Do not equate my right to conceive offspring with my wife using our own genes to a same-sex couple’s right to conceive offspring. One is a right and should be protected, and the other is not a right and should be prohibited

Micheal PS has been arguing for what I think we can call ‘strict filiation’. By that I mean if you’re married to a woman and she has a child, you are the father no matter what. It doesn’t matter if DNA says you’re not, doesn’t matter if you were away at sea for a year, doesn’t matter if there’s a man down the street who swears he is the true father.

This makes sense, if you think about it, for an age of royality and titles. Since the last thing you want in a monarchy is a dispute over who is really the dead King’s true son, you need a surefire system of declaring legitimacy that no one can game, no one can argue with. Strict filiation fits the bill. The King may have as many mistresses as he pleases….so may the Queen for that matter! They aren’t required to have a happy marriage but all its political needs will be meet if she bears a child.

Since neither the US nor France has such a system, there is no need for ‘strict filiation’. Filiation is a useful tool for keeping the courts unclogged with spurious paternity suits by deadbeat husbands who want to skip out on their families by claiming their wives slept around on them. One can see that esp. before the day of DNA, these would be almost impossible cases for courts to handle since they almost always fall apart into ‘she said, he said’ matches that no 3rd party can really judge. But it wasn’t ‘filiation for filiation’s sake’. A man could challenge paternity of his wife’s baby, but he had to do it quickly and had to have real evidence (i.e. away at sea for a year when she conceived)

The SSM idea means societal disregard for the core meaning of marriage. There is no provision for integration of the sexes but rather segregation of the sexes.

I don’t see this at all. By this reasoning the handful of people who choose chastity (say nuns and priests) are somehow thwarting society’s need for procreation and should be declared enemies of the people! That would, of course, be absurd. 3-5% of non-sexual people in society would hardly generate a population collapse. Likewise 3-5% of SSM is hardly going to usher in some type of ‘segregation of the sexes’, not that I’m sure what you even mean by that.

There is no provision for the unity of fatherhood and motherhood but, if procreation is even contemplated as central to the SSM idea (which we are assured it is not), it is as extra-marital or extra-SSM. Your own remarks made that clear, anyway.

Again I believe this is simply a moot point. Outlawing SSM doesn’t prevent SSP (same-sex parenting). If a same-sex couple has a child via something outside the couple (i.e. an affair by one partner, an aggranged surrogate etc.), there is nothing to stop that simply because the state has banned SSM. In fact in such a case the child would be worse off in a state without SSM. At least in a SSM state, the child’s interests could be legitimately considered by courts in the case of a divorce or breakup.

Your above sentence, likewise could be written as….

There is no provision for the unity of fatherhood and motherhood….in a marriage of a 65 yr old woman/an infertile couple/a couple unfit to have children…etc.

There is no justification to legally presume that all same-sex scenarios are gay or entail sexual attraction as essentials. That to which consent is given is the key here. In marriage the husband and wife consent to the sexual basis of consent to the marital presumption of paternity, for example. But that is inapplicable to the entire range of arrangements that lack either husband or wife. There is no sexual basis to legally presume consent to co-equal parental status arising from the lack of husband or wife.

I think you’re confusing consent to marriage with consent to parternity. But it doesn’t work that way, right now if you marry a woman you don’t simply ‘consent’ to be the father of any kid she bears. In fact you can’t. If she has an affair, and conceives a child, the man she slept with can assert his right to be the child’s father and he will win…provided he moves quickly and firmly.

I think I get what you’re trying to say, that integration of the sexes is required for Marriage (note the capital ‘M’ to denote what’s been called here ‘philosophical marriage’ but others may simply call a ‘true marriage’ or ‘real marriage’….as in “Brittany Spears married a friend of hers after a night of drinking in Las Vegas but it wasn’t a real marriage”. Which is fine but a lot of legal marraiges are a far cry from ‘true marriages’. Why should the law, which doesn’t intervene in a lot of other couples foolishly trying to marry, intervene in the case of SSM?

The legal presumption that the husband will father the children born to he and his wife is a rebutable presumption one case at-a-time. That does not invalidate its sexual basis. It confirms it.

That two-sexed sexual basis is also the sexual basis for consummation (completion and renewal of the marital relationship), annulment (no marriage existed), adultery/divorce (grounds for dissolution and harm), and so forth.

This sexual basis in law reflects societal regard for the core meaning of marriage. It is not American specific nor French specific. The nature of humankind is two-sexed;the nature of human procreation is two-sexed; the nature of human community is two-sexed. The sexual basis for the marital presumption of paternity arises from the nature of humankind itself.

However, that sexual basis is specifically inapplicable to the SSM idea in whatever form you might hope it would take in culture or in law. SSM is not oriented to integration of the sexes; it is not oriented to responsible procreation; it is not even oriented to sexual attraction or gay identity.

The SSM idea means societal disregard for the core meaning of marriage. There is no provision for integration of the sexes but rather segregation of the sexes. There is no provision for the unity of fatherhood and motherhood but, if procreation is even contemplated as central to the SSM idea (which we are assured it is not), it is as extra-marital or extra-SSM. Your own remarks made that clear, anyway. In terms of the marital presumption of paternity, there is nothing to rebut one case at-a-time in the one-sex short scenario — sexualized or not, gay identified or not, licensed or not. Unlike the union of husband and wife, there is no sexual basis for presuming consent to co-equal parental status.

The SSM idea comes with an elaborate emphasis on gay identity this and gay identity that; and on sexual attraction. But neither sexual attraction nor group identity is a trump card for those who are ineligible to marry in two-sexed scenarios. Why treat the same-sex scenario differently? Because it is a different type of relationship in kind rather than in degree. Your own remarks say so.

There is no justification to legally presume that all same-sex scenarios are gay or entail sexual attraction as essentials. That to which consent is given is the key here. In marriage the husband and wife consent to the sexual basis of consent to the marital presumption of paternity, for example. But that is inapplicable to the entire range of arrangements that lack either husband or wife. There is no sexual basis to legally presume consent to co-equal parental status arising from the lack of husband or wife.

There is no gay identity basis for that. There is no same-sex sexual attraction basis for that. The SSM idea does not entail consent to the provision for responsible procreation.

The comprehensivenss of the marital relationship is foreign or extrinsic to the same-sex scenario — regardless of the gay emphasis and the emphasis on sexual attraction that is placed front and center in SSM rhetoric and argumentation. The topic of the marital presumption of paternity demonstrates this. SSM points outside of marriage even if you believe that SSM is a type of marriage. Your remarks illustrated that.

Really? On a previous debate on this topic I recall you asserted that one of France’s shining accomplishments was having large landed estates that have stayed within families for multiple generations. While actual royal titles, I suppose, more or less came to an end after the Revolution elements of the culture remain.

It’s nice that the legitimate heirs to large landed estates have an easy time of it under French law but that doesn’t explain the legal purpose marriage has for society. AS I pointed out while this is great for ‘legtimate’ heirs, it’s pretty bad for illegitimate ones. And most people do not have ‘large landed estates’ anyway so clearly marriage’s legal purpose should be a bit more broad than this rather specialized ‘need’. And I put ‘need’ in quotation marks because it’s unclear that it’s a good thing. The US does not consider vaste estates of inherited wealth to be in itself a good thing. I believe there’s a Chinese motto about three generations to become rich and two more to become poor again. The idea that the upper class at any given time should be directly descended from previous generations’ upper classes hardly seems like an unquestionable good thing to me.

But even if you feel this is marriage’s only purpose, I still have yet to see how SSM impacts that in any serious way. Given that gays are a minority of the population and will not produce paternity disputes from their marriages, you can still use France’s filiation system even with SSM.

I do not think that the focus on filiation in the Civil Code has anything to do with France’s royal or aristocratic legacy.

On the contrary, I believe that Archbishop of Paris, André Vingt-Trois, was right, when he told the Pécresse mission of the National Assembly, “Even though it has not taken the modern form familiar in our civil legislation, there has always been a means of handing things down from generation to generation, which is the very basis of continuity and stability in a society. This transmission between generations is primarily effected by the family. It is the legal framework of family life that structures the transmission of life and shapes the future of society.”

Robert Neuberger, Director of the Centre of the Association for Family Studies [Centre d'étude de la famille association (CEFA)] told the Pécresse mission, “In this country, the model has long been the peasant family, structured around a patriarch and expanding from hearth to hearth.”

The mission endorsed the traditional view of marriage.

I doubt if this is very different from the American experience.

The presumption could apply to both. A male-male couple is never going to get pregnant and bear a child. Hence there’s not going to be any challenge of paternity. If one of them father’s a child with some woman they are not married too, it would be no different legally if a married man fathers a child with a mistress. In the case of a female-female couple, motherhood would be determined by which woman gave birth….which isn’t contraversial. Fatherhood, being a male role, would have to be given to whatever male impregnated her….in otherwords equal to a woman having an affair on her husband.

As for the ‘public purpose’ of such marriage, you’ve identified one particular purpose which is suitable for France’s culture of aristrocratic elitism. Plenty of other countries, such as the US, which had no history of royal families or the need to determine ‘legtimate’ from ‘illegitimate’ heirs to pass on family estates, titles etc. never thought their lack of filiation needs made it pointless to have marriage. Perhaps the ‘public purpose’ you’re looking for is the fact that law accomodates human nature, not the other way around.

What you would then have would be two kinds of marriage: those between opposite-sex couples, to which the presumption applies and those between same-sex couples, to whom it does not. That is precisely the position in Belgium and the Netherlands, where the rule applies only to those marriages where there is both a “husband” and a “wife.”

Now, I can easily explain the legal function of the first of these two kinds of marriage; I have only to quote the old commentators on the Code, , Demolombe (1804–1887), Guillouard (1845-1925) and Gaudemet (1908-2001) and, of course, our old friend, Carbonnier. But I am at a loss to explain the legal function of the second kind. What public purpose does it serve?

Even if we call both “marriage,” the most casual observer will realise that we are dealing with two different institutions, not one.

That is why I consider such legislation futile; the supposed equality it is designed to introduce would be spurious.

Again, no third party can challenge a man’s acknowledgement of his child, born out of marriage, even if it reduces or eliminates his reserved share of the inheritance. Still less can a third party challenge the presumption of paternity.

I don’t know about French law but this is just untrue in the US. Even before DNA testing a husband could challenge paternity. It’s even possible for a man who is having an affair with a married woman to argue that he is the father of her child rather than the husband.

No-one 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

I think the obsession with filiation has more to do with the property rather than the welfare of the child. In an aristrocratic system, there’s a huge need to deem a person a ‘legititmate heir’ and your doctrine of filiation does that quite nicely. It doesn’t help children much, though. If you’re an illegitimate child you’re out of luck, even if the man who fathered you has millions.

The US never had a domestic system of royality and in its revolution decidedly rejected monarchy. Its paternity laws are much more focused on child welfare. Hence it’s relatively easy for a man to challenge paternity rights when a child is born (before there’s been as much parental bonding) but becomes much more difficult as time goes by.

In terms of SSM you still haven’t explained why this is relevant. France could adopt SSM and still keep its system of unchallengeable paternity.

Yes, paternity has a legal and social dimension, as well as a biological one and, for that reason, the law does not permit an apparent status to be challenged.

Examples of “apparent status include:
That the individual has always borne the name of those from whom he is said to descend;
That the latter have treated him as their child, and that he has treated them as his father and mother;
That they have, in that capacity, provided for his education, support and settling;
That he is so recognized in society and by the family;
That public authorities consider him as such.

In the same way, a clearly invalid marriage cannot be impeached after the death of one of the parties.

Again, no third party can challenge a man’s acknowledgement of his child, born out of marriage, even if it reduces or eliminates his reserved share of the inheritance. Still less can a third party challenge the presumption of paternity.

No-one 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.

Michael PS’s assertion, and he’s made this many times now, is that marriage is simply a civil procedure to assign paternity making it easy for courts to do things like order child support, decide inheritance cases and so on.

That doesn’t have anything to do with a man’s commitment to a marriage or children. It has to do with what a court will do should a man lack such a commitment. It also raises the stakes on marriage. If you marry a woman, be prepared to step into the role of father to the woman’s children. If you don’t trust that the woman will be faithful to you, take heed *before* you get married. Otherwise, while it isn’t impossible, you’re going to have a very hard time getting any court to declare you’re not the father and you’re not responsible.

But I don’t see the relationship and SSM, in fact I don’t see the relationship between this and most marriages. Many marriages do not have children. Most marriages that do have children have no disputes over who is the father. While it’s helpful for society to have a system of rules that make it easy to assign the legal responsibilities of fatherhood, it just isn’t such a big thing that it alone really accounts for civil marriage. Even if you did think this was a huge deal, SSM doesn’t cause any problems with it since SSM couples do not have biological children so having 1-5% of marriages being SSM won’t interfere with paternity disputes in the rest of marriages that may arise.

So there’s that and my general lack of impression that what France adopted as civil marriage law in 1791 enjoys some type of status of infallibility. France had a revolution and wrote a civil code of law. Like any other code, it’s been subject to endless tweaks and refinement ever since. Perhaps SSM doesn’t make sense for France since they have a slightly different style of marriage law (with their PACs which sound like an optional ‘customized marriage’ available to straight and gay couples alike) but the US doesn’t operate on French law and doesn’t have the French system.