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Re: California strikes down ban on gay marriage. [Re: johnm214]
    #8543049 -

California struck down the ban on gay marriage.  Good.  Government shouldn't have a thing to do with marriage.  It shouldn't be licensing marriage, shouldn't be defining marriage, and certainly shouldn't be banning marriage.  Marriage should be completely privatised.  We need a separation of marriage and state.

I read an article by someone who was actually upset at this ruling.  This guy's opinion struck me as absurd, so I wrote a reply to each point he made in his article.


--------------------
Alex

"The difference between free-market capitalism and state capitalism is precisely the difference between, on the one hand, peaceful, voluntary exchange, and on the other, violent expropriation" (Murray N. Rothbard, 1973).

"The market is not a jumble of distorted and unrelated events.  Instead, it is a highly complex but orderly and efficient mechanism which provides a means for each person to realize the maximum possible value and satisfaction commensurate with his abilities and resources" (Linda & Morris Tannehill, 1970).

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Re: California strikes down ban on gay marriage. [Re: anarchist1776]
    #8543693 -

This last few posts are silly.

Here's the deal:  The law clearly defines marriage, that is what controls, not the dictionary or commonlaw (despite phred and diploids contention).

Just like you can't get off on a conspiracy charge re: controlled substances if you didn't take an overt act, even though such is required at common law, by the legal definition of the word, and in other conspiracy statutes, you can't plead some extra legal definition of the word when its defined in a statute.

Marriage is defined in the statute, that is what matters, not society, not changing values, not anything else.


Now that marriage is defined the issue is whether the statute violates equal protection in light of the right given to heterosexuals to marry, and the right given by the cali const. to marry.

THe answer was yes, as one group got marriage and not the other.


Nobody who's disagreed with the gay marriage right argument I've laid out has been able to develop any equal protection test that excludes gay marriage but allows other acknowledged rights such as interracial marriage (which is almost identical I'd say.)


Fact is the societal definition is irrelevant pretty much.  You can't violate equal protection.  Somehow people want to read in an extra legal definition to save straight-only marriage and raise that above the constitution.

Marriage used to be only those in certain groups as well, as laid out in many articles about the decision.  How is the "man and woman" the only definition among those we keep?  What about the religious requirements?  What about the ban on interracial marriage?  Where did those disapear to?

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Re: California strikes down ban on gay marriage. [Re: johnm214]
    #8543723 -

Quote:
Marriage used to be only those in certain groups as well, as laid out in many articles about the decision.  How is the "man and woman" the only definition among those we keep?  What about the religious requirements?  What about the ban on interracial marriage?  Where did those disapear to?


So you'd have no objection to California making it legal for a man to marry a goat? Or a woman to marry a python? Or a man to marry ten women? Or a woman to marry ten men? Or three men to marry eight women?



Phred


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Re: California strikes down ban on gay marriage. [Re: Phred]
    #8544082 -

goats can't consent to sexual activity. polygamy should be allowed for those that wish to participate in it.


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Re: California strikes down ban on gay marriage. [Re: Phred]
    #8544645 -

Phred said:
Quote:
Marriage used to be only those in certain groups as well, as laid out in many articles about the decision.  How is the "man and woman" the only definition among those we keep?  What about the religious requirements?  What about the ban on interracial marriage?  Where did those disapear to?


So you'd have no objection to California making it legal for a man to marry a goat? Or a woman to marry a python? Or a man to marry ten women? Or a woman to marry ten men? Or three men to marry eight women?



Phred


As law, no, though the python and stuff would be silly.

As to the equal protection clause:  Clearly a non-person has no legal right and no standing to sue or be sued except as property, so your argument fails as far as practicality and as far as the actual amendment- which applies to people.

There is no right for a man to marry a snake as it cannot be a violation of equal protection.  No one is allowed to marry a snake, and that's fine cuz a snake is not a person and a snake has neither legal rights nor standing.

It boils down to the "people" part of the equal protection language precludes equal protection analysis being applied to non-people.  You can say someone can start a partnership with a person and not a goat, and likewise with marriage.

For their to be a violation of equal protection there must be a right granted to some people that isn't extended to other people.  As no people have the right to marry snakes, there is no problem in restricting that to all.  If some people had the right to marry snakes, however; it must extend to all equally or be taken away by normal means (due process).


As for the polygamy, that again is a sepperate issue.  No one has the right to marry more than one person under the statutory scheme so their is no equal protection violation- no group is singled out with rights less than the other group.  One person one marriage one spouse is not a problem.  Now if the state started saying one group (say mormons) could marry multiple wives but another group couldn't, I'd say that would be an equal protection problem.


I've heard the bestiality argument before and frankly never understood it.  Animals don't have rights, equal protection applies to people, and you don't have the right invent some right or transfer a right you'd have if the partner was human to some non-person.



So under the current framework, yes; I would think it would be bullshit if the court ruled you had a constitutional right to marry snakes or multiple people under the equal protection clause.


If the legislature wanted to pass that law however, I wouldn't care (ignoring practicalities).

whatsgrimace said:
goats can't consent to sexual activity. polygamy should be allowed for those that wish to participate in it.


consent isn't the issue, we're talking about mariage rights not sex.

As for waht should be allowed, we're talking about what the constitutional rights are, not what should be provided but what must

I have no problem with polygamy, but I can't see it as a constitutional right

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Re: California strikes down ban on gay marriage. [Re: johnm214]
    #8544896 -

I agree with the anarchist1776.  Marriage laws are currently merely a convenient default contract that can and often should be superseded by any other custom contract the parties involved should wish to enter into.  Said parties being competent adult humans as defined as legal individuals for all other aspects of contract law.  Pythons need not apply.


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Re: California strikes down ban on gay marriage. [Re: zappaisgod]
    #8558557 -

I'm going to go a bit further than most of you.  Many are pointing out that animals are unable to consent, and this is correct.  But, I fail to see why they would need to.

Animals possess no rights, as far as I can tell.  Rights are a human phenomenon, as far as I can tell.  If animals do possess some sort of rights, they are far more limited than and far inferior to human rights.

So, even if the goat objects to being "married," what right does it have to prevent the marriage?  No more than it has to prevent its own being consumed.

To understand whether such a marriage is just or not, we therefore cannot analyse the goat, but must instead analyse the philosophy underlying the nature of marriage.

Persons have stated that marriage is a contract, and they are right--partially.  Ergo, let us first analyse contracts.

Contracts, to be just and binding, must secure the exchange of title to some alienable property.  One cannot sell one's self into slavery because one cannot alienate ownership of one's own body from one's self.  Nor can a person alienate from him- or herself his or her will.  But one can alienate from one's self ownership of any other justly-ownable good.

If the marriage contract details the manner in which property will be distributed amongst the partners during the marriage, or the manner in which property shall be divided amongst the partners in the event of a divorse, then it is legally a contract, and is as binding as any other contract.  (Because one cannot be a slave, one cannot contract to remain married "forever," or even for a given length of time.  In other words, a divorse may occure at any time and for any reason one or more partners may choose, irrespective of the other partner(s).  This is where the pre-nup will be activated.)

But let us say Jim and Sally wish to marry without any contract detailing any transfer of title to property.  Jim and Sally, instead, will merely consider themselves as married to one another, irrespective of the considerations of anyone else.  In this event, the marriage is not a contract.  Yet, it remains a marriage.

How so?

It can only be that marriage is a subjective determination of the status of a given relationship between two or more entities.

Since marriage is subjective (sans the introduction of contract), it must be true that no one can be obligated to recognise as legitimate any marriage between anyone.

If Frank and Bob wish to recognise themselves as married, this in no way infringes upon the rights of their neighbour Joan.  If Joan does not like the marriage, all she has to do is pretend it doesn't exist.

So, what then if Joan wishes to consider herself "married" to her goat?  The goat has clearly not signed any contracts, as it has no rights or ability to contract; nevertheless, given the subjective nature of Joan's "marriage," neither Frank nor Bob need to recognise as legitimate her "marriage."  Indeed, no one in Joan's town, or on Joan's planet--or even in Joan's universe--need recognise her "marriage" to her goat as legitimate.  And as soon as she chooses to no longer recognise herself as married, she ceases to be, without needing to go through the effort of filing for divorse.

The question then arises, Should the government recognise as legitimate Joan's "marriage" to her goat, or Frank's marriage to Bob?

To this, I say no, and for the same reason it shouldn't recognise anyone's marriage: because the state can play no useful role whatsoever in marriage, and just creates needless controversy by getting involved.  Therefore, the state should create no laws regarding marriage, and should tax people equally regardless of whether they consider themselves "married"--(the closer that tax is to zero, the better).

What happens when the state does get involved in marriage?  By getting involved in any manner whatsoever, it inherently infringes upon the rights of religious groups.  Mormons have a natural, inalienable, and negative right (since positive rights cannot exist) to recognise as legitimate polygamist marriages, and there is no reason why voluntary polygamists should be fined or jailed for such victimless "crimes."  Likewise, the members of the United Church of Christ have a natural, inalienable, and negative right to recognise as legitimate homosexual marriages.  Finally, Roman Catholics have a natural, inalienable, negative right to refuse recognition of these types of marriages.


--------------------
Alex

"The difference between free-market capitalism and state capitalism is precisely the difference between, on the one hand, peaceful, voluntary exchange, and on the other, violent expropriation" (Murray N. Rothbard, 1973).

"The market is not a jumble of distorted and unrelated events.  Instead, it is a highly complex but orderly and efficient mechanism which provides a means for each person to realize the maximum possible value and satisfaction commensurate with his abilities and resources" (Linda & Morris Tannehill, 1970).

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Re: California strikes down ban on gay marriage. [Re: anarchist1776]
    #8559220 -

I agree with you on the snake part.  But that isn't dispositive.


The fact is, the person has no right to insist the snake be wed to him.  If others were allowed to marry snakes, and he was precluded, without due process, then I'd agree that there would be a right to marry a snake.

But there isn't one, and so the equal protection argument is neutered.  So while the snake's objection or lack of consent is irrelevant, the issue is the person has no right to the marriage.

Quote:
But let us say Jim and Sally wish to marry without any contract detailing any transfer of title to property.  Jim and Sally, instead, will merely consider themselves as married to one another, irrespective of the considerations of anyone else.  In this event, the marriage is not a contract.  Yet, it remains a marriage.


I get that your whole analogy presumes no contrary law, but in this instance, I think the presumption is impracticle.  Granted their is not a contract, however; the law in all states I'm aware of provides certain rights to the parties.  In some cases, these are not rights able to be contracted by law (right to rape your spouse for instance, or, more practically, rights to custody of children during marriage)

Quote:
It can only be that marriage is a subjective determination of the status of a given relationship between two or more entities.


The whole licensing scheme in all states, though not all require it all provide for it, kinda makes this point a nullity.  If you are married via license, you have those rights granted under law whether you want them or not, and you are married whether you want to be or not.  Try to enter into another subjective marriage and you may be denied or subject to bigamy charges.

Quote:
for the same reason it shouldn't recognise anyone's marriage: because the state can play no useful role whatsoever in marriage, and just creates needless controversy by getting involved.


Agreed in toto.  There may be useful legal presumptions applied to cohabitants that carry on as married but with no contract, but I agree the state should but out.  The christians should simply return to their church and leave everyone alone.  The problem is all cuz the state wanted in on shit, and wanted to "protect" people with their laws- and collect their fees, of course.


Quote:
By getting involved in any manner whatsoever, it inherently infringes upon the rights of religious groups.  Mormons have a natural, inalienable, and negative right (since positive rights cannot exist) to recognise as legitimate polygamist marriages, and there is no reason why voluntary polygamists should be fined or jailed for such victimless "crimes."  Likewise, the members of the United Church of Christ have a natural, inalienable, and negative right to recognise as legitimate homosexual marriages.  Finally, Roman Catholics have a natural, inalienable, negative right to refuse recognition of these types of marriages.


Agreed that everyone has a right to their voluntary associations between adults.  Religion is a practical reason to recognize this fact, but freedom and lack of a compelling reason for gov't intervention is the base reason, imo.
Quote:
Zappaisgod said:

Pythons need not apply.




That made me laugh :smile:

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