“One could just as easily note as a category the infertile cannot procreate”

But “the infertile” do not form a readily identifiable category at all. In the case of opposite-sex couples, infertility is what jurists call” subjective,” i.e. personal to them, as opposite to the “objective” infertility of opposite-sex couples, who are infertile by definition.

In an opposite-sex couple, one or both individuals may be suffering from a range of pathologies, or simply too old, or it may be 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. Besides, an opposite-sex couple can “make as if they have procreated” [« faire comme s'ils avaient procréé »]. In other words, they present to the child, and to the wider community, the model of the natural (procreative) family, which, some psychoanalysts assert, makes the establishment of the parental bond between the adopters and the adopted child easier and spares adopted children the additional difficulty of having to integrate into a “non-standard” family, however loving.

However, the fallacy is to suggest that the purpose of civil marriage is procreation, which is manifestly false. The law makes special provision for marriage in extremis (CC Art 169) and even for posthumous marriage (CC Art 171). This would be unintelligible, if procreation were the primary purpose of marriage and a posthumous marriage confers no rights on the surviving spouse. It does however confer incontestable inheritance rights on children of the couple previously born, both to the defunct and his or her ascendants, in other words, it establishes filiation.

As you pointed out, a 65 yr old woman cannot conceive therefore since marriage is for procreation there’s no need for her to get married. Kind of like a monk under a vow of poverty requiring him to have absolutely no worldly possessions would have no coherent reason to buy renter’s insurance.

Third party procreation is extramarital even when married people partake of it.

You seemed to have been saying even a married woman who simply took drugs to enhance her fertility (i.e. no donated sperm or eggs, no IVF) is engaging in ‘extramarital procreation’. I do not think this is a common position even in the Catholic Church.

Courts can and do intervene even when it is at the official request of the husband or wife or both.

Noone is disputing that.

Within the opposite-sex category are types of relationships and types of living arrangements that are not marriage

Very true, not really relevant for legal marriage, though. As you pointed out the gov’t isn’t in the business of making sure married couples have regular sex, act with love towards one another, treat each other with respect etc. If, though, marriage is centered on procreation then why are those who are unfit to have children allowed to marry?

You’re category scheme seems, to me, to be just a bunch of linguistic acrobatics. One could just as easily note as a category the infertile cannot procreate. Chronic child abusers as a category should not procreate. Whether or not someone is in the ‘procreating category’ seems to be a function of how fine a line one wants to draw.

Third party procreation is extramarital even when married people partake of it. Marital procreation is always extrinsic to the one-sexed range of relationship types. You pointed outside of the marital relationship.

My comment regarding the general reluctance of the courts stands. As does the reliability of the marital presumption. Courts can and do intervene even when it is at the official request of the husband or wife or both.

You brought up suspicion as your attwmpt to downgrade a legal presumption to something far less significant than one of the most vigorously enforced legal presumptions in our legal system.

Your quip does not detract from but rit ather concedes the impossibility of any one-sexed scenario being capable of consenting to the sexual basis for this legal presumption. It suffers an inability that is due to its defining feature. As such it is definitively not marital. Pointing at the same-sex ide is to point away from the marriage idea. The two categories — same-sex and opposite-sex — are distinct. Within the opposite-sex category are types of relationships and types of living arrangements that are not marriage and which are justly ineligible for marriage based on societal regard for the marriage idea.

The SSM idea lacks justification for different treatment of 1) the nonmarital subset of the opposite-sex category and 2) the entire same-sex range. These are similarly situated subsets of the types of relationships that populate the broad non-marriage category..

Boonton, it is not possible for the typical 65-year-old woman to conceive through the marital act.

Then there’s no need for a 65 yr old woman to get married.

There is no sexual basis to presume (as in to enforce as the default) that a man has consented to co-equal parental status with another man with whom he has registered a same-sex sexual relationship.

Since two men cannot biologically make a child, how would this be different than, say, a man married to a 65 yr old woman who makes a child by having an affair with a 30 yr old woman? Or a married woman having a child by a man not her husband?

Courts are usually reluctant, and wary, of intervening on paternity — precisely because the marital presumption is very reliable.

Not really, there’s a lot of infidelity and it’s common knowledge that doctors have often stumbled upon cases where the child could not have been fathered by the husband and keep that fact quiet unless it absolutely has to come out. Courts do not just ‘intervene’, they hear cases. In general the father is whoever is listed on the birth certificate. A court becomes involved only if the man disputes it or if another man presents himself and demands to be listed as father…

There can be no suspicion that one man had impregnated the other man.

This will indeed be an issue if a man becomes pregnant. But if that happened I think whether or not he was married to another man would be one of the less interesting things about such a case.

The duty of loyalty that one party to a PACS owes the other party is not necessarily (depending on circumstances) breached by an act that in a spouse would constitute adultery. This distinguishes “loyalty” from “fidelity.” The vow of fidelity is the basis of the presumption of paternity. They go together.

Your raising the prospect of DNA testing points back to the two-sexed sexual basis for this type of relationship.

Courts are usually reluctant, and wary, of intervening on paternity — precisely because the marital presumption is very reliable. But also because of the comprehensiveness of this type of relationship. Casting doubt, only to have paternity confirmed, can do more harm than good. And usually does.

But even where either the husband or the wife, or both, bring to the court this private aspect of their conjugal relationship, the degree of difficulty in actually challenging paternity also reflects the type of relationship for which the governmental role is not The Micro-manager. But, yes, the law is reasonable and so even this strong default might be subject to a challenge in open court.

The point is that the sexual basis of marriage is the default; the questioning of paternity, arising from the sexual basis for this type of relationship, demonstrates that the governmental role is not supervisory, by default, of this deeply private aspect (the sexual aspect) of this type of realtionship but it can bring government in due to the societal significance of that deeply private aspect. It is a public relationship even though it is also, at the same time, a private relationship. This marital presumption illustrates this very well.

There is no same-sex sexual basis for a legal default whereby a man has consented to co-equal parental status with another man just by registering a same-sex sexual relationship. It just is not pragmatic. There can be no suspicion that one man had impregnated the other man.

You might…

The marital presumption is not about merely suspecting this man or that man has impregnated this woman or that woman. It is the legal default that is part and parcel of the consent to marry — due to the core meaning of this type of relationship.

The marital presumption is much more reliable than the unwed presumption — again due to the marital norms that arise from this type of relationship. Where the marriage idea is obscured, the reliability plummets to unwed levels. The sexual basis is the same, yes, but the comprehensive relationship makes reasonable and discernible the norm of sexual exclusivity between man and woman. This sexual basis is foreign to all one-sexed scenarios. And, when present in two-sexed scenarios, it is non-marital without the comprehensive union of body, mind, soul, and on.

There is no sexual basis to presume (as in to enforce as the default) that a man has consented to co-equal parental status with another man with whom he has registered a same-sex sexual relationship. You might concoct some non-sexual basis but this is a distinctive difference in these types of relationships. The law on paternity expresses this marital distinction.

Pragmatic, sure, because the law is reasonable in its content and in its purposeful implementation. That hardly makes it non-philosophic, if that is your intended meaning.

You said: “Given we live in an age of easy DNA testing *if* someone challenges a birth certificate (which is only a minority of cases, married or not), filiation remains firmly a pragmatic rule.”

The starting place to challenge the paternity of a married man, is the sexual basis for the legal default that he and his wife…

You are searching for the rarest of exceptions such that you are depending on the hypothetical in the extreme.

You might as well put age aside given that your narrowed (and hypothetical) example is would over-stretch credulity and would, anyway, cease using age as proxy for a reasonable perception of an actual exemption. Your newly narrowed example would, instead, depend on testing each bride not for age but for disability of reproductive powers. In the terms of our discussion of the marriage idea and government’s role, that would mean she and her groom would be required by government supervision to engage in premarital sexual relations, premarital conception, and (given the potential for miscarriage — your search for exceptions is the guiding light here) premarital childbearing — perhaps even unwed child-raising.

Moving on, you said the key point you wanted to raise regarding dislike of these various scenarios is “the feeling that someone is acting in a selfish manner”. Point noted. It might weigh in the balance regarding the problems with the SSM idea itself.

Not following you here. You stated if a child is born outside of marriage, say in a PAC, then there’s a duty of loyalty….now you say a single act of intercourse wouldn’t create loyaly even though it can certainly make a child. What exactly is the ‘duty of loyalty’ as it’s understood by French law? Are you speaking about what society considers moral behavior (such as showing attention to your child) or behaviors mandated by law (providing child support)?

The Code of 1804 restored the voluntarist principle of Roman law – Nemini invito suus heres adnascitur – No one can have a compulsory heir born to him without his consent. Consent is expressed by marriage or acknowledgement.

So a man, or woman, can deny their own biological children as heirs by simply not marrying? Like I said this is a great concept if you’re a King who enjoys making lots of bastards. I’m still waiting to hear why this is such a good thing for society as a whole and children in particular.

Loyalty is a product of jurisprudence, but a single act of intercourse with someone else would not suffice.

Remember it is acknowledgement of paternity, not paternity, that has to be inferred from conduct, for which a DNA kit would be worthless, as well as amounting to an “investigation of paternity.”

The Code of 1804 restored the voluntarist principle of Roman law – Nemini invito suus heres adnascitur – No one can have a compulsory heir born to him without his consent. Consent is expressed by marriage or acknowledgement. A PACS does not amount to such consent; otherwise it would be indistinguishable from marriage and would create a radical difference between a PACS between a same-sex and one between an opposite-sex couple.

The present rule keeps the law clear and simple