Surpeme Court Gay Marriage Cases....

[MichaeltheGreat]

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.

Changed my mind, you get two replies and a comment, for my entertainment:

So explain to me, counselor, exactly - list 'em all, what rights and interests relating to a marriage accrue to any individuals other than the parties to the marriage? You don't understand the legal meanings of public and private transactions. A witness does not make a private transaction into a public one. If you ever own a piece of property and sell it, do you think the notary who notarizes the deed acquires a right, title or interest in the property or the proceeds of the sale? It's still a private transaction.

Again the law doesn't work this way.

It's called "standing." Maybe you want to dig up CJ Burger and tell him he got Sierra Club wrong, because the "law doesn't work this way." You could even go back and dig up AJ Brandeis and tell him he got Fairchild wrong and started this whole mess that "doesn't work this way" although it has for 80 years.

You could try a state law jus tertii approach, but unfortunately, that doesn't let you litigate anything other than state law claims, and states aren't uniformly friendly to jus tertii. The other problem with jus tertii is that even in most jurisdictions that favor it, it may get you past demurrer, but not past a motion for summary judgment.

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.

Cry me a ****ing river. Pro se that one and see how far you get.

[MrFun]

Well ****. I was wrong. I totally thought MrBoring would be the first person to pick a fight with Ben in this thread.

Nah. You and others have seemed to formed a consensus that I should not discuss issues concerning gay people and equal rights issues.

[Aeson]

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.

Governments' involvement in marriage was to detail and enforce the rights of man over women throughout most of human history. Only until very recently did government start limiting the rights of a husband over his wife, and as you said that happened as government was limiting the rights of men over women in general. To illustrate this distinction, if government intervention into marriage was the cause of the women's rights movement, then why were unmarried women given the right to vote? Why could a man legally beat his wife more recently than a man could beat a woman he wasn't related to? (To some extent the right of a husband to beat his wife is still to this day more protected than the right of a man to beat any other woman.)

The women's rights movement did of course change how government regulated marriage. Government institutions that had stood for most of human history (men dominating women) had to fall as society supported women having the same rights of citizenship. That is far different than giving credit for women's rights to government intervention into marriage.

"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.

These were really just primitive forms of government. Groups of people who set laws.

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.

Government can only do the things which the people who control it (in whatever composition that group is) want it to do. That doesn't mean government doesn't do the things it does. When government has in the past passed laws that dictate the rights of a husband to beat his wife, that is what government did, regardless of what social and political factors that lead to such a law being made.

In any case, all the gains you attribute to government's intervention into marriage could have been (and at least to some extent definitely were ... especially in the case of unmarried women) made without needing to involve government into marriage at all. If a woman has a right to not be beaten by anyone, even her husband can't beat her. That is the obviously superior way to treat the issue, as instead of needing a law about husband and wife, you simply have a law protecting all women from being beaten. You have a law protecting all women's right to free speech, to vote, ect. For those ends there is no need to tie it to marriage. No need to recognize marriage.

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.

The easiest of course is the one snoopy brought up, simply changing the name. Are you saying that we couldn't change the label?

[MichaeltheGreat]

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

If they got caught using drugs, they were doing it in a public enough nexus that things like driving while impaired could come into play. Just say no... (to making a public spectacle of your use of) drugs.

"Integral" doesn't apply there so much as "general purpose" statute - e.g. if the drugs were only prohibited to suppress ghost dance or Ras Tafari or other religious practices, but anybody else could get high. Since the law isn't designed or enforced specifically to oppress that religious practice, it can be enforced regardless of any claimed religious practice defense.

[Aeson]

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

How's this for an Aesonian substitute:

Would that give the same tax status to the signatories (legally not married) as a married couple?

[MrFun]

Hey at least be honest about it- I don't argue that you are embarrassed to embrace sodomy, do I?

You're an incredibly shallow person to reduce romantic love, life-time commitment between two people, and family down to where one puts their pecker or how one uses their pussy.

Marriage is so much more than sex.

[MrFun]

Per definition of sodomy, I suppose BK would want to prohibit a man and a woman to marry one another if they engage in anal sex?

[MrFun]

They can, just not to each other. Hence my crucial distinction between being able to marry, which everyone can, and being able to marry whomever they want, which no one can do.

Your arguments against my arguments have amounted to the following - that bigamy and polygamy ought to be permitted and that it's really no one's business whom you are married to and how many people you are married to.

Which I find intriguing because if that's the case - then I don't see how one can argue for all the components of 'civil' marriage. If no one cares or no one has a business to get involved, then none of these protections are there either.

It seems to me that you want to remove one thing - but keep all the rest. Which is inconsistant. You want involvement, insofar as it agrees with you and no involvement where it is inconvenient or unwanted. Like I said earlier - you aren't going to be able to keep the provisions attached to civil marriage. Either it is kept and one thing goes, or the protections go and you get the rest.

We should reinstate anti-miscegenation laws. Blacks can marry, just not with whites. Whites can marry, just not with blacks.

[Alfred Mondale]

What can I say? There is nothing wrongwith being gay. Nothing inferior, nothing lacks. I will not begrudgetheir right to marry, but welcome and embrace it. The members of theSupreme Court should embrace love, and not try to divide. A dividedhouse cannot stand, as Washington used to say. We the American peoplewill not stand for oppression of any kind and it must be stopped. Doyou want to tell your gay son in twenty years that you didn't standup for his right to marry Juan? I would not be proud of that. Now, Iask you, will you do what is right?

[MrFun]

Is there a rationale for marriage to be recognized as one man and one woman? Yes - for the purposes of child rearing and procreation this is the most stable environment to get and beget children. All the other arrangements are less likely to be stable and less likely to produce the outcome the state desires. Does gay marriage satisfy this bar? No. Ergo - whereas on can state that gay relationships should not be prohibited (which is already protected by the constitution which provides for freedom of association), on cannot get from here to gay marriage and recognition by the state. It is insufficient to state that the recognition would make some people happy, because obviously - distribution of benefits to anyone would accomplish this. It doesn't establish how the specific distribution to only gay couples in marriage would accomplish anything more than distribution to everyone, married or no. The same is not true for marriage between a man and a women - because of the specific benefits which society in general accrues.

So these are the people who should be prohibited from legally marrying:

1. Straight couples where one is infertile.
2. Straight couples who are in their years in which the woman can no longer carry a child to full term.
3. Straight couples who are capable of breeding, but do not want to have any children.

[MichaeltheGreat]

Governments' involvement in marriage was to detail and enforce the rights of man over women throughout most of human history. Only until very recently did government start limiting the rights of a husband over his wife, and as you said that happened as government was limiting the rights of men over women in general. To illustrate this distinction, if government intervention into marriage was the cause of the women's rights movement, then why were unmarried women given the right to vote? Why could a man legally beat his wife more recently than a man could beat a woman he wasn't related to? (To some extent the right of a husband to beat his wife is still to this day more protected than the right of a man to beat any other woman.)

Fair questions. Women's voting rights were the tail end of the "old" women's rights struggles. First there were issues as simple as the right of a woman to own and control property in her own name. Not getting into the maelstrom of totally unrelated legal systems, the first statutory regulation of marriage in the UK wasn't until 1753, with Lord Hardwicke's Act, but this act merely codified existing canon law, but attached a civil penalty (non-recognition of invalid marriages) to the canon law. In the US, it wasn't until 1900 that all 46 (at the time) states allowed women to own property separately. These changes weren't revocation of existing law, they were radical "intrusion" of government on women's behalf into areas that had previously not been regulated by law.

Ironically, in the American Colonies, due to the widespread presence of slaves and indentured servants, the first civil laws regarding marriage were anti-miscegenation laws. Marriage was otherwise an unregulated ecclesiastical matter, with the exception of admiralty law authority of captains of King's ships to perform marriages. (Captains also performed church services in the absence of clergy, as a part of the power as a representative of the Crown, which was also the head of the Church of England, so even in these cases the marriage arose from ecclesiastical power, not civil authority)

These were really just primitive forms of government. Groups of people who set laws.

This is where we disagree - I consider "government" to be an institutionalized civil authority - not ecclesiastical authority, and not simply a bunch of patriarchs, or a sort of unquestioning system of "we've always done it this way" a la most tribal systems. It's a question of scope and definition - you include these structures as government, I don't unless there is a specific civil process and authority, a la the Greek city states or Babylon.

In any case, all the gains you attribute to government's intervention into marriage could have been (and at least to some extent definitely were ... especially in the case of unmarried women) made without needing to involve government into marriage at all. If a woman has a right to not be beaten by anyone, even her husband can't beat her. That is the obviously superior way to treat the issue, as instead of needing a law about husband and wife, you simply have a law protecting all women from being beaten. You have a law protecting all women's right to free speech, to vote, ect. For those ends there is no need to tie it to marriage. No need to recognize marriage.

There is, first, a need to recognize the woman as something more than a particular man's property. For centuries, (again, sticking to US/UK legal systems) it was illegal for a man to beat a strange woman - but not his own family, if he was the patriarch. Whether wife, sister, or daughter. The effect of marriage was merely to transfer the piece of property from one patriarch to the others.

The most fundamental shift in the US wasn't women's freedom from assault - it was married women's right to own property in their own names, which took place from 1830 to 1900. Unmarried or widowed adult women had this right recognized in common law, as they weren't any particular man's chattel, but married women did not. Without such right, marriage was little more than de facto servitude, with "ownership" passed from father or other male relative to husband. The distinction with unmarried or widowed adult women wasn't an artifact of "government intrusion" into marriage, it was an evolution of the notion that no woman could own or manage property directly, but only through a male family member or representative designated on behalf of the poor little feeble-minded woman. That wasn't government intrusion in marriage, but a governmental "hands off" on the traditional view of women (and sons) as chattel of the head of the family.

The easiest of course is the one snoopy brought up, simply changing the name. Are you saying that we couldn't change the label?

But why would we bother? Why change the name? Is there some magic improvement?

[Dinner]

It sounds like the balance is all in Kennedy's hands and he's getting cold feet. I hope he has the courage to state the obvious that the 14th covers all people and that gay people are certainly people but my guess is he'll wimp out and try to punt. He'll probably rule that since the state stopped defending prop 8 almost as soon as it passed that the motley collection of right wing hate groups who are currently pursuing the case have no standing and so refuse to hear the case. This will mean gay marriage will once again become legal in California but it will avoid the serious question about equal rights for all which needs to be settled on the national level.

[MichaeltheGreat]

Would that give the same tax status to the signatories (legally not married) as a married couple?

No, since the Internal Revenue Code and (in California) the Revenue and Taxation Code specifically refer to "married couples" and "unmarried heads of household" and "single" filers (which of course includes unmarried couples living together). There's also different provisions (due to DOMA) between the IRC and R&TC with respect to California Registered Domestic Partners. To make those benefits available to non-married couples would require legislative changes - just like any change in their specific monetary value or any other characteristic.

Actually, it wouldn't change anything for the signatories, because something that vague wouldn't pass legal muster.

To give marriage equivalent benefits to unmarried couples in some particular contractual configuration would require amendment of several hundred existing federal and state laws. Easier by far to just let the queers have their civil marriages and be done with it.

[MichaeltheGreat]

It sounds like the balance is all in Kennedy's hands and he's getting cold feet. I hope he has the courage to state the obvious that the 14th covers all people and that gay people are certainly people but my guess is he'll wimp out and try to punt. He'll probably rule that since the state stopped defending prop 8 almost as soon as it passed that the motley collection of right wing hate groups who are currently pursuing the case have no standing and so refuse to hear the case. This will mean gay marriage will once again become legal in California but it will avoid the serious question about equal rights for all which needs to be settled on the national level.

Kennedy is probably the best set of hands to be in. He always gets cold feet in big cases, because he's less guided by ideology and much more by sound doctrine and rationale than any current member of SCOTUS. I'm not sure yesterday's case should be decided on more than standing grounds, as it is a big political can of worms.

Today's case on DOMA, however, is a much different issue. DOMA was a craven piece of **** from the beginning. DOMA

[Aeson]

Fair questions. Women's voting rights were the tail end of the "old" women's rights struggles. First there were issues as simple as the right of a woman to own and control property in her own name. Not getting into the maelstrom of totally unrelated legal systems, the first statutory regulation of marriage in the UK wasn't until 1753, with Lord Hardwicke's Act, but this act merely codified existing canon law, but attached a civil penalty (non-recognition of invalid marriages) to the canon law. In the US, it wasn't until 1900 that all 46 (at the time) states allowed women to own property separately. These changes weren't revocation of existing law, they were radical "intrusion" of government on women's behalf into areas that had previously not been regulated by law.

That is interesting.

I don't think that it necessarily had to be tied to marriage though, and you go on to note that it was unmarried women who first had these rights, well before married women. So again, I wouldn't say it's an argument for the importance of government legally recognizing marriages.

Rather, that government has done some good things in regards to promoting women's rights both in and out of marriage.

Ironically, in the American Colonies, due to the widespread presence of slaves and indentured servants, the first civil laws regarding marriage were anti-miscegenation laws.

One of the very bad things I was referring to.

Marriage was otherwise an unregulated ecclesiastical matter, with the exception of admiralty law authority of captains of King's ships to perform marriages. (Captains also performed church services in the absence of clergy, as a part of the power as a representative of the Crown, which was also the head of the Church of England, so even in these cases the marriage arose from ecclesiastical power, not civil authority)

In that case, there is a very fuzzy line between "government" and "religion". The head of state being the head of the Church of England and claiming to be head of state by Divine Right.

The Catholic Church in Europe for a long time was often enough the final legal authority in effect as well.

These types of systems are why I don't really think there's a meaningful difference between "government" and any other "final governing authority". Essentially put a few people in a room for long enough, and a government will emerge ... regardless of what form it takes, what they call it, or where they deem the authority arises from.

This is where we disagree - I consider "government" to be an institutionalized civil authority - not ecclesiastical authority, and not simply a bunch of patriarchs, or a sort of unquestioning system of "we've always done it this way" a la most tribal systems. It's a question of scope and definition - you include these structures as government, I don't unless there is a specific civil process and authority, a la the Greek city states or Babylon.

Fair enough. I think my definition is more consistent in equating the label to effect though.

There is, first, a need to recognize the woman as something more than a particular man's property.

This can be, and has been in the vast majority of instances, been done without needing government to legally recognize marriages or to tie the protection to marriage. A protection for women's rights in general is a much superior option than a protection only for [un]married women's rights.

For centuries, (again, sticking to US/UK legal systems) it was illegal for a man to beat a strange woman - but not his own family, if he was the patriarch. Whether wife, sister, or daughter. The effect of marriage was merely to transfer the piece of property from one patriarch to the others.

The most fundamental shift in the US wasn't women's freedom from assault - it was married women's right to own property in their own names, which took place from 1830 to 1900. Unmarried or widowed adult women had this right recognized in common law, as they weren't any particular man's chattel, but married women did not.

These are a good examples of how it is possible for government to protect the rights of women without needing to legally recognize marriages.

But why would we bother? Why change the name? Is there some magic improvement?

For the sake of argument, to show that there's no need for the basket of legal rights to be named "marriage". To take the concept further ... that any given assortment of legal rights that we do think should be put in an convenient package would not necessarily have to have anything to do with "marriage" to produce the desired effect. (I would take it further of course.)

Another benefit would be to piss off people like BK who at times rely on arguments about the definition/tradition of "marriage" to oppose gay marriage.