Over at the invaluable Public Discourse site, Helen Alvare offers the first installment of a two-part series on the Supreme Court and family law. Here’s the takeaway from Part I:
In sum, our Supreme Court has time and time again, and in an axiomatic fashion, expressed the state’s interests in marriage as: children, their formation, and the building up of a society of citizens well-prepared for self-government. In the process of recognizing various rights claimed by parents respecting their children, the Court has further observed that to the extent parents have such rights, it is because they have duties toward children. Those who demand that the state recognize, as marriage, partnerships of two persons of the same sex, ignore or deny the long line of Supreme Court decisions affirming the links between the state’s interests in marriage and child-welfare and social health.
I’m looking forward to Part II.
December 6th, 2011 | 3:59 pm
Those who demand that the state recognize, as marriage, partnerships of two persons of the same sex, ignore or deny the long line of Supreme Court decisions affirming the links between the state’s interests in marriage and child-welfare and social health.
I think we are getting a bit confused here about what we mean exactly by ‘the state has an interest in children’. Yea the state has a right to make policies in regards to children. It has a right to even encourage and provide for children by, say, funding foster care and adoption for orphans, funding public schools, banning child abuse, or giving tax credits and welfare to parents and guardians to help share a portion of the burden of raising children.
We can likewise say that the state has an interest in economic development. So it can zone certain areas to be used for certain types of business. It can regulate commerce, provide for uniform weights and measures and so on. But it’s a long leap to go from that ‘interest’ to saying the state may randomly enslave people and auction them off to Chinese coal mining companies to pay off the national debt. It’s one thing to say the state has an interest in seeing the next generation get off to a good start therefore guardians get a $5000 tax credit….it’s another thing for the state to start forcing men and women to breed based on their projections of taxpayers necessary to fund the next generation of Social Security.
In short, a ‘legitimate state interest’ is not a blank check for any crazy scheme that the state may want to justify by finding a convoluted theory on how it may impact child welfare.
You can use child welfare to make an argument against SSM if you can show any reasonable link between the two, you can’t. You can’t show how different sex parents could reasonably be expected to become less good parents simply because a small minority of marriages may be SSM. While I loath to do anything to invite Blake in on this discussion yet again, SSM is not linked to SSP (same sex parenting). There are SSP couples who are legally married and ones who are not. Even if you did show such a link, all it would mean is that SSM couldn’t be allowed to have kids just as there are traditionally married couples whom the state would never allow to keep children.
What you can’t do is leap from:
“The state has an interest in marriage because marriage often produces and raises children”
To
“Marriage is owned by the state. It may grant or deny it based on whatever whimsical desires it has loosely related to ‘children’”
December 6th, 2011 | 4:26 pm
@ Boonton: Hunh?
So the jump to
“Marriage is owned by the state. It may grant or deny it based on whatever whimsical desires it has.”
is okay?
December 6th, 2011 | 10:31 pm
DING, DING, DING, DING, DING. Give Mike the prize.
It’s not that Boonton doesn’t like the use of the state to transform society by force or violence, but what the product of that transformation is. If it is in line with good progressive mores, then go for it. Really, it’s all based on this myth of history as progressive and that human nature is malleable.
Of course, that myth is essentially a secularization of theological categories and is thus derivative. In addition, the idea of progress was kinda sorta discredited by the bloodiest century in human history — but, then again, when did that ever stop fideistic secularism and the faith in the unrevealed religion of the enlightenment, to use Gillian Rose’s formulation?
Somebody desperately needs to read Nietzsche. If there is no God, there is no objective morality, but only culturally and historically grounded norms. If that’s the case, Boonton has nothing to appeal to. There is no standard to tell the state what it can or cannot do.
Welcome to the age of unbelief.
December 7th, 2011 | 3:54 am
The state’s interest in children is wider than Booton allows and it is no coincidence that mandatory civil marriage was introduced in 1791, by the same Constituent Assembly that converted 10 million landless peasants into heritable proprietors.
No one, I suppose, will deny that the state has a clear interest in the filiation of children being clear, certain and incontestable. It is central to its concern for the upbringing and welfare of the child, for protecting rights and enforcing obligations between family members and to the orderly succession to property. To date, no better, simpler, less intrusive means than marriage have been found for ensuring, as far as possible, that the legal, biological and social realities of paternity coincide. And that is no small thing.
Whether the state has any other interest in marriage, as opposed to unregulated cohabitation or civil unions, may be doubted. If it does, it appears to be nowhere asserted, either in the codes, the doctrine of the jurists or the jurisprudence of the courts.
December 7th, 2011 | 8:44 am
Of course the state doesn’t actually ‘grant’ marriage. Although if it did it could indeed probably ‘mandate it’ and run it the way the Federal Reserve runs the money supply.
The state doesn’t grant marriage but recognizes it for two reasons. One is that recognizing it is in the interests of the state and people. Lots of legal and administrative taskes are facilitated if the state has some mechanism for recognizing marriages just as real estate is made easier if the state has a system recognizing and recording title deeds. The other is that it works for the people. We like marriage and want to reward it with various things like tax breaks, benefits etc. This, of course, presumes that we have some system of recording who is and isn’t married.
This all being the case, the question isn’t whether the state is ‘granting’ marriage based on whimisical desires but whether it is denying it based on whimisical desires. And the whole children argument, at its core, is quite whimisical and one suspects manufactured to cover up a more real reason; people think being gay is wrong and anything that may facilitate a gay relationship or grant it any legitimacy needs to be rejected no matter what the costs. If you don’t think this is the case note the logical contortions people making the children argument go into when asked to explain why marriage is happily ‘granted’ to people who can’t have children (i.e. very old, infertile, people who don’t want to have kids etc.) and more importantly people who shouldn’t have children (those with mental problems, records of child abuse or neglect etc.).
December 7th, 2011 | 9:53 am
Michael PS
I agree that filiation is something that’s quite useful for the state and society that comes out of marriage since most of the time, children born in marriage are not contested it’s easy to just assume any child born to a married woman is fathered by her husband (interestingly, though, this is not a ‘right’ of marriage. When I confronted you before on this point I showed that in US law it was possible to contest paternity even in the pre-DNA testing age).
But as important as filiation may be in French law, I think it remains a side issue here. Nothing about SSM disrupts assigning father’s to newborn babies. More importantly, people do not get married simply to easily assign fatherhood on birth certificates and if that’s the ‘core purpose’ of civil marriage then its total overkill. You don’t need a presumption of lifetime marriage, joint assets, shared liability for debts, non-taxable inheritance from spouses etc. to simply put the father of a newborn baby on the birth certificate. In fact as you pointed out the number of children for whom no father can be identified in France is very small and not much different than it was 50 years ago…despite the fact that the portion of the population legally married is much less. This would seem to indicate that the filiation function for the state is not all that essential when it comes to marriage.
I think you are taking something that is very helpful about marriage and assuming its the reason marriage exists.
December 7th, 2011 | 10:19 am
Boonton,
Your last line got me thinking.
“I think you are taking something that is very helpful about marriage and assuming it’s the reason marriage exists.”
Let’s apply that to gay marriage.
The stronger and more permanent union of two people, social legitimacy, and legal recognition, all seem to be helpful things about marriage too, but not the reason that marriage exists. Yet these are the main reasons given by the advocates of gay marriage for the unprecedented legal changes they demand.
How is this different than above? Perhaps you could explain the reason for marriage in a way that clarifies my concern?
PeterG
December 7th, 2011 | 10:40 am
Filiation is not merely about assigning paternity at birth, it is about establishing the juridical link between parents (and particularly fathers) and their children. That is why the law is very reluctant to overturn an acquired status.
Moreover, considerable difficulties arise over the exercise of parental rights and responsibilities by two people, when there is no juridical bond between them, as anyone familiar with the family courts will know only too well. Marriage affiliates the child, not to two individuals, but to a couple.
The obligations of parents to support their minor children and to see to their upbringing and of adult children to support their parents, in case of need prevents the burden falling on society at large.
Inheritance laws, too, presuppose the institution of marriage, in striking a balance between the claims of the kindred and those of the surviving spouse, particularly in the case of property that the deceased acquired by inheritance. It is difficult to imagine any other system under which large landed estates could have been preserved intact for centuries in the same family.
December 7th, 2011 | 11:14 am
PeterG
The stronger and more permanent union of two people, social legitimacy, and legal recognition, all seem to be helpful things about marriage too, but not the reason that marriage exists.
Exhibit A: Jesus in the Bible says marriage is about ‘two becoming one flesh’. This may be seen as talking about children but its in the context of a question about divorce. I’ll grant you he only talked about the union of the opposite sex but here we have 2+ thousand years ago marriage being discussed as the sort of things you are talking about above….no one saying “wait a minute, those are ‘nice to haves’ but if you’re saying that’s the purpose of marriage this is a new thing!”
Exhibit B: Just about all traditional marriage vows, none of which mention children but all of which essentially talk about the above “better or worse, richer or poorer…to have and to hold etc.”
Exhibit C: The use of the word itself used in other contexts. While it may sound a bit old fashioned, you can talk about the ‘marriage of two companies’ or ‘two political factions’ etc. While this analogy may entail some type of ‘procreation’ (such as a new company formed from a merger, or new political party), usually it talks about two different entities joining together but maintaining their own individual identity.
Exhibit D: We do seem to have human nature here. Couples do form or attempt to form intimate unions. The pragmatic reasons society recognizes different sex marriages all seem to apply to SSM.
One thing I’d like to note to this, a ‘union’ of two people can’t be granted by the state. It’s more technically something two people attempt in the same way a person may attempt to start a business. Whether or not it succeeds is indeterminate. One is free to argue IMO that any given marriage is an imperfect marriage, not the true ‘union’ but more like two people pressed up against each other. It is something IMO you can’t even really know if you’re in. Plenty of marriages seemed like marriages for periods of time, even long stretches of years but then fail. IMO you won’t really know if you had a real marriage till its over which means you’re dead or at least your spouse is dead.
Anyway, you can say that some people are simply not compatitable with each other to a degree that while they may attempt marriage, they will fail. I can see a religious based argument that the differences of male and female are so important as a type of ‘cohesive glue’ that any attempted union that lacks this will fail and shouldn’t be tried. But the state doesn’t usually get involved here.
Example, consider a young couple going a priest seeking marriage. The priest talks with them and becomes convinced they are both very immature, in way over their head and so on. One would hope this would cause the priest to refuse to marry them…or at least making them wait a while. Now maybe he is wrong or right but that is the role the church is playing to try to make sure the ‘attempted unions’ are more often than not successful rather than failures. There’s no reason to think that role can or should be played by a $12/hour part time clerk at the county dept of vital records. You’re free to advocate a project of getting the state more intensely involved in trying to vet potentional marriages, I don’t think you’ll get much play there…esp. in the US.
December 7th, 2011 | 11:19 am
Michael PS
The obligations of parents to support their minor children and to see to their upbringing and of adult children to support their parents, in case of need prevents the burden falling on society at large.
I’m unclear, are you saying a Frenchman who is single who fathers a child is exempt from providing for the upbringing of his child by law? You’re not really illustrating why marriage is essential here, you’re illustrating why accurately getting daddy’s name on the newborn’s birth certificate is essential.
. It is difficult to imagine any other system under which large landed estates could have been preserved intact for centuries in the same family.
I can imagine this may seem like an essential role of the state to someone from a culture that has a long history of nobility. It doesn’t reasonate very much to the American mindset as something worth getting passionate about. Those with ‘large landed estates’ should be perfectly capable of hiring a lawyer to write a will to decide how much goes to their illegitimate and legitimate kids. If they are unable to do that for themselves, few of us will loose much sleep over the billable hours lawyers will earn when the estate needs to be settled.
December 7th, 2011 | 11:47 am
‘Exhibit B: Just about all traditional marriage vows, none of which mention children but all of which essentially talk about the above “better or worse, richer or poorer…to have and to hold etc.”‘
It may not be in the vows themselves, but it is certainly highlighted in the traditional Anglican service itself. To wit:
“DEARLY beloved, we are gathered together here in the sight of God…etc, etc.
First, It was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord, and to the praise of his holy Name.”
I haven’t looked at services from other Christian traditions, but I doubt ol’ Tom Cranmer thought he was innovating here. It may not be the cool thing to say in the 21st century, but it is certainly true that marriage and procreation have been understood to go hand in hand for a very long time.
December 7th, 2011 | 1:35 pm
All I hear is a detailed denial of history in an attempt to turn government recognition of marriage into something else. As usual, the argument goes “x” is not mentioned (in the examples I select), therefore it is not part of the institution. The pro-SSM argument has always seemed to better fit the idea that the government should get out of the marriage business (and save the cost of the “benefits”). Until I start hearing what changing the historical definition adds to government recognition, I will continue to find these arguments meaningless, more about how individuals convince themselves rather than persuade others.
Having lived through the “sexual revolution” and heard the original arguments for, for example, pre-marital cohabitation (none of which obtained with the change), I am convinced we humans have a boundless ability for self-deception.
December 7th, 2011 | 1:45 pm
TimC
It may not be in the vows themselves, …
I would contend that the vows are probably more important than the actual service here….after all it is basically saying what the individuals are promising to try to do.
Also 3 reasons are given (I’m using http://www.pemberley.com/janeinfo/compraym.html here).
1. Procreation of children (but not for the sake of children themselves but that they might be brought up as Christians)
2. A ‘remedy against sin’. To avoid fornication
3. “Mutual society, help, and comfort,….these two persons present now to be joined’.
So from this point of view marriage has 3 purposes and I’m not seeing that all 3 have to be present. For example, a person who has the strength to ‘avoid fornication’ on his own may still marry. To individuals who have ample wealth and excellent jobs can still marry even though they may not need ‘mutual help’. It also seems that couples who can’t or shouldn’t procreate biologically can still get married….hence the two 70 yr olds can get married even though no one actually wants them to even think about trying to conceive.
So even in this tradition there seems to be multiple reasons for marriage, some of which may be stronger or weaker depending upon the couple. Those who are claiming that marriage is just about a ‘state interest in children’ (and notice #1 talks about it being ordained ‘for the procreation of children’, not ‘for the King to ensure a full population’….#1 is not quite the exact same thing as ‘a state interest in children’) do not have as much history and tradition on their side as they like to believe.
Also of interest is the recognition that marriage cut accross religious boundaries. It is understood by all the major religions that couples marry. In other words, both the Anglican and Roman Catholic Churches have sacrements like communion. But they would not consider these sacrements for non-Christians. They wouldn’t expect Hindus, for example, to take communion. But marriage is universal. Neither Church, as far as I know, objects to Hindus and others getting married! So the sacrement appears not to be created by the religion itself but existing outside and before the religion, but brought under the religion’s authority in the case of believers.
December 7th, 2011 | 1:51 pm
Mike
As usual, the argument goes “x” is not mentioned (in the examples I select), therefore it is not part of the institution.
I’m not saying its not part of the institution, but the anti-SSM, in order to work, needs to make it the only part. That means the fact it gets 2nd place mention, or total exclusion, in quite a few major examples a pretty troubling fact the thesis has to contend with.
Now I can’t say whether SSM is a good idea in the sense that those in a SSM will be as happy or successful as those in a DSM. Plenty of marriages are perfectly legal but nonetheless very bad decisions. I think the legal argument for SSM is quite strong but the theological argument for it is going to require more work. Of course we live in a free country where you’re free to choose your church and its associated theology as you please so I don’t believe there will ever be any agreement on that.
December 7th, 2011 | 3:02 pm
As to marriage vows, here is the formula used during civil marriages. It is, read to the spouses by the mayor or his adjunct and subscribed by them
“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.”
A fair reading of them suggests that the founding of a family looms large in the thinking of the legislator who prescribes them.
December 7th, 2011 | 3:16 pm
As for infertility, same-sex couples are a readily identifiable class, whereas “infertile couples,” do not really constitute a class at all. That is what the jurists mean by calling their infertility “subjective” or individual. Such individuals may be suffering from a range of pathologies, they may be too old, or it may be simply a question of volition. Some of these conditions may appear to be irremediable, whereas others are plainly not. Besides, some conditions that, in the past, were irremediable are now treatable and it would be a bold legislator who attempted to anticipate such advances.
Moreover, there is the question of “imitated procreation.” An infertile opposite-sex couple can “make as if they have procreated.” In other words, they present to the child, and to the wider community, the model of the natural (procreative) family, which, some experts assert, makes the establishment of the parental bond between the adopters and the adopted child possible or, at least, easier and spares adopted children the additional difficulty of having to integrate into a “non-standard” family, however loving.
As for infertility, same-sex couples are a readily identifiable class, whereas “infertile couples,” do not really constitute a class at all. That is what the jurists mean by calling their infertility “subjective” or individual. Such individuals may be suffering from a range of pathologies, they may be too old, or it may be simply a question of volition. Some of these conditions may appear to be irremediable, whereas others are plainly not. Besides, some conditions that, in the past, were irremediable are now treatable and it would be a bold legislator who attempted to anticipate such advances.
Moreover, there is the question of “imitated procreation.” An infertile opposite-sex couple can “make as if they have procreated.” In other words, they present to the child, and to the wider community, the model of the natural (procreative) family, which, some experts assert, makes the establishment of the parental bond between the adopters and the adopted child possible or, at least, easier and spares adopted children the additional difficulty of having to integrate into a “non-standard” family, however loving.
As a matter of history, the Civil Code of 1804 contained no definition of marriage, but Article 312 “The child conceived or born in marriage has the husband for father” has been treated as a functional definition by jurists, including the three most authoritative commentators on the Civil Code, Demolombe (1804–1887), Guillouard (1845-1925) and Gaudemet (1908-2001), long before the question of same-sex marriage was agitated.
In 1998, a colloquium of 154 Professors of Civil Law, including Philippe Malaurie, Alain Sériaux, and Catherine Labrusse-Riou unanimously endorsed this interpretation of the Civil Code. This led to the introduction of civil unions (PACS) for same-sex and opposite-sex couples in the following year.
To suggest that the legislators who introduced civil marriage, not in some remote and legendary past, but on 25 September 1791 and the jurists who interpreted it and the judges who administered it did not understand the nature of the institution they were setting up taxes credulity
December 7th, 2011 | 3:20 pm
Sorry, I duplicated the first two paragraphs in my previous post
December 7th, 2011 | 3:57 pm
As for infertility, same-sex couples are a readily identifiable class, whereas “infertile couples,” do not really constitute a class at all. That is what the jurists mean by calling their infertility “subjective” or individual. Such individuals may be suffering from a range of pathologies, they may be too old, or it may be simply a question of volition. Some of these conditions may appear to be irremediable, whereas others are plainly not. Besides, some conditions that, in the past, were irremediable are now treatable and it would be a bold legislator who attempted to anticipate such advances.
There is no need to anticipate such advances. If you have a couple who is too old to safely have kids, you simply deny them a right to a civil marriage. Should someone invent a ‘fountain of youth machine’, then they can reapply for a marriage license on the grounds that their newfound youth makes them suitable to have kids again. Likewise for people with drug, mental criminal or other problems that would make them unsuitable to be allowed to be guaradians. Deny them the right to marry unless they establish they have somehow remediated whatever was at issue.
In other words, they present to the child, and to the wider community, the model of the natural (procreative) family, which, some experts assert, makes the establishment of the parental bond between the adopters and the adopted child possible or, at least, easier and spares adopted children the additional difficulty of having to integrate into a “non-standard” family, however loving.
This presumes that they are going for an ‘old school’ adoption style where the child is shielded for as long as possible from the fact that his parents are not actually his biological parents. And we are again confronted with the fact that if this is what it is about, the state can simply say infertile couples may not marry unless they first put themselves on the list to adopt children.
As a matter of history, the Civil Code of 1804 contained no definition of marriage, but Article 312 “The child conceived or born in marriage has the husband for father” has been treated as a functional definition by jurists, …
Again in US law this was only a pragmatic assumption made by the courts. A husband could challenge paternity if he could present good evidence. A typical example might be a husband who was abroad for a year who returned to find his wife pregnant. In such cases where there was no doubt, the courts would accept such proof and allow the husband to deny paternity. Today a husband in such a position could use DNA testing to establish his proof, but he must move quickly. He cannot raise a child as his son for an extended period of time only to later turn around and try to deny paternity.
As for the French civil marriage vows…..I suppose they must sound more elegant and nicer in French, but then what doesn’t?
To suggest that the legislators who introduced civil marriage, not in some remote and legendary past, but on 25 September 1791 …
People in France didn’t marry before 24 Sept 1791?
December 7th, 2011 | 6:09 pm
Boonton,
You can’t have it both ways. Arguments from history, theology, liturgical practices or plain common sense are brought forth, and you attempt to find just that small fissure in which to survive. This looks like one of those protracted ‘I will win by weight of sheer words, and not by the cogency of arguments’ dust-ups.
The one flesh union that Jesus taught was not new (Genesis 2 – as you know, which clearly establishes the foundational marriage in the context of procreation – remember the part about leaving his mother and father?), and was not a teaching limited to the question of divorce. He was, I think, talking about the reason for marriage, and it is unitive, procreative, and of divine origin.
BTW, If you read my ‘more permanent union’ as this ‘one flesh’ union then I fear that the mistake was on my part. I intended my phrase to mean something akin to a good friendship, but not a spousal ‘one flesh’ union.
To your argument:
Just how do you foresee the state not being involved in the ssm agenda. I am unclear here about your case, as I can only see this happening by heavy state (via the courts) intervention.
Will you admit that ssm is unprecedented?
Will you explain why it is necessary? Can you tell me the harm done to people by not allowing ssm?
If you could clearly answer these questions, I think you would be able to win some supporters.
December 7th, 2011 | 11:49 pm
PeterG
I think the problem with reading ‘one flesh’ as meaning children is that the question was raised in the context of divorce. Certainly Jesus was not thinking divorce meant children of the marriage would be sliced in half and it likewise doesn’t seem like he was saying divorce as no problem if no children had yet been born to the marriage. The statement certainly seems to be saying that it is human nature for one to leave their family and cling to another. While children often follow, that clinging is actually independent of children. Which, IMO, is why marriage is assumed to be life long unless something bad happens. If it really was just ’bout children then it would be nothing more than a long term business type patnership that could automatically dissolve as soon as the youngest child becomes an adult.
Just how do you foresee the state not being involved in the ssm agenda.
I’m not clear what you mean by this question…could you rephrase it or clarrify? Are you asking can SSM become adopted without court cases? Possibly. It passed in NY. In Mass the elected gov’t failed to muster enough support to amendmend the state constitution against it. The movement to ban SSM by various amendments does seem to be motivated by a acknowledgement that public opinion has turned or is turning in favor of SSM hence the use of amendments to try to ‘lock in’ anti-SSM now so it will take not majorities but super-majorities to enact it in the future. Are you asking will the state have to force people who don’t like SSM to ‘accept it’? No it won’t and shouldn’t.
Will you admit that ssm is unprecedented?
Sure. But then so is every marriage.
Will you explain why it is necessary? Can you tell me the harm done to people by not allowing ssm?
As odd as this sounds, the harm that is done is the state is intervening in private marriage. Just suppose the state picked one out of every 100 million marriage license applications and denied them for no particular reason. Would you consider yourself harmed if it turns out to be your marriage so denied? Should you have to prove to the state that your desired marriage will result in healthy children? Or even a healthy marriage for that matter? Wouldn’t you consider it none of the state’s business?
If you could clearly answer these questions, I think you would be able to win some supporters.
You’re good to say that but I’m skeptical. At the end I think most people are locked into their positions and aren’t going to change. At best maybe some people will scratch their heads and say something like “well I don’t have a come back to that argument, but I’m still against SSM”.
BTW, If you read my ‘more permanent union’ as this ‘one flesh’ union then I fear that the mistake was on my part. I intended my phrase to mean something akin to a good friendship, but not a spousal ‘one flesh’ union.
I’m going off on a tangent here but I think its useful to define the spectrum, even if it may be impossible to ever actually achieve the ideals at either end of the spectrum. For example, imagine a man who loves every other human as much as he can. Not sure we have a word for that but you have the idea. On the other side you’d have the man who hates every other man. A misanthrope. None really exist. Even the most grouchy person who says he ‘hates people’ has some relationships with other people that aren’t negative. But we can talk about the ideal misanthrope and identify where people fall on that spectrum (for example, Dr. House is more misanthropic than his buddy Dr. Wilson).
So leave the spectrum of how the individual relates to the rest of humanity and think about the spectrum of relating to another individual. On one extreme you may have no relationship at all with a particular person. You don’t know them, they don’t you and neither of you care to know anything about each other. What’s the opposite of that? Well I’d say its the closest that two individual humans could possibly be while still remaining individual human beigns. This would be marriage.
Using that definition, to say two people are married would mean they are as close as too people can be while still remaining two people. They could be no closer without losing their status as two different people. Does a married couple exist on earth today? Did one ever? Quite possibly not. It’s an ideal and the nature of an ideal is usually that you can approach it but rarely achieve it.
BTW, while we are talking about Jesus and Marriage consider the common description of the Church and Jesus as Bride and Bridegroom. I suppose you could work the procreative aspect to understand that. You can say converts to Christianity are, I guess, the ‘children’ produced by Jesus ‘marrying’ the Church…. But I think the above definition works in a much cleaner fashion. It would simply mean that Jesus and the Church are as close as they can get while still remaining two different things. While Jesus is close to the Church, that doesn’t make the Church itself Jesus. It by itself is not a part of the Trinity, for example. But if its an ideal marriage then Jesus is as close to the Church as he can be to any institution and the Church is as close to Jesus, no greater degree of closeness can happen.
So yea from a civil perspective people ‘get married’ all the time and its no big deal. I suspect from a deeper perspective it may be more accurate to say people ‘attempt marriage’ all the time. To actually achieve it would require at least a lifetime and even then you couldn’t even say you achieved it unless it was already over…which means you or your spouse is dead.
Make of that what you will. It seems quite plausible to me that a huge majority of people cannot get close to marriage unless you have the ‘attraction of opposites’, i.e. male and female and the way they complement each other physically, emotionally and so on. Do I know that this is 100% of humanity and not, say, 98% with a tiny portion may simply be of the nature that they can achieve marriage with the same sex? No I don’t. If you think you do then that’s great, but its probably better for my personality that I keep myself as humble as possible on questions like that. I live my life as best I can and I generally need good justification to support disrupting others form living their lives as they think is best.
December 8th, 2011 | 3:56 am
“People in France didn’t marry before 24 Sept 1791?”
There was no civil marriage in France, or anywhere else in Europe, before that date. Marriage was a religious sacrament, controlled by the Church, who could exclude whom they chose – Protestants, Comedians, Money Lenders Jansenists and others. Only the church courts could pronounce on the issue of marriage or no marriage; only the church courts could compel cohabitation by decrees of adherence, grant separations and alimony, or put to silence those falsely claiming to be married to someone, all enforced with spiritual censures.
Mandatory civil marriage was introduced by the Revolution: only marriages performed by state officials and recorded in the civil register were legally recognised and the law prescribed the formalities to be observed, the qualifications of the parties and the legal consequences of marriage. The civil courts alone could pronounce on the validity of a marriage. Coupled with this was the introduction of the rule, « La recherché de la paternité est interdite » [The investigation of paternity is forbidden] as a vital security to inheritance and property rights.
Now, this raises a very obvious question. Why did the Constituent Assembly legislate on marriage, at all, instead of leaving it where it always had been, in the hands of the Church, which it had already placed firmly under state control, by the Civil Constitution of the Clergy? What public interest did the People’s deputies think they were serving, so urgent that they addressed it at a time when the country seethed with rebellion and a coalition of European powers menaced it on every frontier?
December 8th, 2011 | 7:02 am
Is not the obvious answer to your question that the French Revolution was about wresting political and civil power from both the King and Church and placing it in the hands of the People? As you pointed out, the Church wasn’t using marriage simply to help figure out whose people’s daddies were. It was denying marriage to unfavored groups (Comedians?) What purpose would be served by this if it was simply a tool to track parents on birth certificates?
What public interest did the People’s deputies think they were serving, so urgent that they addressed it at a time when the country seethed with rebellion and a coalition of European powers menaced it on every frontier?
Indeed, at this point was keeping inheritance’s straight and ensuring ‘large landed estates’ could be kept easily within families really a pressing, urgent issues to the Revolution? If the core of civil marriage was only filiation, they almost certainly could have left it to the Church until they got other things up and running.
December 8th, 2011 | 1:32 pm
Booton
A Revolution that had just transferred land to 10 million landless peasants was very concerned indeed about its descent. That is why they gave fixed shares of a parent’s property to the children, overriding any will and setting aside lifetime gifts – half to an only child, two-thirds to two children and three-quarters to three or more, rules that still survive, as do the rules giving half of any inherited property of childless people to their blood relatives, possibly a quite distant cousin. The logical counterpart of this was the mutual obligations of support between ascendants and descendants. Property was regarded as belonging, not to individuals, but to families i.e. those connected by blood or marriage. Hence their suspicion of commerce – “Trade ill becomes the true citizen. The hand of man was made only to till the soil and to bear arms.”
To render this effectual, an efficient national system of civil registration was essential, with cross-referencing between birth and marriage registers and land registers, too. This was not something they were prepared to entrust to ignorant or negligent curés.
That, in effect, is what civil marriage is all about.
December 8th, 2011 | 2:53 pm
So you’ve explained the importance of civil marriage law as it related to France in the 1790′s. Very good. But marriage has an extensive history before the French Revolution as well as in other countries beyond France. The concerns of the French Revolutionaries to make a system of property that belong to families rather than individuals may say why French marriage law of 1790 was very concerned about filiation, but that doesn’t IMO tell us much about marriage itself. Believe it or not the universe did not begin with the French Revolution.
December 8th, 2011 | 5:00 pm
In short, a ‘legitimate state interest’ is not a blank check for any crazy scheme that the state may want to justify by finding a convoluted theory on how it may impact child welfare.
Actually you are mistaken.
If you want custody of a child that is not your own biological flesh and blood, the burden is on you to prove that you are going to meet the child’s needs, and the state has a moral and legal obligation to award custody based on the standard of “the child’s best interest”.
Just because you want to reorganize marriage according a crazy scheme of what marriage could mean according to some convoluted theory that argues that concepts such as “kin”, “biology”, “male”, “female”, etc. can mean whatever you want them to mean does not change this.
It’s too bad that gays are stuck with having desires that are at odds with what they owe their children and their families, but desire is not enough to justify taking existing rights away from children just so that they can break the bonds between rights and the corresponding obligations that normally go with those rights.
Your crazy convoluted theory of what you imagine a family could be is in contradiction with the child’s basic right to not be exploited.
December 8th, 2011 | 5:15 pm
The pro-SSM argument has always seemed to better fit the idea that the government should get out of the marriage business (and save the cost of the “benefits”).
The problem with this is that marriage serves an important purpose.
Families are strong when they are bound by all three of the ties that keep a family together: biology, affection, and law. Remove any one of these bonds and the family is substantially weaker.
Marriage protects both women and men from the problems that are well-documented in our broken communities. Women are particularly vulnerable to exploitation, and men are particularly vulnerable to estrangement.
Most vulnerable of all are children, who are far less likely to be abandoned by one or both parents if their parents enter into a marital contract. Even when marriages fail, children are also more likely to have contact with and be supported by both parents after a divorce.
Of course it is best when marriages don’t fail, which is why we need to set some limits on the harm done by the “sexual revolution” – in particular the lies and myths it perpetuated – lies and myths that justify the various acts of selfishness and cruelty that adults now routinely perpetuate against their own offspring, from the lie that divorce doesn’t really hurt children to the lie that abortion isn’t really about killing a child. But gay marriage is a huge step in the other direction – one more reduction of the child to thing that exists primarily to provide pleasure for adults having “experiences”, as if the quality and pleasure of those adult “experiences” were the most important thing in life.
Families are not just “experiences”. They are social constructs and we are all better off – individually and collectively – when they are strong and healthy. When they break, we all suffer multiple losses, from the weakening of society to the outright handouts we have to give the broken families in the form of entitlements to the social problems caused by broken bonds.
Our society offers marital benefits because men and women cannot split the cost of procreative activity equally: women take all the burden and risk, and that gives them a right to expect extra support. Feminists (ironically) have documented how even career women take huge “hits”, economically, from the act of having children – not just in the years when they are having kids, but in all the years thereafter they experience a reduced “arc”.
That is why we have a structure that uses terms such as “breadwinner”, “head of household”, “caregiver”, and “dependent”. It is a recognition that the act of procreation necessarily involves divisions of labor; the marriage contract and the social institution known as marriage are important protections for those who are made vulnerable.
Of course gay couples would reduce women to mere cattle – breeding stock to be used and discarded. Where all these eggs and wombs are to come from, if economic exploitation isn’t a factor, is as yet unclear. But “gay marriage” necessarily involves changing the nature of “family” in ways that is no longer about protecting all three members of the biological triad – promoting equality – but will be exactly the opposite: promoting inequality by legitimizing the practice of reducing 2/3rds of the biological triad to mere commodities that exist for the pleasure of the one family member who has the money and power to manipulate them – or “give” them (as “gifts”) to his lover to play with.
December 9th, 2011 | 3:43 am
Booton
“that doesn’t IMO tell us much about marriage itself.”
But “marriage itself,” is an abstraction. Marriage, as a legal institution or civil status is constituted by the law as it actually exists and can only be understood as an element of the legal structure of which it forms a part.
Before 1791, marriage was primarily a religious institution, a sacrament of the Church, its structure and meaning being defined by Church dogma. Civil marriage, a creation of the Revolution, was spread throughout Europe by the armies of Napoléon that gave a code of laws to a continent and restored the concept of citizenship to civilization. The inherent rationality of that code led to its adoption, not only in European colonies, but in countries as diverse as Japan and Turkey.
In this way, it is possible to speak of something like a common law of marriage and family law throughout the West and marriages contracted anywhere are recognized everywhere.
That the civil code drew heavily on existing sources, both Roman and canonical, is not to deny its essential novelty.
December 9th, 2011 | 8:11 am
Blake’s side issues have already been addressed on other threads.
Michael PS
Before 1791, marriage was primarily a religious institution, a sacrament of the Church, its structure and meaning being defined by Church dogma. Civil marriage, a creation of the Revolution, was spread throughout Europe by the armies of Napoléon that gave a code of laws to a continent and restored the concept of citizenship to civilization.
But again this tells us little about even what was a ‘fundamental aspect’ of marriage as viewed by those writing the code in the 1790′s. It’s very obvious that marriage exists for the couple itself. Even if tomorrow all humans became infertile due to some mass virus or something and filiation and child raising became a moot issue, I would predict people would still marry….
December 9th, 2011 | 10:41 am
“Even if tomorrow all humans became infertile due to some mass virus or something and filiation and child raising became a moot issue, I would predict people would still marry….”
What possible reason could they have for getting married, rather than getting PACSed?
More to the point, what possible reason would the legislature have for maintaining the two alternatives of marriage and civil unions? We have two institutions, one for regulating the affairs of couples and the other governing the foundation of a family, not to mention unregulated cohabitation (which is not without legal implications)
You say, “It’s very obvious that marriage exists for the couple itself.” Yet, it is far from obvious. Le doyen Carbonnier says in his commentary, “The heart of marriage is not the couple, but the presumption of paternity.” That view was endorsed by the Senate in 2005, when it reported “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.”" These are strong and obviusly carefully chosen words – “without losing for this institution its meaning and value.”
That, too, was the unanimous view of the Court of First Instance, the Court of Appeal, the Court of Cassation and the Constitutional Council, in the Bègles case, without a single voice raised in dissent.
Helen Alvare’s article suggests that SCOTUS shares (or at least shared) the same perspective – that marriage is about family formation.
To quote a non-jurist, the philosopher (and atheist) Bertrand Russell wrote, “But for children, there would be no need of any institution concerned with sex.” He continued, “it is through children alone that sexual relations become of importance to society, and worthy to be taken cognizance of by a legal institution.” Precisely.
December 9th, 2011 | 12:09 pm
Michael PS
What possible reason could they have for getting married, rather than getting PACSed?
What possible reason is there for PACs other than to create a type of heterosexual only club for civil marriage? Seriously maybe that wasn’t the original intent of PACs but speaking from the US where the idea of PACs are not common that’s what it seems to me.
If I “PAC” a woman instead of marry her in France what really is different? Am I not legally responsible for children I father with her? If I and my woman have no intention of ever having children what disadvantage is there to us to marry in France rather than ‘PAC it’?
I think many anti-SSM miss the real place where the ‘redefinition is dangerous argument’ applies. It’s not in letting same sex couples get legally married, it’s creating a whole bunch of flavors of ‘marriage-lite’ that heterosexuals will use in place of decidint to take the leap to full traditional marriage or not.
December 9th, 2011 | 3:14 pm
I think many anti-SSM miss the real place where the ‘redefinition is dangerous argument’ applies. It’s not in letting same sex couples get legally married, it’s creating a whole bunch of flavors of ‘marriage-lite’ that heterosexuals will use in place of decidint to take the leap to full traditional marriage or not.
Marriage must continue to both (a) include procreation in its definition, and (b) offer support for the biological family.
Whether you have a thousand other relationships does not matter, as long as you do not have the power by law to force people to pretend that those “marriage lite” laws are “the same as” marriage.
It’s the conflation that is dangerous.
I don’t mind if gays want their relationship recognized. Contrary to what some people desperately want to believe, I do not hate gay people, nor even harbor ill will toward them.
I just don’t believe they are entitled to the procreative benefits of marriage.
And, yes, it matters.
For one thing, it’s not a harmless fraud. It’s a fraud perpetrated against the child, and against the entire family tree.
For another thing, it shifts the burdens in adoption. By legitimizing parasitic reproduction practices, we will be changing adoption away from something that is primarily about finding parents for a child that needs a family, and we will instead be defining adoption as something that is primarily about placing or making children with adults who wish to have children and/or a “parenting experience”. This not only strips existing rights away from the children, but also undermines the legitimacy of the entire institution that is known as adoption.
The line between adoption vs. mere baby selling is the “child’s best interest” standard – and that is exactly what gay marriage will do away with: the part where transferring custody of a child is approved by a judge – a process that is already compromised, as already too many agencies have started prioritizing the wishes and desires of gays over what’s actually best for the children.
Gay marriage, after all, requires that we are forced by law to pretend that having “two mommies” or “two daddies” is just as good – in no way inferior to – having an intact biological family. But even adopted children should have the right to grieve their losses – it should be double so when their loss includes not only the loss of biological ties, but also the loss of the experience of having a same-sex parent relationship or opposite-sex parent relationship. Children should not be made to feel selfish or ashamed for recognizing their losses.
And in healthy adopted families, children routinely are told stories about the adoption process itself. Stories are how we construct our identity and sense of meaning. How does that work for children whose parents are not only adoptive “saviors” or “rescuers”, but are also the ones who deliberately arranged for them to be abandoned in the first place?
How do we reconcile “child’s best interest” when the reason the child has “two mommies” is not because that’s best for the child? Not only is it glaringly obvious that “what’s best for the child” is NOT a factor in these families (and in fact they invest quite heavily in justifications, so they know darned well what they’re doing is wrong), but that increasingly other gay couples – gay couples who are capable of being committed, loving parents – are devising arrangements such as co-parenting, precisely because it is obvious that children have reasons to value both mother and father relationships?
That’s it in a nutshell: children have reason to value both their mother and their father, and the more you lie about this, the more dysfunctional your family gets.
(I welcome Boonton’s links to where s/he refuted these points. I don’t recall ever seeing an effective rebuttal, but then my standards for what constitutes a rebuttal are obviously very different…)
If gays want or need recognition, that’s fine. But granting them the same procreative benefits would be destructive.
We can call their union whatever we like, but it is the union itself, not the name, that makes their relationship “marriage lite” – it is marriage that includes love but does not include the obligation or sense of commitment toward healthy family life.
You are welcome to believe these things don’t matter, but you are not welcome to try to force me to pretend these things don’t matter.
December 9th, 2011 | 4:43 pm
There are no laws that force anyone to pretend or not pretend anything regarding a couple’s relationship, married or not. I see nothing else that Blake wrote that hasn’t already been addressed on the numerous other threads.
December 9th, 2011 | 11:04 pm
There are no laws that force anyone to pretend or not pretend anything regarding a couple’s relationship, married or not.
Marriage has a procreative/family making aspect, and that part is not detachable.
If you try to either detach that aspect of marriage, or try to pretend that what gays are doing when they “make” a family is “the same thing” (when it is different in several really crucial respects), you are making a significant change to “marriage”.
I don’t begrudge you the right to have your relationship, live life your way, or have your relationship recognized. But you do need to understand that there are limits: you do not have a right to force me to pretend that your relationship is the same as a real marriage, because it isn’t.
You don’t have the right to force me to pretend that your child has “two mommies”, not only because that’s nonsensical, but because it’s cruel, and you don’t really even have the right, ethically, to foist such a dysfunctional fantasy on a child, let alone have the right to force anyone to participate (even though of course we know the whole fantasy falls apart if you can’t surround the child with people who reinforce the myth).
You don’t have the right to “change” the definition of marriage, because you can’t: if you inherit the word “marriage”, the meaning of the word itself will have to change, and the fact that we really do need and use the real institution of marriage will force us to find some way to find a new word to describe a new institution – one intended for people who aren’t just about celebrating their own phallus, but are also about honoring both their other family members and the obligations that go with building a real family.
Ultimately, truth always wins out. You don’t have truth on your side. You have to force children to lie, and force adults to lie to children. You will continue to gain support only until you become successful enough for the real consequences of “gay marriage” become clear – it will be just as is happening with abortion: at first the promise of “freedom” will win support, but then when people start seeing that such “freedom” requires that we sacrifice children, support will drop, because most people are decent and good.
December 10th, 2011 | 6:54 am
Booton
A “pacte civil de solidarité,” or PACS as its name implies, regulates the rights of the couple. The sex of the parties is irrelevant and about 90% are believed to involve opposite-sex couples, although sex is not recorded in the Civil Register.
It establishes no legal bond and no right or obligation of support between the ascendants of one partner and the ascendants of the other. It confers no right of inheritance to the inherited property (biens de famille) of the other party. Gifts between them, unlike those between spouses, are irrevocable, but each partner retains the right to dispose of his or her own property by will, subject to the reserved shares of certain blood relatives.
If one partner acknowledges the child of the other as his, then, of course, filiation is established. The great Revolutionary principle of consent (through marriage or acknowledgment) as the foundation of paternity is preserved. [« l’importance donnée par le droit révolutionnaire à la volonté comme fondement de la filiation » as Prof Dekeuwer-Défossez has called it.] Similarly a woman can avoid filiation, by exercising her statutory right of giving birth anonymously, although there are only about 400 cases of this a year. This is the Roman law principle that “nemini invito suus heres adnascitur” – No one can have an heir born to him or her without his or her consent. In practice, tacit acknowledgement is readily presumed.
A PACS can be terminated at will.
Now, I suggest that these differences are all reflections of the difference between an institution to regulate the rights of couple and one orientated to the establishment of a family.
December 10th, 2011 | 4:10 pm
“I don’t mind if gays want their relationship recognized. Contrary to what some people desperately want to believe, I do not hate gay people, nor even harbor ill will toward them”
Another lie from the man who talks of nothing but lies. He doesn’t “hate” gays or “harbor ill will.” He just thinks they are “bestial.”
“I think the problem is that it is not up to Christians to “stand against” homosexuality… their sin is none of our business….We should focus our efforts not on restricting their right to be bestial, but on restricting their efforts to make others be bestial with them”
It’s best to keep track of the lies one tells about oneself.
December 11th, 2011 | 9:50 am
If one partner acknowledges the child of the other as his, then, of course, filiation is established. The great Revolutionary principle of consent (through marriage or acknowledgment) as the foundation of paternity is preserved.
But ‘consent’ can’t be the foundation of paternity. The chief problem that filiation attempts to solve is the father who does not want to take responsibility for his children either by denying he is the father or claiming some other man is the father. Yes if a man acknowledges a child is his that makes life much easier but the story doesn’t end there. If a man denies he is the father and the woman claims he is the state gets involved ordering DNA tests and forcing paternity upon him.
It establishes no legal bond and no right or obligation of support between the ascendants of one partner and the ascendants of the other.
I’ve asked you this before but you haven’t responded, what obligation of support to ascendants? In the US one has no legal obligations to one’s mother or father-in-law. But let’s say there is under French law. Tht would indicate that marriage isn’t just about filiation and children but the couple and family. I can see why society would want to obligate a man to the children he father’s, I’m not seeing why society would feel its necessary to obligate the man to the adult parents of the woman he produced the child with if its just ‘about the children’.
Now, I suggest that these differences are all reflections of the difference between an institution to regulate the rights of couple and one orientated to the establishment of a family.
But a family is much more than just children. After all, if you marry for life in, say, you’re mid 20′s you can easily expect 40 to 50 years of married life. Raising a child to age 20 would take up only 1/4 to 1/2 of that. What’s up with the other half? It is about family which again is the couple’s mutual support for each other, and to a lesser degree the extended family (although in the US there’s few legal obligations that apply to extended family, you’re perfectly free to never accept your daughter’s husband, your aunt, or even your parent’s new spouse).
To date no one here has presented any worthwhile arguments that could stand up to scrutiny about how SSM would disrupt or harm that. Yet I think its pretty clear to see how PACs can. You’ve basically created a ‘marriage-lite’ that seems perfectly designed to produce plenty of children with weak family bounds diluted by transitory coupling, diluted blood relations between siblings and so on (How easy is it with PACs to rack up half-brothers/sisters, quarter brother/sisters and so on…at least marriage requires a somewhat legally tramatic divorce)
Blake,
You’re repeating yourself yet again with points that have been refuted over and over again. I’ve come to the conclusion that you need help to learn the skills to avoid wasting the comment space here. Therefore I’ve decided to enlist the community to help you. Going forward I will not address any of your SSM arguments unless one of the conditions applies:
1. You raise a worthwhile point that you haven’t raised before.
2. At least one other member of the community is willing to say your point enough merit to justify a response.
December 12th, 2011 | 3:42 am
Booton
Here are the rules governing mutual support
CHAPTER V – Of the Obligations Arising from Marriage
Art. 203 The spouses contract together, by the sole fact of marriage, the obligation of feeding, supporting and educating their children.
Art. 204 A child has no claim against his father and mother for a settlement in view of marriage or otherwise.
Art. 205 (Act no 72-3 of 3 Jan. 1972) Children owe maintenance to their father and mother or other ascendants who are in need.
Art. 206 (Act of 9 Aug. 1919) Sons- and daughters-in-law owe likewise and under the same circumstances, maintenance to their father- and mother-in-law, but this obligation ceases where the spouse owing to whom the affinity existed and the children born of his or her union with the other spouse are dead.
Art. 207 (Act no 72-3 of 3 Jan. 1972) The obligations resulting from these provisions are reciprocal.
Nevertheless, where the creditor has failed seriously to fulfil his obligations towards the debtor, the judge may discharge the latter from all or part of the maintenance obligations.
Art. 207-1
[repealed]
Art. 208 (Act no 73-2 of 3 Jan. 1972) Maintenance shall be granted only in proportion to the needs of the one who claims it, and to the wealth of the one who owes it.
The judge may, even of his own motion and according to the circumstances of the case, couple the periodical payments with a revision clause permitted by the law in force.
Art. 209 Where the one who provides or the one who receives maintenance is placed again in such a condition that the one can no longer give it, or the other is no longer in need of it, a discharge or reduction of it may be applied for.
Art. 210 Where the person who must provide maintenance establishes that he cannot make periodical payments, the”family causes judge”(Act no 93-22 of 8 Jan. 1993) may, with full knowledge of the facts, order that he shall receive in his home, feed and maintain the one to whom he owes maintenance.
Art. 211 The”family causes judge” (Act no 93-22 of 8 Jan. 1993) may also decide whether the father or mother who will offer to receive, feed and maintain in his or her home the child to which he or she owes maintenance should in that case be exempted from periodical payments.
Note the emphasis throughout on the “vertical” or inter-generational character of the legal concept of “family,” something that tends to be overlooked in these discussions The limitation of the obligation under Art 206 is significant here.
December 12th, 2011 | 7:12 am
Michael PS
As always you provide us with a useful alternative view of how things are done. In the US the experience I have is that most programs to help those in old age are premised on the person being broke, without resources. Hence many people with means plan their final years to become technically bankrupt signing their assets over to other family members and such so Medicaid will pay for nursing home care. This keeps social safety net programs less expensive but at the cost of what you’d call ‘vertical integration’ in families.
This does lend support to the views I’ve expressed, though. Marriage law goes far beyond simply addressing the issue of filiation (and as you’ve pointed out PACs and such seem perfectly structured to frustrate the all important interest in filiation that post Revolutionary France supposed adopted civil marriage for!). Not really an argument against SSM IMO. ‘Vertical integration’ would both be as applicable and as socially useful for SSM as DSM.
December 12th, 2011 | 9:46 am
Booton
The whole system rests on filiation being clear, certain and incontestable. The persons entitled to receive support and those bound to provide it are determined, exclusively and conclusively by the Civil Register of births and marriages.
Well, filial support laws exist in Alaska, Arkansas, California, Connecticut, Delaware, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, and West Virginia. The provisions vary a good deal. I have only glanced at them, but none of them, to my knowledge, include in-laws: a curious omission, but so it is.
No doubt, marriage can be viewed as an agreement between the spouses, but there is nothing contractual about the obligation of a (solvent) mother-in-law to support her unemployed son-in-law It is an obligation imposed by Articles 206 and 207 of the Civil Code, based on the mere fact of marriage and nothing else. She may detest the man and she may have opposed the marriage, but her duty arises from the mere fact of his status, as her son-in-law, a member of her family.
Now this obligation ceases, if her daughter is dead and there are no children of the marriage alive. Why? Because he is no longer a part of the family, extending through time. The same, of course, holds true of the reciprocal obligation of the son-in-law to aliment his mother-in-law.
December 12th, 2011 | 10:29 am
Michael PS
No doubt, marriage can be viewed as an agreement between the spouses, but there is nothing contractual about the obligation of a (solvent) mother-in-law to support her unemployed son-in-law
I think you’d find most Americans would be rather surprised at the concept of a legal obligation to support a deadbeat son-in-law.
Now this obligation ceases, if her daughter is dead and there are no children of the marriage alive.
But does this obligation exist if there are yet no children from the marriage? If so it seems like it is about something other than c hildren!
Because he is no longer a part of the family, extending through time.
Ahhh, so as he is ‘part of the family’ the family is obligated to help him. That’s fine, although most Americans I think would find this a little too intimate for the state to be inserting its authority….they would rather decide for themselves whether an unemployed son-in-law merited financial aid or simply a stern lecture.
December 13th, 2011 | 3:38 am
Booton
You ask, “But does this obligation exist if there are yet no children from the marriage? If so it seems like it is about something other than children!”
No, as long as both spouses are still alive, the law regards them as the potential parents of the in-laws grandchildren; a possibility that ceases on the death of one of their daughter. Laws are made for the general case and, to reduce litigation, the court refuses to enquire into other obstacles to fertility.
“Ahhh, so as he is ‘part of the family’ the family is obligated to help him.” Of course and he ceases to be so, if he fails to provide the family with its next generation, or if his issue becomes extinct. That is why he has heritable rights in the family property – a usufruct over his wife’s estate
December 13th, 2011 | 12:40 pm
As I said, in the US the system seems to isolate family members much more. You are responsible for your own kids, but not the kids of your kids. Grandparents are free to decide for themselves whether or not to pass on an estate and to whom they pass it on.
I think part of this is due to the safety net here being designed to encourage individuals to make themselves destitute on paper before they can get Medicaid for nursing home care. I think the other part is due to the US’s nature as a country of immigrants seeking ‘fresh starts’ and ’2nd chances’ from the old world. We tend to view our family obligations as things we make ourselves and not things the state imposes on us.
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