Let’s just say that the Scottish Parliament building (aka ‘Holyrood’) does not inspire universal affection among Scots. I’ve encountered one local tour guide who invited anyone who was interested to lob an RPG into it while he carefully looked in the opposite direction, for example, while a fellow lawyer suggested that it looked like someone had eaten a giant jigsaw and then thrown up on the Old Town (click to embiggen; you’ll see what she means). This meant that I vowed that I’d never go inside without a really good reason. I tend to avoid butt-ugly places. They depress me.
Last night provided my first really good reason, because it was a reception for equal marriage (same sex marriage) held at Holyrood and co-sponsored by all four parties currently represented in the parliament. The usual suspects were opposed:
THE clamour for the legalisation of same-sex marriage in Scotland has grown after the leaders of Holyrood’s opposition parties signed a pledge supporting the move.
Labour’s Johann Lamont, Ruth Davidson of the Conservatives, Willie Rennie of the Lib Dems and the Greens’ Patrick Harvie signed a pledge expressing their backing for homosexual weddings.
The four opposition leaders signed a declaration saying that they would “campaign to beat the ban on same sex marriage”.
At an event in the Scottish Parliament organised by the Equality Network, they cut a wedding cake to symbolise their support for a change in the law. The cake-cutting ceremony was carried out before MSPs of all parties attended an evening reception co-sponsored by the openly gay SNP MSP Joe Fitzpatrick.
SNP ministers did not sign the declaration because the Scottish Government is currently engaged in a consultation on the issue and it was felt that it would be inappropriate to pre-judge that process.
But the event angered the Catholic Church, which has been vocal in its opposition to gay weddings.
Last night John Deighan, parliamentary officer for the Catholic Church in Scotland, said: “It is disappointing that party leaders have been so cavalier in joining the bandwagon for redefining marriage. We deserve a more reflective approach from those in a position of political leadership.”
I’ll also add the detail that Ruth Davidson, the Scots Tory leader, is also openly lesbian and one half of a civil partnership.
Why have so many Tories abandoned their clause 28 days and shifted on this issue, much as they have with abortion? With the latter, we know it was partly the influence of Margaret Thatcher, who blew the crap out of Ronald Reagan for ‘obsessing’ over abortion, warning that the issue would one day divide the Republican Party (she was right). With same-sex marriage, the classical liberal arguments have, at long last, won out. Here’s a nice precis from the Adam Smith Institute:
Common law, the spontaneous order which resulted from millions of individuals going about their business over hundreds of years, is usually better able to cope with an ever-changing world, than statute law ever could. Before the first ever Marriage Act (1753) established common procedures to enter into a legal marriage, there were a wide range of ceremonies and customs by which people thought of themselves as being married.
Occasionally marriage was not much more than a verbal contract – sometimes concluded in private. Whenever another uncertain union turned up, the courts would try to do the right thing, and interpret whatever union was before them so as to achieve a reasonable outcome. This old common law system was therefore able to cope with a wide variety of marriages.
With the Marriage Act 1753 state and church came together to decide what was marriage, and what wasn’t. From then on, a mere agreement would never be sufficient anymore to give all the legal consequences of a marriage as defined by statute. The heavy hand of government closed the door to the endless variety of unions which existed before, to be recognised as a valid marriage. Though I doubt that unions between same-sex partners were ever considered to be a marriage in a medieval court (torture being more popular), it is probable that gays had other methods to achieve some legal certainty and protection. Perhaps they would portray it as a master/servant relationship; or perhaps they used Trusts. It is important to remember that there was (straight) marriage before there was statutory marriage – and that it was flexible.
As they say, read the whole thing.
I am not normally given to signing petitions and getting on my ‘moral high horse’ (organising libertarians, as everyone who reads this blog should know by now, is a process akin to herding cats). However, as a lawyer, I found the arguments against same-sex marriage so legally illiterate and historically tendentious that I hopped on this particular bandwagon just to wash the bad taste out of my mouth after debating with some of the anti-gay marriage crowd, both in Edinburgh and Oxford.
Some dawning awareness that Christianity did not invent marriage (DEM and I have both seen this argument made seriously, in various forums, including the Telegraph), and that it has not always been opposite sex, is finally getting through. Here is Newt Gingrich:
It’s pretty simple: marriage is between a man and a woman. This is a historic doctrine driven deep into the Bible, both in the Old Testament and in the New Testament, and it’s a perfect example of what I mean by the rise of paganism. The effort to create alternatives to marriage between a man and a woman are perfectly natural pagan behaviors, but they are a fundamental violation of our civilization. [via Lorenzo]
Memo to Newt: you say that like it’s a bad thing or, three cheers for the pagans. Sorry, this is one moral argument that paganism wins hands down.
Gingrich is a nasty numpty, but he’s also a smart, well-trained historian, hence the concession to paganism. Here’s the Christian ban on gay marriage [AD 381] in Roman law:
Theodosian Code 9.8.3: When a man marries and is about to offer himself to men in womanly fashion (‘quum vir nubit in feminam viris porrecturam’), what does he wish, when sex has lost all its significance; when the crime is one which it is not profitable to know; when Venus is changed to another form; when love is sought and not found? We order the statutes to arise, the laws to be armed with an avenging sword, that those infamous persons who are now, or who hereafter may be, guilty may be subjected to exquisite punishment.
I’ve included a wee bit of the original; the Theodosian Code is written in the most hysterical babu Latin. The translation is by Peter Birks, probably the greatest ever scholar of Roman law. He conveys well the sense of someone trying to be a lawyer on the back of reading the Roman equivalent of Learning the Law and How to do things with Rules but not much else. Apparently, the reason the Theodosian Code is so hysterically bad is because it wasn’t drafted by lawyers, but by various Christian mates of the emperor. The Roman legal profession kept its paganism with great tenacity, only capitulating when — after repeated professional harassment — they were all threatened with the loss of their practicing certificates (ius respondendii) if they failed to convert. At the same time, women were driven from the Bar and shortly thereafter, the Greek schools of philosophy were closed.
In other words, the conservative Christian attempt to define marriage so that gays and lesbians can’t use it is intimately linked to misogyny and hostility to intellectual freedom. That’s worth keeping in mind. Much of this process is beautifully documented by Ramsay Macmullen, here well reviewed by Lorenzo.
Apart from the bad arguments involved, I do think the social (if not the political) consensus on gay rights more generally is quite shallow, and that sometimes, politicians are called upon to lead. It is easy to forget how young we are. Last night’s reception made it very clear that the impetus for change is coming from people under 40, but not in the smelly, uncivil, even violent manner one associates with the 1960s, but with calm and rational arguments coupled with excellent dress sense. This is a good thing.
The event itself
At the reception, Rabbi Mark Solomon made the point that feminism helped make it possible for him to come out as a gay man, a case that I don’t see made very often except by the likes of Lorenzo, who often argues that gay rights have followed in the wake of women’s rights, and for the same reason: the slow process of coming to see all people as fully human. I must admit I was especially delighted to discover after his speech that Rabbi Solomon is originally Australian. The political speakers were as you would expect, although the Tory also had the merit of being funny (chiefly at his own expense): ‘I’m a Tory in Scotland, aren’t you supposed to boo now?’
The highlight for me was the Edinburgh Gay Men’s Chorus, an excellent choir that — although confined to jazz standards and romantic ballads for the evening — would no doubt make a very decent fist of some Pergolesi or Handel. The dark haired fellow third from the left in the second back row (see photograph) has a glorious voice but also the skill not to sing over the top of his fellow choir members. Apologies for the picture quality; I am not the world’s greatest photographer and the Scottish Parliament is ugly on the inside as well as the outside.
The evening was enjoyable, the cake was excellent and if anything it ended too soon — would you believe, in large part because the Scottish parliament ran out of booze. I must admit I got up this morning expecting that to be on the front page of the Scotsman: SHOCK: Holyrood runs short of alcohol.
All in a good cause, of course.
124 Comments
Well if ever a picture distracted from the words, this is it. That looks like a classic example of the 1960s Redfern school of architecture, complete with dilapidated paling fence in the foreground.
Thinking SL was making an unfair point I went looking for other, better images, only to find she is modest in her non praise; the thing was voted 4th ugliest building in the UK back in 2008 – and I refuse to check out those which finished ‘higher’, as I am depressed enough as it is.
Now, what was the point of this post?
Congratulations to the happy couple. One of my lesbian friends is getting married in a civil union in May in Europe – wish we could go. I’m tearing up already thinking about how nice it will be.
I just don’t see why it’s anyone else’s business whether two people decide to commit to each other. I’m quite happy for the various churches to have whatever rules they want on this matter; but not for them to tell me what is right, because it happens that I don’t believe what they believe.
Thanks for the links
. Nice post.
There is another female rights-gay rights connection. If sex is seen as “properly” between unequals, then a man pleasuring another man (particularly “passively”) is “betraying” his status. If sex is seen as properly between equals, then there is no status issue.
I can’t help but see it as glock silhouettes over each of the windows. Not exactly a symbol of democracy…
Oh you are so right, desipis.
[Making animals out of ballooons] is disgusting and [balloon] marriage should not be allowed anywhere in the world. Being pro-[balloons] is betraying God and giving Satan his pleasure.
[SOONED by admin]
Don’t believe me? read the Bible.
Actually ‘gay’ isn’t the right word to use because homos stole that word; ‘gay’ is actually ‘happy’.
You’re entitled to your views on homosexuality, hommyl, but you’re not entitled to force them on other people who don’t share your religious views. Actually the Bible says very little about homosexuality and Jesus says nothing at all about it whatsoever.
My friend who is getting married was brought up as a devout Christian. She hated herself for being attracted to women and was convinced she would go to Hell (even though her parents were supportive of her after she came out). I watched her self-destruct and self-harm herself over a period of ten years and it was hideous to watch. She had been born the way she was, but was punishing herself for it over and over again. It was because of comments like the ones you make above that she hated herself. It is for this reason that I will not tolerate comments such as the ones above on this blog. I have seen the harm they can cause to people.
Hommyl, you are now on moderation and your comments will be Sooned.
hommyl, I’m assuming you’re joking. If you’re not joking, then you may be interested in reading this:
http://www.urbandictionary.com/define.php?term=squick
corrr. Giving Satan his pleasure — I’d love to watch that.
Great response, Conrad.
Hmmm. I suspected Hommyl’s comments on the wrongful birth thread were a lame attempt at sarcasm. I think this confirms it.
I’ll have to read Ramsay Macmullen’s book. I love taunting god-botherers who knock on my door (the bastards even turn up down my dirt road from time to time) and this book might give me fresh ammo. Ye-Hah!!!
I hate to flaunt my privileges as the Ozblogistan tyrant, but the moderation queue on this story is hilarious.
That is a really, really bad example of this style of architecture. And this style of architecture is a really bad idea to house any dignified institution especially the parliament house, especially of Scotland.
You could probably get elected just for promising to blow it up.
It is a doctrine of history, there are others. Republicans have to spout. I didn’t know Thatcher had warned Reagan about it. But it doesn’t matter, the religious right have been pushing their barrow since forever. It took ages to get In God We Trust on the money. But they did it. And the GOP’s stuck with it. And so are the Democrats.
I’d always taken that for granted. I think the Dionysian, anti-rational, ‘smelly’, sixties had something to do with it too.
I sincerely hope so. Seems like a very modest aspiration for any human being.
Yeah, Jacques, I trashed a bunch of comments. Quite happy to enter into rational & serious argument – not happy to be trolled. Our house, our rules.
It appears I missed all the moderation fun. Oh well, back to the joys of tax law…
Great post, SL. I have nothing to add or subtract.
Hey Jacques, if you’re still reading – thanks for reinstating the comment box tags.
You’re quite welcome.
Hey Jacques, an annual “Best of the Moderation Filter” would be fun.
A whole heap of the comments have landed in the spammer (which I have declined to empty). I’m unwilling to deprive Jacques of his daily dose of shits and giggles.
It’s more that I get emails for comments in moderation. If my computer at home is awake, it applies a filter to disappear them for me (I get all the mod emails for the whole of Ozblogistan).
But when my home computer is asleep, when I check my email through webmail I can see moderation comments. And given the subject I just had to have a read.
Gee, Jacques, you are a glutton for punishment. I read that 95% of the unfiltered traffic on the net is spam.
A@16
The “good” 60s did. (Remembering there were the good 60s — wouldn’t it be nice if everyone was nice — and the bad 60s — we can do the revolution right this time.)
Found the historical stuff interesting and wonder if there is not a historical parallel unfolding in the current heart of empire, the USA.
Should the harsh antediluvian right succeed in wresting power from the secular state, will reactionary modernism assume the same form as with ancient Rome, with its hatred of tolerance, philosophy, reason, science and logic?
Why should it not be a possibility, given the history of the twentieth century?
PW, I do hope that logic, tolerance and humanism will win out in the US.
Have you read Steven Pinker’s most recent book, The Better Angels of Our Nature? It’s very interesting – his thesis is that violence is declining, even despite WWI and WWII. I’m only about three quarters of the way through, but it is food for thought.
Will look it up. Is he including places out of the way like the Congo and Uganda, five or six million killed over recent times) or Horn of Africa?
I don’t doubt you’re right as to the West, but then, the West is only a small part of the world.
PW@28 I’m still trying to figure out just what it was that the current POTUS did to earn his Nobel prize? But I think you can relax because I can’t see the present opposing array of headless chooks being in any position to challenge – hence we are headed for another few years in the wilderness.
The continuing relevance the US has to world affairs is that it owes more than half the world’s debts, supported by the simple reality that it owns more than half the world’s weapons. “In God we trust” as they say; so maybe just lie back and enjoy.
PW, yes he is including all countries (not just the West). Of course Europe since WWII is a remarkable success story – no inter-country wars at all. The only wars have been civil wars in the wake of the collapse of communism (see eg, former Yugoslavia).
In any case, Pinker looks not just at the numbers (in which case, the modern world, with a higher population would naturally have more deaths), but also as proportion of deaths per capita of the population. Suffice to say that at some periods in human history, the death toll from warfare has been atrocious, and there hasn’t been the same concern about mercy or avoiding killing civilians as we have in the West in this present day. Think, for example, of the Romans taking Carthage or Gaul, of Gengis Khan, Attila the Hun, or of the various religious crusades.
Through this book, I have discovered that there is a school of scholars called “atrocitologists” who attempt to put a figure on the victims from historical wars. Broadly, his thesis is that democracy and trade vastly lessen the chance of a government going to war. Democracy lessens the chance of war because it’s not just one person making the choice as to whether to go to war (cf monarchy or other autocracies). Democratic leaders are answerable to the electorate and cannot simply decide to act with force. In addition, if you want to trade successfully, it pays to get along with other people rather than to kill them. Dead people can’t buy your product.
KVD @ 31: Apparently a talk Obama gave on nuclear disarmament prior to becoming POTUS was instrumental in the award of the Nobel Prize. I understand that he suggested that all countries (including the US) should agree to ditch nuclear weapons as a matter of principle.
I recommend Pinker’s book.
His weakest point – which reviewers who don’t like his thesis have seized – on is that Hitler was an aberration. Though he does say that aberrations can popup anytime.
Overall, I found the book persuasive and even if you don’t agree with it, there is plenty of good stuff to chew on.
Since this story is based in Scotland, it is time to break out the No True Scotsman.
Which is to say that no-one who has actually thought about the issues thinks that Same Sex Marriage is a good idea.
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Yes they do, parallel. They just consider the ‘marriage’ part to be more important than the ‘same sex’ issue.
Parallel, you can’t just assert, “no one who has actually thought about the issues thinks that Same Sex Marriage is a good idea.” You have to point to reasoned bases for holding that opinion. It happens that I differ from you in my opinion, having thought about the issue deeply, but I am happy to engage in reasoned argument.
Good approach, LE, but on the other hand, parallel might just be a stupid Celtic who needs his Rangers head ripped off
Getting back to our Scottish fish n chippie shop…
LE,
You’re right – my post was slightly naughty. I’m more than happy to engage in debate.
I’d start by asking two related questions:
1) What is marriage?
2) Why is it socially important?
Now anyone who has thought deeply about these matters will be able to answer, but I’ll put my answer to the second one out there first.
The social purpose of marriage is to produce children without burdening society as a whole. It is a mechanism by which a woman can have children in relative safety with the reasonable expectation that they will be looked after.
The reason marriage has such status is that the production of the next generation is absolutely critical; no society which fails to do this survives. And by the way, it is not clear to me that our society can survive.
So marriage is not a right that should be equalised, and same sex marriage is an attempt to redefine it for basically selfish reasons which operate to the detriment of society.
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There are likely just as many homophones among Celtic supporters as there are among Rangers supporters, at a guess.
Indeed, there is some evidence that homophobes among Celtic and Rangers supporters are happy to have a group hug at Ibrox when agreeing about their anti-gay marriage position, but not, of course, for any other reason…
Well the Romans would have disagreed with your former assumption – to them marriage was about the relationship between the two participants and their choice to share a life together, in more tribal societies it’s actually the families who are commencing the relationship rather than the individuals concerned. The fact that double parenting is probably the ideal way to raise children and the eventual benefit of these to wider society (including the ability to organise the ‘family’ as an independent and cost effective economic unit) is a combination of happy coincidence and biological imperative. All those individuals who accidentally benefit wider society whilst pursuing enlightened self-interest as I think Adam Smith put it.
The Roman assumptions about marriage were based on being a highly evolved, mainly urban civilisation very like our own. Marriage may well be about the ability of women to ‘safely’ raise children particularly in tribal or agricultural communities which is probably why this often includes support for forms of marriage that include polygamy, which is not something western society validates as a general rule.
If you’re talking about the ‘security’ that allows for efficient division of labour with one partner as ‘stay-at-home’ parent of a child then that has absolutely nothing to do with sexual identity. Infertile hetero couples adopt or ‘borrow’ surrogates if they want children they can’t have, or are their marriages somehow invalidated by the inability to produce offspring?
The most common form of marriage you refer to – one man, one woman – has I think not been shown to be anymore beneficial for children than any double-handed, biologically related couple whether that be a same-sex couple of uncles who’ve adopted a ‘spare’ from an over-fertile sister, or even a mother/grandmother double-team when male relatives are unavailable or unwilling.
I can’t really see how enabling more stable, committed relationships – many of whom either want children of their own or at least to be involved in the raising of those within their wider family – would be considered of detriment to society.
parallel@40 you are attempting to set ground rules for your debating stance with which I don’t actually agree.
1) You wish to impose a restrictive legal definition over was is really just a biological function. I’d only accept that if it was biologically impossiblle to produce offspring outside of that which you define as marriage.
2) You seek to define marriage as existing for one primary (solitary?) purpose. This denies reality.
Also,
3) you need to identify the harm to society caused by recognising ssm, and
4) you need to identify the benefit to society by proscribing ssm.
And what’s with this “thought deeply” and “actually thought about the issues” stuff? Are you trying to add weight to what is simply your personal opinion?
Parallel, I agree with DEM and kvd. We’re starting from entirely different points. I don’t see marriage as necessarily being associated with procreation or protection of children. And if protection of children is what you want, or maximal number of children, as DEM says, then are you an advocate of polygyny, which is very common in tribal societies?
No, SL, Rangers supporters are evil and Celtics supporters are good, and that’s all there is to it.
p@40
Simply false. Marriage exists so people can build a life together. It is that which makes it a suitable vehicle for raising children, not the other way around. Marriage vows are about commitment to each other, not a promise to procreate.
Anthropologists searched for what was a common feature of marriage across all human cultures. They could only find one: it creates in-laws. That is, it connects and extends kin networks. Part of the benefit of marriage is wider networks of support. This is obviously also potentially useful for children, but is potentially useful regardless of whether the marriage is childless.
Patrick - The social purpose of marriage is to produce children without burdening society as a whole. It is a mechanism by which a woman can have children in relative safety with the reasonable expectation that they will be looked after.
I remember a news report on a push to legalize divorce in in Ireland (1980s). There was a woman leading the social opposition to this reform who remarked that a woman voting for divorce was like a turkey voting for Christmas. Given the phenomenon of the struggling single mother, one could argue this. And given the explosion of family law and litigation since the general liberalization of divorce laws, given also the number of children who are heavily supervised, disciplined or taken into custody by the State one would have some trouble dismissing your point. (You know there’s a ‘but’ coming, right?)
The reason marriage has such status is that the production of the next generation is absolutely critical; no society which fails to do this survives. And by the way, it is not clear to me that our society can survive.
No it is frequently a cause of anxiety for conservatives when traditional social institutions are altered or abandoned. That is natural. Memoirs from those who were young in the early days of the Chinese Communist Revolution remember their parents’ anxiety about their children choosing a mate rather than having unions arranged by those older and wiser. This truly progressive innovation did not scrap the Chinese family however, neither did the barbarity of the Cultural Revolution. And if that didn’t perhaps nothing can.
So marriage is not a right that should be equalised, and same sex marriage is an attempt to redefine it for basically selfish reasons which operate to the detriment of society.
But you fail to demonstrate that recognizing same sex marriage will actually lead to the detriment of society? Just because same-sex couples can marry will not prevent men and women from continuing to get married. In fact, perhaps it will invest the tradition with new life. Far more threatening to ‘marriage’ is the notion that it is either prison or something casual; the ball and chain or a meaningless piece of paper. By fighting to enter into it homosexuals might be one cause for its revival as a tradition.
Anthropologists searched for what was a common feature of marriage across all human cultures. They could only find one: it creates in-laws.
That’s it! Enough of this moral relativism. That’s clear evidence that marriage is an evil that much be abolished at all costs.
The Stevenson and Wolfers paper ‘Bargaining in the Shadow of the Law’ demonstrated another effect of unilateral, no fault divorce laws: spousal murder, male on female domestic violence and female suicide rates drop, sometimes through the floor.
Now, to a classical liberal, the state is in the business of preventing force, theft and fraud. Parents are in the business of raising children. Now as classical liberals go, I’m quite unusual in that I’m willing to back incentive based laws that facilitate parenting: French-style income splitting and childcare support and Roman-style payments to families with three children. But I’m not willing to back laws that make non-parents’ lives more difficult, or which undermine the core business of preventing force, theft and fraud.
Adrien @ 47 – ‘s not Patrick, ‘s Parallel.
Adrien @ 47 – ‘s not Patrick, ‘s Parallel.
Indeed. Apologies. I should be wearing glasses.
Hah. I finally had to admit I needed glasses permanently about two years ago. I was getting headaches all the time, and when I was lecturing, I was finding it hard with taking my reading glasses off and on again (<— long sighted)
A@47
Women are significantly more likely to file for divorce than men. Depriving the socially weaker group of the right to exit does not empower them. Any student of the economics of human bondage can tell you that.
deus@42,
I don’t know enough about Roman marriage to discuss this, but I suggest that unless you plan to introduce other Roman institutions (eg. slavery) and practices to ensure children (eg. the rape of the Sabine women) you may want to find another model to emulate.
kvd@43,
If you don’t like the ground rules, then don’t play. I am asserting that no-one who has thought about the issues thinks that Same Sex Marriage is a good idea. It doesn’t seem unreasonable that such a person, if they existed, could explain what they think Marriage is and what social purpose it serves.
LE@44,
Yes, we are starting from different positions. This is one reason to establish common ground and discuss what we each mean by marriage. Perhaps I should say here that my argument is not particularly sensitive to the exact definition, but it is important that I know what you mean by the term.
Lorenzo@46,
“Building a life together” is a personal issue, and I don’t see why society has any interest in it. Similarly in-laws. But I think you should start by writing what you think marriage is and we can work from there.
Adrien@47,
You raise an interesting point about divorce which I’d like to discuss, but it will have to be later.
As to what I have to show, I phrased my challenge as a black swan assertion. So until you find your candidate black swan – someone who has thought about these issues and concludes that SSM is a good idea – I don’t have to do anything.
Except to point out that, so far, no-one has written what they think marriage actually is.
Perhaps I should add here that I don’t intend to argue the fine points of definitions. If anyone steps up to the plate, I would intend to accept their meaning and explore the consequences thereof unless it is absurd.
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My idea of marriage is this:
Marriage is a contract between two parties whereby they promise to love and support one another.
One aspect of marriage is that the parties to it promise to care for each other; another is that they promise to jointly raise and care for any children of whom they may have guardianship. I don’t see the gender of the parties as important. Nor do I see it as important whether the children are genetically related to the married parties (while often children are genetically related to both parties to a marriage, there are also situations where children are adopted, fostered, the product of donor gametes or only genetically related to one party).
Now, as a lawyer, I’m aware that this is not the present definition of marriage under our law. Marriage is seen as a state sanctioned institution between a man and a woman (I remember that spiel from the Marriage Act during my own wedding ceremony). However, the idea of marriage as a contract is common in many religious societies (see for example, the ketubah in Jewish marriage). Of course, marriage-as-contract sounds like a radical proposal in a society with Christian history, and indeed, it was the Christian church which made marriage a state sanctioned arrangement rather than a private contractual arrangement. But as a contract lawyer, when I first saw a ketubah, it seemed like such a sensible way to arrange one’s affairs. I have since discovered that many other societies had a notion of marriage-as-contract.
I would also note that the idea of marriage as state sponsored relationship and non-marriage as non-state sponsored is breaking down under our widespread recognition of de facto relationships. An example of this can be seen in my post here, where the court effectively recognises the status of a concubine as well as a wife during a divorce…which gets us into interesting territory…back to those Romans again.
Don’t just write the Romans off, either. While they were admittedly a very cruel and violent society, their law was extremely well developed in many aspects. As you can see I think their laws were and are fascinating, and their solutions to persistent legal problems are food for present day thought.
I think this piece of patronising twaddle needs calling out. I’m currently involved in the drafting of proposed ssm legislation here in Scotland. My tutor in jurisprudence at Oxford was John Finnis, whose views were strongly opposed to mine on this issue but who was happy to acknowledge that I’d ‘thought about it’ (along with a range of other issues on which he disagreed).
There are a range of other comments I could make as well with respect to the people who write for and comment on this blog, but I’ll leave LE, Lorenzo and DEM to make their own comments (or none, if they prefer).
To wit: make a baseless and patronising assertion of that type again and I’ll wield the banhammer with speed.
Parallel – I don’t have to do anything.
No-one says you do.
As to what I have to show, I phrased my challenge as a black swan assertion. So until you find your candidate black swan – someone who has thought about these issues and concludes that SSM is a good idea
I’m not sure what falsification has to do with this. In fact it seems to me that you’re the one with the black swan problem. Why, because about 1 in 20 people are attracted to members of the same sex. They fall in love, live and die, just like heterosexual people. Swans are neither all white nor all straight.
Except to point out that, so far, no-one has written what they think marriage actually is.
Not true:
Marriage is a cultural institution, made by humans. It has varied over time without any associated collapse of the family. This is a fact that your reply makes no attempt to address at all. Your profession of ignorance viz this variation does not change this fact. Neither does your citation of nefarious attributes of Roman society. You have to show that same sex marriage necessitates the presence of slavery. Unless naturally you want to present Roman culture as an all-of-a-piece monolith then I would suggest you proceed to explain why we should also get rid of other not so backward Roman innovations like reliable engineering, urban sanitation and rational systems of justice.
Oh yeah, write off Roman law and you’re writing off the basis of all Western European legal systems save England and Ireland along with that of Japan, just as writing off the common law involves pretending that England, the US and India don’t matter.
Write off both systems (English and civilian) and suddenly Scotland — a mixed Roman and common law system — ceases to matter. And the Scottish Enlightenment had its origins in part in Scotland’s distinctive blending of the different systems.
To give you an idea of the importance of the English and the Romans: no other civilisation (not the glory that was Greece, or ancient Judaea, or medieval China) came up with the presumption of innocence. To the extent that Judaism acquired it after the first century BC, it did so under Roman influence. Islamic sharia also got its (much weakened) presumption from the Romans.
The English developed it by themselves. Clever, those English.
If there is one profession where ‘knowing where you come from’ is really important, law is it. Do not write off legal systems because they once sanctioned slavery, either — both the English and the Romans did it, and build up a mass of laws around it. The modern law of tort has its ultimate origins in the Roman Lex Aquilia (3rd century BC, concerning tortious injury to both human and non-human property), just as the central common law property doctrine of ‘quiet enjoyment’ has its origins in a slaveholding case from the British West Indies.
Lorenzo/Skeptic-
I was actually angry when I heard that Irish woman say the business about the Turkeys and received stern looks for loudly yelling ‘Bullshit!’ at the TV. I was then living with both my parents who would’ve made everyone happier by breaking up which they eventually did. I’m not advocating the scrapping of no fault divorce. As far as I’m concerned if one person wants out no-one should be able to stop them.
But conservatives have their point and I know too many people who’s father abandoned them for utterly selfish reasons to deny it. One could simply retort that everyone is better off without such a narcissist in their intimate circle and that the regret likely to be the late-in-life remuneration on such treachery will probably be instructive to future generations.
One could also see that often women get on fine with raising their kids after a divorce without men (I suspect this is an unspoken reason behind the re-assertion of restricting divorce). Moreover many people break up as lovers but continue to be good parents. Still the wife-traitor phenomenon is a feature of the times and is undoubtedly a consequence of no-fault divorce. The question is whether the benefits outweigh the costs…
Says it all really, doesn’t it?
P@54
The short answer is transaction costs. The main reason the Latin Church got into marriage law was because the landholding class wanted standard rules about who counted as married, who counted as legitimate, and how inheritance and other property claims arising out of marriage worked. A standard contract saves ever so much bother. Including things like hospital visitation rights, medical and other decision rights, etc.
Anyone can dream up a definition, the question is whether it actually fits all the things that humans have counted as marriage. Those who start with a definition end up playing the “no true Scotsman” game; of dismissing things which were clearly anthropologically marriages as not “proper” marriages.
Nor does a definition solve much. A polygamous marriage is clearly a marriage, but that does not make legalising polygamy a good idea.
We can tell procreation does not define marriage as we do not require proof of procreative capacity to form marriages. A post-menopausal woman, or sterile man, is entirely free to marry.
Humans form couples, some of which raise children (including some same-sex couples). Having a standard contract simplifies people’s lives in a way which is a social good in itself. That it creates an institution well-formed for raising children is a very large social bonus, but not the defining feature.
Also, the “only thoughtless/ignorant/stupid people support X” line is usually evidence of not having thought about the issues except in a very rigid and dogmatic way.
Plenty of gay couples including two prominent federal politicians, Penny Wong and Bob Brown, already live in de facto relationships with the former also having a child. Legal recognition of gay marriage is on its way in western liberal democracies and panty wetters like Parallel will just have to suck it up.
ps. I sent a politely worded email to MTR to ask for her views on same sex marriage and same sex adoption one week ago. Not surprisingly, she hasn’t responded- sneaky sneaky catchy monkey rarely works on rats
Helen,
Your blog – your rules.
But as an occasional visitor and rare commenter, I am finding the rules a bit hard to parse out. It seems that writing that a commenter needs to have their head ripped off (kvd@38) or calling them a panty wetter (Mel, above) is fine, but suggesting that others have not thought their position through is a banning offense. Perhaps you could help me out here?
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LE@55,
If marriage is simply a contract, there is nothing to stop a same sex couple (or three, or more) writing and signing a contract with the same content. Since no-one is actually suggesting this, it would seem that marriage is a lot more than that.
I also wonder how one enforces a contract to “love” someone else.
However, you might rephrase this as “an agreement with many unwritten personal and social expectations which has special status in our culture”, and we could explore further.
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Adrien@57,
Both kvd@43 and yourself@47 suggested I needed to prove harm from SSM. This is not correct, since the assertion which I am censored from repeating did not claim this.
This does not say what marriage is. It makes a false claim of its purpose (two people can build a life together without marriage). It also describes marriage vows – which are not a commitment since no-fault divorce was introduced.
I do not understand why you bring up the Romans (yet again). Is it to make the trivial point that marriage customs have changed over the last 2000 years (along with many other customs)? I’ll stipulate that. Are you claiming the Roman model is one to which we should aspire? I refute this. Is this relevant to my original assertion which I am censored from repeating here? I don’t think so.
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parallel@62 quoting me as writing that a commenter needs to have their head ripped off (kvd@38) without noting that my suggestion started with ‘might’, ended with a smiley, and was a riff on a very recent post, is about as dishonest as me now saying you said no-one who has actually thought about the issues thinks that Same Sex Marriage is a good idea but leaving out your context in 35.
More important was your last para@40:
Instead of providing any reasons for this opinion, you then cutely demanded that everyone provide you with definitions while at the same time saying@54 I should add here that I don’t intend to argue the fine points of definitions. I think that is just high school stuff, so I took your advice@54: “If you don’t like the ground rules, then don’t play” and did not respond.
parallel, if you ever do address your last para@40 I will read with interest.
Both kvd@43 and yourself@47 suggested I needed to prove harm from SSM.
Yes if you want to make a go of an argument that is here respected
This does not say what marriage is. It makes a false claim of its purpose
Why is it false?
(two people can build a life together without marriage).
Two people can also reproduce without getting married.
It also describes marriage vows – which are not a commitment since no-fault divorce was introduced.
What value in a vow that requires a law to enforce it?
This is not correct, since the assertion which I am censored from repeating did not claim this
You are being asked to respect the positions of others as bearing the consideration they do. Instead you accuse everyone of having not thought about it. They have. They’ made arguments and you have not addressed their central claims…
I do not understand why you bring up the Romans (yet again).
…in fact you are not even acknowledging them.
Is it to make the trivial point that marriage customs have changed over the last 2000 years (along with many other customs)?
Indeed and the point is not trivial, it is deadly to your position which asserts the collapse of the family in the event of same-sex marriage. As Romans managed to recognize same-sex marriage and persist in their civilization for centuries thereafter, they provide evidence that your position is not substantiated. If you refuse to retort there is no rebuttal.
Are you claiming the Roman model is one to which we should aspire?
No. Please see the boldened bit above.
I refute this.
No, you don’t. You merely don’t like it. Refutation requires a series of reasoned statements addressing competing reasoned statements to which one is opposed..
Is this relevant to my original assertion
Yes. Please see the boldened bit above.
which I am censored from repeating here?
You are prohibited from being condescending not stating your position. Learn to read.
I don’t think so.
Yes. And in the spirit of another post here I think I may perform a little editing on this statement which thus far seems to summon your discourse entire.
I don’t think! So?
parallel@64 my suggestion that you’d need to ‘prove harm’ as you put it was specifically directed to your last para@40 – which I repeat, in case it gets lost in more obfuscation:
Have added bolding, just to make it more plain. Anyway, whatever…
Lorenzo@60,
Formalizing rules about inheritance and property would indicate that “building a life together” is not the purpose of marriage, at least at the time the Church got involved. It’s about keeping property in the family, by which is meant the genetic descendants (preferably male) of the property owner.
I stipulate that that part of its function has changed since then.
I never wanted to get bogged down by definitions, particularly on a blog written by two lawyers… not that there’s anything wrong with that! I just wanted to get a sense of what SSM advocates thought they were advocating. So far, it appears they don’t really know.
I do not understand your comment about polygamous marriages. What’s wrong with them?
Procreation may not define marriage, but it is the only reason the state has any interest in it, and at this stage of civilization that interest is compelling. The coming demographic collapse in Europe is not going to be pretty. Greece’s problem is as much demographic as financial: apparently 100 grandparents have only 42 grandchildren between them. It isn’t conservatives that are anxious, it is mathematicians!
On non-productive OSM: yeah, well. What can we do given they already exist and have since marriage was invented. What is new are “married” couples who are childless by choice. I call these freeloaders, and that attitude is not to be encouraged these days.
I would guess that most SS couples would end up as freeloaders. Those who produce children – more power to them! I’d certainly consider them married.
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Parallel, there are strict rules on how one may contract in our jurisdiction. One may not make contracts which are unconscionable, if one contracts with one person and then breaches that contract to contract more profitably with another, one’s profit may be stripped, etc.
So: I concede that the issue of multiple contracts could be an issue, and that the courts would need to police such contracts. I would argue that a marriage contract is a special kind of contract which would only be enforceable if it was made with one other person alone. If someone went to a court of law to try to get a second marriage contract enforced, the court would refuse to enforce it.
A more difficult issue is the matter of time limited contracts. For example, what of a contract to be married for seven years? Should courts enforce a time-limited marriage contract, if the parties want to enter into it knowingly, with full legal advice?
That’s the thing – in my model, the state doesn’t *totally* step out of it – in order for the contract to have “teeth”, the courts must enforce it. Perhaps one would need to have a registry of relationships (a bit like the Torrens land system). There would also be a number of standard form contracts on offer – each of the major religions could have one for their adherents, and there could be a variety of civil contracts. Perhaps courts could also deal with issues where there had been contracts entered into with some form of undue influence or the like – they are already accustomed to doing so with other contracts.
You’re also right that marriage is not necessarily about love. In fact it is about economic and emotional support more than love. Romantic love in our present sense is a very modern concept – prior to this marriages were very hard-headed economic transactions. [Edited to add - but my marriage was about love...awww!]
Parallel: see, I don’t think marriage should hinge around procreation of children. I’m going to give a few difficult examples.
Eg 1: A friend had recurrent cancer from her teenage years. The radiotherapy rendered her infertile. One of her close relatives donated two eggs, which were fertilized via IVF with my friend’s husband’s sperm. My friend bore the children, and to all intents and purposes they are hers. How does that fit into your scheme? Does it matter that genetically, the children are not hers? Is she any less married to her doting husband (who treasures every day he has with her)?
Eg 2: another heterosexual couple I know who could not have children and who adopted two children. Again, the children are not theirs genetically, but there is no doubt that they are validly married, and that the children are theirs.
Eg 3: A heterosexual couple who are fertile and choose to marry, but who choose not to have children (let’s say that they both get sterilized voluntarily). Is that still a valid marriage?
Eg 4: A homosexual couple I know have adopted a child. The child was in fact the offspring of one of the men’s brother. The brother and his partner could not care for the child because of drug addiction and mental illness, and the state was going to take the child off the brother and partner, and put the child in state care. Instead, my friends took him in and care for him. He has flourished under their care, and is a very lucky, loved child.
Why does gender come into it? Why are any of these people more or less committed because of difficulties having children, or because they choose not to have children? Why should it hinge around children? (These are genuine questions).
Parallel, you’ve written over one thousand words on this thread on the SSM topic without providing so much as a single shred of evidence for any of your claims, none of which are either interesting or original . If you want respect, say something intelligent and provide evidence.
Comments like these, for example, are simply boring and meaningless:
” Which is to say that no-one who has actually thought about the issues thinks that Same Sex Marriage is a good idea.”
” And by the way, it is not clear to me that our society can survive.”
” … I don’t have to do anything.”
Come on sapper, surprise us all with at least a glimmer of insight and original thought.
Parallel – I’m not certain why you’re stipulating so much. We are not negotiating a contract or making any kind of agreement. Quite the contrary.
kvd@65:
I was not aware of the joke, since I seldom visit here, but in any case I was not offended. Nor was my assertion which I may not repeat intended to offend; it was intended to be provocative. Perhaps I over-did it.
However, the point I am trying to make is entirely serious, if poorly phrased. The social engineers who advocate SSM have no idea what they are doing and what they may damage by doing it. Simple questions such as What is marriage? What is its social purpose? go unanswered. So it becomes impossible to determine what the effect of such changes may be. My I refer you to the paradox of Chesterton’s Gate:
http://minx.cc/?post=320257
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Marriage means different things to different people. There is not a one size fits all definition. This is why its important for the legal definition of marriage to be as open and as flexible as possible, so that any socially or culturally recognised marriages can also be legally recognised.
Just as its meaning will vary, so too with views on its purpose. There is a clear social justification to allow same sex marriage that include both legal rights (inheritance, next of kin, etc) as well as social and psychological value to same sex couples to have their relationships recognised as equal to others under the label of ‘marriage’.
What there is not is a social purpose to exclude same sex couples from marriage. There is no benefit to society from enforcing onto society a cultural relic that has decayed through the continual social liberalisation of society and all but legally superseded by defacto relationships (or civil unions).
Oh please, explain the damage that allowing same sex marriage will do to society.
Parallel, as for your “Chesterton’s Gate”:
The “gate” in this case is the prevention of same sex marriage. We are not removing the institution of marriage, rather we are extending it. The purpose of the gender restriction of marriage was enforcing the homophobic views of the Church on all of society. We no longer accept homophobia as a reasonable basis for laws in our society. Therefore we can say the gender limits on marriage, that is the “gate”, has an unreasonable basis and we have a reasonable basis to remove it.
The definition and purpose of marriage it self does not come into analysing the situation through your paradox, as allowing same sex marriage does nothing to remove marriage.
However, even if we were to accept your premise that the purpose of marriage was originally to encourage the production of the next generation, that reason is no longer applicable and therefore it is still reasonable to change the definition of marriage to suit a different purpose (or indeed abolish it all together).
And that’s not to mention that if we did not stop doing things if we could not come up with a reason to do them, we would stuck be doing an awful lot of pointless shit.
parallel@73 I understand the lesson in Chesterton’s gate or fence very well, and in fact I apply it constantly with my staff, most particularly with new staff, who always seem to think they know a better/quicker way. But you seem to hold some dark belief that all or any change will lead to ruination. It is that ‘dark belief’ I think you need to address, specify, make more plain.
Your “The social engineers who advocate SSM have no idea what they are doing and what they may damage by doing it.” needs some sort of logical support, rather than simple bald statement. LE said this much better way back @37.
Adrien@66:
Indeed they can. But the social purpose of marriage is to encourage reproduction. It is not to encourage people to build a life together, since society as a whole has no compelling interest in that. That is only a personal goal.
Indeed – so same sex couple can vow all they like and the law need not change.
I would quibble with the word accuse - but no matter. I have asked two fairly basic questions. Thus far (I have not looked at later responses) there aren’t any real answers. What other claims need I respond to? If you could list the ones you think I missed, I could try to get around to them.
1) I never claimed the family would collapse.
2) The Roman example is not relevant unless we duplicate other features of Roman civilization… such as getting rid of cheap and reliable contraception.
3) Please grant me the assumption of good faith. I have half a dozen interlocutors here, and I felt your Roman example was vacuous. Yes I could go into chapter and verse as to why it is so, and I could take hours to research what Roman marriage was like (I have little idea of their marriage customs) – but to what purpose? You have the luxury of talking to 1/6 of a person; it behoves you to lay out your argument in detail. This is what Roman marriage was like; this is how it affected their society; this is why I think the situation is analogous to ours. If you do so I will consider if there is anything to answer, but I hope you actually write a response to my real position and not something you made up.
Refute: You are correct, I meant deny.
That was my claim. You haven’t thought about it.
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kvd@67:
Good point. I had not wanted to go to this level of detail before we had some agreement on what marriage was, but since I mentioned it I will go into some more detail.
This is my belief:
So there are three statements of opinion here:
1) Marriage is not a right and need not be ‘equalized’.
2) SSM is an attempt at redefinition for basically selfish reasons.
3) It will operate to the detriment of society.
Now you require “proof of harm”, so we are talking about point 3. My reasoning is as follows: the social purpose of marriage is to encourage the production of children, and the married state which includes expectations of having children and raising them in a family has a special social status as a result. Redefining marriage simply as “two people living together”, which is the justification for SSM, lowers the status of child-producing families relative to other social arrangements. Given that producing and raising children is a particular burden already, lowering its status will reduce the number of children, which is already too low.
Now obviously this does not rise to the level of proof. But it seems to me that the shoe is on the other foot; those who propose the change should prove that it will not cause harm. Is there any such proof, or even reasoned argument of the level of detail I have provided here?
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Parallel, what of my examples in 70? Would you criticise the heterosexual couple who chose to be sterilized, but not my homosexual friends who chose to adopt? Actually I know many homosexual couples who have chosen to have children or adopt them; presumably you would not have a problem with them marrying? Many of my friends in same sex relationships wish to raise children – obviously there are some impediments to this, but given that they do actually want to formalise their relationship for this purpose, why should there be impediments? For example, my friends who have adopted the little boy have the difficulty that only one of them can be listed as the father, whereas in actuality they are both responsible for their son’s upbringing.
Parallel:
“Given that producing and raising children is a particular burden already, lowering its status will reduce the number of children, which is already too low.”
Lame argument. Various countries *without* SSM already reproduce well below the replacement rate, as you’ve already acknowledged. This is to do with wealth more than anything else. The shortfall can easily be made up from immigration from the many countries that reproduce above the replacement rate, which is something wealthy countries like Australia have been doing for some time.
There is no evidence to suggest SSM will reduce reproductive rates.
The other thing is this: another purpose of marriage is a public recognition of one’s commitment to another in front of family and friends. One of my lesbian friends is so sad every time she goes to a wedding these days; she would love to have a binding ceremony here in Australia, but it just isn’t possible.
LE@79 in parallel’s defense, I think each post is being dealt with sequentially. Which is to say “stay tuned” for response to your own comments.
Ah good observation, KVD. I shall stay tuned.
LE@69:
Whew! Got here at last!
The more I think of the concept of marriage as a contract, the stranger it gets. It is an agreement between two people, true… but what are the legal obligations this agreement requires? Apart from aspects such as division of property if the marriage ends, I can’t think of any.
Further, the agreement encompasses many people who are not a party to it, specifically any children. It also affects the government where a number of laws affect ‘married’ people.
So what is there to enforce? Family law is a very weird branch of the law with many counter-intuitive, not to say unjust, outcomes and norms.
So I would say that marriage, far from being a legal contract, is actually an agreement almost totally supported by social norms and expectations. One is not legally required to be faithful, but it is expected. One is not required to be a good parent and read bed-time stories, but it is expected (at least in some social classes).
I haven’t given it a huge amount of thought, but if re-defining marriage to encompass SSM also changes these expectations, it might be said to damage marriage itself.
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LE@70:
I see I’m falling behind a bit. Please bear with me.
I don’t have a model, and human problems such as the ones you list generally don’t have simple solutions. The first two are simple, of course: the answer is yes in both cases.
The third case I might consider a mis-use of marriage, to be condemned if not prohibited unless there are reasons (such as poor genetics) for voluntary sterilisation.
The fourth case, of adoption by an uncle in a SS relationship, is not problematic. Does it mean the SS couple is married? I would certainly consider the three of them a family, so I guess so.
To give some examples of my own:
My sister in law fostered a child from the age of 18 months to 5 years. She was the dearest little thing, who among other things was a cancer survivor. My SiL wanted to adopt her, and I certainly considered her a member of my extended family although she was of Chinese extraction. Then the birth mother asked for her back.
Another case: I was invited by a lesbian couple I knew to be a sperm donor. I thought about this very carefully, but in the end I declined because I would know the child and would feel some parental responsibilities, which given that my wife and I were planning children, would have been… difficult. Probably I would have given a different answer if I had been asked after my own children were grown. I certainly had no moral objection.
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Mel@71,
If you actually want a conversation, why don’t you find some of the claims that I have made that you want to dispute and list them in order of importance. Of course, this will constitute a counter-claim on your part and evidence will be required at some point.
Your own contributions to this point do not engender a great respect in me.
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Adrien@72,
Egad! You’re right. ‘Stipulate’ doesn’t mean what I believed it did.
What word should I have used for something that I thought we could agree on without discussion?
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Desipis@74,
Okay, what does marriage mean to you? What do you think marriage is? What do you think is its social purpose (if any)?
If you want to change what it means, you should at least demonstrate you know what it means now.
But you are the first person (I think) to raise the interesting concept of recognition. I’d like you to explain how you feel this is part of marriage. If there was some mechanism (civil union, etc.) which addressed next of kin issues, etc. but was not considered the social equivalent of marriage, would that satisfy you?
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Desipis@75,
No, the gate in this case is the social arrangement of marriage, which currently does not include same-sex relationships (or those between adults and children, those with other than two partners, etc.)
Many think this should be modified in various ways.
Chesterton would say that before you change it, you have to understand it. (actually he would probably so NO!!! but that’s because he was Catholic)
So my questions: What is marriage? What is its social purpose? are obvious questions that the social engineers ought to answer before they get out their hacksaws.
In my experience, people who want to change it don’t actually have sensible answers to either of these. I don’t feel any answer offered in this thread are at all satisfactory. I have asked a sufficiently large number of intelligent people (and well-meaning, of course) that I felt justified in putting forward the hypothesis (parallel@35) which I am not allowed to repeat.
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The hysterical nervous nellie types who are worried that humanity will stop breeding if gay marriage is allowed (even though we already know it doesn’t from the Roman etc experience mentioned earlier) might care to look at this population clock.
The most moral choice one can make is avoid giving in to the narcissistic desire to procreate.
kvd@76,
Chesterton’s gate puts the onus on the person who wants to remove it to explain what it does. It does not require those who are not sure it’s a good idea to prove that it isn’t.
If the social engineers had any idea what they were doing, they would be able to answer the Two Questions. So far they have failed. I believe that reasonable answers to those are essential before one can claim to have understood the issues.
Now these are not trick questions, and in fact reasonable answers exist (in my opinion). Unfortunately, those answers tend to show that Same Sex Marriage on the ‘equality’ model is a bad idea.
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LE@79,
Sorry, what time zone are you in? It’s after midnight here, and I think the timestamp on the comments is from Western Australia.
I responded above, but to quickly repeat in case I was unclear: the children in the first two cases belong to the infertile mother and the adoptive parents respectively. So the genetic parent is not the determining factor in all cases but it is important in most cases.
The deliberately childless couple are free-loaders. I might (and have) censured such people. You might have noticed that my social skills are somewhat… oddly developed.
The adoptive same sex couple I would consider married (if they do). More to the point, I consider them plus the child to be a family.
{Oh, dear! I dropped a clue. Hope no-one notices.}
I might add here that I am enjoying this discussion.
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parallel@78,
I agree entirely. I couldn’t have said it better myself.
Hang on, I did say it myself.
It’s getting late, I’ll try and get to the rest tomorrow.
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parallel,
What marriage means to me personally is hardly relevant to the issue. As for what marriage is, wikipedia provides a useful explanation. As a social institution that’s evolved over millennia it doesn’t have a purpose per se, but rather many social roles, and differing cultural values.
I’m not suggesting we change what it means, I’m suggesting we change the legal definition to match a widely held social understanding of what it means.
Given people typically attach significant emotional importance to romantic/mating
relationships, it’s important these things are recognised socially and legally. Protecting a relationship from undue interference or burden from society is important, as if these personal bonds are infringed upon (socially or legally) it undermines the ability of the couple to live harmoniously within society. For example, providing social taboo against infidelity lowers the risk of a strong emotional upset that could damage that or other relationships (and possibly lead to violence), or formal recognition of a relationship ensures it is treated with the respect it deserves and provision are made for the partner to be included (whether for social invites, or for important life decisions).
There is a significant cultural gravitas associated with the word “marriage” that does not exist even with theoretically legally equivalent terms. I think its important to enable same sex couples to have their relationship formally recognised with that same cultural gravitas that other couples currently have access to.
I have a few points in response to this:
1) I think couples see marriage as an important step before having children as it is about commitment to each other. I don’t think acknowledging the relationships of couples who don’t plan to have children as ‘marriages’ weakens the significance of marriage to the former.
2) I think parents receive significant social recognition over and above those couples who simply married, and think that the recognition of the value of parenthood generally exists quite separately from that of marriage. Parents already get significant legal recognition separate from that of marriage as well as financial support from the government.
3) If there are couples out there that are so facile in their approach to parenthood or have such rancid homophobia that seeing their relationship as only equal to that of a same sex couple that they choose not to have children, then I would consider it a good thing that they don’t have children.
4) The planet is generally heading towards overpopulation as it is. A lack of people is not a concern of our society, while social justice is (or at least ought to be).
5) Given you’ve ‘thought deeply’ about this issue, I assume you’ve examined the statistics for those countries/states that have same sex marriages and noted a material decline in birth rates that can be isolated as being caused by allowing same sex marriages. Please provide us with details.
Take a breather, parallel. I’ve put you in moderation for at least 24 hrs because you are blog-hogging and showing poor discussion manners. 20+ comments on one topic in a row is not acceptable even though you’ve managed to avoid being abusive (unlike some of those who’ve been immediately spam-canned by Jacques). It is still trolling. Please remember that this is essentially a legal blog so the interest of our community will be in the legal rather than social science or religious issues of same-sex marriage. Diverging viewpoints are welcome otherwise *I* wouldn’t blog here (being religious myself) but you also need to be honest about where you’re coming from. If you wish to continue, I’ll see you in 24 hrs.
ADMIN DEM.
ps. And please try not to be such a patronising d*ck.
LE, its interesting that you refer to contract in regards to marriage. I’ve always more thought about it in terms of partnership (and I know that is formalised by contract) where parties join together in common aims, for mutual benefit, while being jointly and severally liable for all ‘setbacks’.
I realise you can contract your way into or out of variations to this, but in its simplest form, and also as viewed by external parties, this is what a partnership means to me.
I refer to and repeat the comments of desipis. I am fine with Parallel having any kind of conception of marriage he wants, but personally, I find his definition too rigid. Historically, there are precedents…but heck, there’s a precedent for just about every arrangement! Too rigid a category will fail to cover the complexity of human desires and experience in a liberal society which seeks to foster a plurality of views. To be honest, I think same sex marriage will make same sex relationships more like heterosexual ones, rather than degrading the existing institution. And yes, my same sex friends with the little boy consider themselves married, as do all of us, and they both consider themselves to be parents of the child. I think it’s a pity that there can’t be any legal recognition of that fact. The father who is not officially an adoptee is stressed about what might happen if something happens to his partner.
Apart from that, I have not much else to say on the issue. I think I will just have to agree to disagree with Parallel.
Wow, this got out of hand in a big way while I was wrestling with the ITEPA 2003. Do you have a job, parallel? Or do you just sit around trolling on other people’s blogs while collecting state benefits? Enquiring minds, etc.
You’ll stay in moderation until our blog looks civilized again.
KVD, well you’re in good company. One of the first cases where a constructive trust was awarded on the basis of unconscionable retention of title within a familial context was Muschinski v Dodds (1985) 160 CLR 583 (bear with me, this gets easier). In that case, Deane J likened the de facto relationship in that case to a partnership when he divided up the assets between the parties. He said that
So Deane J directly analogises a de facto relationship with a joint venture, and says that one should apply the kinds of principles which apply to the distributions of joint venture property. Consequently, your comment is very perceptive. Indeed, I would see the contract involved in a marriage as a kind of joint venture agreement: we go out together to build a life together…and if things stuff up, here’s what we might do…
Much familial constructive trust law could be said to impose an ex post facto court written agreement on the parties as to how property should be distributed upon relationship breakdown, despite the fact that this is not reflected in the legal title. (NB: In law, when something has the descriptor “constructive”, this generally means that “the parties never actually agreed to this or knew this, but we’re going to pretend that they did.”)
P@68
Actually, it is also about spousal claims on property, and who can control what property in what circumstances. Once again, procreation does not define the functions and purposes of marriage.
You constantly dismiss out of relevance facts about marriage which do not fit your procreation focus. If one’s conclusion is permitted to define the ambit of evidence, then one can “prove” anything.
And society does have an interest in claims on property, who has right to make what decisions where, who has right to visit who in what circumstances, etc. Law is (or at least should be) about facilitating the purposes of members of the society. Including the lives we want to build together. There is nothing “selfish” about this, merely human.
Which is why a range of human societies recognised various forms of same-sex marriage.
Marriage has this dual role: a socially recognised joining together and a way of dealing with property and claims thereon. The combination of these things make it an excellent vehicle to raise children. But that is true whether the children are, for example, adopted or not.
But it gives marriage value way beyond raising children. If the law does not recognise, for example, same-sex relationships, that can lead to major injustices because it makes legally null what may well be a central fact about people’s lives. For example, a survivor of a same-sex relationship being sued by biological relatives of his deceased partner for 20 years back-rent (and yes, that happened in Texas).
You need to read a lot more on the history of marriage, and current legal issues pertaining to it.
Parallel – I would quibble with the word accuse
Assert?
What word should I have used for something that I thought we could agree on without discussion?
‘Axiom’ or one of its derivatives. The word ‘stipulate’ serves as a precise term in contracts. It might be axiomatic to everyone here that ‘marriage’ has changed over the centuries but there is no agreement as to what this means or what marriage even is. That’s, in fact, the meat of stoush: there’s no stipulation.
The Roman example is not relevant unless we duplicate other features of Roman civilization… such as getting rid of cheap and reliable contraception.
Hah! Cheap and reliable contraception have changed the rules of human sexuality. Many of the old ones, for example the taboo against sex before marriage, have converted to new ones like ‘try before you buy’.
But the social purpose of marriage is to encourage reproduction.
Encourage? Methinks encouragement is not something society has to create. The chaos that we monkeys render unto each other because of our relentless horniness is the very fabric of all mythology.
Marriage exists to control human sexuality. And yes part of the reason for this is because of fertility. But that’s just ’cause children are one of the many ways in which we can royally screw up on account of our screwing. This the conservative argument for gay marriage:
Now I don’t personally agree with this or at least entirely. I’ve seen elderly married couples who share a deep love and I’ve seen what happens to people who are promiscuous over a long period of time. But, personally I think marriage is prison and a life without a bit of adventure is, well…
Still most people like to get married and it makes ‘em mostly happy. So when you say:
I think you’re being evasive. And the rest of your agrument is likewise evasive. How else, for example, will a change in the marriage laws lead to the collapse of society? Obviously because it destroys the family. And if it’s a personal matter that affects not society how does allowing same-sex couple their sacrements lead to social destruction?
Please grant me the assumption of good faith. I have half a dozen interlocutors
Indeed.
I could take hours to research what Roman marriage was like (I have little idea of their marriage customs)
You don’t have to know much about Roman customs you just have to know that such a civlization existed, that it gifted ours with its relative merits and that it recognized same sex marriage. You have made a claim that gay weddings lead to perdition. This counters it and you refuse to acknowledge perhaps an obligation to, as you say, look deeper into it. Instead you dismiss its relevance on the spurious claim that, by going a bit Roman, we’d have to go all Roman with gladiatorial combat, slaves for the orgies and vomitoria. But we’re already Roman. A bit. So how can you say:
I felt your Roman example was vacuous.
When you haven’t contemplated it? And what haven’t we thought about?
It is my rather awkward duty to have to tell you that ‘Parallel’ is Andrew Parle, and that he has admitted (indeed, boasted) that he was deliberately trolling on another forum that I moderate. I actually know Andrew slightly and thought rather better of him than that he would stoop to this sort of behaviour.
He is obviously permanently banned from this forum and I am consulting with my co-moderator on the other forum on what to do with him. Part of me hopes that this was an aberration (maybe he was drunk?), although it is hard to be drunk and comment that often in a 24 hour period. I am also mindful of the warning provided by Alison, the Scottish Institutional Writer, on excusing drunken behaviour:
Well SL, while the law might disown whisky I have to tell you that I do not. And also, it was probably some sort of blended crap, and polluted with water or ice, and drunk without any appreciation
Now I feel like having a beer!
If I may go back to first principles… given that we’re talking about Opposite Sex Marriage, and Same Sex Marriage, from a legal standpoint it’s essential to define not just what marriage is, but what sex someone is.
I know that sounds far too obvious and trite to be useful in any debate, but it’s not as clear-cut as it appears.
I’ll deal very briefly with the subject of what marriage is. Others are capably debating that, and have expressed a variety of viewpoints.
If it is a religious sacrament – why can atheists marry? Why can marriages be celebrated by other than ministers of religion?
If it is purely for procreation – why can those who are mutually infertile marry? Even the Catholic church only requires that sexual intercourse be possible, not procreation.
Now it would be reasonable to contend that those two examples are exceptions that do no harm, they have no effect on either “real” religious marriages, or “real” procreative ones, that the essential purpose or purposes of marriage remain undamaged.
But if so, how does same-sex marriage damage them? There is no evidence from those jurisdictions where same-sex marriage is permitted that the rate of either kind of “real” marriage is affected one whit.
Neither is the divorce rate increased, and in some jurisdictions (Mass. comes to mind) the rate is exceptionally low, and dropping. While same-sex marriage may not be responsible for that, to say that same-sex marriages damage “real” marriage in any way is contrary to observed fact.
If we make such exceptions on humanitarian or other grounds for those who are atheistic, or sterile, there seems no logical reason not to make the same exception for same-sex marriages too.
OK, that’s enough of that. Onto a different topic, via an indirect route (please bear with me)
It appears that one of the reasons laws against miscegenation are largely things of the past is because there was no consistent definition of race. If the consequences of racial mixing were as terrible as proponents of such laws proclaimed (often vigorously), how come we had legal absurdities and contradictions?
For example, a person 1/128 African-American was White in the state of California, so forbidden from marrying a Black; but in the commonwealth of Virginia, they were Black (from the “one drop” rule) so forbidden from marrying a White.
In both cases, the justifications and dire predictions should this state of affairs not continue were identical.
This contradiction showed that these justifications were spurious, and based on personal animus, not reality.
Now consider this remark from Littleton
v. Prange, 9 SW3d 223, 226 (Tex. Ct. App. 1999).
The court eventually ruled that Sex is determined by “immutable characteristics at birth”. That XY chromosomes means male, XX female. It took no note of the fact that 1 in 300 men aren’t XY, and some women are. For example:
— J Clin Endocrinol Metab. 2008 Jan;93(1):182-9.
Neither are chromosomes immutable – those recipients of bone marrow transplants gradually become genetically identical to the donor, through stem-cells replacing originals at cell turnover. (As described in
Bone marrow-derived cells from male donors can compose endometrial glands in female transplant recipients by Ikoma et al in Am J Obstet Gynecol. 2009 Dec;201(6):608.e1-8 )
Worse, Birth Certificates merely provide a rebuttable presumption of sex, even when issued within that jurisdiction. Worse still, a person can be deemed legally male for some purposes, legally female for others, within the same jurisdiction.
I respectfully submit that Andrew’s behaviour was a momentary lapse of reason, exacerbated by this:
He has learned his lesson, and has expressed genuine remorse for his crime.
I can confidently state that even if a more lenient sentence is imposed, there will be no danger of re-offence, and so throw myself (OK, I’m throwing him anyway) at the mercy of the court.
Not to me he hasn’t, Zoe, either privately or on the Skeptics forum. And in any case I am not a very forgiving soul. Andrew has done his dash with me, I’m afraid. Numpty.
[Edited to add: I am starting to get sick of socially retarded individuals who expect everyone else to cut them slack because they're socially retarded. If someone is socially retarded, it's up to him to do something about it, not the rest of us. It's called personal responsibility. Since Andrew considers himself a conservative, personal responsibility is an idea he may wish to explore further].
Zoe, that’s a very good point re gender. You just can’t essentialise: there are people who are not clearly in one camp or t’other. Most interesting about the XY woman who was able to have children.
As it happens was having a discussion with my daughter the other day about what makes a person male or female, and pointing out that it is not necessarily straightforward.
Taking the p*ss is hardly a crime, Zoe, just irritating to those of us here to discuss the issue. If he felt we were a mutual agreement society, and wanted to stir things up he’d have been better just asking “What do you think the main arguments against same sex marriage are, and why do you think they are wrong?”.
Oh, and please feel free to pass on my personal apologies – I should NOT have called him a patronising duck.
And on your point of gender differentiation… is this only made legally important because we limit marriage to hetero-normative couples? Wouldn’t an extension of marriage to same sex partners remove a lot of the imperative to establishing an officially recognised gender?
(And to irritate Andrew further, the Romans {grin} recognised an indeterminate gender – though these were primarily the castrated Gallus of their goddess religions, it also incorporated those whose gender was less distinct naturally).
DeusExMacintosh
A lot? Yes, but by no means all.
Things are a heck of a mess, and there’s no guarantee that if a jurisdiction recognises same-sex marriage, it will also recognise the marriage of someone Intersex or Transsexual. (see below for a concrete example)
As regards non-marital issues: There’s the International Convention on the rights of women – because women have historically been an underclass, and still are in some places.
There have been historical differences in ages of retirement, entitlements to pensions, not to say family law.
Which sex someone is legally can have significant financial consequences within a jurisdiction, and even more consequences outside.
Even when same-sex relationships are recognised, having a change of legal sex can be looked on as voiding a marriage by “changing the fundamental basis of it”. Thus in the UK, an apparently lesbian couple married in Canada, and where one partner transitions to male (thus making the relationship opposite-sex) is regarded as unmarried..
In order to get a Gender Recognition Certificate, the applicant in such a situation is instructed by the Gender Recognition Panel to perjure themselves and say that they’re not married, using exactly that argument: that the fundamental basis of the relationship has changed.
Should they be married in an apparently opposite-sex relationship that becomes same-sex, then they are instructed to divorce.
Should the UK recognise same-sex marriage, this situation will change only to make the marriage void in both cases.
Parenthetically,.in Australia, an apparently opposite-sex marriage that becomes same sex if one partner changes legal sex is still valid despite it now being an illegal relationship. It may not be dissolved unless there’s irretrievable breakdown of the relationship, so divorce isn’t an option.
Going off on a further tangent –
Gender recognition certificates are also not available for Intersex people. The Gender Recognition Act requires a diagnosis of “Gender Dysphoria”. As this doesn’t appear in the WHO’s manual of diagnoses, since the Gender Recognition Panel (initially composed of both lawyers and medics) is now 100% medic-free, it was decided by bureaucratic fiat that the closest diagnosis – Transsexuality (F.64) in the manual be used – and an Intersex condition precludes that.
Recent Decision by 9th Circuit on Proposition 8 (PDF)
Worth reading in its entirety as it addresses many of the issues raised here.
Hi Zoe. What you have quite reasonably illustrated is that humans are capable of infinite variety, and that ‘the Law’ is at best an imperfect fit. Nobody could take issue with that.
But I would point out that in attempting to answer parallel’s original query as to what constituted ‘marriage’, LE went to contract law, while I went to the business concept of ‘partnership’ – neither of which hinged upon consideration of the sexual status of the parties. The general discussion concerned the fairness or otherwise of restricting marriage to opposite sex; I thought most commenters were fairly clear in rejecting that discrimination, and your further examples only reinforce that stance.
On the wider general issue you raise of ‘gender-discriminatory law’ I can only suggest/hope that society is moving, if very slowly, towards recognition of the inadequacy of current law, and that your issues are eventually addressed in that process. This is the precise opposite of the line of argument proposed by parallel – that any change will necessarily be detrimental.
There’s a nice write up on the Prop 8 ruling here, focussing on the (un)likelihood that it will be overturned in the SCOTUS. The author is a US lawblogger I admire. Just be aware that he’s written some updates in the first two or three comments, too:
http://freethoughtblogs.com/butterfliesandwheels/2012/02/why-the-supremes-are-unlikely-to-overturn-the-prop-8-ruling/
The other point I meant to make was that any process of definition is by its very nature exclusionary. This is not a bug, it is a basic feature which needs to be accepted. Lorenzo@60 made this basic point.
There was a same-sex couple at the Scottish parliament reception where one had transitioned (male-female), which meant they were now divorced. I was standing up the back and couldn’t hear them clearly — which meant I didn’t get the full details — but I did catch the part about having to explain to their kids that although they were divorced, this didn’t mean the same as divorces in other families the kids knew about.
It sure as shit made me pay extra attention to the legal drafting issues involved in getting this sort of thing right …
One of the reasons I favour a contract style marriage is that it gets around issues such as gender, sexuality and the role of religion. (I actually think my version is pretty close to KVD’s partnership notion – I’d see it as a kind of joint venture).
Now, people can get married in a particular religion which has a narrow definition of marriage if they want to but otherwise I don’t see why religions can tell me (a non-believer) what I should or should not do. If they make arguments I am happy to listen to them and respond to them in a respectful. (For example, I don’t think I have anything to apologise for in my dealings with Parallel or whoever the heck he is – I took his comments in good faith and dealt with them politely – I think he owes me an apology for embroiling me in some kind of weird trolling revenge game. I am confused – why would someone do that? I don’t even know him. But the upshot of this is that I don’t want to know him.)
Anyway, I shall read that 9th Circuit case once I get to work.
LE@116 here goes niggling again – although SL probably prefers pedantic
The reason I use ‘partnership’ as opposed to contract is that business partnerships are not only bound by any intra party agreement, they are also bound by their perception by any third party. It’s long ago, but I’m fairly sure under bankruptcy an agreement between partners that only one party be responsible for debts is not effective against a third party seeking to recover jointly and severally unless this ‘internal’ agreement was made explicitly known. Add to this the indefinite life of a partnership (maybe analagous to “till death do us part”?) and the inherent ability to change business focus many times without renegotiation of original ‘joint intention’ (“for richer, for poorer”?) indicates a level of ad hoc flavour in partnerships which pretty closely reflects what happens within marriages.
I think, therefore I am pedantic – as someone once should have said.
It was rather self evidently a troll, with the contrarian opinion supported by vacuous arguments with an emphasis on control discussion flow. I suppose it is bad form to feed a troll (especially so under the influence of a pinot noir), however I am trying to take inspiration to write where I can get it.
As far as gender goes, I see gender labels as similar to marriage, in that they are culturally loaded terms that mean different things not just to different people, but can also have different focus depending on situation. As far as the law goes, I think it’d be best to accommodate the full spectrum of these views and remove arbitrary legal distinctions between the genders.
I think the social aspect is the more difficult to tackle. There are many reasons we distinguish between the genders and not all of these are driven by how a person sees themselves. I think some of the arguments covered by LE’s recent post on religion can be applied to gender, in that I don’t think that a situation should always be considered sexual discrimination simply because others don’t accept a person’s own views of their gender in a particular context.
KVD, you are entirely correct. Partners are jointly and severally liable.
By contrast, the assets and the liabilities of a married couple are a lot more complex. If assets are jointly owned, then obviously partners will be jointly and severally liable. If assets are owned by one partner…well there’s a very nice question – does the legal title really reflect the ownership of the thing? A court may well come along and say, “No, the legal title does not really reflect who owns this thing, and we’re going to split it between the two partners in the following proportions.” That’s essentially what occurs in those constructive trust cases I mention above.
One of the reasons I’d favour a contract idea is for the reasons mentioned by Thaler and Sunstein in Nudge – namely, people don’t really think about what is going to happen upon breakdown until it’s too late. Understandably, most people, upon entering into a marriage, think that it’s going to last and that they are not going to be a couple which divorces. It would be good to turn people’s mind to that possibility at the outset rather than having courts impose ownership and division of assets on people ex post facto. So, kind of like, “We expect this partnership to last, but just in case it doesn’t, here’s what we want to happen with our property, any kids we may have etc…” And people make that decision when they still respect and love each other, and before everything has become nasty so it’s more reasonable than the kind of negotiations which take place after the marriage is ending (have just watched a marriage implode within my circle – by God it’s awful!)
Whereas I’m old fashioned and hope for a ‘religious’ marriage where it’s two in, ALL in and a default 50/50 split if it doesn’t work (which is probably why I’m still single). I am almost guaranteed to be the partner with fewer resources so I have to wonder about the effect of my putting my 100% on the line with a partner only staking his 60%.
It’s not a grab for cash – I’d cheerfully help him make more of that while we were together – I’d simply worry that he’d find it a lot easier to walk away if things got tough than I would. Even if the totals are very different, are the poorer partner’s assets any less important to them because they own fewer?
Question for Zoe: how do you think the transgender community would feel about the restoration of the “indeterminate” gender in Roman Law jurisdictions such as Scotland or the continent?
I liked this take on same sex marriage by Heathen Scripture – I particularly like the analogy relating to breakfasts
With the greatest respect, and with my accountant’s hat firmly pulled about my ears, I’d suggest you are greatly undervaluing your ‘assets’. And, donning my ‘romantic’ coat, if the word ‘worry’ occurs to you at the time, then what you seek has not yet been found.
Emma@121 I agree with you. Thanks for the link.
LegalEagle:
I defy anyone to come up with a reasonable rationale for something like this, I think it brings the law into disrepute.
It’s not just a change of name – Divorce has financial consequences. Couples must split assets – possibly having to liquidate them at a loss, pay stamp duty, capital gains tax etc – only to re-acquire replacements as they’re staying together. It appears the intent of the legislation was to allow seamless transition to Civil Unions, but this hasn’t been the practice.
DeusExMacintosh
We tried to do the sensible thing – split up – when I transitioned. Went to a family law consultant and everything. But we couldn’t agree on a split, she wanted me to have 70%, I wanted her to have 70%, and neither of us would budge. It was difficult because both of us were in tears.
Transsexuals and most Intersex people would vehemently oppose it if it was imposed on them. If voluntary though, apart from fears of a “slippery slope” making it mandatory for them in the future, they’d be for it – just not for themselves. It would be irrelevant.
Some non-Transsexual Transgender people would welcome it, and for some Intersex people, it’s pretty much essential, a necessity that this be introduced rather than a “nice to have”:
Some states in Australia do have the possibility of “X” rather than M or F on the birth certificate, and this is also the case on passports. Unfortunately, such people are forbidden from marrying anyone under the Marriage Act as it stands, being neither Men nor Women. Unless legislation is carefully drafted, legalising same-sex marriage won’t change this.
I’m way too late for this thread but I thought I’d give my two cents anyway.
As a young gay man (and a law student) SSM to me has always been about dignity.
Many people commenting above like to speak of “the state” as either an enemy to get out of the way or an oversight commitee only concerned with societal targets.
But there is something more to the state than just a monopoly on force and a bureaucracy.
it is also an institution which binds us together – each citizen having a vote and a platform for their values (even if we don’t want them too). There is something important about that, politics unites us in a very important way.
A lot of people who claim to have no issue with gay people but oppose gay marriage tend to be using “homosexuality” as a noun. The idea that “being gay” means anything outside of real life relationships and commitments (and longing for those relationships and commitments) is silly.
I spent much of my teenage years ashamed of my feelings and worried about how people would judge my partner.
For most Australians the legalisation of marriage will not do anything: the sky will not fall, the love between parent and child will not disappear.
But for me, it will mean that a large chunk of the population took the time to recognise that the commitment between me and my (fictionally future) husband has value – equal value.
It may be fluffy, but its true.
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