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April 29, 2013

Comments

It's pretty disingenuous to ignore the fact that same sex relationships experience more difficulty in decision making with regards to hospital care for their most significant relationship and they lack the same kind of protection with regards to binding legal issues in cases of the death of their most loved person.

I agree with the fact that some relationships do not need to be given tax breaks (boyfriend/girlfriend relationships for example) but when two adults decide that the other person is their most important person in the world, it seems wrong for their estranged siblings and parents to have priority in decision making in the hospital and priority in inheritance at the funeral.

Once again, I do not think that the state needs to give tax breaks, lowered tuition costs, and other benefits that are granted to heterosexual marriages because same sex relationships, in principle, need not be encouraged to have children.

However, I think that it is appropriate for there to be a legal category for those who have declared each other to be their new family which is separate from their biological family. Family plans with regards to insurance seems appropriate for these relationships.

If adoption agencies decide that the couple is financially stable and would provide an emotionally/physically/psychologically safe environment for the couple to raise a child, I think that the state ought to provide the same kind of tax breaks for the couple which is raising a child in the best way they can.

The whole same-sex marriage debate is all about acceptance. The gay agenda wants the government to back their lifestyle which, in essence, would grant government APPROVAL of what they are doing.

That's what it is all about. Approval. In that way, people who disagree that homosexuality is moral behavior would be silenced in the public forum.

Christians will not be allowed to speak out (even though we have freedom of speech, supposedly, in the US) without repercussions. This society's moral compass has completely gone askew.

Homosexuality isn't the greatest evil in the world, but it is the cherry on top of the immoral sundae. Think about how "far" we have come since the 1950s. One would be hard pressed to find a movie where the main theme was sex, drugs, or violence back then. Nowadays, those elements are the selling points. Most things on TV or on newsstands is sex, sex, sex. A behavior that was once kept secret because it was considered sin is now celebrated and exulted.

A great book to read on this topic is Frank Turek's "Correct, Not Politically Correct." It's a short quick little guide which helps flesh out the argument against same-sex marriage.

Augustine,

Regarding your comment below:

"However, I think that it is appropriate for there to be a legal category for those who have declared each other to be their new family which is separate from their biological family. Family plans with regards to insurance seems appropriate for these relationships."

Upon what basis would it be judged who would and would not be included in this "new family"? If non-married people are included on insurance plans, at what point would that stop? Why wouldn't one have the ability to say they want their boyfriend or girlfriend, best friend, or any other non-legally recognized relationshp on their insurance plan because they have declared it a "new family"?

Darth Dutch

John H. is absolutely correct.

The issue of same-sex marriage is not really about homosexuals wanting to get married. (Not that they actually *can* get "married", anyway, since marriage is a particular thing!) This can be seen when you look at the stats in countries where SSM has been legalized. Homosexuals are just like heterosexuals on this point.

Think about it. Heterosexual couples can get married any time they choose. But these days they don't. They just live together! Why would we assume homosexuals would be any different?

This is not about marriage. It's not about equality or rights. It's certainly not about hospital visitation rights. Let's stop granting the pro-SSM side that one, shall we?

This is about forcing social approval, by legal force, of this behavior/lifestyle. And it is about silencing anyone who speaks out against it.

THAT is what it is all about.

Three parties seem to have interest in this issue: (1)the state/government, (2) those who hold to the conjugal view of marriage, and (3) those who are convinced that marriage must be redefined to include homosexual unions (for whatever reasons).

Greg has correctly identified the extent of what the state's interest in the issue ought to be--namely, the protection of those institutions that have demonstrably contributed to the betterment and well-being of society. Government experimentation in matters of societal constructs--even in the name of fairness--can come with a very high price tag. That price tag stems from government's inability to foresee negative results of societal manipulation.

The only proven or provable downside to the [traditional] conjugal definition of marriage has come when people disdain, discard, or twist it into something that it was never intended to be. "No-fault" divorce would be an example of such disdain.

Those who strive to redefine marriage to include any relational pairing or grouping--aside from one man and one woman for life--are faced with imposing on society an arbitrary set of so-called "marital" parameters which will not stand the test of time in light of the inability of those parameters to provide a societal good that the government must be compelled to protect.

Consequently, the present movement to redefine marriage will accomplish nothing more than to give the government even more power over our lives while stripping away the societal good that marriage laws were originally intended to protect.

Gary
260reasonsforbelieving.com

To be clear, it is my belief that Christians in America exhibit an inordinate amount of entitlement with regards to the moral standards of our country. The attitude of "reclaiming" the country back to its foundation and using the Christian morality to do so can be likened to the Jews who wanted to use Christ as a political tool for national liberation from the immoral Roman government.

I spend the majority of my ministry time going to secular associations and LGBT meetings and I am moved to compassion towards them because they are broken people who are despised, slandered, and denigrated. They organize rallies because it is through those interactions that they find community - otherwise they are all sheep without a shepherd.

Sometimes it is helpful to ask ourselves, to which group would Jesus speak most harshly towards? The gays? Or the religious people?

"Sometimes it is helpful to ask ourselves, to which group would Jesus speak most harshly towards? The gays? Or the religious people?"

Jesus spoke to the heart attitude of the people of his day. Yes, he spoke against the religious establishment because it abused the people (among other reasons). However, he also told the woman caught in adultery to go & sin no more; he didn't affirm her lifestyle.

If you reach out in love to those in the LGBT community, good for you. Do you also address their lifestyle for what it is - sin?

Having all "love" without "judgement" is just as bad as having all "judgement" with out "love".

Darth Dutch

Darth,

You raise a point that I didn't actually think about which is why I love posting in these forums - they challenge me to think more thoroughly about my position and they don't let me get away with sloppy thinking.

For insurance purposes I'm not particularly sure why it would be inappropriate to have family plans that operate similarly to family plans for phones. If consenting parties desired to tie their lot together financially, a free society ought to allow for it.

Yes, I recognize that this whole point of view that I am espousing will lead towards a moral system that is very divorced from the Christian standard *puns very intended =P*. However, personal convictions which are not accurately replicated in public policies is the norm in all of human existence.

If I was omnipotent, I would force a theocracy that abides with the Christian moral system. But, as a Christian, I am not perturbed one iota that our society is moving towards a more and more immoral system. My mission isn't to save the society, it is to glorify God by enjoying Him and encouraging others to enjoy Him forever.

"You raise a point that I didn't actually think about which is why I love posting in these forums - they challenge me to think more thoroughly about my position and they don't let me get away with sloppy thinking."

I agree! I am constantly challenged by reading other people's thoughts & points of view, even and especially if they don't agree with mine.

As to the insurance concept, to me that isn't a huge deal morally speaking, although I'm sure the insurance companies would fight tooth & nail and understandably so. If the pool of insureds on a particular plan is not limited to family, there would have to be some way to delineate between who can enroll and who could not.

The cell phone companies probably allow this because the enrollees get a particular benefit based on what they pay; with insurance you never know what is going to happen which is why they have an exhaustive questionnaire on personal plans.

Plus, domestic partnership laws allow non-married people who fit certain criteria now to be on their partner's plan already. So one doesn't need same-sex marriage to have this benefit.

Darth Dutch

I employ the conversational method of talking about sin in general without explicitly calling out a person's particular sin. I do this because I am not Jesus and I do not actually know the heart attitude of people - I hardly know the heart attitude of myself.

For example, when I talk with the homosexuals, I talk about their purpose in life, I then talk about the purpose of life that is established in Scripture and demonstrate how their view is less full, short sighted, and self centered.

I think what bothers most Christians about my point of view is that I have a more "defeatist" kind of attitude with regards to the direction of society. I pray for revival, but I am more concerned with the direction my heart is headed than the direction of the society.

We live among people who have always leaned towards calling good bad and bad good - calling immoral relationships acceptable and moral relationship uptight and antiquated is to be expected.

I think the most obvious problem has not yet been answered: If government gives legal rights to same-sex couples, what exactly is taken away from hetero-sexual couples? The couples raising the next generation will still have their benefits.

There is more ways to harm a person than to deprive them of something.

Erkki,

What legal rights are you referring to which same sex couples do not now enjoy via domestic partnership but would via marriage?

When people ask the question of how one’s heterosexual marriage is harmed by a same sex marriage theoretically being granted, the short answer is that it doesn’t harm my specific marriage, but the question itself is a straw man. My wife and I will still enjoy the same benefits of marriage as we always do. The question isn’t how it will affect my individual marriage, but how will society be affected now, 5 years, 10 years, 50 years down the road. I would posit, and others do as well, that it would not be a good thing on society, just as the devaluing of marriage has negatively affected society.

It is, in fact, the same sex marriage advocates that are selfish in their asking this – they are focused solely on themselves and not society, either present or future.

Darth Dutch

    The question isn’t how it will affect my individual marriage, but how will society be affected now, 5 years, 10 years, 50 years down the road. I would posit, and others do as well, that it would not be a good thing on society, just as the devaluing of marriage has negatively affected society.

Well, how exactly would society be affected? Generally speaking, it seems to me that every time people are granted more personal freedom and space, as well as legal rights, as in the case of women's suffrage and civil rights battle, society becomes better.

While I agree that the devaluation of marriage is a problem, I do not see how it would be a problem of homosexuality precisely, rather then general irresponsibility and economic troubles.

Let's assume for the sake of argument that same sex marriage is truly neutral on its effect on society.

As has been pointed out by Greg as well as others on the blog, the reasons that are used to defend or promote same sex marriage can easily and logically be applied to other forms of currently-illegal or not approved relationships, such as polyamory, etc. People mock the "slippery slope" argument and dismiss it as fear mongoring, but what would prevent the same rationale (personal freedom, space, legal rights, love) from being applied to other types of relationships?

Darth Dutch

"The couples raising the next generation will still have their benefits."

By the way, even you have to agree that by and large the same sex couples or same sex marriage proponents would never, ever stand for this (only heterosexuals being able to raise children.) This would be another point of "discrimination" so that it would be another battle to fight and that is where the detriment to society would really happen over time.

Darth Dutch

Here in California, Proposition 8 was passed by the people under the laws of California. The question before the Supreme Court, then, is whether or not the State has a right to regulate who can be married.
In a state of nature, I suppose, one could cohabit with anyone. But in a Social Contract, certain rights (not all rights) are surrendered for the sake of the contract itself. Other rights are considered natural or God-given rights (human rights not civil rights).
Traditionally, community-established limitations on marriages have always been recognized.
If it is determined by the court that such socially imposed limitations are violations of natural rights, then it seems to me that NO limitations can be imposed at all. The state either has the right to regulate marriage or it does not because regulation would violate natural rights. If the social majority (in the case of California) does not have the right to regulate marriage, then the state needs to stop issuing marriage licenses to begin with.
If a community cannot regulate marriage, then marriage as a social and legal institution is meaningless, and we would need to stop the pretense that it carries any weight at all.
Marriage becomes a matter of personal conscience and private contract. Power of Attorney, private Wills, financial partnerships would have to replace current laws that have pertained to married couples. Vows are, after all, only meaningful to the degree that the individuals involved care about them. In our society marriage vows are pretty much meaningless in a legal sense anyway and have created a kind of serial polygamy.

This claim that 'the government' or 'the state' is interested in heterosexual marriages because those relationships produce the next generation is such a lot of claptrap.

First, marriage has been regulated by governments for thousands of years and, for most of that time, they did so not for the sake of the next generation but to protect what were considered the property rights of men.

Second, we ARE this government. So this government's interest in marriage is the same as OUR interest in marriage.

And WE have an interest in the next generation.

(BTW, marriage was for women and their children, not men. Men want to have sex and be gone. And the children can go to the devil.)

And we have an interest in this generation too.

"Second, we ARE this government. So this government's interest in marriage is the same as OUR interest in marriage."

Except for the fact that every time the people have voted to put restrictions on same sex marriage or outlaw it in the state constitution the courts have either overturned it or the legislators have enacted laws to approve or protect it despite the will of the people.

Darth Dutch

This generation exists, only the next generation is at play.

The interest you are thinking of, I suppose, is an interest that every person get to marry the object of his/her sexual desire.

Do we really have any such interest?

What if I want to have sex with my mother? (BTW, she's dead, and I'm already married to someone else.)

Does the state have an interest in my hearing wedding bells?

If not, why not?

Except for the fact that every time the people have...

That's just false.

This generation exists, only the next generation is at play.

I don't think it is enough to exist.

The interest you are thinking of, I suppose, is an interest that every person get to marry the object of his/her sexual desire.

You 'suppose' wrong.

sex with my mother

Did you notice that you picked a case where other people actually do have an interest in your plans?

Did you notice that you picked a case where other people actually do have an interest in your plans?
What if the other people (actually, person, my current wife) is into it? It's all OK then, right?

As a group, as a rule, and by nature mothers and sons produce more offspring with genetic defects than other sexual partners.

Everyone, not just your current wife, has an interest. This interest explain the laws.

WL:

This generation exists, only the next generation is at play.
Ron:
I don't think it is enough to exist.
Maybe not, but it's a start...In fact, it is a sine qua non. It's that sine qua non that heterosexual marriage brings to the table.

========================================================

WL:

The interest you are thinking of, I suppose, is an interest that every person get to marry the object of his/her sexual desire.
Ron:
You 'suppose' wrong.
Oh really? Then what exactly is this interest that WE have that is served by changing the definition of marriage to allow homosexual couplings to count?

"Except for the fact that every time the people have...

That's just false."

Fine Ron, let me clarify - up until recently, since 1998 states have voted 32 times to ban same sex marriage without exception; even in "progressive" and "blue" states. The only success same sex marriage had was in the legislature or in the courts. That changed in the most recent round of elections.

But you still avoided my point - you said that we are the government (assuming, I think, that our collective will should be followed). But that clearly did not happen with same sex marriage when it was opposed, so why should it happen when the will is for it to be promoted?

Darth Dutch

Ron-

I don't think you caught what I wrote. My mother is dead. There is zero chance that we will produce children with defects.

Now it's okay right?

Even assuming arguendo a governmental purpose of marriage included progeny (an unsupported proposition by the state of the laws themselves), this would still only be a purpose, but not the sole purpose. Providing for same-gender marriages would promote other governmental purposes such as those governmental purposes in marriages where progeny is not possible.

To say it differently, one would need to establish the sole governmental purpose in marriage was regarding progeny (and it think it very difficult to even demonstrate a governmental purpose has to do with children). Absent doing so, same-gender marriage could fulfill another purpose, just as non-progeny marriages fulfill other governmental purposes.

RonH,

As a group, as a rule, and by nature mothers and sons produce more offspring with genetic defects than other sexual partners.

So? Isn’t that something that we could just live with? Many individuals are prone to pass on disease causing genetics to their children. Should they be allowed to marry and have children? Here, you’re placing more value on the potential defects of offspring yet to be born over the freedom of two consenting individuals. You’re comfortable with that?

Everyone, not just your current wife, has an interest. This interest explain the laws.

Everyone? How so?

I'm not going to take seriously the suggestion that the govt doesn't have an interest in the next generation, and in marriage as a means of providing it.

But let's suppose that this interest is not the sole reason for govt recognition of marriage, and that the govt promotes marriage for the sake of some other ends as well.

What are these other ends?

It is not enough to simply point out that heterosexual marriages where progeny is not desired and, in some cases, not possible receive state sanction. That does not show that the state has an interest in such unions. The state may simply tolerate those unions for the sake of ensuring the next generation of taxpayers.

In virtually all lawmaking there is balancing act that occurs that weighs the precise targeting of societal aims against the practicability of following and enforcing the laws that are to be made (not to mention the cost to other societal interests...like individual privacy). A simple law privileging heterosexual couplings serves the interest the state has in the next generation without being unwieldy or invasive.

I'm not going to take seriously the suggestion that the govt doesn't have an interest in the next generation, and in marriage as a means of providing it.

You emphasize'an' to say you admit to interests we might have in having government favor religion. Yes?

Lets just try that again:

You emphasize 'an' to say you admit to other interests we might have in having government favor religion. Yes?

ha and once more...

You emphasize 'an' to say you admit to other interests we might have in having government favor marriage.

Yes?

Sorry about the drafts.

You emphasize 'an' to say you admit to other interests we might have in having government favor marriage.
Actually, I emphasize "an" in response to Dagoods's suggestion that encouraging the next generation might not even be an interest that the state is trying to secure through the institution of marriage.

I won't take that suggestion seriously because it cannot be taken seriously.

I do not admit that the state does have any other interest in marriage. I will allow that the state might have some other interest in marriage. Of course I do. What else? For all I know, the state also privileges marriage because the little green Martians like it that way.

But we cannot infer from the fact that childless marriages receive the same privileges as fruitful ones that the state must be satisfying some other state interest by privileging them. That argument is, frankly, ridiculous.

So it is an open question whether the state has any interest in marriage apart from encouraging the production of a new generation of healthy and productive workers and taxpayers.

Even assuming that there is some other interest the state has in marriage, until we know what that interest is, we cannot just assume that that it will be served just as well by homosexual marriage as by heterosexual marriage. There's no reason to suppose that this new unknown interest won't provide yet another argument in favor of heterosexual-only marriages. So that is also an open question.

And even if there is some state interest-I-know-not-what that is advanced-I-know-not-how by heterosexual and homosexual marriage we cannot just assume that it is advanced only by those two. It is not automatically given that any newly found state interest in marriage would not also suggest that we shouldn't privilege other sexual couplings as well.

Until we know what this new unknown interest is and how marriage helps to secure it, for all we know we might also want to allow marriages to approve sexual intercourse between/among two or more of the following:

  • Unrelated human beings.
  • Close blood relations of the same sex.
  • Close sterile blood relations of the opposite sex.
  • Living and dead humans and animals.
  • Humans and plants.
  • Humans and inanimate objects.
  • Adults and children.
  • Etc.
So even if there is some state-interest in marriage apart from procreation, and even if homosexual marriage would satisfy that unknown interest, it is still an open question whether the move to liberalize marriage laws goes far enough and whether liberals, to be consistent, shouldn't also be advancing marriages among some or all of the sexual unions just listed.

What is not an open question is that the state has an interest in the production of the next generation of taxpayers.

What is also not an open question is whether heterosexual marriage is uniquely fit to advance that interest.

WisdomLover,

Ah, I was uncertain your previous comment was addressed to me.

How do we determine the purpose of a law? Whether it is criminal code, a procedural requirement, a zoning enforcement, a contractual obligation, a real estate requirement, etc? We look to the law itself.

As each state has its own marriage laws, I will refer to the state I am most familiar—Michigan. Michigan requires one reach a certain age (16), consent, obtain a license and go through a solemnization ceremony officiated by an appropriately sanctioned individual.

There is nothing about one’s age regarding children. Nothing about consent or obtaining a license regarding children. Nothing about a ceremony or officiate regarding children. Indeed, you can pour over the entire statue and there is nothing said about children, the ability to bear children or the desire to have children contained therein (with one exception I will address in a moment.)

There is absolutely, positively nothing about progeny as a requirement, result, privilege or consequence of marriage within the marriage statute. I would like to see one argue how “children” are a purpose in a statute failing to mention them!

It gets worse.

We have other statutes that DO deal with children and their relationships with parents. Statutes about custody (both physical and legal), parenting time and support. Those statutes are in effect regardless of the parent’s marital status. In other words, my legal rights with my son are determined by statutes OTHER than the marriage statue; my legal rights exist regardless whether I am married to his mother or not.

I am uncertain how one can argue the marriage statue’s purpose is geared toward children when it fails to mention them, and another statute deals directly with parent’s legal ramifications with their children. Ramifications regardless of the parent’s marital status to each other.

Now the one (amusing) exception. In 1996, it looked as if Hawaii would begin recognizing same-gender marriage. Realizing the US Constitution’s full faith and credit clause would require Michigan to recognize such marriages as valid (the marriage statute even indicated it would do so), the Michigan legislature panicked, passing laws indicating it would not recognize same-gender marriage in 1996. In doing so, it created MCL 551.1: “Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contract between individuals of the same sex is invalid in this state.” [emphasis added]

There are two (2) things to note. First, the statue itself admits there are numerous goals promoted by marriage, only one of which has to do with children. Thus validating the very point I was making—this blog entry fails because it assumes children are the sole goal. The statue itself indicates this is not true.

Second, (and this may only be amusing to those in the legal field) laws are presumed to address a perceived need—laws are never intended to be superfluous or unnecessary. Presumably, by passing this law in 1996, the Michigan legislature indicated prior to 1996, the state did NOT have an interest in encouraging, supporting and protecting marriage in order to promote, among other goals, the stability and welfare of society and its children. Otherwise it would not need to pass the law.

So heterosexual marriage only gained a “purpose” regarding children when it denied others who opponents claim cannot have children! I strongly disagree my “purpose” with having children is derived from others not having them! If one can’t appreciate the irony in that, I don’t know what else to say.

Laws rarely state the reasons that the laws are adopted. I would expect that this is especially so with an institution as old as marriage.

You think that the laws that spell out the rights involved with the ownership of private property extol the virtues of a capitalist system?

So I reject your entire effort to read the purpose of a law from the law. That may work in some cases, but I see no reason to think it would work in all or even most cases.

As for there being other purposes for marriage, the fact that the Michigan legislature hedged and allowed (as I do btw) the possibility of other state interests in marriage does not show that there are any such interests. And even if there are, it does not show that childless marriages, let alone childless homosexual marriages, would advance those unspoken interests.

WisdomLover,

I see our discussion is at an end. I propose a methodology to determine “purpose” in law—a method consistent whether the law is criminal, civil, procedural, regulatory, etc.—you “reject” this method without proposing any alternative method for determining “purpose.” (I am almost curious what method one would use to determine purpose without looking at the law itself. Almost curious.)

I provide the fact the law itself recognizes multiple purposes; you disregard the law’s own declarations. I point out the evidence the law does not mention (let alone address) progeny whereas another statute does deal with such issues; you ignore that entirely. I point out the argument by introducing a statute now claiming partial purpose regarding children would mean no such purpose existed before; you make no reply.

Look, you are welcome to your opinion—it is a free Internet! I would hope you (and other Christians) would understand this argument regarding “purpose” in marriage law is unpersuasive when it is opinion as opposed to consistent methodology, the statutes themselves, the facts, the arguments and the evidence.

Nice rant Dagoods.

I asked earlier what these mysterious other purposes are for the marriage law. The answer, it appears, is none.

Following your methodology of reading the law to determine the state interest shouldn't you be able to just tick them off?

Unless, of course, the law does not always, if ever, mention what state interest it serves.

Oh, and I like the way that you infer from a state law which, uncharacteristically, does acknowledge a state interest in marriage, an interest that had always been there, that somehow that shows that the interest had never been there before.

I'm sorry, but that's just poppycock.

As I said before, I won't take your contention seriously because it cannot be taken seriously.

I mean honestly, Article 3 section 3 of the Constitution does not express what state interest is served by its definition of treason and its rules about what it takes to convict someone of treason, and the fact that treason cannot taint the family of the traitor.

Does it follow that we really have no good method of deciding what the state-interest against treason is?

Get serious.

WisdomLover: Following your methodology of reading the law to determine the state interest shouldn't you be able to just tick them off?

1. To limit them to persons of certain age (16)
2. To confirm the parties consent to the matrimony – i.e. no forced marriages, no marriages to persons unable to understand they are being married.
3. To prevent persons of close blood-relation to be married.
4. To monitor legality of marriage through licensure—i.e. prevent bigamy either intentionally or unintentionally.
5. To regulate who can officiate.
6. To determine a moment when one goes from “unmarried” (with all those rights and privileges) to “married” (with those rights and privileges.)

Really not that hard…just utilized my proposed (and rejected) methodology—read the law itself! Notice, by the way, how many of those have to do with progeny. Hint: Possibly one (1).

WisdomLover: I mean honestly, Article 3 section 3 of the Constitution does not express what state interest is served by its definition of treason …

That’s amusing. Art. 3, Sec 3 states, in part, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort….”

It is not difficult to determine the state’s purpose was to prevent its own citizens from levying war against the United States or prevent its own citizens from providing aid and comfort to enemies of the United States. All one has to do is read the law, like my methodology suggests.

Thanks, by the way, for the compliment. I am always particularly proud of my rants. *grin*

So the state-interest in a law, according to your methodology, is that it be obeyed as written.

Deep.

I am sorry if this bursts your bubble, WisdomLover, but the creation of laws does not involve weighty philosophical discussions amongst somber-faced women, men stroking long beards and furrowed brows. It is a messy (like sausage) compilation tainted with political aspirations, necessary compromise, self-preservation, outside influence and monetary concerns. At times the experiments succeed; other times they fail, requiring further modification.

If we are attempting to develop a methodology determining what state-interest exists in a law, we must look to the law itself. Perhaps it is as simple as the law; perhaps there is more behind it. At the least, the law itself must make reference to the claimed state-interest. If I claim the state has an interest in cancer-prevention and used the Driver’s License law as my basis, one would question how I came to such a conclusion as the Driver’s License law makes no reference whatsoever to cancer prevention!

In the same way, marriage laws make no provision for children—how can one argue the state-interest is supported in a law silent on the topic? Again:

1) Does the marriage law provide for children in any way, shape or form? No.
2) Does the marriage law recognize multiple state-interests besides children? Yes.
3) Does another statute provide for children regardless of marital status? Yes.

I have yet to see anyone on this entry address the inherent problem in claiming marital laws demonstrate a state-interest in progeny based upon those three facts. And if I am incorrect, I have yet to see anyone propose a method to determine state-interest in law. My method may not be “deep” according to you, but it is oceans deeper than any other method provided so far!

There is a reason this argument—“the government has marriage because of children”—ONLY works on those who already want to believe it. The rest of us look at the actual law, raise the actual law, use a consistent method to determine state-interest the same way we would any other law, and find the argument fails spectacularly.

If you all want to use it to convince people who are already convinced (and how hard is that?) go right ahead. If you want to convince anyone not already convinced, this is not the way to go about it.

If we are attempting to develop a methodology determining what state-interest exists in a law, we must look to the law itself. Perhaps it is as simple as the law; perhaps there is more behind it. At the least, the law itself must make reference to the claimed state-interest.
Charming. There may be more to the state-interest than the law, but the law must reference it. These cannot both be true.

Obviously it's the second that is false.

Does the marriage law provide for children in any way, shape or form? No.
Yet in the dissolution of a marriage, custody of the children is often the most disputed issue. If marriage isn't about children how can this be?

WisdomLover,

Sorry for the delayed replay—long busy weekend.

This blog entry claims, “There is a state-interest in marriage involving children.” As “state-interest’ regarding marriage is expressed through its laws regulating the same--presumably some person at some time developed a method to derive state-interest from laws, and applied that method to come to this conclusion. Otherwise this is a baseless argument—pure assertion—with no more sum and substance than claiming a state-interest in driver’s license requirements involving corn flakes.

I have repeatedly asked what that method is; what is the basis for this claim? As no method has been provided by any individual to support the claim, at this point I can only assume no method exists.

I did not understand you first statement so I will not address it. As to your question, “Yet in the dissolution of a marriage, custody of the children is often the most disputed issue. If marriage isn't about children how can this be?” the answer is simple—a child cannot be physically present in two places at the same time, and when a marriage dissolves this very often results in the parents living in separate locations. It has to do more with parents living separately than marriage dissolving.

You may notice I have repeatedly indicated parents’ responsibilities and privileges regarding children derive from a separate statute than marriage, and this question admirably highlights the point, again weakening the blog entry’s claim.

There are numerous scenarios:

1) Parents live together, never married, sharing joint physical custody;
2) Parents living together, divorced, sharing joint physical custody;
3) Parents married, going through divorce, only one parent has physical custody;
4) Parents divorced, living separately sharing joint physical custody;
5) Parents divorced, living separately, only one has physical custody; or
6) Parents never married, do not live together, and only one has physical custody.

The determination as to who has physical custody has to do with numerous factors, regardless of the marital status of the parents. We use the same exact factors with parents who have never been married, as parents going through a divorce, as parents who are divorced. “Marriage” is (again) seen as not addressing children—being a “Parent” does.

I think you are going in circles at this point, so instead of dealing yet again with your argument, I'm going to summarize what I take to be the most salient point.

This idea that the only place where you can find the reason for a law is in the law itself is just ridiculous. As your argument depends essentially on this idea, you really have no argument.

I gave one rather uncontroversial example meant to show that the reason for the law may be found apart from the law. The constitutional provision against treason does not say one word about what the state interest against treason is. Nor does it say anything about what the state interest is in not allowing treason to result in the 'corruption of blood'. The law merely states what treason is and that there shall be no corruption of blood (i.e. the family of the traitor shall not be punished or lose civil rights because of the traitor's actions). The law tells us what, not why.

Obviously, the delegates at the second continental congress simply assumed a state interest against treason. This assumption is not stated anywhere in the constitution. And they probably had some arguments about whether treason should result in corruption of blood. I the latter this is probable because he British system did allow a corruption of blood. So the delegates decided that it would be in the state-interest to change that. The words of these arguments are not recorded in the constitution. But it is in such arguments that the state interest in preventing the corruption of blood would be expressed.

Your contention was that the law itself expresses the interest that the state is serving. It is serving the interest that the state has in not having treason taint the family of the traitor.

But that's just silly, because all that is saying is that the state-interest in the law is simply compliance.

It's not that the state has an interest in its citizens leading lives as productively as possible so that there will be a greater abundance of goods and services for all. It's not that allowing a corruption of blood to follow from treason would tend to undercut the productivity of otherwise useful citizens. That's not the state interest. No. The state interest is simply that there be no corruption of blood for treason.

By that reasoning, the state has a direct interest in opposite-sex marriage. No need to even appeal to the having and rearing of children. This is because the law says that you must be of the opposite sex in order to be married. So there's no need to go any farther. Right? That's exactly what the laws says. So, sorry, no gay marriage.

No, actually, that's a stupid argument.

And that's because the state interest in marriage isn't found in the laws that govern marriage. The perceived state interest is the reason that the law has the form it has. The interest is not expressed in the law. The law simply expresses the terms of compliance.

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