By skepticlawyer

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.


  1. Posted February 9, 2012 at 10:41 am | Permalink

    [email protected]

    It’s about keeping property in the family, by which is meant the genetic descendants (preferably male) of the property owner.

    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.

  2. Adrien
    Posted February 9, 2012 at 4:27 pm | Permalink

    Parallel – I would quibble with the word accuse


    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:

    Anybody who has several sexual partners in a year is committing spiritual suicide. He or she is ripping the veil from all that is private and delicate in oneself, and pulverizing it in an assembly line of selfish sensations.

    But marriage is the opposite. Marriage joins two people in a sacred bond. It demands that they make an exclusive commitment to each other and thereby takes two discrete individuals and turns them into kin.

    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:

    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.

    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


    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?

  3. Posted February 9, 2012 at 5:56 pm | Permalink

    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:

    Nothing is better established in our law than that intoxication, so far from being an alleviation, is an aggravation of a criminal charge; and indeed such is the tendency to this brutalizing vice, among the lower orders in this country, that if it were sustained as a defence, three-fourths of the whole crimes in the country would go unpunished; for the slightest experience must be sufficient to convince every one, that almost every crime that is committed, is directly or indirectly connected with whisky. For these reasons, our law utterly disowns any such defence… (Alison, Principles 661)

  4. kvd
    Posted February 9, 2012 at 6:04 pm | Permalink

    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 😉

  5. Mel
    Posted February 9, 2012 at 6:30 pm | Permalink

    Now I feel like having a beer!

  6. Posted February 9, 2012 at 6:57 pm | Permalink

    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).

    “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

    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:

    A 46,XY mother who developed as a normal woman underwent spontaneous puberty, reached menarche, menstruated regularly, experienced two unassisted pregnancies, and gave birth to a 46,XY daughter with complete gonadal dysgenesis.

    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.

  7. Posted February 9, 2012 at 7:22 pm | Permalink

    I respectfully submit that Andrew’s behaviour was a momentary lapse of reason, exacerbated by this:

    You might have noticed that my social skills are somewhat… oddly developed.

    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.

  8. Posted February 9, 2012 at 7:28 pm | Permalink

    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].

  9. Posted February 9, 2012 at 9:11 pm | Permalink

    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).

  10. Posted February 9, 2012 at 11:28 pm | Permalink


    . 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?

    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.

  11. Posted February 9, 2012 at 11:58 pm | Permalink

    Recent Decision by 9th Circuit on Proposition 8 (PDF)

    Worth reading in its entirety as it addresses many of the issues raised here.

  12. kvd
    Posted February 10, 2012 at 2:35 am | Permalink

    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.

    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.

  13. Posted February 10, 2012 at 2:46 am | Permalink

    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:


  14. kvd
    Posted February 10, 2012 at 2:55 am | Permalink

    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. [email protected] made this basic point.

  15. Posted February 10, 2012 at 3:09 am | Permalink

    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 …

  16. kvd
    Posted February 10, 2012 at 5:33 am | Permalink

    [email protected] 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.

  17. Posted February 10, 2012 at 5:57 am | Permalink

    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.

  18. Posted February 10, 2012 at 11:04 am | Permalink

    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?

  19. Emma
    Posted February 10, 2012 at 3:27 pm | Permalink

    I liked this take on same sex marriage by Heathen Scripture – I particularly like the analogy relating to breakfasts

  20. kvd
    Posted February 10, 2012 at 4:24 pm | Permalink

    I am almost guaranteed to be the partner with fewer resources

    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.

    [email protected] I agree with you. Thanks for the link.

  21. Posted February 10, 2012 at 5:47 pm | Permalink


    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.

    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.


    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

    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.

    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?

    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.

  22. Posted February 16, 2012 at 8:21 pm | Permalink

    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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  1. By Skepticlawyer » Advice, please… on February 10, 2012 at 8:51 am

    […] try to avoid meta around these parts, but the trainwreck on the #equalmarriage thread has prompted some necessary thinking on all our parts, and an admission from me. First, the […]

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