Surpeme Court Gay Marriage Cases....

[snoopy369]

I think you are misreading onodera. He's saying the legal rights should be preserved. There just is no need for the specific basket of legal rights that make up "marriage" to be preserved as a monolithic structure.

I don't think that's exactly what he means - I don't think his argument is nearly that well constructed - but even so, I think the specific basket of rights is useful. The name is not, so call it whatever you want, but that set of rights is useful - we want to have the ability to designate one other person to be the single person whom is our legal equivalent [ie, in most circumstances can legally make the same decisions as myself, and is treated as myself]. It simplifies child-rearing and it simplifies life to have that single person designated. Having to file a separate piece of paper for each separate right or circumstance would be irritating and likely simply not done in many cases. How many people even make a will prior to ~50 or so? You're supposed to once you have kids, but it's very often not done - and without the marriage certificate, that would be a much bigger problem in the case of sudden deaths (who becomes responsible for the kids if the mother dies? Does the "father" have to take paternity tests now?).

[MichaeltheGreat]

Not only that, it would definitely not get done in most cases because doing everything and doing it correctly is exceedingly complex, and self-help resources are really limited to people with very simple situations. Simply moving across state lines would trigger reviews and revisions in many documents and structures. It would be a great welfare program for estate and trust lawyers, family law lawyers, and tax lawyers, but the vast majority of people would be up in arms of the various benefits conveyed to married couples were stripped.

The "state should get out of marriage" argument in opposition to same-sex civil marriage (not sure if that's onodera's point specifically, but others have made the argument) is like the little kid not getting his way at the playground, so rather than just being content with holding his breath and taking his ball away, he has to get daddy to come back with a front-end loader and flatten the playground to prove his point to all the other kids.

[Aeson]

There is no "need" for any law to exist.

You are ignoring the context of the discussion and my statements. There are many types of "need" in this world. "Needs" are things which are necessary towards a specific end. The end in question in this case is obviously to allow people to have access to a group of legal rights being discussed.

There are many potential methods of doing so. None of them are absolutely necessary. None of them are "needs" in context of this discussion.

There is no "need" for the human species to exist.

Without further qualifications or context, that is true. However ... I'm sure you can think of a few (imminently useful) ends which would require it though ...

There is a social convention that it is useful to bundle some benefits together, but the combo has varied over time and differs from state to state.

Government trying to regulate marriage has done far more harm than good.

There is also a legal recognition that it is much easier to legislate these benefits rather than require each and every married couple to go through a bunch of legal hoops (and make some lawyers rich).

You have to apply for a marriage licence anyways. The process for applying for these legal rights in another manner could be as simple as we wanted to make it.

Tying marriage to these legal rights is what necessarily causes unnecessary legal complexity. It also helps fuel social strife when the government [does or doesn't] use the distinctions to discriminate against specific groups of people.

[snoopy369]

Again, Aeson, call it whatever you want. I don't care if the church ceremony is linked at all to the civil benefit - better it not be, honestly, except it's more efficient to allow it to be if people really want. But having just one paper to sign is way better than having 100s of them; and people just won't bother with all 100 or whatever of them. Pile on to that the fact that lawyers are a large part of the system making laws, and you know for a fact there is no way we'd have a "simple" system for this sort of thing. It'd be like asking book publishers to develop an inexpensive system to let me obtain and read books. Not happening, not in their best interest.

[MichaeltheGreat]

Government trying to regulate marriage has done far more harm than good.

, how so? Before government stepped into marriage, girls of marriageable age were primarily valuable chattel. They had no "rights" other than what their husband decided for them. Hell, into the 1960s here, spousal rape as a concept was radical - you're married, *****? Get to it and give your hubby what's his. Property rights? You got to sponge off him all these years, consider yourself lucky for that. Domestic violence? What did you do to make him mad? You ought to know better and be a better wife.

Government involvement in marriage occurred at roughly the same time as women getting involved in government. Prior that, there was no "involvement" because men - who ran government, ran industry, ran the churches, and every other goddamn thing under the sun, so no need. Marriage, like everything else, was a man's instutition and women could sit quietly until told what their role was to be.

So how, pray tell, has government regulation of marriage caused even a tenth as much harm as good, let along "far more" harm?

You have to apply for a marriage licence anyways. The process for applying for these legal rights in another manner could be as simple as we wanted to make it.

Not really. Most married people don't even know all the rights and benefits that accrue until they encounter specific situations where those rights apply. Marriage doesn't confer any direct benefits - only indirect benefits which may change from time to time at the will of Congress or the legislature. That's the difference. In a marriage, you're essentially contracting with the other party, and any legal bennies (which are slightly different in most every jurisdiction) are an added bonus. In marriage, you get who you marry, and everything else is incidental and subject to change. If you change to a system of directly contracting for specific benefits, or establishing a trust, etc., the process is inherently more complex, and that complexity is driven by wholly separate statutory and common law requirements, plus case law requirements.

A marriage license really takes nothing more than proof of identity and age of consent, and consent to marry. None of the legal issues are identified or contracted for.

[Berzerker]

According to the Reynolds case y'all cited earlier, religious freedom applies only to beliefs, not actions? Jefferson said it doesn't matter if his neighbor believes in 20 gods or no god, that neither picks my pocket or breaks my leg. He was defining religious freedom and he includes actions - actions that dont violate the rights of others. I didn't know the case, but I did know the courts had re-written the religious liberty clause of the 1st Amendment to exclude virtually everything religious.

You people can believe what you want, but you cant read the Bible or go to church and pray. Does Reynolds create that possibility? Those are actions and apparently Congress acquired the power to ban them, not that they would. But then religious freedom belongs only to those who are in the majority or has its blessing. Minority religions need permission instead of being on equal ground. Reynolds revoked religious liberty by equating peaceful acts with violent criminal acts.

[Aeson]

Again, Aeson, call it whatever you want.

It's not about the label snoopy. You're talking about changing the label on a basket, and were trying to create a dichotomy between that specific basket and no legal rights at all. onodera was talking about not having the basket, but still having the legal rights available (vague as to "how" ... perhaps even having various types of baskets to pick from).

But having just one paper to sign is way better than having 100s of them; and people just won't bother with all 100 or whatever of them.

That's a question of implementation, not of whether or not they should be tied to any prerequisites.

However, if we ignore that and accept your reasoning here then why do you want to tie this basket to marriage (or a civil union) and thus force the "complexity" you think must follow onto everyone else? Wouldn't it be better to allow anyone simplistic access to the basket of legal rights you feel must be monolithic?

Pile on to that the fact that lawyers are a large part of the system making laws, and you know for a fact there is no way we'd have a "simple" system for this sort of thing. It'd be like asking book publishers to develop an inexpensive system to let me obtain and read books. Not happening, not in their best interest.

We have marriage licences which you seem to think are simple. They were made while we had lawyers. Obviously achieving that level of simplicity is possible.

[MichaeltheGreat]

x-post. This one's for Berz

Not all actions are actionable.

The different as I explained to HC, is whether the action is integral to the protected practice. It's hard to say "you can be a Christian but you can't read the Bible" because ti's commonly held that reading the Bible is integral to the protected belief.

If you say "my religion requires me to carry out an honor killing on my impure daughter" or "sacrifice a bunch of chickens and goats on my front lawn in view of my neighbors and leave the guts lying around to stink up the neighborhood and draw flies," those are a little tougher sells.

One example I used wiith HC is wiping your ass with an American flag - that's protected expression, but if you leave it in the street, or drop your drawers to do it in public, you may be validly prosecuted under general offenses for littering and indecent exposure, since those laws are not designed for the purpose of proscribing protected flag ass-wiping.

Reynolds is actually a suck-ass case for general First Amendment issues, but BK latched onto it because he erroneously thought it created federal jurisdiction over marriage. The only First Amendment argument in Reynolds was a narrow one as to whether a claimed "religious duty" presented an absolute defense to otherwise criminal activity.

There are far more interesting Establishment Clause cases out there, thanks in part to litigious Jehovah's Witnesses.

[snoopy369]

It's not about the label snoopy. You're talking about changing the label on a basket, and were trying to create a dichotomy between that specific basket and no legal rights at all. onodera was talking about not having the basket, but still having the legal rights available (vague as to "how" ... perhaps even having various types of baskets to pick from).



That's a question of implementation, not of whether or not they should be tied to any prerequisites.

However, if we ignore that and accept your reasoning here then why do you want to tie this basket to marriage (or a civil union) and thus force the "complexity" you think must follow onto everyone else? Wouldn't it be better to allow anyone simplistic access to the basket of legal rights you feel must be monolithic?



We have marriage licences which you seem to think are simple. They were made while we had lawyers. Obviously achieving that level of simplicity is possible.

Marriage licenses are not particularly simple. They're simpler than 100 marriage licenses. I don't think the processes will be made _more simple_ by the existence of 100 of them.

What complexity am I forcing on anyone? You can get "married" / civil union / whatever; or you can not. You can still do each of the 100 thing separately. I have no objection to simplifying access to any or all features; the lawyers are the ones who object there. Blame MtG

[Ben Kenobi]

I'm not fighting hard for this at all.

Then why won't you accept private contracts without state recognition?

Civil law invokes state procedure, but not state enforcement power

Yes, it invokes state enforcement power. We already went through this before. You explicitly stated that certain things were tied to civil marriage which does invoke the powers of the state to enforce.

Like I said, go to law school, get your bar ticket, then waste my time. Problem is, you'd never get in, let alone get out.

Christ. Transaction is public because it requires a witness in order to be confirmed. This is not hard. Do I need to cite the statutes involved as to who can witness marriages, and who the state grants the power to witness marriages? No witness - no valid marriage.

The state doesn't need a compelling interest to permit a practice - it needs a compelling interest to proscribe.

Again, there is no compelling need for the state to recognize gay marriage. You're arguing this backwards.

can show a particularized harm which directly affects you.

Again the law doesn't work this way.

So you'll redefine terms and legal concepts

Heh. At least I'm not dishonest enough to portray the side arguing to retain the definition of marriage as one man and one woman as the side attempting to 'redefine terms.'

If you were being forced to marry one, or if the law was going to force your parish church to perform evil sodomite marriages along with other pagan ceremonies, you'd have a point.

Have, and have. Case law is out there. We will see this happen - I promise you - that Catholic priests will be forced to either perform gay marriages or stop performing them altogether. I can cite case law where marriage commissioners have already objected and been forced to perform them - as well as teachers being required to teach that gay marriage is a-ok. Also in my province.

So yes, gay marriage has had an impact on my professional qualifications and on my career - since the Corren Agreement came about.

So yes, please tell me MtG - that I'm not going to be affected by this when I am already being affected by it.

[Aeson]

, how so? Before government stepped into marriage, girls of marriageable age were primarily valuable chattel. They had no "rights" other than what their husband decided for them. Hell, into the 1960s here, spousal rape as a concept was radical - you're married, *****? Get to it and give your hubby what's his. Property rights? You got to sponge off him all these years, consider yourself lucky for that. Domestic violence? What did you do to make him mad? You ought to know better and be a better wife.

Government involvement in marriage occurred at roughly the same time as women getting involved in government. Prior that, there was no "involvement" because men - who ran government, ran industry, ran the churches, and every other goddamn thing under the sun, so no need. Marriage, like everything else, was a man's instutition and women could sit quietly until told what their role was to be.

So how, pray tell, has government regulation of marriage caused even a tenth as much harm as good, let along "far more" harm?

For someone who has taken a pretentious and ridiculing tone you are making a lot of very simple logical mistakes. If you'd like the discussion to become less cordial, feel free to continue on the path you have set.

You are confusing women's rights with government intervention into marriage. They are separate issues. There was no need for government to regulate marriage for there to be women's rights movement or for government to protect women's rights.

The harm that has come from government regulation of marriage goes back millenia and continues to this day. From legal rights granted to men over women, to racial discrimination. The only "good" that government has done in regards to it's involvement in marriage is getting itself further and further out of regulating it.

What we have now in regards to government intervention into marriage is a relic of millenia of oppression of women that's been thankfully hamstringed to the point where it's only capable of being used to (to a relatively benign extent) legally discriminate against unmarried, gay, (and in some limited cases, married) couples.

Not really. Most married people don't even know all the rights and benefits that accrue until they encounter specific situations where those rights apply. Marriage doesn't confer any direct benefits - only indirect benefits which may change from time to time at the will of Congress or the legislature. That's the difference. In a marriage, you're essentially contracting with the other party, and any legal bennies (which are slightly different in most every jurisdiction) are an added bonus. In marriage, you get who you marry, and everything else is incidental and subject to change. If you change to a system of directly contracting for specific benefits, or establishing a trust, etc., the process is inherently more complex, and that complexity is driven by wholly separate statutory and common law requirements, plus case law requirements.

A marriage license really takes nothing more than proof of identity and age of consent, and consent to marry. None of the legal issues are identified or contracted for.

No different than if the legal rights weren't tied to marriage but offered in a similar package.

[MichaeltheGreat]

A marriage license is dirt simple in comparison. In California, it's a one page form.

How's this for an Aesonian substitute:

"Donald Dimwit, an individual residing at _____________________ in the State of ____________________________, and Glenda Gold-Digger, an individual residing at _______________________ in the State of ________________________________, (collectively referred to as the "Parties") do hereby agree to a bunch of stuff not specifically definied in this Agreement, which stuff may be changed any time with or without notice by the State of ______________________ or by the United States, as applicable.

This Agreement is effective this _____ day of _____________, 20__,

Date:______________


______________________________________________
Donald Dimwit



Date:__________

______________________________________________
Glenda Gold-Digger

There's your simple non-marriage license substitute for a marriage license, with the same complexity and level of definition as a marriage license. It doesn't pass legal muster for contract, estate, or any other purpose, but it has the same effect as a marriage license. That's because the "benefits" of marriage in a legal sense, are not coupled to a specific marriage - they're whatever a given state happens to have on its books at the time, take it or leave it. Outside a marriage, you don't have a means in US law to contract for the same things without a great deal of specificity, and to be enforceable, that contract will have very significant differences in complexity and detail from the statutory scheme.

Rich and semi-rich people go that route with various forms of family trusts, pre-nups, post-nups and the like, and it's a nice little cottage industry for lawyers.

[MichaeltheGreat]

Then why...

Not playing the parsing game, or the rest. You're too clueless to waste time on.

[MichaeltheGreat]

For someone who has taken a pretentious and ridiculing tone you are making a lot of very simple logical mistakes. If you'd like the discussion to become less cordial, feel free to continue on the path you have set.

You are confusing women's rights with government intervention into marriage. They are separate issues. There was no need for government to regulate marriage for there to be women's rights movement or for government to protect women's rights.

I'm not confusing anything. The developent of civil marriage and "government intervention" i.e. statutory law involving marriage, developed hand in hand with the legal development of women's rights. Whether they could have or should have developed separately is an interesting point, but the fact is there was a close correlation. I assume we're limiting the scope here to "government intervention" in US law and UK common law, because otherwise the subject gets too arcane and widely varied to make any valid general statement.

The harm that has come from government regulation of marriage goes back millenia and continues to this day. From legal rights granted to men over women, to racial discrimination. The only "good" that government has done in regards to it's involvement in marriage is getting itself further and further out of regulating it.

"Government" has not, in general, regulated marriage for millenia. Marriage traditionally has been regulated by social, cultural and religious customs, not by government. What you state is the exact opposite of the history. It was the norms and mores of patriarchical institutions - various religions, tribal systems, and local customs of patriarchical societies which both regulated marriages and also embodied the subordinate treatment of women. To the extent government (anywhere, virtually anytime) has participated in regulation of marriage prior to the 19th century, it was to authorize extant traditional practice such as arranged marriages, polygamy within Sharia limits, dowries, sale of brides, etc. It wasn't governement that created those issues, it was civil society without government "interference." Government involvement in marriage is what changed those systems, where they have in fact been changed.

No different than if the legal rights weren't tied to marriage but offered in a similar package.

Absolutely, completely different. Marriage implicitly conveys indirect rights. Marriage, as such, is only a quasi-contract evolved out of social custom. You can't create a "similar package" that passes legal muster without a lot more complexity and detail, unless you just decide to scrap a few centuries of law in ancillary subjects far beyond marriage - if you want to redefine contracts, trusts, the concepts of consideration and waiver, etc.

[Berzerker]

honor killing or devaluing the neighbor's property with a slaughterhouse violates the definition of freedom, but some religions involve drugs and they dont get protected by the "integral" loophole designed for the politically connected