to have to leave his life partner and find an "equal" substitute on account of his sex?

It's not at all impossible, there are hundreds of million of eligible women, and some are probably even closer and less burdensome than the man he is leaving. You are trying to base a constitutional case on snobbery, if not blatant bigotry. It would be a good defense for the Augusta National Golf Club, if they needed one (as a private club, they don't) but it makes no sense for a public institution like marriage.

But the more serious objection to ssm is that the egg and the sperm are not at all interchangable, not even their nucleii. We don't understand how gene imprinting works, and it is unethcial even to experiment to find out. We can never allow someone to attempt to combine two eggs or two sperm to make offspring for a same-sex couple, but marriage ALWAYS grants a couple the right to procreate together. SSM = SSP, and SSP should not be allowed. See www.eggandsperm.org for more info...

Pietro Armando

Is the push for ssm a desire for legal protections or a desire for recognition, and if its the latter does any one have a legitimate expectation that society recognize any and all personal adult relationships? Is ssm a legally artificially created relationship without any religious, cultural, traditional, or historical foundation?

Galois

But the more serious objection to ssm is that the egg and the sperm are not at all interchangable, not even their nucleii.

Sperm and sperm are not interchangeable either. To quote the California Supreme Court in Perez:


A member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains.

Of course they are also bereft of worth and dignity by a doctine that reduces people to sperm and eggs. In addition the right to control our reproductive choices is not dependent on marriage. As the US Supreme Court said in Eisenstadt:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

Even if a right to procreate were granted exclusively to married couples there is no reason to believe that would forbid the state from regulating artificial reproductive technologies much less forbid it from regulating genetetic experimentation to try develop nonexistant technologies. And even if you believed marriage did establish some fundamental right to engage in unethical genetic experimentation, one would think if preventing that consequence formed a compelling interest to overcome the sex discrimination, then it would also form a compelling reason to directly overcome your hypothetical marital right to procreate.

Galois

Is the push for ssm a desire for legal protections or a desire for recognition...

I can't say what motivates others, but I'm not sure I understand the question entirely. The legal protections depend on the legal recognition.

...and if its the latter does any one have a legitimate expectation that society recognize any and all personal adult relationships?

No. I don't believe sex should be used as a basis to determine which relationships are recognized, though. I would similarly have a problem if the state recognized only father-son and mother-daughter relationships, but neglected to recognize and treat equally father-daughter or mother-son relationships.

Is ssm a legally artificially created relationship without any religious, cultural, traditional, or historical foundation?

No. It's foundation is marriage which has a long and rich history in religion, culture, and tradition. Marriage hsa evolved and become egalitarian as society has. It is natural then to remove the opposite-sex requirement of marriage.

Pietro Armando

There is no long established religious cultural, or historical foundation for ssm. Marriage's history is that of an opposite sex union. SSM did not naturally develop alongside OSM throughout time and place. If it had then perhaps this discussion would be unnnecessary.

Marriage hasn't evoloved to the point of rendering "husband" and "wife" moot, at least from a religious/cultural standpoint, which is probably the significant source of opposition to ssm. Society, overwhelmingly heterosexual, naturally thinks in terms of "bride and groom", "husband and wife", "mother and father, etc

Galois

Pietro,

Using your reasoning one could say that there is no long established religious, cultural, or historical foundation for egalitarian marriage, that is a marriage in which the spouse are fully equal partners with the same rights, responsibilities, and obligations to one another. I see egalitarian marriage, though, as just being a change in the rules of marriage and thus it shares its foundation. I view same-sex marriage the same way. But this is a probably an area where we simply see things from different viewpoints.

I agree that the words "husband" and "wife" are not meaningless, only that they imply no legal distinction. I expect that even with SSM people will still tend to think in terms of "bride and groom", etc. as same-sex marriages will be a small fraction of the overall marriages.

Jason Kuznicki

SSM did not naturally develop alongside OSM throughout time and place. If it had then perhaps this discussion would be unnnecessary.

This is false. For a very long time, same-sex couples have considered themselves married in spirit, even when they could not be that way in law.

How long? Montaigne wrote about it in the sixteenth century, and there are precedents which suggest it's been even longer than that. So yes, SSM really has developed alongside OSM throught many times and places. It's just been under the radar, for reasons that should be obvious (Montaigne's description of a same-sex marriage ended with all the participants being burned at the stake, for instance).

Johnny Moral

Regarding Eisenstadt, that was about contraception, aka, the right of single people to decide NOT to have children. It did not wipe any fornication laws off the books. It says that the decision to beget a child is the right of an unmarried person, but once that single person makes the decision to beget a child, he or she has to go through the proper legal procedures to do it. It is most obviously impossible for the actual birth of a child to be private, since that child is itself the public, and sure knows about its own existence. Likewise, who the other parent is is a matter of public record.

The only thing that could be considered private is contraception, which not coincidentally, is what this case was about. Contraception can be taken by a single individual in private and no one else is involved or would know. That is a private decision to lessen the likelihood of bearing or begetting a child, and government intrusion is indeed unwarrented. But actually having a child is not at all private, involving at least two other people, and the government has an obligation to the child and to both parents and families to ensure that it is done responsibly.

Pietro Armando

Jason

SSM has not developed naturally alongside OSM. There's no question that homosexuality has existed throughout history and in some cultures even officially acknowledged. Among the upper social classes in ancient Rome and Greece, male homosexuality was accepted, one might even say celebrated, while female homosexuality was considered taboo. It was common for a mentoring type relationship to exist between older and younger men, with the older one, later, assisting the younger one in finding a wife to start a family. However most of the historical examples of "accepted" same sex unions has been among males, and not universally present among all culutres and people, unlike OSM. Furthermore there is not one example in American history, since Jamestown, of an SSC emmigrating to the U.S. from a country in which SSM was the law of the land, prior to say 1990.

Even today in the gay community there is opposition to the concept of ssm, which is seen by some as contrary to gay culture.

Regarding marriage laws, society dictates what relationships to acknowledge and in what manner. The is what the people choose it to be.

Galois

Johnny,

I'm not sure the courts would agree with you on the scope of Eisenstadt. They have repeatedly categorized the right in that case not as the right to use contraception, but the right of reproductive freedom. Although it did not strike down fornication laws (it could not as they were not being challenged in that case) it does not follow that there is a right to procreate that is dependent on marital status. Fornication laws deal specifically with sex, and not procreation. Even assuming fornication laws are still valid (and there is some question of that in light of Lawrence) it is seriously doubtful that a court would allow forced abortions for single women or forced temporary contraception for single men or women.

But again, even if marriage did establish some irrevocable right to procreate (and we have seen no reason to believe it does), that does not remotely imply a right to engage in genetic experimentation that would otherwise be prohibited. I'm curious, though. If you think it does grant such a bizarre right, then why isn't this a problem without SSM. People already get married. Many of them have fertility problems. Why can't someone use that as an excuse to have scientists engage in unethical genetic experiments?

Pietro Armando

Is it an issue of the right to procreate, or should it be one of procreating responsibly, preferably within the marital realtionship?

Galois

I think the government should do its best to encourage responsible procreation and childrearing. I think marriage is key to that. That's why I am shocked they often do not allow a child's legal parents to marry.

Johnny Moral

>They have repeatedly categorized the right in that case not as the right to use contraception, but the right of reproductive freedom.

Well, some courts may have, but that's not what this case granted. The decision to procreate still requires marriage first in states that outlaw fornication, as Skinner and Loving and Zablocki all show.

Zablocki was 6 years after Eisenstadt (1978) and it explicitly links marriage with procreation rights.

>Fornication laws deal specifically with sex, and not procreation.

Well, why prohibit sex if not to stop procreation?

>Even assuming fornication laws are still valid (and there is some question of that in light of Lawrence)

Nah, sodomy is not sex. And it isn't private. (And gay marriage, if it is like marriage, would seem to be a public statement that the couple commits sodomy, and privacy was the whole basis of Lawrence.)

>it is seriously doubtful that a court would allow forced abortions for single women or forced temporary contraception for single men or women.

And how would that follow?? Fornication and adultuery have been illegal for centuries and have never led to forced abortions!

But again, even if marriage did establish some irrevocable right to procreate (and we have seen no reason to believe it does)

Do you think the Lovings would have accepted a marriage that didn't grant them a right to procreate? Marriage and procreation rights are one and the same, inseperable and irrevocable. (The same-sex marriages of massachusetts were granted illegally and in error and in spite of protests and are null and void)

, that does not remotely imply a right to engage in genetic experimentation that would otherwise be prohibited.

Not remotely? Are you sure? Can you name any marriage in history that didn't have a right to procreate? And in this modern era, to use any and all available technology to do it? We could ban various dangerous technologies that could be used by hetero couples, but that wouldn't mean that any hetero couple that might want to use it would lose the right to marry, because their procreation would still be combining an egg and a sperm. But a same-sex couple would not be able to procreate EXCEPT by illegal methods - obviously and publicly.

>I'm curious, though. If you think it does grant such a bizarre right, then why isn't this a problem without SSM.

It IS a problem without SSM! We would have to ban it in addition to not allowing it through marriage.

>People already get married. Many of them have fertility problems. Why can't someone use that as an excuse to have scientists engage in unethical genetic experiments?

They DO!!!! All the time! There is a huge resistance to regulating IVF! But even if we are succesful in banning unethical procedures, people will still always have right to marry someone of the other sex and attempt to procreate, but, after the egg and sperm law, they will not have right to attempt to procreate with their own sex.

Jason Kuznicki

Pietro,

The ceremony Montaigne described was explicitly a marriage between two adult men. There likewise have been similar adult-adult relationships throughout history, aiming to create lifelong pair bonds, not just transient unions between people of different ages.

As to those who oppose SSM within the gay community, you should take your case up with them, not with me. I support SSM so much that I'm in one.

Pietro Armando

Galois

That is true, government does prohibit a child's legal parents from marrying in some cases. For example, a man is living with two women, has fathered a child with each one thus making him both the biological and legal father of said children. The women are the biological and legal mother of their respective child. However the law only permits the father to be legally married to one of the mothers. Such a shame that the other child's parents cannot be legally married.

Pietro Armando

Jason

I don't deny that there are other historical examples outside of Rome and Greece, of male same sex unions. Female examples are far less numerous, unless I'm mistaken. However such examples do not indicate evidence of an historical culturally universal practice. There is far greater historical precedence of polyagamy, including this country, than SSM.

I agree there are SSCs who have formed long lasting relationships, and considered themselves to be "married". I also agree that there should be some way for them to legally frame such relationships, but marrriage need not be redefined to do such.

Galois

Pietro,

Actually the law permits the man to be married to both women, just not simultaneously. The man, had he chosen, could have married one woman prior to conceiving the first child with her. He could have subsequently divorced her and married the mother of the second child. This would at least ensure obligations to support both mothers. More importantly, though, I would say that one who argued that polygamy should be illegal because childrens' parents need to be married was just as ridiculous as one who argued that SSM should be illegal for the same reason.

Johnny,

I'll try to answer some of your questions and concerns....

Zablocki was 6 years after Eisenstadt (1978) and it explicitly links marriage with procreation rights.

And Turner (1987) was 9 years after Zablocki and explicitly considered marriage as distinct from procreation rights. (Missouri was required to allow prisoners to marry even when they could forbid those prisoners from having sex with their spouses).

Well, why prohibit sex if not to stop procreation?

Off the top of head I can think of two possible reasons. To limit the spread of disease and to try to reduce unwanted pregnancies.

Nah, sodomy is not sex. And it isn't private. (And gay marriage, if it is like marriage, would seem to be a public statement that the couple commits sodomy, and privacy was the whole basis of Lawrence.)

I'm not sure how you are defining sodomy. Certainly Lawrence dealt with sex. As the opinion reads:


...saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct....

Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.

Marriage and procreation rights are one and the same, inseperable and irrevocable. (The same-sex marriages of massachusetts were granted illegally and in error and in spite of protests and are null and void)

Is that the way it works? If there are protests with a decision and you disagree with it the decision is null and void. Certainly plenty of people after Brown v. Board tried that tact. It didn't really work.

Not remotely? Are you sure? Can you name any marriage in history that didn't have a right to procreate?

How about the marriage of the prisoners in Turner? In any case, same-sex marriages as well as the marriage of octogenerians cannot procreate. You seem to be saying that since a same-sex couple cannot procreate if we allow them to marry they might try to develop experiments that would allow them to do so. The same, though, could be said for the marriage of the octogenerians. Perhaps they might try to create a child from two skin cells. Yet we do not say that allowing the octogenerians to marry requires that we allow any and all genetic experiments. Likewise we could allow the same-sex couple to marry without requiring that we allow any and all genetic experiments. Both couples could not procreate except by illegal (AND NON-EXISTANT!) means. I fail to understand the difference.

Pietro Armando

Galois

Since the law only permits one marriage at a time, one child will be without a set of married parents, contrary to the desires of the parents, and the reasoning that a child's legal parents should be married. It's interesting that as a society we allow serial monogamy (unlimited marriage,divorce and remarriage), and out of wedlock conception with no criminal sanction, and yet we recoil at the notion of a polygamous marriage. Why? If we can redefine the concept of marriage from that of a opposite sex primarily potential sexually procreative union to one of simply two people, surely we can redefine it to include units of three or more people. Why should same sex pairs be allowed to redefine marriage to suit thier purposes and not allow others the same right or privlege?

Galois

Pietro,

I agree with you that it would be pretty stupid to argue "marriage is about procreation" as a reason to oppose polygamy. That would actually be a reason in support of polygamy. Frankly I think it's also a pretty stupid reason to oppose same-sex marriage. What is the harm in allowing a couple who cannot procreate to marry?

As for your question of why we can read the marriage laws gender neutrally but not person neutrally, it's pretty simple. The law (in most states) already draws no distinction between the rights and obligations of men and women. It is easy to treat someone as an individual without regards to sex, and it is a very common tool of statuatory interpretation to do so. The law does draw distinctions between an individual and more than one individual, though, so we have a huge difference between the situation where one's spouse is an individual and where it is multiple individuals each with distinct legal identities.

That's your short answer. Same-sex pairs aren't redefining the laws of marriage. They are just asking that those same laws be applied without regards to gender. At the very least it is clear what is being asked for. It has been implemented in Massachusetts. What is a polygamist asking for? How would you rewrite the thousands of laws to accomodate polygamy? Only after you present a fairly detailed plan can I begin to evaluate whether it would be a good idea.

Pietro Armando

Galois

The argument "marriage is about procreation" is not necessarily devoid of substance. I agree that times have changed and society has loosened the bonds between sex, procreation and marriage, how ever if one looks back at how the legal system has viewed marriage in previous decades, at least in New York State, the idea of procreation as marriage's purpose is valid. NYS marriage/divorce case law has a number of references of judges clearly staing that marriage is for procreation, and "normal marital relations". Denial of the latter is grounds for divorce. Obviously such reasoning would have to be altered for same sex pairs, terms such as "normal marital relations" or "consumation of the marriage" would not apply. At one time the use of contraceptives for married couples was prohibited. If contraceptives were legallly prohibited, and a husband and wife were expected to engage in "marital relations, the end result could be conception. The old adage that two go to bed but three get up holds true. There are still laws on the books in many states regarding adultery. Although rarely enforced, they still indicate that marriage is viewed as a sexual, (heterosexual) union. So in this regard marriage, sex, and procreation are linked. Would SSM, at least in this sense, redefine marriage as not only the law views it, but as it has been understood over the past fifty years?

Galois

The argument "marriage is about procreation" is not necessarily devoid of substance.

No, but the argument "marriage is soley about procreation" is. What harm comes from allowing a couple who cannot procreate through "normal marital relations" (whatever that means) to marry?

Would SSM, at least in this sense, redefine marriage as not only the law views it, but as it has been understood over the past fifty years?

No. I have not found one law in the NYSDRL that would need to change.

Pietro Armando

Galois

The meaning of the phrase "normal marital relations", which I suspect you are aware of, is sexual intercourse. If one reads NYS Supreme court cases on divorce from several decades ago, one will find use of such, and similar, phrasing by various judges. This was a clear indication that marriage was viewed as a sexual union, and denial of such by one party, physical difficulties not withstanding, was considered grounds for divorce.

NYS Domestic relations law clearly states that couple wishing to be married, "accept each other as husband and wife" in the presence of witnesses. Obviously a same sex pair would not be able to accept each other as "husband and wife". So that is at least one portion of the law that would have to be changed.


"What harm comes from allowing a couple to marry who cannot procreate through 'normal marital relations'... Marry in what sense? It would be a strict legal, except to the participants themselves perhaps, union with no cultural, historical, or religious foundation. Societal marital expections are filtered through a heterosexual husband/wife relationship prism. What effect, if any, would that have on SSM? Would they be the same for a same sex pair? Would society expect a man (or woman) to be sexually faithful to another man (or woman)? Would the laws of adultery apply? Are heterosexual marriage expectations of sexual fidelity applicable to same sex pairs? Does that matter? Will SSM strenghten, weaken, or have no effect on OSM?

How would society suddenly benefit from two men/women "marrying" as opposed to merely living together? Will same sex pairs flock to the altar if ssm becomes the law of the land?

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