"Love is love." That is one of those bumber-sticker tautologies used in an emotional appeal by marriage neutering advocates.
Well, of course X = X. But what is the logical argument, if any, implied? It seems to be "The love I have for my same-sex partner is no different than the love you have for your opposite-sex partner, therefore, our relationship should be licensed by the state as marriage just as yours can be."
I'm sure I'll be corrected if I am wrong.
I first heard "Love is love" in response to California Proposition 8, which was adopted by the voters and became the California Marriage Amendment, part of the state constitution.
First of all, California law deals with "love" exactly twice[1]. In neither case is marriage or domestic partnerships addressed. There is no legal requirement that spouses or domestic partners actually love each other. You can get a marriage license or a domestic partnership with someone you loathe. I don’t advise it, but it is legally possible.
Biblical promises that Jesus loves us aside, none of us can really be sure whether or not one person loves another person. In some cases, we can make a good guess based on our experiences with how they treat each other. The people at the county office who issue marriage licenses are unlikely to be able to objectively prove whether or not you love the person with whom you are getting the marriage license. Fortunately, they don't ask.
It also strikes me that if you're going to use "love is love" as an argument to change the legal definition of marriage, you should also have a legal definition of love in state law, as "love" means different things to different people. We don't have a definition of love in state law. But that is okay, because we don't base public policy on whether or not any two adults love each other.
If we were to accept the implied argument, wouldn't that mean that any relationship where love is claimed should be licensed as marriage if requested? After all, if love is love, then that means that platonic friends who love each other should be able to be married to one another as far as state licensing, no matter how many there are. Close family members (even without incest), or people carrying on an extramarital affair, or people who regularly engage in group sex with each other - all should be able to claim state marriage licenses for their relationships, no?
Also, how does anyone know for sure if the love in one relationship (say, bride+groom) is equivalent to another (say, same-sex partners), especially if they've only ever engaged in one kind?
"Love is love" can't be the basis for state marriage licensing if we are going to keep any order. Fortunately, licensing is based on objective facts that are a matter of public record: one adult (or emancipated) female and one adult (or emancipated male), neither one currently in a licensed marriage, who are not closely related. There's no requirement or restriction involving love or sexual orientation.
Ultimately, since state marriage licensing is not about love, the argument is irrelevant.
[1] California Government Code section 421.7.
"I Love You, California," a song published in 1913 with lyrics by F.B. Silverwood and music by A.F. Frankenstein, is an official state song.
Insurance Code:
Section 10110. Every person has an insurable interest in the life and health of:
(a) Himself.
(b) Any person on whom he depends wholly or in part for education or support.
(c) Any person under a legal obligation to him for the payment of money or respecting property or services, of which death or illness might delay or prevent the performance.
(d) Any person upon whose life any estate or interest vested in him depends.
10110.1. (a) An insurable interest, with reference to life and disability insurance, is an interest based upon a reasonable expectation of pecuniary advantage through the continued life, health, or bodily safety of another person and consequent loss by reason of that person's death or disability or a substantial interest engendered by love and affection in the case of individuals closely related by blood or law.
(b) An individual has an unlimited insurable interest in his or her own life, health, and bodily safety and may lawfully take out a policy of insurance on his or her own life, health, or bodily safety and have the policy made payable to whomsoever he or she pleases, regardless of whether the beneficiary designated has an insurableinterest.
(c) Except as provided in Section 10110.4, an employer has an insurable interest, as referred to in subdivision (a), in the life or physical or mental ability of any of its directors, officers, or employees or the directors, officers, or employees of any of its subsidiaries or any other person whose death or physical or mental disability might cause financial loss to the employer; or, pursuant to any contractual arrangement with any shareholder concerning the reacquisition of shares owned by the shareholder at the time of his or her death or disability, on the life or physical or mental ability of that shareholder for the purpose of carrying out the contractual arrangement; or, pursuant to any contract obligating the employer as part of compensation arrangements or pursuant to a contract obligating the employer as guarantor or surety, on the life of the principal obligor. The trustee of an employer or trustee of a pension, welfare benefit plan, or trust established by an employer providing life, health, disability, retirement, or similar benefits to employees and retired employees of the employer or its affiliates and acting in a fiduciary capacity with respect to those employees, retired employees, or their dependents or beneficiaries has an insurable interest in the lives of employees and retired employees for whom those benefits are to be provided. The employer shall obtain the written consent of the individual being insured.
(d) An insurable interest shall be required to exist at the time the contract of life or disability insurance becomes effective, but need not exist at the time the loss occurs.
(e) Any contract of life or disability insurance procured or caused to be procured upon another individual is void unless the person applying for the insurance has an insurable interest in the individual insured at the time of the application.
(f) Notwithstanding subdivisions (a), (d), and (e), a charitable organization that meets the requirements of Section 214 or 23701d of the Revenue and Taxation Code may effectuate life or disability insurance on an insured who consents to the issuance of that insurance.
(g) This section shall not be interpreted to define all instances in which an insurable interest exists.
Mr Walrus writes: "There is no legal requirement that spouses or domestic partners actually love each other."
ReplyDeleteThe law does not require those who'd marry to love each other. OK.
The law ALSO does not require married people to live together, nor to have sexual relations with one another ... nor even to speak to one another. The law does not even require that those who'd marry ever even meet one another! (see proxy marriage)
But what DOES the law require married people to do, that is uniquely in the realm of male+female couples? What is it that the law requires male+female couples to do in order to be considered married, that cannot be done by male+male or female+female couples?
Ah, but the SSM complaint against the bride-and-groom requirement is that this legal requirement, vigorously enforced, is discrimination against the supposed sexual basis for the SSM campaign's gay emphasis and demand for revision of the law. If there is no sexual basis for the bride-and-groom requirement, then, the SSM complaint is clearly bogus based on its own assumptions.
ReplyDeleteOn the other hand, marriage requires the integration of a man and a woman; and it requires consent to all that marital status entails including the sexual basis for the marital presumption of paternity. The sibling relationship is not a sexual type of relationship; so the sibling friendship is not eligible -- it is distinctive from the type of relationship that is procreative in kind. This is expressed in the marriage law regarding sexual consummation, adultery, and so forth.
But if the SSMer insists that the lack of a legal requirement is decisive, then, the lack of a same-sex sexual requirement, in whatever form, stands against his argument rather than in favor of it.
I should add, for emphasis, that Playful Walrus is correct when he talks of treating different kinds of relationships differently. That is the meaning of my citing the example of the sibling type of friendship which is not sexual in kind -- this is true even if there might be instances of sexualization of a particular sister's relationship with her brother. If the pro-SSM comment above means that SSM is not a sexual type of relationship under the law, then, okay, it is no more and no less eligible than the nonsexual type of relationship of siblings. Particular instances of sexualization does not a trump card make.
ReplyDeleteI see Chairm Ohn is also without an answer to my questions.
ReplyDelete1) What DOES the law require married people to do, that is uniquely in the realm of male+female couples?
2) What is it that the law requires male+female couples to do in order to be considered married, that cannot be done by male+male or female+female couples?
The marriage law requires a bride and a groom show-up together to marry. The marriage law requires mutual consent to all that marital status entails -- including the sexual basis for the marital presumption of paternity. Society consents to this as well. The marriage law requires society to presume (a legal presumption and not merely a social assumption) that the husband and wife have entered into a valid marriage until proven otherwise. This reasonable presumption also means that their union is presumed (again reasonably) to have been sexually consummated and also that it is subject to the grounds for adultery that is also reasonably based on the sexual basis for the bride and groom requirement.
ReplyDeleteThe type of scenario that lacks either a bride or a groom cannot fulfill the bride-and groom requirement, obviously. Such a scenario lacks the sexual basis for the marital presumption of paternity which is the sexual basis for consummation, annulment, and adultery and so forth.
Of course, the marriage law acknowledges the fact of life that the bride-and-groom type of relationship is procreative in kind; it is not merely the union of two persons nor merely the union of a man and a woman; the terms, bride and groom, denote a public sexual type of relationship that is orientated to child-bearing and child-raising. Note that the totalitarian impulse of the SSMer might obscure, in the SSMer's mind, the difference between a type of relationship that is procreative in kind and this or that particular instance of a marital relationship that is not procreative in outcome. The law of marriage is reasonable, not totalitarian, and so such an impulse ought not to be taken as a reasonable basis for objection to what the marriage law requires of participants and of society.
Marriage is the type of relationship that integrates the sexes. The SSM objection is that the bride-and-groom requirement denotes a sexual type of relationship between man and woman. The SSM objection also paints this requirement as standing against the supposed sexual basis for SSM. No SSMer can reasonably put those objections aside and pretend that marriage under the law is not a sexual type of relationship that is procreative in kind. The best such an SSMer might do is to object that this type of relationship does not merit its special status. Of course, the typical SSMer dodges and demands that the non-marital one-sexed scenario be presumed defined by same-sex sexual attraction and that this, and that alone, merits the special status that is accorded the husband-and-wife relationship.
Note that this would mean the SSMer acknowledges that marriage integrates by sex and by sexual attraction (male sexual attraction together with female sexual attraction) and that SSM is an imposition for the sake of segregation by sex and by sexual attraction (either male or female sexual attraction, apart). Further, the SSMer would then be on the spot demanding that integration be downgraded to the same status as segregation; that marriage be remade as a sex-segregative ideal that would have the law treat all unions of husband and wife as if they lacked either brides or grooms and lacked either husbands or wives and lacked either mothers or fathers.
Now, the answer to the empty-headed questions above will not satiate the need of SearchCz to promote anti-marriage propaganda. But readers may grasp the truth of marriage without turning the marriage issue into the "gay issue" that such a propagandist would prefer. The issue is marriage. The gay stuff is extrinsic or foreign to the marriage issue even if it is central to the SSM campaign's attack on the marriage idea and on the legal requirements of marriage law.
SearchCz was answered in my previous comments but I welcome the opportunity to have clarified and expanded on my earlier responses.
-- Chairm
AC responds: "The marriage law requires mutual consent to all that marital status entails -- including the sexual basis for the marital presumption of paternity"
DeleteSame-sex couples can, and have, consented to being the presumed parents of offspring conceived during their marriage. The California courts have already recognized the presumed parenthood of a same-sex spouse.
Let's consider what presumption of paternity is NOT (and has never been). It is clearly NOT an effort to make sure that children are raised by their biological parents, as that interest would be better served by refusing to presume that a biological relationship exists and instead requiring evidence of that fact. It is also NOT something that is unique to marriage - courts have applied this presumption to unmarried folks as well.
And let's consider what presumption of paternity is - a method for the state to ensure that the public is not saddled with responsibility for the children. It obliges married folks to accept parental responsibility for their spouse's children conceived during the marriage, regardless of who the biological father of those children might be. Always has worked that way, and it still does.
Same-sex couples possess the exact same capacity as opposite-sex couples to take responsibility (financial and otherwise) for children born to their spouse & conceived during their marriage.
I asked: "What is it that the law requires male+female couples to do in order to be considered married, that cannot be done by male+male or female+female couples?"
DeleteAnnoymous Chairm (AC) responds, beginning with: "The marriage law requires a bride and a groom show-up together to marry."
Two problems with this:
1) It is, in fact, untrue. California, Texas, Colorado, Montana, and Alabama all provide for marriage by proxy ... meaning that a legal marriage can commence even if one of the parties is absent. And in Montana the accommodate double-proxy, meaning that NEITHER party needs to be present.
2) Let's consider the other states, where showing up together is a requirement. Certainly AC isn't suggesting that only male+female couples have the capacity to show up together!
Same-sex couples possess the exact same capacity as opposite-sex couples to *show-up together" (in those jurisdictions that require it).
AC writes: "The marriage law requires society to presume (a legal presumption and not merely a social assumption) that the husband and wife have entered into a valid marriage until proven otherwise."
DeleteAgain, we see the same two problems with AC's response.
1) It is, in point of fact, false. Society is not asked to presume that those who'd marry are marriageable. Rather, we require those who'd marry to assure us that they are marriageable. And while we might take their word for it in some matters, there are others in which we require proof. Anyone widowed or divorced are routinely asked to provide some evidence of that fact prior to re-marrying.
2) In any case, same-sex couples are equal to opposite-sex couples in their capacity to declare and prove that they are marriageable, and that they are entering into their marriage freely.
AC: "This reasonable presumption also means that their union is presumed (again reasonably) to have been sexually consummated ..."
DeleteIts important to point out - remembering the questions I posed in the first place - that consummation is not something the law requires of married folks. We may expect it, but if a couple chooses to marry without any expectation of sexually consummating that union, civil law is fine with that.
In fact, its telling that annulments for non-consummation are generally available only if the person seeking annulment had a reasonable expectation that the union would be sexually consummated. In other words, a person cannot seek this kind of annulment if they went into the marriage understanding that it would not be sexually consummated.
Finally, same-sex couples are as capable as opposite-sex couples of consummating their union. Because same-sex couples do have sexual intercourse. (Coitus, no. But sexual intercourse, sure!)
AC Responds: "This reasonable presumption also means that their union [...] is subject to the grounds for adultery that is also reasonably based on the sexual basis for the bride and groom requirement.
DeleteAdultery = sexual intercourse between a married person and someone other than their spouse or spouses? Maybe, but the legal definition varies from jurisdiction to jurisdiction. In Minnesota, adultery has been committed if a married woman has sex with someone other than her husband, but NOT if her husband has sex with someone other than his wife.
In 2005, a BC judge granted a divorce to a woman whose husband had cheated on her with another man (establishing that the two men had been engaging in sexual intercourse, as far as the law was concerned).
If AC means to suggest that only members of opposite-sex couples are capable of having sex with someone other than their spouse, I unfortunately have to disagree. Same-sex sexual activity, as noted above, constitutes sexual intercourse which can amount to adultery (if it involves a married person and someone other than his or her partner). As such, same-sex couples and opposite-sex couples share the same capacity for committing and being held accountable for engaging in sex outside of their marriages.
I've read through Anonymous Chairm's (AC's) post a few times now, and I think I've responded to all of the things he cites in response to my questions:
Delete1) What DOES the law require married people to do, that is uniquely in the realm of male+female couples?
2) What is it that the law requires male+female couples to do in order to be considered married, that cannot be done by male+male or female+female couples?
I'll recap the items he lists as unique and exclusive to opposite-sex couples ... and beyond the capabilities of same-sex couples.
a) showing up together:
something NOT required of opposite-sex couples (in some jurisdictions). Also something that same-sex couples can do.
b) presumption of validity (?) - society presumes that the marriage candidates have no impediments that would invalidate their marriage
AC's claim is almost correct. In most regards, we accept the candidates' word that they are marriageable, and ask for proof in some cases. All of which is equally applicable to same-sex couples.
c) presumption of paternity - accepting parental responsibility if your spouse becomes pregnant during your marriage
same-sex couples can, and have, accepted this legal responsibility. and the courts have acknowledged it.
d) presumption of consummation - society presumes that couples will sexually consummate their marriages
society may expect it, but the law does not require it. and same-sex couples do it too.
e) subjected to the grounds for adultery
AC hasn't given us his definition of adultery, so I proposed that sex between a married person and someone other than their spouse was apt. Sadly, same-sex couples are as capable as opposite-sex couples of committing this act. And of being held accountable for it.
That's it for things that AC lists as required of married couples and (according to him) uniquely in the domain of opposite-sex couples. I'm sure I'll be corrected if I am wrong. Please tell me if there is some other thing that couples must do in order to be considered married, that is beyond the capacity of same-sex couples. Because these five things aren't it, and opposition to same-sex marriage is tough to justify without it.
Either you agree that men and women are significantly different, or you don't.
DeleteA) If they are significantly different (as seems to be indicated by the fact that some people are attracted to one sex but not the other, along with many, many other things), then the pairing of both sexes is an inherently different action than the pairing with someone of the same sex. Thus, marriage (bride+groom) can justly be treated differently by society.
B) If they are not significantly different, the claim to be attracted to one sex, but not the other is meaningless and thus can't place someone in a protected class. If someone actually believes that there is no significant difference between the sexes, they shouldn't bother commenting on this blog because are living in a fundamentally different reality than the rest of us.
I agree that men and women are different from one another. The significance of those differences depends on context. Are men and women significantly different in their capacity to own property, or to control their own income, or to vote? To hold a job outside the home? To lead a corporation? Society used to say "yes", but thats not the case today.
DeleteDifference does not automatically mean unequal, nor does it automatically justify being any and all discriminatory treatment that might be dished out by society.
And the same can be said when comparing and contrasting same-sex and opposite-sex couples. There are similarities, there are differences, and the significance of these similarities & differences depends on context. Being different, in this and in all things, is not automatically a justification for unequal treatment.
My position is that a same-sex pairing is substantially similar to plenty of male+female pairings that society happily recognizes as married. And that this substantial similarity calls for a treatment under that law that is substantially similar.
The difference in the behavior of pairing both sexes is enough to pass Constitutional muster.
DeleteThere is a difference in personal relationships. Isn't that precisely why some people identify as "gay" or "lesbian"? There's a difference in personal relationships, and that is one reason why we call bride+groom "marriage" and other relationships we don't.
Correct. But WHAT is the difference? AND how does that difference justify different treatment under the law ?
DeleteYou agree there is a difference. That there is a difference is enough to make it Constitutional to treat them differently based on documented criteria that can be applied equally.
DeletePlayful Walrus has made a powerful point. Equality means we are not to arbitrarily treat people differently; it means we are not to arbitrarily treat people the same.
DeleteThe marital relationship is procreative in kind. And, in practice, it is procreative in outcome very, very, very often. Its sexual basis is procreative in kind even when, most of the time, it is not procreative in outcome.
The marital relationship is sex-integrative in kind. It unites man and woman, husband and wife, fatherhood and motherhood. It does so on a societal level and it does so on the micro-communal level of the family founded on the sexual complementarity of humankind.
All of this forms a coherent whole; the unitive and the procreative aspects form a coherent whole that is greater than the sum of its parts. This is the marriage idea. It is foundational to civil society.
The SSM idea is not foundational. It is a conceptual mess. It lacks coherency. It is sex-segregative in kind. It is explicitly non-procreative -- and promoted as anti-procreative in kind. It is a specious substitution for the marriage idea.
Society may discriminate between marriage and non-marriage. But there is no justification on offer to discrimiante between SSM and non-SSM within the one-sexed range of types of relationship.
US Supreme Court precedent shot down the asserted supremacy of identity politics when it repudiated the racism pressed onto marriage laws. Reviving the asserted supremacy in the name of the gay identity group hardly merits as justification for the SSM imposition. Yet that is the meaning of the SSM campaign's gay emphasis.
As the SSMer above has illustrated, SSM argumentation ends-up negating the sexual basis for complaining about the bride-and-groom requirement; it ends-up negating the sexual basis for the gay emphasis; it ends-up transgressing the pro-SSM theme that demands the law be justified and not be an arbitrary exercise of governmental power.
So what is left to distinguish between SSM and non-SSM if gay identity is a bogus basis for the SSM imposition?
Clearly, sex difference matters even to the assumptions of those who press for the SSM imposition. Excluding either man or woman is hardly a form of sex equality within a type of relationship that depends on sex difference for its claim to fame. Equating the male-only sexual relationship with the female-only sexual relationship does zilch to equate either with the union of husband and wife. So SSMers tend to dodge the comparison of like with like sexual scenarios (the sex-segregative scenarios) and further dodge the comparison of like with like nonsexual scenarios (the range of realtionship types in the non-marriage category). Instead they leap over similarily situated scenarios and clamor to cut out of the union of husband and wife the very core of what distinguishes marrige from non-marriage.
In so doing they make an anti-marriage claim but fail to make an actual pro-SSM argument. This means that their thinking attacks the very notion of society discriminating between marriage and non-marriage. They sell this with rhetoric about discriminating between gay and non-gay group identities. The disconnect is rather starkly illustrated in SearchCz's comments here.
----
SearchCz, within the context of the same-sex category, what is the difference between the type of relationship you have in mind for SSM all other types of relationship?
Note -- *within the context of the same-sex category* justify different treatment under SSM law.
This comment has been removed by the author.
ReplyDeleteThe SSMer dodged: "Same-sex couples can, and have, consented to being the presumed parents of offspring conceived during their marriage."
ReplyDeleteThere can be no same-sex sexual basis for such a legal default.
What, then, is the nonsexual basis for presuming a man has impregnated another man or that a woman has been impregnated by another woman?
Oh, hang-on, that is not the legal presumption to which the SSMer referred. Clearly there is neither a sexual nor a nonsexual basis for the legal default that an all-male or an all-female scenario has consented to co-equal parental status just by forming a one-sexed type of relationship.
Any such default would be arbitrary. Recall that the SSMer has insisted that the intention to bear children, and the mere ability to use some means to do so, cannot be a legitimate basis for lawmaking on eligiblity to SSM. If we take the SSMer at his word, then, no legal default of parentage can be justifiably 1) attached to SSM status and 2) used to bar some types of relationship from eligiblity to SSM.
No sexual basis. No nonsexual basis. No justification otherwise. Arbitrariness is conceded.
-- Chairm
The basis for the legal presumption of paternity, in all cases, is the state's interest making sure children's upbringing remains a private matter and not an obligation of the state.
DeleteIt is not a presumption that one has impregnated the other. Rather, it is a reflection of the marital vow to care for one another, in good times and in bad, in sickness and in health, as long as they both shall live. The fact that the state may refuse to consider voluntary evidence of paternity is enough to show that the central concern is not who impregnated whom.
Standing as the legally presumed parent is something same-sex partners have already done. So much for your assertion that this legal concept can only apply to opposite-sex couples.
The SSMer trips over himself to make yet more errors and to reveal a totalitarian view of the law.
ReplyDelete1. "It is clearly NOT an effort to make sure that children are raised by their biological parents, as that interest would be better served by refusing to presume that a biological relationship exists and instead requiring evidence of that fact."
Better served? Heh. The marital presumption of paternity is reasonable. The SSMer would propose an inversion: each and every married mother would be presumed sexually unfaithful to her husband and to have engaged in extramarital procreation.
Well, that would fit the one-sexed scenario perfectly, of course. Always, the all-male or the all-female scenario must go outside of the one-sexed relationship to attain children -- one way or another. It is an easy legal default but one which does not fit the two-sexed sexual relationship of husband and wife.
The SSMer also asserted: "It is also NOT something that is unique to marriage - courts have applied this presumption to unmarried folks as well."
The marriage idea has an overflow effect, of course. The unwed presumption of paternity has been enacted via statutory law to mimick the marital presumption that arises from the nature of the type of relationship that is procreative in kind. In other words: the unwed presumption shares with the marital presumption the sexual basis that makes the default reasonable. However, the unwed version is far less dependable -- and far more readily challenged for rebutal on a case-by-case basis. This shows the distinction between marriage and non-marriage applies even where the relationship is a) two-sexed and b) sexualized.
The SSMer has failed to show relevance to his demand to impose SSM. Again, there is the obvious lack of a sexual basis for presuming a one-sexed scenario is procreative in kind -- SSM'd or not SSM'd. There is no nonsexual basis for a default that the participants in a one-sexed relationship have consented to co-equal parental status.
Also, of course, going outside of the type of relationship is extramarital procreation even when married people do it; and that is the default for all one-sexed scenarios anyway -- which are outside of marriage itself. Further, third party procreation has a pre-requisite -- in addition to parental relinquishment (one way or another) on the part of the third party, there is the necessary intervention of Government to reassign a child to another adult. This is so for two-sexed relationships -- wedded or unwedded -- and is more obviously so for all one-sexed relationships -- SSM'd or not SSM'd, sexualized or not sexualized.
So add the lack of relevance to the SSMer's problems on this one.
AC writes: "Better served? Heh. The marital presumption of paternity is reasonable. The SSMer would propose an inversion: each and every married mother would be presumed sexually unfaithful to her husband and to have engaged in extramarital procreation."
DeleteSorry, when did I suggest that laws pertaining to presumed paternity should change? (Hint - the answer is never.) I wrote that presumption of paternity is not a guarantee that a biological relationship exists between the child and their presumed parents. And it never has been. Rather, it is closer to a guarantee that there will be a second parent responsible in the child's upbringing.
Remember, please, that there are states where the courts disregard DNA evidence that a presumed parent wishes to submit as evidence contrary to the state's presumption. That should put the proper exclamation point on what purpose that presumption is meant to serve.
The marriage law requires that a bride and a groom show up together to form the union of husband and wife. The laws on proxies makes this very, very, very clear. It is not merely a ceremonial relationship: it unites the bride and groom even where proxies stand-in during a ceremony. But the bride and the groom, together, form the union. The bride does not form the union with a proxy. The meaning of "proxy" makes this very clear.
ReplyDeleteThe marriage law requires a bride and a groom. This answers the original query.
Just showing up is no trump card for those ineligible to marry. The SSMer pretends that it is a trump card for those who'd SSM. The difference between the marriage idea and the SSM idea is stark -- and the weakness of the SSMer's thinking becomes the chief feature of his comments.
DeleteI asked:
1) What DOES the law require married people to do, that is uniquely in the realm of male+female couples?
2) What is it that the law requires male+female couples to do in order to be considered married, that cannot be done by male+male or female+female couples?
You've responded: "The marriage law requires a bride and a groom show-up together to marry."
So, the VERB in this sentence ... the action being performed ... is "show-up". Something that same-sex couples can do.
But now you want to expand the scope of the question to include other characteristics than what they must do. You want to discuss what they bust be. You write: "The marriage law requires a bride and a groom. This answers the original query."
The point of my original questions was to explore a dimension of the bride+groom requirement for marriage - what they must do. Now you want to change the subject to what they must be. And you present something to the effect of *they must be male+female because the law requires it*.
It is a requirement because it is required? Thank you, but I'll pass on the circular reasoning.
The type of relationship -- the union of husband and wife -- is procreative in kind. The law entails the reasonable presumption that the bride and groom will consummate their union; the law reasonably presumes each marriage is valid until shown otherwise.
ReplyDeleteThe SSMer would invert this, also. If sexual consummation is not an essential of this type of relationship, as he would pretend, then, a few things follow his thinking.
1. The bride and groom requirement is not a sexual basis upon which the SSMer can complain about discrimination based on same-sex sexual attraction.
2. The default is that the type of relationship the SSMer has in mind for SSM is not sexual and so is not orientated toward same-sex sexual attraction. It cannot be legally presumed to be defined by homosexuality nor by gay identity.
3. Whether or not participants in a one-sexed scenario intend to engage in same-sex sexual behavior or have the ability to do so or even actually do so is thus irrelevant to the SSMer's rhetoric and argumentation.
4. SSM is not a sexual type of relationship under SSM law. There is no same-sex sexual basis for lawmaking on eligiblity to SSM. This accompanies the lack of a procreative basis; and both accompany the lack of a child-rearing basis. That removes distinctions galore between SSM and the rest of non-marriage.
5. In marriage law, the sexual basis for annulment is the sexual basis for the marital presumption of paternity. Annulment depends on the essentials of this type of relationship. Annulment based on non-consummation is a fact of law. The SSMer's thinking abolishes this sexual basis.
6. Note that coital relations is distinctive from whatever a same-sex scenario might do sexually. But not just in terms of being procreative in kind. Also, in terms of the natural limit of two; and in terms of the natural limit of one union at-a-time. There is no same-sex sexual basis for these limitations; there is no non-sexual basis for these limitations.
The upshot is that the SSMer continues to attack the marriage idea and offers no justification for imposing the SSM idea in its stead. Rather, the SSMer distances his thinking from the gay emhasis of the SSM campaign. The gay emphasis remains unjustified. The SSMer runs away from even attempting to justify what he demands of society.
-- Chairm
Who pretends that sexual consummation is not (in almost all cases) essential characteristic of the marital relationship? We can acknowledge exceptions - not all bride+groom pairings can sexually consummate their relationship, but marriage remains an option for them. And it does not detract from the institution of marriage.
DeleteIf I recall correctly, you ascribe to the definition of *consummation* provided in canon law, or something close to it. In canon law, sexual intercourse is narrowly defined as coitus open to the possibility of conception. But civil law hold a broader definition of sexual intercourse, and it includes the kinds of sexual activities within the capabilities of same-sex couples.
You wrote: "If sexual consummation is not an essential of this type of relationship, as he would pretend, then, a few things follow his thinking"
I suppose this depends on your definition of *essential*. It is fundamental and central, extremely important, and a little bit shy of absolutely necessary. So I guess those six things you list do not follow my thinking.
Same-sex couples can consummate their union through sexual intercourse. Society can presume that those who marry will do so.
And just a couple of comments on those six things that do not follow from my thinking. On item #5 you write that "Annulment based on non-consummation is a fact of law.".
DeleteFACT: this kind of annulment can be denied if the two parties to the marriage understood ahead of time that consummation was not to be expected. If it was known at the time of marriage that the relationship would be platonic, the ground of non-consummation does not apply.
On item #6 you write about "the natural limit of two; and in terms of the natural limit of one union at-a-time" unique to coital relations.
I'm not sure what you mean by "natural limit", but surely you are aware that it is possible for sexual intercourse (by legal definition) to involve more than two parties at a time. Even if you limit the definition to the religious viewpoint of coitus open to the potential for procreation, there is no such limit. Two men + one woman coitus happens.
The point regarding adultery is that its sexual basis is one and the same as the sexual basis for the marital presumption of paternity. It is two-sexed, not one-sexed nor sex-neutral.
ReplyDeleteThat a man might engage in sodomy with a woman other than his wife does not negate the point.
That a woman might engage in sodomy with man other than her husband does not negate the point.
Nor does same-sex sexual behavior, of whatever version, between a husband and another man or between a wife and another woman.
Adultery has societal significance because the union of husband and wife is a relationship that is procreative in kind. Over-stretching the legal term, adultery, to cover non-coital relations is in itself arbitrary, however, it still does not actually change the sexual basis for marriage into sodomy or some other sexual activity to which a one-sexed scenario would be limited.
Indeed, the SSMer has already argued that SSM is not a sexual type of relationship, by default, under the imposition of SSM. Adultery -- even if stretched to mean any type of sexual activity of some sort outside of the marital relationship -- is irrelevant to the one-sexed scenario as per the SSMer's own comments.
Sexual exclusivity is likewise a casuality of the SSM imposition.
The societal significance of adultery used to be attempting to ensure that bloodlines did not become muddled, and that men did not end up shouldering the burden of raising another man's offspring. Its telling to note that once-upon-a-time the definition of adultery was intercourse between a married woman and someone other than her husband. Intercourse between a married man and an some other (unmarried) woman: not adultery.
DeleteTo be crystal clear: under this law a husband having a mistress was not considered adultery.
But times have changed, and in most jurisdictions the sanctions on adultery exist because that act is a breach of the marital contract of fidelity. And fidelity is within the scope of same-sex couples, as is infidelity.
The SSMer's recap depends on misrepresentations. Charitably, readers might assume these misrepresentations are due to misunderstanding my earlier comments.
ReplyDeletea) showing up together.
Not merely showing up in the ceremonial sense. We are discussing a type of relationship to which the bride and groom show-up together. But if the SSMer thinks that such a relationship is a proxy relationship, then, he has lost the plot.
b) society presumes that the marriage candidates have no impediments that would invalidate their marriage.
There is a legal default -- a legal presumption -- that the marital union, once formed, is valid unless shown otherwise. This is not merely a formality about filling in an application. I directly linked this to the legal default -- another legal presumption -- that the union of husband and wife will be consummated; and that, later, it has been consummated -- again unless shown otherwise.
c) presumption of paternity.
Again, the SSMer dodges the sexual basis for this legal default. It is foreign to all one-sexed scenarios. Adding same-sex sexual behavior does not change that, obviously.
There is no justication to presume at law that the participant in SSM has consented to co-equal parental status. No sexual basis. No nonsexual basis. If such a default is established, it must be established arbitrarily. And that transgresses the SSMer's demand that the law be justified.
d) presumption of consummation.
It is not merely a social expectation. It is an essential of marriage. The sexual basis for annulment, if established, means there was no marital relationship. That sexual basis is the sexual basis for the marital presumption of paternity. Sodomy is not that sexual basis.
The sexual basis for marriage is extrinsic to all one-sexed scenarios. Indeed, the SSMer has said that same-sex sexual behavior is not an essential of SSM -- not for eligiblity and not for SSM status. The lack of sodomical acts is not a sexual basis for annulment of an SSM. To make it so would require justification that the SSMer has not even attempted to make here. It would be arbitrary.
e) subjected to the grounds for adultery.
See item a, b, c, d.
a) see my response above.
Deleteb) There is no default presumption of *marriageability* for any marriage candidate who has previously been married. Society does not presume that their prior marriage has been dissolved, it requires proof. and this is immaterial, as it is something that can be accomplished equally well within same-sex couples.
c) see my response above.
d) see my response above.
e) see my response above.
a,b,c,d,e ... nothing that an couple (or individual) must do that is outside the scope of same-sex couples.
Now, fair is fair and the SSMer must answer to his own query but in terms of the SSM.
ReplyDelete1) What would SSM law require participants in SSM to do, that is uniquely in the realm of SSM?
2) What would SSM law require the all-male or the all-female scenario to do in order to be considered SSM'd, that cannot be done outside of SSM?
The range of same-sex scenarios is far broader than the gay subset, of course, but the SSMer's gay emphasis needs to be justified in his responses. Or he can drop that emphasis and try to distinguish between the type of relationship he has in mind for SSM and the rest of non-marriage/non-SSM under the imposition of the revision he demands of society through our laws.
-- Chairm
AC asks: "1) What would SSM law require participants in SSM to do, that is uniquely in the realm of SSM?"
DeleteI don't claim that there is anything the law requires (or should require) of married folks that is uniquely in the realm of same-sex couples. Based on the responses I've seen to my original questions, I think its fair to say that opposite-sex couples posses the same capacity as same-sex couples to do all of the things that society (and the law) require married folks to do.
AC asks: "2) What would SSM law require the all-male or the all-female scenario to do in order to be considered SSM'd, that cannot be done outside of SSM?".
That distinction, as well, would be no different than it is for opposite-sex couples. And what must they do? Present themselves as eligible to marry (unmarried, of legal age, etc.). Freely consent to marriage. Accept responsibility for their spouse, and for any children who may become part of their household.
And then there are the things that ought to be done (or avoided) in order for the couples to remain married. Marital fidelity, for example, which does not automatically terminate a marriage but may be used as justification for its termination. Non-consummation falls into the exact same category.
Finally, there are things done, not by the individuals or couples themselves, but by society. None of these need to change. Society can continue to presume that the union will be consummated sexually, society can presume that married individuals are consenting to stand as parent for children born to their spouse and conceived during their marriage. Society can even require them to show-up together! No need for revisions on what the espoused must do, nor on what society may expect of them.
And let's not forget, there is a far broader range of opposite-sex scenarios than the sexual subset. Even within the sexual subset, not all of those opposite-sex relationships are marriage. But, even within the *straight* community, something distinguishes these relationships from one another. There's no reason it would be any different outside of that community.
Besides, the emphasis on marriage isn't sexual identity per se. Self-identifying as gay isn't particularly relevant, and certainly no more relevant than self-identifying as straight. But sexual orientation is relevant, because marriage entails selecting a compatible spouse of one's own sexual orientation. And that, too, is the same whether one is homosexual or heterosexual.