I’m not going to add my weight to the pile already atop the prominent Atlanta law firm that walked away from the defense of DOMA, though I may alter my carbonated beverage purchasing habits somewhat (a bit hard to do in Atlanta).
But the willingness of opponents of DOMA to use all sorts of pressure to achieve their aims does not bode well for their magnanimity in the event that they win here and in the larger political/judicial argument over the definition of marriage. I worry very much about the future of religious freedom in this country.
This sort of behavior also makes it harder to appeal, as some advocates of same-sex marriage have, to the generosity and compassion of those with traditional moral and religious sensibilities and principles.
April 27th, 2011 | 11:36 am
They’re trying to destroy all that you believe about marriage. It’s a fine irony to expect them to be magnaminous about it.
April 27th, 2011 | 12:14 pm
Sounds like a misunderstanding of law combined with a disrespect for free speech rights here.
1. When a law is challenged constitutionally, courts are allowed to consider all arguments in its favor (as well as those opposed). Just because a law isn’t defended by the administration doesn’t mean that it’s an automatic win in the courts for those challenging it. This isn’t football where if one side walks off the field its a default win for the other side. Presidents have multiple times in the past refused to defend laws that they felt were unconstitutional only to see the courts go on to affirm their constitutionality.
2. The hubris you have in crying for ‘freedom of religion’ is pretty stunning here. Basically what you’re saying is that you have a right to force other people to speak in favor of something that they disagree. Your’re basically saying if the President doesn’t feel a law is constitutional, he must be compelled to speak on its behalf in front of the courts. Where prey tell do you find compelling speech in your version of the constitution?
April 27th, 2011 | 12:15 pm
You’re right again, Joe. The naivete of well-meaning Christians who believe that all the gay rights folks are asking for is “tolerance” is depressing. Remember that YouTube video from a couple of years back in which those hymn-singing Evangelicals were chased out of a gay neighborhood of San Francisco by a gay mob, and had to rely on police protection? I am an opponent of gay marriage, but if any gay men or women were treated that way by a Christian mob, I would be horrified, and if I had seen it, I would have put myself in between them and the mob. But so many gays in the blogosphere reacted to that horrifying video by saying that those Christians had it coming, because they are so full of “hate,” etc.
This is what’s coming for all people of traditional religious conviction (Christian, Jewish, Muslim): a move to use anti-discrimination law and public shaming to marginalize and disempower religious institutions that support traditional views of homosexuality. They are just using the language of tolerance because it is most useful for the time being. The infamous formulation of the Catholic Church of previous centuries — “Error has no rights” — speaks to something deep within human nature. We are now seeing, and will continue to see, a gay movement and their establishment allies uniting around a conviction that anyone who opposes their goals should have no rights worth respecting, because they are Evil.
April 27th, 2011 | 12:18 pm
Well, the people who drafted the ‘defense of marriage’ amendments in Michigan and Virginia (and, apparently, the people who voted for them) weren’t terribly magnanimous, either. They specifically outlawed civil unions or paired benefits or similar things.
April 27th, 2011 | 12:36 pm
As a gay tax paying American I have a different view of all this.
1. I nor my partner of 11 years nor my community have any desire to curtail religious freedom. We also have no desire at all to force any religious institution to perform any kind of marriage they don’t want to. Besides-if I ever wanted to get married in a church or temple etc, which I don’t, I would just go to the thousands of gay affirming churches, temples etc.
2. Every day my partner and I are discriminated against. We would love to marry legally and recieve the same Federal benefits that straight tax paying Americans do. Nothing more, nothing less.
3. I do not understand why anyone would defend DOMA-it is a horrific law that even Bob Barr says needs to go. Back in 1996 there were no states where gay couples could marry. Now we have several and more to come which makes DOMA unconstitutional. And don’t take my word for it, Judge Tauro, a Nixon appointee, ruled DOMA unconstitutional in Massachusetts.
4. I’m sure change is a little scary to some people but honestly, taking the time and money to discriminate against American citizens and their partners is not the way to go.
As a gay man I can tell you this-I wish you no harm, I wish nothing but understanding on both sides. I wish no change to anyone’s religious freedom. My partner and I just wish to be able to marry in a civil ceremony under the law. Just like any other American couple.
April 27th, 2011 | 1:00 pm
FAEN, the question at issue here is not whether or not DOMA is a good law. The question is the tactics the gay rights lobby used to compel a (cowardly) Atlanta law firm to abandon its agreement to defend DOMA. They threatened to make the business of the firm suffer if the firm continued with the DOMA defense. Would you consider it morally acceptable for, say, Focus on the Family to threaten a boycott or other harm to a law firm defending gay marriage? I would think that not only wrong, but injurious to our system, in which everyone has a right to a competent defense of themselves or their cause in court — even unpopular defendants, and unpopular causes.
And on the religious freedom question, no serious person believes that churches will be compelled to marry same-sex couples unless they want to. Many people do not understand that should federal civil rights laws expand to include homosexuals, religious institutions who single out gays for treatment the law sees as discriminatory are going to face all kinds of limitations on freedoms they now enjoy. For instance, they will almost certainly lose their federal tax exemption. It may seem like a small thing to you, or something that they deserve for being bigots, but many congregations, especially in inner cities or poor areas, operate their churches and schools very much on the financial margins. This is going to cause some to shut down, or drastically curtail their services.
Absent a constitutional amendment carving out special exemption from civil rights laws regarding homosexuals, I don’t see any way to square these circles for churches, synagogues, and mosques. Five years ago, Maggie Gallagher wrote a long piece quoting legal experts from both sides of the issue, discussing the coming clashes over religious liberties, having to do with the gay marriage issue. You have to read the piece (which I’ve linked) to see that prominent, pro-gay liberals say that yes, these clashes are unavoidable. Naturally gay rights advocates yelled that Maggie Gallagher is a fear-mongerer, and that none of this is going to happen. If more people thought seriously about the implications of all this, they would be a lot more conflicted about gay marriage and its unavoidable implications under our system. So we have to make sure they don’t think about it — that seems to be the strategy.
April 27th, 2011 | 1:13 pm
Lacking a public purpose to do otherwise, the federal government is obligated to treat all citizens equally. Religious freedom wasn’t imperiled when other biblical prohibitions, like pre-marital sex, adultery and divorce were legalized. In fact, many Christians actively participate in these forbidden activities!
Same for marriage equality. Christians who believe that same-sex marriage is counter-biblical are free to not marry someone of the same sex.
April 27th, 2011 | 2:00 pm
Not that it will change anyone’s opinion, but the situation with King & Spalding seems to have been more complex than some people might think. It looks more like it was pressure from within that caused them to drop the case, not pressure from clients. See this article in the Huffington Post.
April 27th, 2011 | 2:15 pm
As the blogger Diogenes said, homosexuals have always had the right to marry and even to marry other homosexuals: it is simply that men could not marry men nor women marry women. To say that my “rights” are violated because I cannot marry someone of the same sex is like saying my “rights” as a man are violated because I cannot conceive and bear children. Marriage is a natural institution whose proper end is the bearing and raising of children in a stable and secure home. This is very much in the interest of the state. And it doesn’t matter whether this natural end of marriage is sometimes frustrated voluntarily or involuntarily. It still stands. Indeed, it was recognition of this natural end for marriage that was the philosophical and political basis for eliminating truly unjust laws against mixed marriage or, in antiquity, against people from different social classes from marrying. If you disregard the proper end of marriage, you then leave the definition of marriage to the state, which lands us right back to pagan antiquity and all of its unjust marriage laws. Same-sex marriage advocates who bleat about “marriage equality” are therefore creating the conditions for its opposite. I hope not to live to see this irony fulfilled!
April 27th, 2011 | 2:45 pm
Like,
I owe an apology here, I misread the original post too fast and assumed that it was only about the admin.’s decision not to defend the law. Although I’m a little bit perplexed why the House of Representatives requires a small law firm to argue its case. Are we suffering from an unpublicized shortage of lawyers in Congress?
Heraclitus
As the blogger Diogenes said, homosexuals have always had the right to marry and even to marry other homosexuals: it is simply that men could not marry men nor women marry women.
Likewise there never was any bans on interracial marriage. Blacks could marry, whites could marry. What’s was the big deal?
Marriage is a natural institution whose proper end is the bearing and raising of children in a stable and secure home. This is very much in the interest of the state.
Exactly where did this moral nonsense come from? Because its in the state’s interest the state gets to own it? It’s in my interest that you pay me to read my posts, that’s certainly true. It hardly follows that from that I get to call up your bank and get them to issue a debit card with my name on it linked to your account.
Indeed, it was recognition of this natural end for marriage that was the philosophical and political basis for eliminating truly unjust laws against mixed marriage or, in antiquity, against people from different social classes from marrying.
Actually no it doesn’t, it goes in the opposite direction. If you say that because marriage’s end is children and children are in the state’s interest then you’re saying the state owns marriage and has a right to pass laws to influence the type and amount of children produced. By your reasoning the state could conclude that since mixed race or mixed class marriages would produce mixed children and as a result norms between races and classes would become unstable they could prohibit them. In other words, you’ve carried the original Eugenics Program right into the 21st century! Congrats to you! The rejection of the idea that the state gets to own marriage allowed those unjust laws to be overturned. By rejecting the state’s ownership of marriage, the state still has an interest in children but an interest is not ownership.
April 27th, 2011 | 2:53 pm
Just to keep things real here in regards to the law firm, Republicans have been more than happy to disrupt nominations because, as a lawyer, a nominee either personally or worked for a firm that represented ‘bad people’ like accused terrorists or whatnot. The idea that being a critic of a laywer for taking a case is somehow ‘intimidation’ and ‘infringing on freedom’ a bit laughable. What type of lawyer runs for cover because a critic launches some harsh words at him?
I find it amusing then that of all the lawyers in the GOP, they toss off the task of defending DOMA to what must be a pretty crappy team of lawyers. Are opponants of SSM really being oppressed here or are they just unable to mount and maintain a convincing argument?
April 27th, 2011 | 3:07 pm
David,
An interesting article. Esp. since it says that the contract with the firm banned its employees from advocating that DOMA be revised or repealed. That seems like an odd demand given that the House’s case supposedly is only to defend DOMA’s Constitutionality, not lobby on its behalf?
It also puts a different spin on the ‘freedom of speech/religion victim card’ being played here. Why would the firm’s employees have to be denied their rights as citizens to advocate that laws be changed as they see fit as a condition of the contract? I’m not a lawyer but that sounds like that contract technically could even forbid an employee of the firm from volunteering to work on a campaign of someone running for congress whose platform included modifying DOMA.
April 27th, 2011 | 4:33 pm
Boonton’s reading of my comments betrays a real lack of critical sense:
The whole point of the comment about homosexuals always having been allowed to marry is an elementary one that seems to have eluded Boonton: marriage is not defined by one’s individual desires; it has an objective nature whose purpose is the begetting and raising of children. This is what distinguishes it from friendship, no matter how intense or casual sexual relationships. That black men, for example, couldn’t marry white women goes against the very nature of marriage in that it frustrates the natural purpose of marriage for a man and woman to beget and raise children. The point is, no one is barring anyone from marriage as it has been always understood, even in pagan societies. What same-sex marriage advocates want is to change marriage to suit their own desires. The canard about bans on inter-racial marriage is analogous to someone arguing that, since black were once barred from pursuing a medical education, it is therefore unjust to barr someone without a medical degree from practicing medicine.
As for “moral nonsense,” how does Boonton get the notion out of my comments that the state therefore “owns” marriage? – the nonsense is in his own misreading. All that I said is that it is in the interest of the state to promote stable marriages and families just as it is in its interest to promote education. Does this mean that the state “owns” education? The best way in the vast majority of cases to promote stable families is that have children raised by their biolgical mother and father.
Boonton’s final paragraph is a particular howler of misreading. Because marriage is a natural institution, it is precisely for that reason BEYOND the power of the state to change its meaning or function. It is the advocates of same-sex marriage who want the power of the goverment to define what a marriage and family is and to intervene in forcing its recognition. This is particulary clear in the case where same-sex couples want children: in those cases the power of a) the state or b) reproductive technologies will necessarily have to determine who gets to be a parent and how. This moves us into a very Brave New World of human beings being manipulated via technology by the state.
April 27th, 2011 | 5:01 pm
The 1967 SCOTUS Loving v Virginia ruling that declared marriage to be a fundamental right is grounded in the 1967 definition of marriage, the joining of opposites, and not the revised 1997 definition pushed through by same-sex activists.
In order for a constitutional right to same-sex marriage to exist an entirely new right would have to be invented for these miscreants. Make no mistake; we are in fight for the future of our nation against an organized horde of miscreants seeking to remake this nation in their image.
Pathologies are to be regarded with compassion: studied, treated, and when possible, cured. They are not to be rationalized, normalized, or celebrated.
Societies that institutionalize pathologies are societies that choose to fail.
April 27th, 2011 | 8:27 pm
Marriage really isn’t about children but rather about a couple legalizing their relationship. No couple need create or raise children in order to get or stay married. Obviously, elderly couples and other non-procreative straight couples marry all the time. So children cannot be the defining characteristic of marriage.
A better way to determine what marriage is, is to look at the reasons why a couple chooses marriage: a desire to stay together for life, to share resources, to have legal say about important issues they share, etc. All these reasons apply equally to straight and to gay couples.
The ruse about marriage and children is just that: a ruse. It’s reverse engineering marriage to find something that separates different-sex couples from same-sex couples.
The law always trumps religious beliefs in America (so far). Never has a religious belief been imposed on non-believers. So I think the religious reasons for banning same-sex marriage carry little weight. I’d rather see the children of same-sex couples have married parents, too.
April 27th, 2011 | 9:39 pm
Let’s go down to basics. You say the state should refuse SSM because marriage’s ‘objective purpose’ is children and because the state has an interest in that, it can and should ban SSM.
OK, young, beautiful and very fertile woman wants to marry deadbeat, obnoxious infertile man. Guess what? The woman is violating marriage’s ‘objective nature’ and robbing the state of its ‘interest’ in the production of children. In your example of interracial marriage, interracial marriages produced mixed children which subverted the South’s ‘interests’ in maintain segregation laws….beyond that, though, the south could claim that since mixed race children are subjected to bullying and discrimination they are legitimately using their ‘interest’ by banning interracial marriage thereby limiting the ‘production’ of interracial children.
What’s fascinating is that these are ‘elementary’ examples where your logic would justify state action. Yet you would certainly reject them (as you should). But the one area where this magical ‘state interest = state ownership’ morality comes into play is banning SSM….the one variation that has absolutely no impact on children because it by definition doesn’t produce children…..unless you are saying that gay people who are denied SSM would go and marry people of the opposite sex instead thereby producing children. This all might work for you if we were living in something like The Handmaid’s Tale where almost everyone was infertile and only a handful of people could produce children and the gov’t needs to draft people to utilize every possible chance of reproduction when it rarely appears.
But dude, we aren’t in that world, we are talking about probably less than 1% of the population at most and the numerous amount of women who have no trouble at all bearing children out of wedlock indicate that we are suffering of no shortage of straight men willing to have sex with women Therefore there is no need to force gay men too marry straight women in order to achieve children. You can’t quite have it both ways here. You can say on one hand the state should be regulating marriage to the fulfillment of its ‘objective purpose’ but then say the state isn’t allowed to do anything but say no to one very tiny, very small type of marriage that flies against that ‘objective purpose’ while tolerating many, many other marriages that are objectively quite poor in quality. Of course this still doesn’t explain how the state became the owner of marriage when marriage clearly existed before the state did!
Look, let’s say an objective purpose of a business is to make profits. OK, so what about someone who starts a used book shop because its a charming idea. Well two things could happen. One is that he will start his book shop, lose a lot of money and at some point stop either when he gets tired of losing money or runs out of money to loose. Or he will do his shop and it will be ok. Maybe he’ll make profits, maybe he’ll break even till the day he dies and will be happy. Maybe he’ll pour money into the shop year in year out till the day he dies. All this may happen and it may well remain perfectly true that the ‘objective purpose’ of a business is to make money. Yet the gov’t isn’t required to not recognize people who start businesses without a proper respect for their ‘objective purpose’. Likewise if you really are serious about the gov’t saying no to couples who want to get married but who fail to respect the ‘objective purpose’ of marriage…..well saying no to the gays is only the beginning.
April 27th, 2011 | 9:59 pm
This is particulary clear in the case where same-sex couples want children: in those cases the power of a) the state or b) reproductive technologies will necessarily have to determine who gets to be a parent and how.
Not really sure what you’re trying to say here. If reproductive tech. exists to allow same-sex-couples to have biological children, well whether or not the state issues a marriage license doesn’t make a difference to that.
Likewise say technology doesn’t exist, how does it follow that ‘the state’ decides who gets to be a parent? It’s not like having kids is like getting tickets to a Lady Gaga concert, if your neighbor gets a ticket there’s one less available for you. If John and Joe want a kid, telling Ken and Sally that they can’t have kids isn’t going to make it any easier for John & Joe.
April 27th, 2011 | 10:17 pm
All that I said is that it is in the interest of the state to promote stable marriages and families just as it is in its interest to promote education. Does this mean that the state “owns” education? The best way in the vast majority of cases to promote stable families is that have children raised by their biolgical mother and father.
All of which then says the state has no argument to ban SSM…..since SSM do not produce biological children, SSM are no different then marriages by the infertile, the very elderly, or by people who will not have any children. But while your idea sounds good, it’s ultimately an oxymoron. A family that’s stable because its been ‘promoted’ by the state sounds a bit like some state company in Communist China that’s ‘promoted’ by Party telling the state banks to keep loaning it money.
Think about what you really mean by what you wrote? Is the state ‘promoting stable families’ by, say, giving a $500 tax credit per child? OK I’d probably think that’s a good overall policy but it can’t really be about ‘promoting stable familes’…..imagine meeting a man who said to you “yea I have a wife and two babies…was going to leave her for a stripper but then Obama passed that $500 per kid tax credit and that’s $1,000 more for me per year yea!”….. Is that a stable family? By definition a stable family shouldn’t be one that needs ‘promoting’, a stable family would be the one that works even if the tax credit disappears! To me the end of the state ‘promoting stable familes’ would be something like crises intervention which seeks to help unstable families where the problems are not yet so bad that you need to have the kids removed.
This, though, is all post facto. We have a married couple that’s bordering on crises, the state intervenes with a social worker, or emergancy aid or whatnot. This understanding of ‘promoting families’, though, has never been recognized by prior restraint….we don’t tell people who to marry because they are likely to produce unstable families (and not its not because we can’t tell, it’s actually not all that hard to predict in many cases).
April 27th, 2011 | 10:46 pm
You’ve got them. The same rights as straight single tax-paying Americans. Some of whom could marry tomorrow if other restrictions on matrimony were eased.
April 27th, 2011 | 11:10 pm
By that reasoning a law that banned people whose first names begin with ‘M’ from marrying people whose first names begin with ‘J’ wouldn’t be denying anyone anything. Mary’s can always marry Ralph’s instead of Jim’s so what is there to complain about?
April 28th, 2011 | 12:02 am
Boonton: I’m not sure your argument is very clear. What do you say is the empirical evidence of a conjugal union?
April 28th, 2011 | 12:22 am
what’s wrong with you people?
April 28th, 2011 | 6:26 am
It seems to me that the State’s interest in marriage is not in the procreation, but in the filiation of children. Otherwise, it is difficult to see why the law facilitates marriages in extremis. A death-bed marriage is unlikely to lead to procreation, but it can (and usually does) establish filiation.
The Civil Code contains no definition of marriage, but commentators have always found a functional definition in the maxim “Pater est is quem nuptiae demonstrant.” [The father is he whom marriage points out] All the other legal incidents peculiar to marriage and that distinguish it from civil unions and unregulated cohabitation flow from this principle. It enlists the couple in a parental alliance and affords the child an indivisible filiation. This special nature of marriage is the basis for the existence of rules governing its conditions, its effects and its dissolution.
Mandatory civil marriage makes the institution a pillar of the secular Republic, standing clear of the religious sacrament; otherwise, why is the celebration of a religious marriage between persons not legally married to each other an “Offence against the Civil Status of Persons”?
The institution of republican marriage is inconceivable, absent the idea of filiation, enshrined, not in Church dogma, but in the Civil Code (“The child conceived or born during the marriage has the husband for father”)
The sex difference is central to filiation.
April 28th, 2011 | 7:10 am
SteveP,
Could you be more specific, I’m not sure what you’re asking?
April 28th, 2011 | 8:07 am
This is all just silly. Grow up people and leave others alone! A man marring another man will not hurt you or your country. It’s been legal in Canada and many European countries for years. Are Nazi’s riding on the backs of dinosaurs there? No, nothing changed. Not anything! This all comes down to some people hate the thought of someone else being treated as they are. This bigoted nonsense will come to a end soon enough and twenty years from now you people will be looked upon no better than a lowly raciest.
April 28th, 2011 | 9:10 am
So the basic argument of same sex enthusiasts in support of a new right to same-sex marriage is “Give me what I want?”
You tried redefining words, you tried bribing politicians, you have tried appointing pervert jurists, and you still can’t get the public to embrace your lies as truth.
Ebonics flash back.
April 28th, 2011 | 9:23 am
A child born outside the construct of their lawfully married biological parents will always be a bastard.
Bastard: something that is inferior, debased, or of questionable or mixed origin
You folks are going to have to redefine every word in the English language if you are to succeed at lending the appearance of acceptability to your depravity.
Depravity: a state of moral corruption; behavior that is immoral or evil
April 28th, 2011 | 10:58 am
Randy King:
Well, 41% of the children born in the United States are, according to you, bastards, and the overwhelming majority of them have heterosexual parents. Proponents of same-sex marriage did not invent out-of-wedlock births.
Even if one believes the unmarried biological parents of children born out of wedlock are sinners, there is no reason to deem such children “inferior.” Human dignity is inherent. It is not transmitted only from married parents to their children.
April 28th, 2011 | 11:10 am
I leave it to readers to judge the incoherence rants of Boonton’s rants.
Mary: Again, why should the state discrimate against those with no medical training from practicing medicine. Aren’t they taxpayers too? Indeed, if I wish to grow wings and fly, must then is it my “right” to get air space to do so from the federal government?
SSM is just that: an ontological impossibility. If you want to call same-sex relationships “marriage,” go ahead. But it is the same old leftist Stalinist tactic: make reality follow language and utopian fantasies rather than have language follow reality.
Left wing social experiments, however, always crash in the long run against reality. But not without harming untold numbers of people first.
April 28th, 2011 | 11:12 am
What Heraclitus said.
The only reason homosexuals believe they are “discriminated against everyday” , as FAEN writes, because they cannot marry, is because they , along with their supporters, either honestly misunderstand what marriage is for, or they knowingly wish to change it’s definition to suit they’re own agendas.
FAEN and JefferyRO5 are each examples of those who are honestly just confused.
To state, as Jeffery does, that “Marriage really isn’t about children but rather about a couple legalizing their relationship…” , betrays such a deep misunderstanding of marriage that it’s perfectly understandable why he and FAEN would see centuries of custom and law as pure discrimination.
Of course, the irony in all this is that if homosexuals were to get their way, and the tiny, tiny, tiny, portion of our country who might potentially sign up for homosexual “marriage”, actually did so, the rest of us would then have to call what heterosexuals do something else. This would then, debase the word “marriage” to such an extent, that the silly strum and drang we’re subjected to now would be pointless. And homosexuals would still not have the affirmation for their “lifestyle” they so ardently long for.
And the whole process could begin again…..
April 28th, 2011 | 12:06 pm
Randy
A child born outside the construct of their lawfully married biological parents will always be a bastard.
I’ll make a deal, have SSM legalized and you can call any child born to same sex couples a bastard…even if they are legally married.
Fox
It’s been legal in Canada and many European countries for years.
Speaking of which, DOMA or the Defense of Marriage Act, has been law for about a decade now, can its defenders point to a single marriage that’s been defended by it? I understand if you can’t point to a specific marriage but how about even a hypothetical one that’s been defended? If not should we jettisen the law on the grounds that it’s Orwellian doublespeak?
April 28th, 2011 | 12:16 pm
Heraclitus and Jan,
It seems to me that a lot depends on whether you look at marriage as some abstract concept that is to be defined by philosophy and theology, or whether you look at legal marriage as it actually exists in the United States today. I have heard many people argue that legal marriage today is already not in conformity with the ideal marriage that is described philosophically and theologically by proponents of traditional marriage. In other words, the definition of marriage is not under attack by proponents of same-sex marriage. The definition of marriage has already changed, and given that change, it is unjust to prohibit same-sex couples from marrying.
As I have said many times, I find it ironic that some people feel marriage is in danger because a small percentage of the population are trying to achieve legal same-sex marriage, meanwhile 41 percent of children are born out of wedlock, the divorce rate is 50%, over 25 percent of children are living in single-parent families (4 out of 5 of which are headed by women), heterosexual couples abort 20% of the children they conceive, 28% of women with two or more children have had them with two or more men, and on, and on. And people are worried that about 2% of the population wants the right to marry!
April 28th, 2011 | 1:11 pm
“FAEN and JefferyRO5 are each examples of those who are honestly just confused.
To state, as Jeffery does, that “Marriage really isn’t about children but rather about a couple legalizing their relationship…” , betrays such a deep misunderstanding of marriage that it’s perfectly understandable why he and FAEN would see centuries of custom and law as pure discrimination.”
Excuse me, but I’m not confused in the least. I am, however, reality-based, and anyone looking at marriage objectively has to see that with so many marriages lacking the presence of children, it’s a little bit of a stretch to claim that marriage has something to do with children. You may as well say the purpose of a car is to race at NASCAR events on Sundays. Certainly possible, but a minor use.
I have yet to hear a couple explain that they got married so they could enter a socially approved institution for child-bearing. Most folks say they got married because they fell in love with someone.
April 28th, 2011 | 1:28 pm
David Nickol Writes:
“It seems to me that a lot depends on whether you look at marriage as some abstract concept that is to be defined by philosophy and theology, or whether you look at legal marriage as it actually exists in the United States today.”
This is ironic, because it is the activists pushing for homosexual marriage who are abstracting the word into meaninglessness. Real marriage isn’t abstract at all, it begins in the flesh and blood sexual intimacy between a man and a woman which then may produce something which is not abstract at all: a child. It is founded upon the very real differences between men and women, children and adults, sexual intercourse and sodomy ,etc. Nothing could be less abstract.
“The definition of marriage has already changed, and given that change, it is unjust to prohibit same-sex couples from marrying.”
No. You are begging the question. What you are asserting as fact is something that is being debated: should we change the definition or not? It is up to those who wish to change its definition to offer reasons why, not simply assert something and ask the rest of us to accept it.
“I find it ironic that some people feel marriage is in danger….41 percent of children are born out of wedlock, the divorce rate is 50%, over 25 percent of children are living in single-parent families…”
I understand how you might see some irony here. Marriage is in a mess, we agree. But, if the house is on fire, ought the firemen opt for gas cans, rather than fire hoses? It the old saw about holes- if you’ve found you’ve dug yourself into one, the first step is to…
April 28th, 2011 | 2:00 pm
I got new for you folks:
Every child ever born in the history of the world was a product of one man and one woman.
I hate to be the one to tell you folks these hard truths, but if you would have paid a little more attention in your basic biology class you would not have to find this out from a complete stranger.
So now we see that same-sex enthusiasts believe that the best way to shore up the institution of marriage is by pouring gasoline on it.
April 28th, 2011 | 2:24 pm
David Nickol Writes:
“It seems to me that a lot depends on whether you look at marriage as some abstract concept that is to be defined by philosophy and theology, or whether you look at legal marriage as it actually exists in the United States today.”
I entirely agree; that is why I pointed out that the only distinction between marriage on the one hand and civil unions and unregulated cohabitation on the other is, precisely, the rule of filiation.
Significantly, in both Belgium and the Netherlands, the rule applies only to marriages of opposite-sex couples, leading some jurists to remark that they have conceded the name, but not the substance of marriage to same-sex couples
April 28th, 2011 | 2:25 pm
Jan,
I don’t see how it is possible to change the definition of marriage. I don’t think the definition of marriage exists. Anthropologists and other social scientists don’t agree on the definition of marriage. To take the example I am most familiar with, the Catholic understanding of marriage is different in very significant ways from civil marriage in the United States. Catholic marriage is indissoluble. There is no divorce in Catholic marriage, yet 50% of civil marriages end in divorce, and large numbers of spouses from those dissolved marriages go on to remarry civilly. In the eyes of the Catholic Church, they are not married. In the eyes of the law, they are.
Most states don’t require a civil marriage to be consummated. In Catholicism, if the marriage is not consummated, it is not a marriage.
In the eyes of the Catholic Church, a marriage must be open to children. The state has no such requirement.
The fact that the Netherlands, Belgium, Spain Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, and (in some limited locations) the United States and Mexico have made same-sex marriage legal can be looked at two ways, it seems to me. One might say (from the philosophical point of view) the definition of marriage, by those who believe in traditional marriage, has not changed just because a number of countries permit same-sex marriage. Certainly the Catholic definition of marriage has not changed. Those who believe in traditional marriage maintain that the definition cannot change, just as those who believe that abortion is murder believe that legalizing it does not change the nature of it. Or, taking the view that marriage is defined by what people do, marriage has already been redefined.
It seems to me that with all the problems I mentioned about the decline of marriage, the out-of-wedlock birth rate, and so on, some might even welcome the fact that there are people who actually want to get married and are fighting for the right. Heterosexuals in the United States and throughout the developed countries seem to be abandoning marriage. In many ways it is a small miracle that same-sex couples want to get in on it.
April 28th, 2011 | 4:28 pm
I understand how you might see some irony here. Marriage is in a mess, we agree. But, if the house is on fire, ought the firemen opt for gas cans, rather than fire hoses?
If my house is on fire after a law called “The Comprehensive Act to Fireproof All Homes” was in effect for nearly a decade I’d seriously question whether I was sold a bill of goods. By writing this you’re basically declaring DOMA a failure. Why exactly, again, should we support a Defense of Marriage bill that by the statements of its own supporters has failed to defend a single marriage?
April 28th, 2011 | 4:58 pm
“I don’t think the definition of marriage exists.”
One should think nothing less of an individual that believes basic biological fact is trumped by non-scientifc theory.
April 28th, 2011 | 5:56 pm
One should think nothing less of an individual that believes basic biological fact is trumped by non-scientifc theory.
Randy King:
Exactly what you mean I don’t pretend to know, but surely you don’t mean that marriage is a “biological fact,” do you? I think everyone would agree that a marriage between two people can’t exist unless both of them intend for it to and fully consent to be married. Intention and consent are not biological facts, at least unless you are some kind of extreme materialist who might consider them chemical states in the brain. I don’t think marriage can be defined “scientifically.” This is not to say biology plays no role at all.
April 28th, 2011 | 7:53 pm
David Nickol writes:
“I don’t think the definition of marriage exists.”
Then, I can’t help you. It’s as if you were saying, “I don’t think the definition of soccer, or apples, or hammers exist.” You’re abstracting the world into non-existence. I wish you well.
Boonton writes:
“By writing this you’re basically declaring DOMA a failure.”
C’mon, really? You think DOMA’s intent was to solve all the problems you describe?
JeffreyRO5 writes:
“I am, however, reality-based, and anyone looking at marriage objectively has to see that with so many marriages lacking the presence of children, it’s a little bit of a stretch to claim that marriage has something to do with children.”
Jefferey, I mean no harm, but to actually believe that marriage has “nothing to do with children” is not “reality based”. It’s to be confused…blinded by an abstraction or an ideology, perhaps…I cannot know which it is in your case.
You mention childless marriages. It doesn’t help your case.
April 28th, 2011 | 10:27 pm
David Nickol
As an engineer I know that in order to marry two parts one part must have a male connector and the other part must have a female connector; if I would like to connect parts with similar surfaces I must bond said parts by their pre-defined faying surfaces, but I know this bond is incapable of ever becoming a marriage the joining of opposites.
The biological fact you seem incapable of grasping is that the intent of reproductive organs is to reproduce; not create a State sanctioned stain.
April 28th, 2011 | 11:32 pm
Jan,
It is important to note the emphasis in my original statement. I said I don’t think THE definition of marriage exists. I am not saying marriage can’t be defined at all. I am saying there is no ONE definition that all reasonable people would be in total agreement on. If you think you have such a definition, then I would be most happy to hear it.
Many people have hailed What Is Marriage? by Sherif Girgis, Robert George, and Ryan T. Anderson as the best attempt to define marriage in philosophical terms. But many others have found fault with it. If you read it or have already read it, I would be interested to hear your opinion.
There may, of course, be certain essentials in the definition of marriage that virtually everyone would agree on. But if you take a look at the work of anthropologists, I think you will find that they have a fiercely difficult time trying to come up with a definition that covers every form of marriage-like arrangement in every society in all of history.
To say there is no ONE definition of some particular thing is not to say that thing doesn’t exist. I think we would all agree that love or justice or war all exist, but I don’t think there is universal agreement on the definition of any of those things. Are we fighting a war now in Libya? I don’t think there is such a universally agreed upon definition of what a war is and what it is not that everyone would agree.
By the way, I just noticed that you took a quote of mine out of context above. Here is my quote and your response:
It may not be crystal clear in the original, but here is the quote in context with some emphasis added and some clarifications:
The last sentence is not an assertion on my part, but rather a relaying by me of what I have heard people argue. Even the authors of What Is Marriage? say: “Yes, social and legal developments have already worn the ties that bind spouses to something beyond themselves and thus more securely to each other. But recognizing same‐sex unions would mean cutting the last remaining threads.” Their argument, as I interpret it, is that conjugal marriage is hanging by a thread. The argument of others is that with all its current problems, the last thread was elsewhere than same-sex marriage, and it was cut years ago (say, when no-fault divorce was adopted by all 50 states), consequently same-sex marriage now makes sense. In other words, civil marriage as it exists in the United States today is so far removed from religious marriage as, say, Catholics understand it, that what makes sense is to let civil marriage go its own way and concentrate on religious marriage. Among Catholics and others concerned about religious marriage, it is not unheard of for people to propose that government get out of the marriage business altogether, create some kind of a broadly defined civil union for households of various kinds (including nonsexual relationships), and leave marriage to the churches by letting them formalize civil unions into religious marriages for those who so choose. It is an interesting idea, but I am not endorsing it here.
April 28th, 2011 | 11:57 pm
The biological fact you seem incapable of grasping is that the intent of reproductive organs is to reproduce. . . .
Randy E. King,
Yours is what I call a “tab A fits into slot B” definition of marriage. I do not think reproductive organs themselves have any intent. I do think sexuality (both human and animal) serves many different purposes, one of which is reproduction. But the fact that people marry who have no intention, or no possibility, of having children clearly shows that reproduction is not an essential element in individual marriages. And the fact that many states do not require consummation for a valid marriage also shows that fitting tab A into slot B is not a requirement for civil marriage, which is what is under discussion here.
Even the Catholic Church recognizes two elements of sex—the unitive and the procreative. It just insists they must always—in each and every sexual act—both be present, a teaching which 95% of married Catholics of childbearing age disregard by using artificial contraception.
April 29th, 2011 | 12:10 am
Many people keep forgetting the idea of Tao as elaborated by CS Lewis. Surely Catholic marriage is not the same as Muslim marriage which is not the same as Hindu marriage but there is a thing called Marriage and marriages in various cultures approximate it. Maybe the Catholic idea of marriage is the perfect and the civil or Hindu marriage is slightly far from the perfect Tao but they still remain close enough to remain within Tao. Even the modern civil marriage is within Tao but homosexual is certainly not (as it is ruled out by mere biology).
April 29th, 2011 | 12:18 am
C’mon, really? You think DOMA’s intent was to solve all the problems you describe?
I’m not asking a bill that calls itself a ‘Defense of Marriage Act’ to solve all marriage problems, I’m asking after ten years of being in force has it defended a single marriage?
Look if you’re going to say ‘marriage is in trouble! it’s like a child in the top floor of a burning house screaming for help! We have no time to waste, we can’t get distracted with anything but this dire emergancy!’ then I’d expect your flagship legislation to actually do *something*. If after ten years you’ve done nothing, well then you’re ideas are either failures or you’ve been pulling my chain about this dire emergency routine.
Randy
As an engineer I know that in order to marry two parts….
Is there perhaps some core differences between pieces of metal and human people? Reasoning by analogy can only go so far….
David,
As I’m taking this ‘definition’ argument, it sounds like it’s trying to say there’s a Platonically Ideal Marriage and while all marriages may fall somewhat short of that ideal, we should draw a line somewhere between ‘marriages’ that are just so far from that ideal that we shouldn’t bother to recognize them as marriages. Needless to say, gay marriage is where they want that line to fall.
I’m not quite buying it, though. First of all, the line drawing seems to be special pleading just to deny gay marriages. As I pointed out if we started talking about the state prohibiting other marriages that had little or no ‘child interest’ (examples, marriages of very old people, marriages if a fertile person to an infertile one, marriages between people who carry genes that will produce children with horrible diseases) the reaction wouldn’t be “well the gov’t is drawing the line a tad to aggressively”. It should be shock, horror, and calls for revolution. The line drawing based on ‘interest in children’ may make a logical sense but it doesn’t make real sense because the premises simply don’t seem to be true.
And it’s not like anyone really, really believes ‘capable of producing children’ is all there is to the definition of an ideal marriage. Real love, is almost certainly not to be mocked as part of the definition and why not, after all marriages are defined also to be for life yet it doesn’t take a full lifetime to produce a child, twenty years will do nicely. I never heard a Christian theologian argue that marriages automatically dissolve upon the youngest child reaching adulthood….but if marriages are just for the production of children then they should auto-dissolve then. The “Retirement Party for Jon Smith Planning Committee”, after all, would be expected to dissolve after Jon Smith’s party ended. If it still existed ten years after Jon Smith left the company and died down in Florida at his retirement village….you’d wonder.
Second, the line drawing isn’t really necessary. Consider a circle, an ideal circle say is the one you learned from geometry in high school. A set of points all equidistant from a center point. If that’s the ideal circle, we will call things in the real world circles that we understand are imperfect circles. The circle you see in a geometry textbook, for example, is not a perfect circle. The circle you draw with a compass isn’t either. The shape of the earth is not a perfect circle, neither is the sun, moon, etc. But we tolerate calling these things circles because we consider them ‘close enough’ to the ideal. Then a child starts calling the shape of an egg a circle. Now the idealists start to howl. Some sympathetic to the ideal want a line drawn ruling an egg shaped oval is certainly not to be called a circle. Others say it’s circle enough to be called a circle with the understanding it’s no ideal circle. The debate, though, doesn’t really matter. If the egg is ruled a circle, the ideal circle remains the ideal, the earth is still an imperfect circle. The earth isn’t less imperfect because a much more imperfect egg shape has been allowed into the ‘imperfect circle club’. We go back to the problem with the whole ‘the definition of marriage is ideal and perfect and unchangeable’ but ‘if we allow SSM it will destroy the invincible perfect definition!’.
Or to put it more bluntly, Randy as an engineer may join two parts by bonding or by using a male-female connector. There’s no need for some Society of Engineers to tell him not to bond parts, he is free to try to achieve marrying via bonding all he wants and if the definition for engineering purposes requires male-female connections then all he will achieve is imperfection….like a person trying to draw a circle with a broken compass.
April 29th, 2011 | 12:49 am
Boonton: you answered my question elsewhere – thank you.
JefferyRO5: You say: “I have yet to hear a couple explain that they got married so they could enter a socially approved institution for child-bearing. Most folks say they got married because they fell in love with someone.” Thank you. I’ve not burst out with such mirth all week. How many brides, do you suppose, throughout history labored to bring forth their firstborn within 6-to-8 months of their marriage? Love is fecund, creative – procreative in humans it seems. The technical option to sterilize one’s creative capability is a rather recent innovation.
David Nickol: Well put that intention and consent are not biological facts per se. Yet love, is seems, is a state where one is not in their right mind: the biochemistry of attraction (dopamine et al) probably ensures that people CUI – consent under the influence. Interestingly the influence seems to last about the same length of time is takes for a newborn to mature and become somewhat self-caring. All this to suggest that perhaps biology takes a very large foundational role in starting a marriage and the lack of biological process plays a similar role in divorce.
April 29th, 2011 | 2:14 am
Boonton asks:
“I’m asking after ten years of being in force has it defended a single marriage?”
Well, yes. That’s easy. It’s prevented SSM from being recognized in Federal Law, which is it’s purpose. It has prevented SSM preformed in Massachusetts, for example, from being recognized in Iowa which is also it’s purpose. It has tried to allow citizens to choose their laws in this matter democratically. It’s done exactly what it was meant to do.
April 29th, 2011 | 2:39 am
booton also writes:
“As I’m taking this ‘definition’ argument, it sounds like it’s trying to say there’s a Platonically Ideal Marriage and while all marriages may fall somewhat short of that ideal, we should draw a line somewhere between ‘marriages’ that are just so far from that ideal that we shouldn’t bother to recognize them as marriages.”
You got it, sort of. Platonists aside, wouldn’t you agree words have meaning? Why not marriage? What is it? It’s been obvious to everyone for millennia that homosexual relations belong to a different classification of things than marriage. Why is that so hard to understand? Do you have similar troubles distinguishing golf from tennis? Do you show up to work in a scuba suit? Do you honestly think that men are women? That sodomy is the same thing as sexual intercourse? If you don’t think they are the same, why classify them the same? It’s untruthful, isn’t it? Why should the rest of us encourage such silliness?
April 29th, 2011 | 3:27 am
Given that human beings do reproduce, any legal system will have to address the rights and duties of ascendants and descendants, particularly the duty of support and the orderly devolution of property.
Marriage is the ordinary means of establishing the juridical bond of father and child and, in most European systems, at least, it is the only means of establishing the juridical bond between a child and more remote ascendants. That, pace David Nickol, is the anthropological constant in marriage.
In the interests of simplicity, certainty and universality – vital republican principles – the law deems all, and only, opposite-sex couples to be potentially fertile. To establish a screening process would be burdensome, expensive, intrusive and litigious, especially given current advances in reproductive medicine and assisted reproduction. Laws are enacted for the general case and anomalies are the price that legislators pay for simplicity and certainty.
Same-sex couples are, accordingly, not concerned with this institution.
April 29th, 2011 | 8:25 am
Jan,
Technically it probably hasn’t prevented anything from being recognized in Iowa. States are not required to recognize other state’s marriages if they violate their own marriage laws. This may seem odd given that people used to hit Nevada for ‘quickie divorces’ but divorces are actually procedures. This is why before the Loving decision, which struck down interracial marriage laws, interracial couples who married in permissive states were still denied when they tried to move to prohibiting states.
More importantly, though, you’ve told me that DOMA has defended no actual marriages. I was told the house was on fire, the children were in danger, we needed to quickly pass the Fireproof Homes Law and it turns out you had a law passed to regulate how long people could grow their lawns while the house burned!
You got it, sort of. Platonists aside, wouldn’t you agree words have meaning? Why not marriage? What is it?
If words have meaning then their fundamental meaning can’t be changed. Consider a man who is marrying a woman he does not love but figures he will acquire her estate after she passes (say she’s in her 90′s and he’s in his 20′s). Is this the definition of marriage? Hardly yet the state isn’t deforming marriage by allowing it, the man is depriving himself (and the woman) of a true marriage.
MichaelPS
Given that human beings do reproduce, any legal system will have to address the rights and duties of ascendants and descendants, particularly the duty of support and the orderly devolution of property.
Actually this is not so much marriage law but family law. If it wasn’t then we’d have no way of dealing with illegitimate children yet amazingly the vast numbers of men who are required to pay child support indicate that the law can and does address those issues without marriage law.
April 29th, 2011 | 8:35 am
Jan mentioned, “It’s been obvious to everyone for millennia that homosexual relations belong to a different classification of things than marriage.”
I would like to mention that every American Indian tribe has had some form of Two-Spirit belief about homosexuals before the Europeans came over.
These people were marriages consisting of two men or vice versa. I cannot remember nor find the direct quote I read from a European explorer who described it as the homosexual perversion and being disgusted by the marriage of men to men.
Also, same-sex marriages did historically occur in some Chinese provinces, ancient Greek, Ancient Rome among other places. It was not until Christian thought began to become a dominant force in the world that same-sex relationships became such a problem.
April 29th, 2011 | 8:37 am
Google same-sex unions throughout time and click on the third article down. It will give you a good idea of same-sex unions historically.
Thanks,
Jonathan
April 29th, 2011 | 9:40 am
As you can see from Jonathan’s contributions; same-sex enthusiasts are demanding that this nation follow the same path as failed civilizations that very briefly embraced perversion as a social norm prior to…
You folks do realize that these fundamental shifts in society are what led to the dark ages don’t you?
April 29th, 2011 | 9:55 am
Hmmm, SSM has never been recognized by any civilization until now.
Errr no SSM not only was recognized but it was recognized only by civilizations that collapsed.
I guess we are so wrapped up defining marriage that we never bothered to note that the word ‘fact’ has a definition too.
April 29th, 2011 | 9:56 am
The very fact that you have to reference failed societies from antiquity to bolster your ridiculous assertions proves that you have absolutely no rationale basis for demanding new rights within this -the U.S.A – societies construct; that what you are proposing is an entirely new right based solely on what people choose to do in the privacy of their own homes.
April 29th, 2011 | 9:57 am
Michael PS,
As I read you, you’re saying that infertile heterosexual couples have no basic right to marry, but since trying to weed them out would be problematic, the state allows them to marry legally.
While it might be largely symbolic, if what you say is reasonably accurate, it seems to me that the state could require those applying for a marriage license to sign an affidavit stating that, to the best of their knowledge, they are potentially fertile and open to the possibility that of having children. Would you consider that fair to infertile couples?
Also, if I am reading you correctly, you say that the anthropological universal of marriage is that it establishes who a child’s legal father is. I am not an expert in anthropology, but I am wondering if that would apply to matrilineal societies and what the purpose of marriage in matrilineal societies is.
It also occurs to me that in our current society, in which 41 percent of children are born out of wedlock, marriage for the purpose of determining who a child’s legal father is might be considered to be about 40 percent less significant than when the “illegitimacy” rate was far lower.
Finally, you mention “current advances in reproductive medicine and assisted reproduction.” We now have a society in which anyone who can produce eggs or sperm has the potential to have offspring. Odds are that any couple, same-sex or opposite sex, is in some sense capable of producing children that are the offspring of at least one of them. If human cloning ever becomes a reality, every person with DNA will be, in a sense, fertile.
I do want to note that your interpretation of marriage differs from the Girgis/George/Anderson interpretation in that you seem to require fertility, and they require only the ability to perform sexual intercourse, if only once. This is the standard for “conjugal marriage” or religious marriage. Admittedly that’s way oversimplifying.
April 29th, 2011 | 10:10 am
Boonton
Marriage is central to the whole scheme of family law, not in the speculations of philosophers, but as it actually exists in the civil code.
Yes, the law does compel the putative father (the adjective is important) to pay maintenance, but, for most purposes, the child is not regarded as a member of the putative father’s family, for the purposes of succession or mutual rights of maintenance between adult ascendants and descendants.
Very different this, to the certain and incontestable filiation, produced by marriage – “The child conceived or born in marriage has the husband for father.” No such rule exists in the case of opposite-sex civil solidarity pact or between cohabitants; it is unique to marriage. It rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple’s children. As a report on paternity of the French Senate put it, “it is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value.”
To repeat a question I asked earlier, why does the law facilitate marriage in extremis? Any account of marriage, as it actually exists now, in the civil code, should provide an answer to this. The answer given by generations of commentators is that it is to legitimise issue and to regulate the succession.
April 29th, 2011 | 11:54 am
Michael PS
The incontestable filiation rule was created in the days before DNA where endless bickering could be created by a husband who claimed his wife’s children were not his because she had an affair. By setting it out that a husband is automatically considered the father of any child born to his wife during the marriage, notice is set and the ‘rules of the game’ are known by all ahead of time. This isn’t ‘marriage law’ though so much as family law. Before DNA testing, establishing paternity was enough of a headache for courts to sort out without having to deal with claims by husbands that their wives were unfaithful and therefore they shouldn’t be responsible for their kids.
You might be interested to know that with the arrival of DNA testing, we’ve had cases where unmarried fathers, discovering years later that they were not actually the father, tried to challenge their paternity. Courts ruled that since the good of the child trumps all, it doesn’t matter if a man has been unfairly paying child support for several years, he must still maintain his role as father for support purposes even if DNA proves he isn’t (he can, however, sue the mother and or true father to recover damages). Paternity law always balanced two priorities, one of fairness (that men who weren’t the fathers wouldn’t be forced to ‘cover’ for true fathers) and the other is making sure that kids are linked to someone whose responsible for their care….the law accepted cases of unfairness in the interest of the 2nd goal.
I think you’re confusing a practical rule by ascribign it some type of cosmic significance. Would you say a state that adopts a rule that the true father to the baby of an unfaithful wife can be forced to pay support is somehow violating the definition of marriage?
Anyway, I’m not really sure how this applies to SSM. Whether a state uses incontestable filiation or DNA in cases where straight husbands dispute the paternity of their straight wives, I’m not sure how that is disrupted by SSM. Can you point me to a single kid in Iowa, for example, whose inheritance would be disrupted if Iowa had been forced to recognize a SSM from a Mass. couple that moved to town?
Let’s also return to a previous point:
To establish a screening process would be burdensome, expensive, intrusive and litigious, especially given current advances in reproductive medicine and assisted reproduction.
Well actually that’s pretty presumptive. Returning to the previous examples, this really seems like special pleading here. Why can’t a state establish a ‘screening process’ if it’s interest in children translates into an ownership of marriage? Yes the rules of the screening process would be quite debatable, but lots of things are debateable. Speed limits are debateable but that fact alone doesn’t mean there’s no right by a state to set a speed limit, even though such a limit may be arbitrary, litigious, expensive or just plain stupid.
And no fertility in marriages is not always so questionable. When the fertile man marries a woman without a uterus, there’s no serious question of potential fertility. When two 70 year olds get married, not only is fertility not reasonably expected, it would actually be quite horrifying in itself. If I told you some woman in Italy was able to give birth at 70 with the help of new fertility drugs your reaction would probably not be “good, now those questionable marriages of old people can be made more in line with the Platonically ideal definition of marriages”….most people would react by saying “this is horrible, when this kid is 10 his parents will be in their 80′s, if they are still alive!”.
This leads us to a problem with the whole mechanical “marriage is here to make it easy to have sex that makes babies” argument. Humans don’t have any particular problem having sex and making babies. If that’s marriage’s ‘objective purpose’, well then its a waste of time. Humans are somewhat special in that our reproduction requires not so much effort to make babies but to raise babies. Many animals don’t even need to bother with their babies once they give birth. Even animals that take more time to raise their young often have babies that are able to walk a few hours after birth (birds are an exception I suppose).
If marriage was just about joining penis to vagina, why would the Catholic Church bother having marriages performed by priests? Urologists and gynacologists would be much more qualified, even engineers like Randy!
If marriage is about children then it’s not so much about making children as raising them, which ties into the fact that before you can care for another person you must care for yourself. Hence marriage’s ‘objective purpose’ is to facilitate people being able to care for themselves so they will have more time and energy that can be used to care for others. This, I think, better resolves the paradox of saying that marriage is procreative yet we embrace some very non-procreative marraiges (the two 70 yr olds who find themselves late in life) and are suspect of some very procreative marriages (the 24 yr old woman who marries the 70 yr old billionaire to the chargin of his adult sons). It’s because procreative has a larger meaning than simply the mechanics of producing babies, which is simply not a very big problem for humans. Procreative has to mean that adults are able to be provided for, cared for and more stable because it’s only when this happens that adults have the ability to provide stability for children…either their own or other people’s. Grandma unmarried is a worry for her adult children. Grandma married means less worry for her adult children and quite possibly Grandma may help babysit her grandkids from time to time. ‘Uncle Joe’ by himself likewise is a concern for his family, ‘Uncle Joe’ stable with a partner is less of a concern. If nothing else the rest of his family can put time and energy into worrying about the well being of their kids rather than adult family members.
April 29th, 2011 | 12:20 pm
Or more briefly, if marriage is just about children, then why are they for life? Why not ‘auto-expire’ when the oldest child turns, say 18? Inheritance law only applies to minor children anyway. You’re free to write your adult children out of your will and leave your entire estate to your dog if you wish.
Yea I suppose adult children are disappointed in their parents divorce but that can’t explain why ‘marriage for life’ is a definitional norm.
April 29th, 2011 | 12:30 pm
David Nickol
Well, as matters stand on infertility, there have been two instances where marriages have been annulled on the grounds of Essential Error, one by reason of the inaptitude of one of the spouses to have normal sexual relations (Paris, 26 mars 1982 ; Gaz. Pal. 1982,II, p.519, note J.M.) and the other by reason of inaptitude to procreate (TGI Avranches, 10 juill. 1973 ; D. 1974, p. 174, note Guiho). Similarly, in an old case, a marriage was annulled where it was impossible to determine the sex of one of the spouses (Tribunal de Nîmes, 29 nov. 1869, DP 1872, I, p.52 et s.) and, in another, the highest court held that the absence, weakness or imperfection of certain organs, characteristic of sex, was grounds for annulment (Cass., 6 avril 1903, DP 1904, p. 395 et s., concl. proc. gén. Baudoin, S. 1904, i, 273, note Wahl)
The jurisprudence, then, would seem to support my reading of the civil law, namely, that it proceeds on a presumption of fertility.
Further, two of the five articles from the code, read at every civil marriage, refer to parental responsibilities.
I find no counterpart to Girgis/George/Anderson’s discussion of consummation in the code, the commentators (“doctrine”) or the jurisprudence.
April 29th, 2011 | 1:23 pm
Boonton
I expressly said that marriage was not a way of promoting procreation; I do say it is the simplest means of ensuring, so far as possible, that the legal, biological and social realities of paternity coincide and that is what sets it apart from other institutions, whether civil solidarity pacts (between opposite-sex couples) or unregulated cohabitation.
As for inheritance, you are obviously unfamiliar with Article 913 of the civil code, which provides:
“Gratuitous transfers, either by inter vivos acts or by wills, may not exceed half of the property of a disposing person, where he leaves only one child at his death; one-third, where he leaves two children; one-fourth, where he leaves three or a greater number.
Included in Article 913, under the name of children, are descendants in whatever degree, although they must be counted only for the child whose place they take in the succession of the disposing party.”
It is not confined to minor children.
Where a person dies without issue, there are similar provisions, in favour of ascendants and, in the case of inherited property, in favour of siblings.
Thus, every aspect of family law stresses the vertical dimension of the family
April 29th, 2011 | 2:00 pm
The jurisprudence, then, would seem to support my reading of the civil law, namely, that it proceeds on a presumption of fertility.
1. There’s no particular reason to think civil law happens to comply with a Platonic ideal.
2. I don’t think anyone’s arguing that most marriage laws prohibit SSM. If advocates thought they didn’t, then what’s the point of advocating? The argument is are those rules justified or not. I wouldn’t be surprised if you found a historical example of a marriage being annuled because one of the parties turned out to be black as defined by the laws of the time. That doesn’t justify an argument that interracial bans are intrinsically necessary to marriage law.
I do say it is the simplest means of ensuring, so far as possible, that the legal, biological and social realities of paternity coincide and that is what sets it apart from other institutions, whether civil solidarity pacts (between opposite-sex couples) or unregulated cohabitation.
I could be wrong but I do believe you can write your kids out of the will. Regardless, that’s estate law, not marriage law as there’s no guarantee you’ll be married when you die even if you were married when your kids were born. More importantly, your argument might be relevant for opposing other things like incestuous marriages. If a father was able to marry his daughter, for example, when he dies would she inherit his estate as a wife (to the exclusion of all his other kids) or as a daughter? There are, IMO, more potent arguments against incest but i’ll go along with you that making a mess of inheritance laws is a valid objection.
But how does this tie into SSM or even regular marriage to begin with? Most people die without an estate to leave anyone so it’s not like most people need marriage for their final arrangements. Likewise passing estates to kids is simply not a major deal in developed countries. Most people inherit a modest estate if anything from their parents so it’s no like we need marriage to handle the massive amounts of estates to sort through. Wills and estate lawyers are happy to do that for us when there’s a sizeable estate. I suppose you could say marriage helps assign responsibility for children proper (as in those under 18 yrs old). But SSM does nothing to disrupt that that any other childless marriage does as far as I can see. How are you less aware of who your mother and father are if down the street Joe & his partner Smith have a marriage license? How does those two being married down the street make it easier for you to legally ditch caring for your own children?
I’ll also note something about estates. I pointed out often there marriages that are fine from a procreation POV that nonetheless strike us as ‘wrong’. One archtypical example is the very young woman who marries an old rich man. Note how such a marriage is technically procreative but nonetheless is disruptive to the existing family because its perceived to be gaming inheritance laws so the woman can muscle out adult children and possibly a former wife. If marriage’s ultimate purpose is just a pragmatic tool to help estate lawyers sort things out, well there’s plenty of more sensible tools.
April 29th, 2011 | 2:14 pm
BTW, the one person raised the sci-fi hypothetical of some future technological advance making it possible for two men or two women to conceive a child. This isn’t very convincing for a few reasons:
1. If such a thing becomes possible, unmarried same sex couples could use it anyway. You’d still be left with the legal questions of how to handle a child with two fathers or two mothers. All you accomplish by not having SSM is ensure that such a child, in addition to having a novel arrangement of parents, will also lack the stability of marriage with the parents he does have.
2. It’s almost certainly easier for tech. to make problematic heterosexual unions fertile than homosexual ones. For example, having a 70 or 75 yr old woman conceive is a plausible extension of existing fertility treatments while two men is still science fiction. If you’re going to argue that SSM should be prohibited because it would encourage same-sex partners to push the technological envelop…well then you should push for gov’t regulation of DSM as well since its much more likely the next problematic breakthrough in reproductive tech will be on behalf of heterosexuals, not homosexuals.
April 29th, 2011 | 2:21 pm
It is your Will to do with as you wish, but writing your children out of said will routinely backfires due to the bedrock nature of inheritance laws; being based on the right of property.
The right of property, as expressed in the founding documents of this nation, is expressly written to insure protection for proceeding blood relations; not to provided a tax loophole for a non-related partner.
April 29th, 2011 | 2:25 pm
“Our technology has surpassed our humanity”
Albert Einstein
Looks like same-sex enthusasts have proved Einstein to be correct – again.
April 29th, 2011 | 2:40 pm
http://info.legalzoom.com/write-children-out-will-3997.html
You can quite easily write your adult children out of your will. The only thing ‘bedrock’ here is Randy’s ignorance of what the law actually says.
April 29th, 2011 | 2:43 pm
This whole thing is very strange. Say you did have a law saying that your children must inherit at least a portion of your estate. So what? What does that have to do with marriage excluding SSM?
April 29th, 2011 | 3:26 pm
At the moment, same-sex and opposite sex couples have the option of unregulated cohabitation or a pact of civil solidarity. In addition, opposite-sex couples can opt for marriage. The sole distinguishing feature of marriage is the presumption of paternity – which is irrelevant to same-sex couples and rules which derive from it – the obligation of sexual fidelity and the husband’s obligation to support the children of the marriage &c
That is why, as I have shown above, marriages have been annulled on the grounds of infertility and the highest court has ruled that “the absence, weakness or imperfection of certain organs, characteristic of sex” is grounds for an annulment.
What, then, is the point of SSM? What State interest would it serve that the alternatives do not serve equally well? We are constantly told that mandatory civil, lay marriage is “a pillar of the Republic, one and indivisible;” how does this apply to SSM?
April 29th, 2011 | 3:35 pm
Come on Boonton; don’t misstate presented text like you misconstrue your basic biology.
Legally; you must provide at least a token acknowledgement for your children if you hope to avoid litigation.
This all falls to intent; as in the intent of the SCOTUS ruling in Loving v. Virginia. Same-sex enthusiasts do like to argue trivial matters such as intent, or the actual definitions of words, because they do not get them what the want.
April 29th, 2011 | 3:40 pm
Jonothan writes:
“Also, same-sex marriages did historically occur in some Chinese provinces, ancient Greek, Ancient Rome among other places.”
Don’t get your history from google. That’s the first thing.
No one ought to be saying that SS relationships are something new. They are not. What is new is the idea of calling them marriages…aside from a few Asian despots or Lunatic Emperors like Nero…nobody called SS relationships marriages. Not even the ancient Greeks, who often had life long SS commitments. They all recognized the obvious: that things that are different are not the same. (I am feeling tautological). And that different things ought to be called by different names. I fail to see what is so difficult about that concept for us. Except for Boonton, who must update everyone periodically as to what the sounds he emits mean at that moment…since he believes that words have no meaning. Of course, how would we understand his definitions…
Interesting.
April 29th, 2011 | 3:44 pm
Michael PS
The sole distinguishing feature of marriage is the presumption of paternity – which is irrelevant to same-sex couples and rules which derive from it – the obligation of sexual fidelity and the husband’s obligation to support the children of the marriage &c
Sorry this is just simply not true. Marriage brings with it numerous legal implications that go far beyond simply an assumption of paternity. If that’s the sole purpose of marriage then marriage is totally irrelevant. With DNA testing there is no longer any need for a presumption of paternity, for $69.99 you have have certainity of paternity. If this really is the distinguishing feature of marriage, then there’s no logical reason for men to marry. At least without marrying, you’re only responsible for children the woman can prove you have fathered. You’re saying marriage is basically a one way bet that allows a woman to have children with any man she chooses but automatically make her husband responsible for them. Sorry there’s gotta be more to it than that otherwise it would have never have gotten off the ground.
We are constantly told that mandatory civil, lay marriage is “a pillar of the Republic, one and indivisible;
We are? Who is constantly saying that? Some names please.
What State interest would it serve that the alternatives do not serve equally well?
Is the state served by the people or does the state serve the people’s interests?
April 29th, 2011 | 3:55 pm
BTW, see http://www.divorce-lawyer-source.com/html/law/annulment-grounds.html
Legal grounds for annulment usually require a lack of knowledge by the victimized party. Infertility is grounds for annulment when the other side was unaware of the problem until after the marriage.
I will happily meet you half way. I would agree that if a man married a man thinking he was really a woman or a woman married a woman thinking she was a man, they should be granted a valid anulment. But your thinking about the law seems incorrect. If you marry someone who you know is infertile, you can’t turn around a year later and demand an annulment.
For your arguments to work, the law would have to say not only is unknown infertility grounds for annulment, infertility requires annulment even if the married couple is perfectly happy being married.
April 29th, 2011 | 4:10 pm
At the moment, same-sex and opposite sex couples have the option of unregulated cohabitation or a pact of civil solidarity.
Michael PS
Your information is simply incorrect.
Not all states in the US have civil unions, and in fact many states constitutionally ban civil unions. See here.
That is why, as I have shown above, marriages have been annulled on the grounds of infertility and the highest court has ruled that “the absence, weakness or imperfection of certain organs, characteristic of sex” is grounds for an annulment.
No state in the US allows for annulment on the grounds of infertility. Some states may permit annulments if the male was impotent before the marriage and will continue to be permanently impotent.
The cases you cite are French!
April 29th, 2011 | 4:15 pm
Come on Boonton; don’t misstate presented text like you misconstrue your basic biology.
Legally; you must provide at least a token acknowledgement for your children if you hope to avoid litigation.
Randy King:
That was spelled out in great detail in the link Boonton included in his message.
April 29th, 2011 | 4:49 pm
One more thing that you missed. Annulments are requested by one or both of the parties in a marriage. The state itself doesn’t take it upon itself to go before a judge and demand an annulment because Jill married an infertile Tom or because Ben and Sally never consummated their marriage.
April 29th, 2011 | 5:13 pm
Jan
They all recognized the obvious: that things that are different are not the same. (I am feeling tautological). And that different things ought to be called by different names.
Back to the Platonic argument. A circle is a circle and an egg shaped oval isn’t a circle but if a child calls it a circle there’s no harm done. It doesn’t make real circles any less circlish and it doesn’t make imperfect circles any less or more imperfectish. Drawing lines in different places does not mean tht words have no meaning or that meanings change moment to moment. When a 30 yr old man marries a rich 90 yr old widow to snag her estate, the state may say that’s legally a marriage but a Catholic priest may refuse to perform it or even recognize it. Two different entities are simply drawing the line in two different places, it doesn’t change the position or meaning of the ideal.
I take excpetion to your claim that I change the meaning of words willy nilly. I do write a lot of posts so you may catch me in an error or two but I do try to be consistent when I develop my arguments. If you can show me that I haven’t been then please do so but simply tossing charges out there with no support is rather unfair IMO.
April 29th, 2011 | 9:50 pm
“That was spelled out in great detail in the link Boonton included in his message.”
The link was provided after the insult and prior to the realization of the error. I recommend you folks head over to Monticello.com and follow links on Jefferson thoughts on property; do keep in mind that Jefferson favored castration of same-sex enthusiasts believing the death penalty to be a little severe for the crime.
Your positions on law our consistent with your views on sexuality; pure flights of fancy with absolutley no basis in reality.
April 30th, 2011 | 12:10 am
“Back to the Platonic argument. A circle is a circle and an egg shaped oval isn’t a circle but if a child calls it a circle there’s no harm done.’
I like Plato. In any case Plato wasn’t the last to believe words have meaning. We could talk about “Language games” and Wittgenstein if you’d prefer. Anyway, the point is the same. Words either have meaning or they don’t. You want to change the meaning of a word, despite its common understanding for millennia. The burden is upon you to say why we ought to go along. Your case isn’t very convincing.
I think it’s just another unwarranted assault on the English language, not to mention common sense. What you propose teaches, via the law, nonsense. As I implied before, to do what you propose, one has to see no significant difference between men and women, sodomy and sexual intercourse, sterility and fruitfulness, etc. Your view is Orwellian in the worst sense. That is one reason proponents of your view are forced to use the courts to impose such non-sensical view upon the public.
I wish you well.
April 30th, 2011 | 5:09 am
Randy E King
I thought I had encountered your analogy before: It was used by the great French jurist, Doyan Carbonnier, in the standard commentary on the Civil Code:
“Marriage supposes the complementarity of organs, « l’assemblage se fait à tenon et mortaise » (The assemblage is formed by the tenon and mortise)
[CARBONNIER (J.), Droit civil, t.II, La famille, l’enfant et le couple, Paris, PUF, 20ème éd., 1999, p. 393]
Great minds think alike?
April 30th, 2011 | 10:49 am
Jan
You want to change the meaning of a word, despite its common understanding for millennia. The burden is upon you to say why we ought to go along. Your case isn’t very convincing.
Whose asking you to ‘go along’? Civil divorce and remarriage has existed in the US for nearly 200 years and that Catholic Church has never ‘gone along’ and recognized such marriages and isn’t giving any indication that it plans to do so anytime soon.
Your view is Orwellian in the worst sense. That is one reason proponents of your view are forced to use the courts to impose such non-sensical view upon the public.
It’s ironic that a supporter of a ‘Defense of Marriage Act’ that doesn’t actually defend a single marriage would accuse me of being Orwellian. So do you work at the Ministry of Peace or the Ministry of Truth?
April 30th, 2011 | 2:16 pm
I don’t mind Plato too much either, I’ll defer to talk about Wittgenstein because I know less about him than I should.
But coming back to the meaning of words, the paradoxical thing is the more words really have meaning, the less important it is to get them right. But this isn’t so paradoxical because by saying words have meaning, you’re essentially saying that words can take care of themselves without your help.
Go back to the circle. A circle has a great meaning (“a set of points all equidistant from a center point” is a good one). Getting it wrong, then, harms no one except maybe those who get it wrong. A car’s wheels should be circles. If someone decides that an oval can also be a circle and tries to drive a car with oval tires, he will at the least experience a horrible ride. But his ‘assalt’ on the meaning of circle isn’t going to change round wheels into ovals.
Now if you have civil SSM, all you really have is the state saying it is not claiming a monopoly on word meanings (which it can’t, if words have their own meanings then the state can’t take them away).
And the state is already deferring. Despite Michael’s best effort, things he has asserted as ‘essential’ to the meaning of marriage are not required in marriage law. Numerous infertile marriages exist, even if they are violating a Platonic definition of marriage, their existence isn’t making fertile marriages less fertile. Marriages exist of people who should NOT have children, that doesn’t stop children being conceived in other marriages. Needless to say the whole inheritance thing was demonstrated to be nonesense.
April 30th, 2011 | 3:28 pm
Boonton asks:
“Whose asking you to ‘go along’? “
Hmmnnn….you. By pleading with me and the rest of America to accept your silly idea of what a marriage is. You aren’t making sense.
And then offers:
“It’s ironic that a supporter of a ‘Defense of Marriage Act’ that doesn’t actually defend a single marriage would accuse me of being Orwellian.”
The real irony is that you still have no concept of what DOMA is for. It’s similar to your lack of understanding of what marriage is for. I see a pattern here…..
April 30th, 2011 | 3:58 pm
Been trying to research Doyan Carbonnier’s thoughts in reference to Michael PS’s posts, unfortunately most of what I find is either in French (which I don’t read) or only very brief citations (Google’s translation of wikipedia’s entry is coherent but not very meaty).
http://thebentangle.wordpress.com/2010/08/21/the-presumption-of-paternity/ does have some interesting stuff, some by Michael himself it seems.
If I’m reading you correctly (I assume it is you), Carbonnier was looking at French law and trying to determine the difference between the legal regimes of marraige versus civil unions. This leads to a pretty obvious problem, French Civil Unions are some age old institution but a relatively new one. This sounds like taking a jurists discussion of the legal differences between a limited liability corporation and a regular corporation and trying to take some cosmic importance from it.
A more reasonable way to look at this to me is to say that paternity was only a piece of the larger pie that is/was marriage in French law. The French then took one thing and split it into two or more allowing a couple to have “Marriage-classic”, Civil Unions (“Marriage-lite” you can share a bank account but your not automatically father to her kids!), or Discount Marriage (“Unregulated cohabitation”….basically you can shak up without anyone bothering you too much)
The legal usefulness of defining filiation by marriage is clearly useful to the state. But what’s pretty devasting here is the fact that civil unions are defined as available to all as an alternative to marriage….as well as ‘unregulated cohabitation’.
If the overriding state interest is to make sure we know who the father’s of children are and there’s clear lines of responsibility to parents who create children, then what is the logic in the state making marriage an ‘alterative’ rather than a requirement? Why are heterosexual couples allowed to use civil unions or ‘unregulated cohabitation’? Since children can be just as easily creatd out of such arrangements, clearly the state interest in establishing clear responsibility is there too. Most troubling, fathers who would be most inclined to try to unjustly deny paternity of their children would be the ones most likely to choose a ‘legal regime’ that did not establish paternity as a rule. In other words they are most likely to choose the civil union or cohabitation rather than marriage. So if marriage is, at its base, a social system for keeping social if not biological paternity clear, well then it has massive holes in it.
And if marriage is about paternity, well, it has a lot of extra baggage. Why, for example, is liability for a spouse’s debts or requirement for spousal support part of marriage? Why the automatic inheritance of the spouse’s property? All this is unnecessary if you’re just trying to keep paternity lines unquestioned and this extra baggage just would create more reasons for people to avoid marriage thereby frustrating you effort to keep every child a non-bastard. The marriage law also would seem to frustrate keeping inheritance a straight line to the kids. Consider the Anna Nicole Smith type marriage where an older man with wealth marries a younger woman. Such marriages typically cause tension in families because the woman ‘jumps first in line’ to inherit the estate when the man dies thereby getting in the way of his oldest children. If the purpose of marriage in law was to make sure kids get their estates….well it seems poorly designed.
Needless to say, Carbonnier can be excused writing about paternity in the late 60′s for not knowing about cheap DNA testing, Michael cannot. The danger of questions of paternity turning into a ‘he said she said’ argument that can never really be resolved with certainity is long gone. For less than the cost of a civil marriage license, paternity can easily be verified. The assumption that the husband was the father of any and all children a wife had in marriage was quite pragmatic, but not longer needed.
April 30th, 2011 | 7:07 pm
Jan,
I haven’t asked anything of you except back up your charges against me. You haven’t even tried, instead you pile on more.
April 30th, 2011 | 10:54 pm
Michael PS,
You sir are brilliant!
May 1st, 2011 | 1:04 am
Did any of you catch the vows taken during the Royal wedding, at the 1,000 year old church, in Mother England?
I can’t help but wonder how many years of tradition and history it will take to convince same-sex enthusiasts that marriage in these United States has always been the joing of one man and one woman; that marriage is an institution of God?
May 1st, 2011 | 6:54 am
Booton
DNA testing has not changed the position within marriage at all, for Article 312 is peremptory: “The child conceived or born in marriage has the husband for father.” As recently as 2004, the legislature reaffirmed this, quoting, in their report, the work of another eminent jurist and scholar of comparative law, Ms. Frédérique Granet-Lambrechts, professor at the Robert Schuman University of Strasbourg,
Mandatory civil marriage (and mandatory registration of births) dates from 1791. It was imposed, not coincidentally, by the same series of enactments that converted 10 million peasants from tenants at the will of their lord to heritable proprietors. It was the same legislation, by the by, that abolished the laws against blasphemy, sodomy and witchcraft.
Over the next twenty-five years, the same laws were spread all over Europe in the wake of the armies of Napoléon. As a result, the West has, in effect a common code of civil status, which is why the jurisprudence of one country is regarded as of great persuasive authority in another.
Carbonnier is by no means a conservative jurist; he was the draftsman of the 1970’s reform of family law. However, his argument on the nature of marriage can be summarised in three propositions: (1) Mandatory civil marriage, makes the institution a pillar of the secular Republic, standing clear of the religious sacrament (2) The institution of republican marriage is inconceivable, absent the idea of filiation, enshrined, not in Church dogma, but in the Civil Code (3) The sex difference is central to filiation. His most famous maxim is “The heart of marriage is not the couple, but the presumption of paternity.”
It is difficult to find jurists who hold a contrary view, but M. le Doyen Cornu [CORNU (G.), La famille, 5ème éd., Montchrétien, n°159, p.228] is, perhaps the most distinguished critic of Carbonnier’s reading of the civil code. Dominique Strauss-Kahn, not a jurist, but a lawyer and a politician has also been a leading critic.
It is significant that, in a country so committed to the principle of laïcité as France, no one has suggested that Carbonnier’s views, or those of the jurists that share them, are either the result of religious convictions or an attempt to import them into his interpretation of the Code. Very different this to the American debate.
May 1st, 2011 | 9:26 am
Michael
DNA testing has not changed the position within marriage at all, for Article 312…
You’re missing a point here, just because the French gov’t hasn’t changed the law doesn’t mean that the law must be this way. https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=44+Willamette+L.+Rev.+297&srctype=smi&srcid=3B15&key=a857dca73aa1f17e7bcb1edf188aed77, For example, seems to say that some states allow the presumption of husband paternity can be rebutted. No doubt more will add on and the law in many places will become that husbands will be presumed to be the paternal father of babies born to their wives but they can dispute paternity, if they do DNA testing will decide the matter.
Over the next twenty-five years, the same laws were spread all over Europe in the wake of the armies of Napoléon. As a result, the West has, in effect a common code of civil status, which is why the jurisprudence of one country is regarded as of great persuasive authority in another.
Yes but the West has a legal tradition independent of Napoleon. Marriage existed in England and the US, for example, without being imposed by Napoleon’s armies. Here its important to consider that the US and England did not deveop their legal systems in the way that France developed its modern legal system. There wasn’t the need, for example, to derive secular institutions as totally disconnected from the Church. My importantly, though, you’re point #2 isn’t really supported and I think the problem is you rather than Carbonnier.
Sorry French law and legal thought may be respected but that’s not enough to make it determine US or English law.
If civil marriage’s only purpose is ‘filiation’, well then DNA testing has made it unnecessary. Just because the law hasn’t caught up to that doesn’t alter the fact that in the long run your reading of ‘civil marriage’ is built on a house of sand that can’t last. What is the point of marriage in this view for the man? It’s basically a one way bet to be taken advantage of by the woman since you’re basically saying that the only thing you get in civil marriage is being automatically responsible fo rthe woman’s children, even if you discover they aren’t biologically yours! What exactly is the purpose of getting married then when ‘unregulated cohabitation’ and ‘civil unions’ allow you to only claim the children that are biologically yours? Here’s a few other issues with your reading of French and Western marriage:
1. Marriage is a contract, it’s a long standing principle of contract law that there must be consideration. In other words both sides must offer something to the other side. One way offers (I’ll give you a car on your 18th birthday) are not contracts. By making marriage a ‘one way offer’ that’s only good for the woman to automatically pin paternity on her husband, you’re ceasing to make marriage a contract which then is a real discontinuity with thousands of years of legal thought and history. It makes much more sense to just think that the French civil code happens to have overlapping institutions where civil marriage and civil unions are almost exactly the same except for paternity.
2. You may counter that there’s more to civil marriage than this. There is, for example, the shared legal rights that spouses have. Joint inheritance and so on. But then you subvert your thesis by saying marriage is about more than just establishing paternity, it’s also about solidifying a partnership of two people regardless of whether they have children or not. This is in line with my thesis, before you can take care of children you must be able to take care of yourself. Marriage is ‘a highly energy efficient’ form that does that that. Two people together are often better than one since problems that one person may have (like unemployment) often are offset by the other person. You can say if this works for two why not push it to three, four, or more. That’s true but there’s a downside as ‘complications’ increase geometrically so IMO for most people a couple is like a bubble….it balances the ‘downsides’ of the complications that come from intimate relationships with the ‘upsides’ of mutual support, love, intimacy etc.
3. “The heart of marriage is not the couple, but the presumption of paternity.”
OK but then why does France allow couples to subvert this all important ‘state interest’ in making sure all children have clear paternity? Why can a couple opt for a ‘civil union’ or ‘unregulated cohabitation’ where when a child comes the man can deny paternity resulting in a court case of uncertain outcome? If this was the ‘heart’ then the law would more likely, IMO, say something like all unions are civil unions until a child is produced at which time they automatically become marriages (call it a secular version of the ‘shotgun wedding’). But since the decision is left up to the couple in the civil code, it would seem like the heart of the marriage is indeed the couple.
May 1st, 2011 | 2:57 pm
Michael PS,
The thinking of Jean Carbonnier regarding paternity and French civil law regarding marriage is an interesting digression, as is the state of marriage and civil unions (PACS) in France today. But I really don’t see how it is relevant to American law or the definition of marriage. In France, the majority of children are now born to unmarried couples. Exactly how important is automatically establishing paternity in societies where most children are born to the unmarried?
Why should American society care about an automatic establishment of paternity of children conceived by lesbian couples any more than it cares about establishing paternity of children born out of wedlock? (In the United States, 40 percent of children are born to unmarried women.)
The less patriarchal a society becomes, the less important automatic filiation or, indeed, any privileging of the father-son relationship is.
The interesting thing about France is that in setting up the civil union (PACS) for the benefit of gay couples, they created a new institution that is seriously eclipsing marriage for heterosexuals. About 90% or more of new civil partnerships per year in France are heterosexual couples. How many of those couples might have opted for marriage in the absence of civil unions is impossible to say, but I don’t think it is rash to assume that a great may of them would have.
Regarding the quote, “The heart of marriage is not the couple, but the presumption of paternity”—it is not clear to me whether it was meant as a description or a prescription. But in any case, it has very little to do with the definition of marriage as put forth by Girgis, George, and Anderson in which the heart of marriage is the conjugal nature of the relationship. If the heart of marriage—as a human institution, rather than as a matter of statutory law—is not the couple, but the presumption of paternity, what does that say about married couples who don’t (or can’t) have children?
May 1st, 2011 | 6:38 pm
David Nickol
The very fact that there are over Five billion people on this planet tells us that your theory is based on the exceptions; not the rule.
“So what” and “what if” are not arguments; they are excuses and I for one am sick and tired of your excuses.
Pervert is not just what you are doing it also happens to be what you are.
May 1st, 2011 | 8:25 pm
“The less patriarchal a society becomes, the less important automatic filiation or, indeed, any privileging of the father-son relationship is.“
How do non-patriarchal societies solve the nutrition problem: pregnant females, nursing females, and infants all have nutritional needs beyond sustenance. Who is responsible for fulfilling those requirements? Does a non- patriarchal society also establish the State-as-Husband / State-as-Father? Does that mean the United States is now 40% a non- patriarchal society?
May 2nd, 2011 | 12:42 am
Does that mean the United States is now 40% a non- patriarchal society?
SteveP,
I’d say 40% is too low a number. You also have to figure in the 33% of marriages in which the wives either support, or make more money than, their husbands.
May 2nd, 2011 | 6:36 am
Booton & David Nickol
Marriage is not a “one-way bet” It gives the husband paternal authority over the child: this is the meaning of filiation. Indeed, it creates an indivisible filiation, for which a juridical bond between the parents is essential. This is the reason why, although a single individual can adopt, only two people who are married to each other can adopt jointly.
Unlike other arrangements, it creates an obligation of sexual fidelity and this is a real, not a personal obligation, for the husband has a delictal action against his wife’s paramour. This shows that marriage is not a mere contract, for no contract can confer rights against third parties: rather it is a civil status.
The report of the French Senate on the Law ratifying the Ordinance of 4 July 2005 supports my reading of Carbonnier:
“Preserving the presumption ‘ is est pater quem nuptiae demonstrant ‘, adopted in all European legislation as Ms. Frédérique Granet-Lambrechts, professor at the Robert Schuman University of Strasbourg, told your reporter, Article 312 of Civil Code provides that a child conceived or born during the marriage has the husband for its father.
The presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple’s children. The report presenting the order to the President of the Republic rightly points out that ” it is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value [sans faire perdre à cette institution son sens et sa valeur]“”
Plainly, any definition of marriage must distinguish it from concubinage, contubernium, domestic partnerships, civil unions and other forms of domestic arrangements, ancient and modern, even if we confine ourselves to those cultures with a legal literature that makes the exercise something more than speculation. Carbonnier’s has been criticized, but there is a paucity of convincing rival definitions that meet this obvious criterion.
May 2nd, 2011 | 7:04 am
David Nickol
I feel that Girgis, George, and Anderson’s account says little to practitioners in private international law, like myself, who find ourselves wrestling with the problems posed by immigrants from the Maghreb and Sub-Saharan Africa, who are in actual or potential polygamous unions, recognized under their national laws and now living or working in France or the UK.
A definition of marriage as a human institution that fails to address that juridical reality seems to me inadequate at best and mischievous at worst.
May 2nd, 2011 | 11:36 am
Steve P
How do non-patriarchal societies solve the nutrition problem: pregnant females, nursing females, and infants all have nutritional needs beyond sustenance.
We tend to use supermarkets.
David,
Thank you, Michael PS has generated a good digression over French marriage law but it hardly seems very relevant.
Michael
Unlike other arrangements, it creates an obligation of sexual fidelity and this is a real, not a personal obligation, for the husband has a delictal action against his wife’s paramour. This shows that marriage is not a mere contract, for no contract can confer rights against third parties: rather it is a civil status.
Not really. The husband is liable for the wife’s child even if he isn’t the biological father. Yes he may sue the paramour for damages, but this is a time consuming and uncertain process and if the ‘paramour’ has no assets then he has basically found a way to father kids and have other men pay for them. The marriage doesen’t create a right against 3rd parties.
Consider a hypothetical case in the US. A man is accused of fathering a woman’s child, he denies it. It goes to trial and this being a pre-DNA era he is unjustly ruled to be the father. A few years later, better DNA testing establishes that the father is, in fact, Donald Trump. The man can sue Donald for his damages, even if technically it may be difficult to reopen the paternity case itself. Note that at no point does the man need to be married to the woman. Trump committed a tort on this hypothetical man by offloading his child to him.
Plainly, any definition of marriage must distinguish it from concubinage, contubernium, domestic partnerships, civil unions and other forms of domestic arrangements, ancient and modern, even if we confine ourselves to those cultures with a legal literature that makes the exercise something more than speculation.
I think you’re argument is basically along these lines. France has marriage and it has civil unions. Since marriage has different legal treatment than civil unions that means that whatever the difference is must be the magical cosmic definition of marriage! Let’s leave aside the unaddressed question of why French law is just assumed here to be infallible and univerally applicable to everyone.
This does not logically follow. It’s just as possible that marriage consists of several ‘magical things’ and France has just created several institutions that mix and match some of them in different combinations. That means then that just because civil unions have all the things that marriage has minus presumed patenity, that doesn’t mean that presumed paternity is the key to marriage. It could very well mean that civil unions are just a type of legal ‘marriage-lite’ that has several of marriages fundamental elements but not all of them.
May 2nd, 2011 | 12:07 pm
I am not an anthropologist, but I am guessing that for most of human history—during which the extended family, not the nuclear family, predominated—the idea of the husband being the one who had to take care of the wife when she was indisposed by childbirth and is a fantasy. Human beings were hunter-gatherers for about 95% of our history. Women giving birth would have been cared for by others in the community, and the same is true of the babies. The idea of the nuclear family as “the basic unit of society” is only a few centuries old.
May 2nd, 2011 | 12:22 pm
I think maybe we are too caught up here in Platonic ideals and such.
Look, a company’s purpose is clearly to make money doing some legitimate trade activity. But some companies do no such thing. They are little more than hobbies, either barely breaking even year after year or making losses…propped up by their owner’s faith that someday they’ll hit it big.
The purose of corporate law was not to facilitate hobbies. Yet it can and is used as such with the only harm being done to those who use it for their hobbies. IBM, Apple, Microsoft are not threatened by some random Joe whose ‘corporation’ is a used bookstore that barely pays its rent every year. Likewise if we are worried about ‘weak business conditions’, well real corporations that are having problems don’t get any help by going jihad on ‘hobby corporations’.
The idea that civil institutions have ideal purposes is not in itself sufficient for denying access to those institutions to those people that the state simply deems not serious enough about those purposes. When the ‘non-serious’ hobbist wants to incorporate his used bookstore, the gov’t clerk should simply hand him the forms, not engage in a fundamentally nonsensical debate premised on the idea that allowing a bum business to incorporate will somehow topple all of capitalism.
May 2nd, 2011 | 12:32 pm
Did any of you catch the vows taken during the Royal wedding, at the 1,000 year old church, in Mother England?
Randy E. King:
I didn’t watch, but I hope instead of saying, “I do,” they said, “I already did.” Why do you think it should be edifying to see the likely future head of the Church of England taking as his bride the woman he has been openly living with for the past year?
May 2nd, 2011 | 1:17 pm
I think it’s the same blindness that let’s him cite Jefferson when defending the idea of being legally required to provide for your biological children by marrying their mother…
May 2nd, 2011 | 7:42 pm
Boonton and David Nickol: For those who actually work, Genesis 3:19 is not metaphor; of course what could that text possibly mean to residents of a nation with such a trend toward obesity? Perhaps there is more than one appetite overindulged.
Good luck to you both.
May 3rd, 2011 | 3:38 am
Booton
Your Donald Trump example breaks down, because the action here is the condictio indebiti for the repetition of an unjust enrichment; not a delictal action at all, but a quasi-contractual one.
The husband’s action against his wife’s paramour is grounded on adultery as a delict.
David Nickol
You are right that the nuclear family is of very recent date. As Robert Neuberger says “in this country, the model has long been the peasant family, structured around a patriarch and expanding from hearth to hearth. Children were raised within an expanded group and not by two parents.”
What you overlook is that paternal authority is the glue of the extended family. “The community” was based on common ancestry, real or supposed.
May 3rd, 2011 | 9:42 am
Steve P
I’m not sure what you mean or what you’re asking. Whether society is patriarchial, matriarchial (yea I know I botched that spelling) or neither doesn’t alter the fact that reality is one has to ‘sweat’ to secure their ‘daily bread’…..of course in developed economies the ‘sweat’ is often somewhat metaphorical and the ‘daily bread’ is rather broadly conceived to be more than literally just a loaf of bread.
Michael PS
Not sure how the case would be ‘unjust enrichment’. Yes Trump may enjoy the idea of fathering kids with married women and letting their husbands be the ‘suckers’ by paying to raise those kids but that doesn’t directly ‘enrich’ Trump. The lawsuit would be more directly a tort, Trump has caused me an unjust harm by making it so that I pay for a kid he fathered. This would apply whether or not the kid’s mother was a woman that I’m married too. The only difference is that Trump’s ‘scam’ would be easier to pull off with a married woman since her husband would be presumed to be the biological father while an unmarried woman might have to convince a court that the man is the father.
You’re not really getting at the core of the problem with your argument. Just consider for a moment that marriage has several ‘essential core elements’. For whatever reason, the French law decides to create one or more institutions that are basically ‘marriage-lite’ that lack, say, one of those core elements. Your argument is that since Civil Unions and Marriage differ in French law in only one respect, assumed paternity, that must be the one ‘core element’ that makes marriage marriage. But this is a rather artifical reading of things. Imagine if France had set up not one but multiple types of Civil Unions?
Civil Union Blue – Just like marriage, but absolutely no alimony is every permitted in a case of dissolution or divorce regardless of circumstances.
Civil Union Red – Just like marriage, but there’s no community property and the spouse does not inherit automatically the other spouse’s property upon death.
Civil Union Pink – Just like marriage, but there’s no requirement of care for a spouse. In other words, one spouse may be gainfully employed and make lots of money but there’s no requirement that he provide for the essential needs of his spouse. If his spouse shows up on the welfare line, they are treated as essentially an unmarried person.
If this was how French law was set up, your logic would say that marriage is ‘essentially’ about paternity, mutual sharing of property, a requirement to provide for a spouse’s needs, and some form of lifelong obligation (i.e. alimony, granted that’s highly contigent).
But, of course, there are some married couples who have no income or property. There are some married couples where both spouses have ample income and no need of material support fromthe other spouse. Just like there are marriages that have and will have no children ever.
Now France didn’t set up multiple types of Civil Unions, but so what? Nothing appears to say that France couldn’t create such institutions tomorrow if their elected representatives wanted to do that. Unless you are going to assert the law as created under Napoléon represents some type of perfect divine revelation that cannot be altered…in which case I’ll answer as an American (while I munch my ‘freedom fries’) it might be good law but it ain’t that good
May 3rd, 2011 | 10:54 am
What you overlook is that paternal authority is the glue of the extended family. “The community” was based on common ancestry, real or supposed.
Michael PS,
The reason I brought up the extended family was it seemed to me someone was implying that the purpose of marriage was to have a husband who could provide food and other necessities for a wife while she was indisposed because of childbearing or busy with child rearing. As I said, I am not an anthropologist, but I don’t think that was true for hunter-gatherers, and it is not true for a great many people today. There have been numerous arrangements down through the millennia for care of pregnant women and childcare—these functions have been performed by the community, by extended family, by slave, by hired help, and so on. The nuclear family, with a father as a sole provider and the mother and children as dependents, is a new idea and, in my opinion, not the ideal arrangement for raising children. I think children are probably better off in extended families or close-knit communities. This is perfectly compatible with paternal authority, although it seems to me as women continue to be more “liberated,” to achieve more equality with men, to work and have good jobs (increasingly more important than their husbands’), paternal authority is diminishing.
May 3rd, 2011 | 1:23 pm
That marriage is not the mere creation of municipal law is obvious from the way in which foreign marriages are treated. Time out of mind, the general rule has been that a marriage anywhere will be recognized everywhere. A Nusquamian couple, married in Nusquamia, will still be treated as married, if they subsequently settle in New York.
To quote Lord Penzance in Hyde v Hyde:
“Therefore, all that the Courts of one country have to determine is whether or not the thing called marriage – that known relation of persons, that relation which those Courts are acquainted with, and know how to deal with – has been validly contracted in the other country where the parties professed to bind themselves. If the question is answered in the affirmative, a marriage has been had; the relation has been constituted; and those Courts will deal with the rights of the parties under it according to the principles of the municipal law which they administer…
Its incidents vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must needs (however varied in different countries in its minor incidents) have some pervading identity and universal basis…
If this were not so, the Court would be creating conjugal duties, not enforcing them, and furnishing remedies when there was no offence…”
May 3rd, 2011 | 2:28 pm
Circular reasoning there Michael. You’re saying that marriage is not a creation of civil law of, say, New York State, because New York State will recognize a couple coming from the UK that was married in London. But then is marriage a creation of London’s civil law? No you say, for a couple married in NY State can travel to London and have their marriage recognized! Talk about passing the buck, you’re really saying that marriage isn’t a creation of our local civil law, but everyone else’s local civil law!
But this isn’t all that shocking, what the courts are doing is simply recognizing contracts to be enforceable by all persons provided they don’t conflict with local civil law. A may have a contract with B to be supplied with on pound of pot every month in exchange for $300 which may be enforceable in The Netherlands. When A & B move to New York, though, their contract is unenforceable in New York courts. Likewise courts in the US have refused to recognize marriages from countries where girls as young as 12 or 13 are allowed to marry.
This would also seem to belie your paternity based ‘core’ of marriage. Are you saying that any state or country that decides to decide paternity questions by DNA rather than simply assuming the husband is the father in all cases is destroying marriage?
May 3rd, 2011 | 9:15 pm
You know, it also occurs to me that France use to be a monarchy before the revolution. When you have royal titles that are passed down by heredity I could see the usefulness of always presuming the husband is the father of the wives children….even if it’s quietly known that he may not be the father. I could also see how such a society would not want husbands to be able to disinherit their sons (at least as far as titles go, money and wealth is always a different story). Even though the revolution was anti-aristocratic, the idea still was probably something many in French society cared a lot about.
In contrast, the US never had such titles and no need to worry as much about their legal status. The only thing US children inherit is money, property and so on….and as we have seen the law has little or no trouble with a parent who wants to leave their kids nothing.
May 4th, 2011 | 3:02 am
The family is increasingly centred on the child. In the face of changes in family life and conjugal relations in particular, the child appears to be the only enduring reality. Whereas in the past, marriage was the prerequisite for the formation of a family, today the prerequisite is essentially the presence of children.
Martine Segalen, author of “Historical Anthropology of the Family,” has observed, “Studies show that when a member of a family lives with a partner outside marriage, that person is considered to belong to the family only from the birth of a child on.” In the increasingly frequent absence of marriage, therefore, it is indeed the child that makes the family. In fact, by making the relationship between his/her parents irreversible, the child brings each of them into the other’s family, something a childless common-law relationship does not necessarily do.
May 4th, 2011 | 9:01 am
The problem Michael is that married couples who do not have children and are expected to never have children (the sterile, the very old etc) are also considered family.
If the family is only centered on the child, then the family is just a temporary arrangement for about two decades in order to get a child from the birth to adult stage. Traditional marriage vows, interestingly, say nothing about children but say a lot about a life long relationship.
May 4th, 2011 | 2:04 pm
The last time I heard the marriage vows read by the mayor, at a Civil Marriage, two of the five related to children
- Spouses owe each other respect, fidelity, support and assistance.
- Spouses are responsible together for the material and moral guidance of the family. They shall provide for the education of the children and shall prepare their future.
- Where an ante-nuptial agreement does not regulate the contributions of the spouses to the marriage expenses, they shall contribute to them in proportion to their respective means.
- Spouses mutually oblige themselves to a community of living.
- Parental authority is a set of rights and duties whose finality is the welfare of the child. It is vested in the father and mother until the majority or emancipation of the child in order to protect him in his security, health and morality, to ensure his education and allow his development, showing regard to his person. Parents shall make a child a party to judgments relating to him, according to his age and degree of maturity.”
He then asks the parties for their consent.
May 4th, 2011 | 11:02 pm
Excuse me are those the marriage vows you heard! I was thinking of the old school vows you see in movies, TV and elsewhere….you know the ‘have and to hold etc etc to death do you part’. I never heard vows that contained the phrase “ante-nuptial agreement does not regulate the contributions …” Do people who read such vows even know what they mean? It sounds like the only person qualified to get married in France is you and late jurist Jean Carbonnier!
May 5th, 2011 | 3:25 am
Perhaps my translation is not particularly felicitous, but those are, word for word, the vows, which are prescribed by the Civil Code [Art 75]. The parties simply agree to be married, having heard what it entails. They are pretty well identical, throughout Europe.
As to the ante-nuptial agreement [les conventions matrimoniales], the first question the mayor puts to the happy couple is “Has a marriage contract been made?” [A-t-il été fait un contrat de mariage ?], so that he can notarise it and his clerk can record it in the civil register. If not, the parties must select an off-the-shelf matrimonial regime from the Code – Separation of Goods, Universal Community of Goods or Community of Goods, limited to Acquisitions.
I understood pre-nuptial agreements were quite common in the US.
In any event, you must agree they are, taken as a whole, pretty child-centred and emphasize the role of the spouses as future parents.
May 5th, 2011 | 8:19 am
In any event, you must agree they are, taken as a whole, pretty child-centred and emphasize the role of the spouses as future parents.
By your own admission 3/5 of the civil vows are non-child centered.
May 5th, 2011 | 11:22 am
Of course, we aren’t centering this discussion on French law but asking if there’s some ‘essentialness’ about marriage that we can gleam from looking at some laws or rules or history. So let’s look at vows:
http://en.wikipedia.org/wiki/Marriage_vows has vows used by Roman, Anglican and Orthodox Christian Churches. Note that all of them talk about the couple committing to each other but none of them actually mention children.
http://www.weddingclipart.com/guide/wedding-vows/Traditional-Wedding-Vows.html reviews some standard vows used in civil weddings (presumably the US). Like the Christian ceremonies they are derived from, they do not mention children but instead a lifelong committment of the couple to each other.
There’s clearly a very limited set of people here who can speak about French marriage law with detailed knowledge, but then that shouldn’t be necessary. If we are talking about some universal aspect of marriage, we should be able to see it without having to read French or attend French law school.
For civil purposes, marriage establishes a family *before* children come along. In other words, children do not make the family, they are part of the family. You are correct that for many unmarried partners, the extended family considers them ‘real family’ upon the arrival of a child. This is logical given that the mother or father of your grandchild will have a lifelong connection to your grandchild whereas she or he may not have one to your adult child. What’s interesting, though, is that usually such people are considered unmarried parents! If the purpose of marriage is to secure parents for children then why not consider such parents to be married upon the arrival of a child?
The argument that marriage is for children and only children fails on the civil level that Michael presented. It also fails on the religious level and sociological level. As Jan likes to pester/remind me, words have meaning. Well if marriage’s primary and nearly only purpose was to create children (and note the people arguing this have also asserted that mutual love, romantic or otherwise, is not a primary purpose of marriage! then why have all the major Christian religions written their age old vows to spoke of what is essentialy the mutual love of the couple while leaving out any mention of children.
On the sociological level it’s pretty clear that people in the ways they typically behave and treat couples expect marriage to signify mutual love and lifelong committment to each other with children being a side benefit. This is clearly evidenced by the uncomfortableness many feel with marriages where the odds of children are great but the state of love is questionable (i.e. the ‘gold digger’ who marries an old rich man) and the support of marriages that are unlikely to produce children but love is more evident (the two 65 yr olds who find themselves in old age).
May 5th, 2011 | 4:29 pm
Of course the mutual commitment of the spouses is necessary to marriage (“Spouses owe each other respect, fidelity, support and assistance” – I do not know of a more beautiful expression of that foundation of married life) Of course “Spouses mutually oblige themselves to a community of living,” who ever doubted it?
These vows express some of the highest ideals of the human spirit.
The question is, is this enough to make a marriage? Or do the five marriage vows, taken together, form a package, expressing what the legislature, the organ of the General Will, understands and means by marriage?
That is what the debate about SSM is all about.
May 5th, 2011 | 10:05 pm
I do not know of a more beautiful expression of that foundation of married life
Actually the vows you cited sound legalistic and barren to me. The more traditional Christian vows (and they aren’t technically Christian since most non-Christians would find them perfectly acceptable) are warmer and much more human to my ears. Granted maybe this is a problem in translation, but then again maybe French is such a beautiful language that everything sounds nice in it.
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