Florida Pulse gay club attacked in Orlando

[Seth]

No, regulating societal disputes is one of the primary purposes of law.

A distinction without a difference. The goal is to make sure that societal disputes do not unduly disrupt the smooth functioning of society.

Preventing undesirable unregulated private resolution of irresolvable conflicts is a goal.

How does one resolve an "irresolvable" conflict, either privately or publicly? And why is the actual goal not to find ways to resolve conflicts entirely, even if that goal is not always successful or achievable?

First, contracts and negotiation for things like housing and employment would be outside the scope of such contracts.

Non sequitur. A domestic partnership contract can contain any non-proscribed provisions that the parties to the contract agree upon, which can include housing and employment if that's what's desired.

Second, replacing one, unified legal concepts with billions of private contracts actually would increase government involvement in the matter, not reduce it. Your 'plan' is simply unrealistic.

How so? I say it would radically reduce government involvement in the formation of the partnership, which is precisely the problem today. The complaint of gays is that the law forbids them from entering into a domestic relationship with one another that stands on equal footing with current legally-sanctioned and preferred heterosexual marriages. The oft-stated objective (by you and others) is for gays to achieve legal equality when it comes to intimate domestic partnerships. That's a valid objective, particularly here in the US where equality under the law is a constitutional right. You propose that the solution is for the law to recognize gay marriage as legally valid and equal to heterosexual marriage. This is not an inherently unreasonable demand, but it does cause a great deal of dissent and discontent among the general public, many (if not possibly most) of whom have strong objections to legal changes that, in their opinions, damage the "traditional" institution of marriage. Others simply object to putting gays on an equal legal footing for reasons of homosexual bigotry.

Moreover, the genesis of civil regulation of marriage in the US is based in racist bigotry to begin with.

My solution is to eliminate the problem by eliminating the conflict over the use of the word "marriage" by eliminating the use of the word "marriage" in civil law as a term that authorizes government-sponsored discrimination or which confers extra benefits to some while denying them to others. I propose to replace the entire civil regulation of intimate domestic relationships with private contracts rather than public laws because the nature and details of any domestic relationship should be exclusively the domain of the participants in the relationship, with very, very limited oversight by the government, to begin with...because what you do and how you run your private life with your domestic partner is very much nobody's business, and certainly not the government's business unless and until the execution of that agreement contravenes laws intended to protect all citizens, such as criminal assault laws, fraud laws, etc..

So, if that's what you believe, then are you saying that banning gay marriage is appropriate? That's what government feels it has a legitimate interest in doing in many places, for precisely the reasons you cite. I thought you were opposed to such government interference. I'm confused as to your reasoning here.

Where that is the will of the people, so be it.

Ah, the mantra of the democratic proletarian pawn of tyranny. That being the case, what the fuck are you bitching about anyway? Right now it is "the will of the people" that gay marriage be banned in most states, so why aren't you satisfied with that democratic decision?

As to "unfair discrimination against persons in committed relationships," you do not provide any information about the sort of discrimination you are referring to or by whom committed, but I'm going to assume that you mean the internal workings of a particular domestic relationship and are concerned about one partner abusing the other without any possibility of recourse for the abused partner.

I was referring to discrimination in the public sphere such as in housing, employment, visitation rights, and so on.

Thanks for clarifying. Such issues are dealt with just as they are now, by public laws which, in this case, mandate certain standard provisions in all domestic partnership contracts, just as is the case today with many different types of contracts. This is nothing that isn't already dealt with adequately by the existing systems.

The fact of the matter is that government has vested interests in regulating marriage.

What "vested interest" precisely?

Whether this is done by contract, or by having a unified concept of marriage, the ultimate goal is regulating marriage. Having a unified concept is simpler to administer and provides less fertile ground for abuses.

You need to justify and explain this "vested interest" and why government has it and why we should allow government to have it.

But perhaps I'm mistaken and your agenda isn't about equal rights for everyone in domestic relationships but rather is about abusing the law to shove homosexuality in the face of everyone else by forcing the government to make "gay marriage" legal, for no better reason than so that you can stick your tongue out at those who object and want "marriage" to retain its traditional meaning.

My plan is about equal rights and fair, equal treatment for everyone, not political agendas and petulant behavior.

You sound positively homophobic.

How so? Or are you saying that homosexuals are incapable of being petty, vindictive and petulant?

[L'Emmerdeur]

[Snipped unsupported bloviation.]
"It" doesn't say that, I say that. Feel free to post citations authoritatively disproving my claim...something you haven't yet done.

As I said, I'm content with the sources I've cited, as opposed to "Seth says," which is all you have on your side.

But, even if it were, that wouldn't change the fact that claiming that marriage used to be strictly a civil law matter would be to state a fallacy because the whole point of this part of the discussion is about changing the way things are done precisely in order to remove "marriage" from within the purview of state sanction. Recent involvement of the state in marriage, even historical involvement is irrelevant to whether it is a better idea to do as I've suggested and get government entirely out of the marriage business.

I have not made the claim that marriage used to be strictly a civil law matter. What I have done is present sources that refute your claim that "marriage has always been a fundamentally religious matter." You don't like those sources, fine. Present sources that support your position, and show why they're more authoritative than those that I've cited.

I find it interesting that none of you care to discuss the actual merits of my plan but instead evade and weasel around the issue.

There are plenty of reasons why privatizing marriage is not a reasonable course of action. For one cogent response, see "Privatizing Marriage Is a Terrible Idea: It won't end the culture war but will lead to even more government interference in families"

At the most basic level, even if we can get government out of the business of issuing marriage licenses, it still has to register these partnerships (and/or authorize the entities that perform them) before these unions can have any legal validity, just as it registers property and issues titles and deeds. Therefore, government would need to set rules and regulations as to what counts as a legitimate marriage "deed." It won't—and can't—simply accept any marriage performed in any church—or any domestic partnership written by anyone.

[. . .]

In other words, this kind of "privatization" won't take the state out of marriage—it'll simply push its involvement (and the concomitant culture wars) to another locus point.

Furthermore, true privatization would require more than just getting the government out of the marriage licensing and registration business. It would mean giving communities the authority to write their own marriage rules and enforce them on couples. In other words, letting Mormon marriages be governed by the Church of the Latter Day Saints codebook, Muslims by Koranic sharia, Hassids by the Old Testament, and gays by their own church or non-religious equivalent. Inter-faith couples could choose one of their communities—but only if it allowed interfaith marriages. But here's what they couldn't get: a civil marriage performed by a justice of the peace. Why? Because that option would have to be nixed when state and marriage are completely separated.

This would mean that couples would be subjected to community norms, many of them regressive, without any exit option. For example, a Muslim man could divorce his Muslim wife by saying "divorce" three times as per sharia's requirement and leave her high-and-dry with minimal financial support (this actually happens in India and elsewhere). Obviously, that would hardly be an advance for marriage equality. The reason calls to "abolish marriage"—to quote liberal columnist Michael Kinsley—lead to such absurd results is that they are based on a fundamental misconception about the function marriage serves in a polity.

[. . .]

Just as property rights (at least in principle) establish the scope and limits of state power over an individual, marriage does something similar for couples. It basically establishes their right to jointly own property and inherit it from each other, keep and raise their children, and make medical decisions for the other when one is incapacitated. The government can't grab their children or their property without a compelling interest—and it must prevent others from doing so as well. For example, in-laws can't simply take away children because they think their daughter-in-law is an unfit mother or overrule her end-of-life decisions for their son. Couples can voluntarily—and jointly—cede some of their authority to others in special circumstances. But marriage creates a default presumption of their rights—as well as their responsibilities: For example, just as no one can take away their children, they can't abandon their kids either.

Without marriage, every aspect of a couple's relationship would have to be contractually worked out from scratch in advance. This may—or may not—prove to be an onerous inconvenience (some people speculate that companies would start marketing canned contracts to couples). But without licenses or registration for marriages, many things, including establishing paternity, would get really messy. When a couple is in a recognized marriage, the children in their custody are presumed to be theirs—either because they bore them or adopted them.

[Continues . . .]

[rasetsu]

No, regulating societal disputes is one of the primary purposes of law.

A distinction without a difference. The goal is to make sure that societal disputes do not unduly disrupt the smooth functioning of society.

Which discrimination against gay couples was doing before the Supreme Court ruling. Committed same-sex partnerships were grossly disadvantaged on a number of fronts and solutions, applied piecemeal fashion, complicated rather than clarified the situation.

First, contracts and negotiation for things like housing and employment would be outside the scope of such contracts.

Non sequitur. A domestic partnership contract can contain any non-proscribed provisions that the parties to the contract agree upon, which can include housing and employment if that's what's desired.

Can it? Can a contract of a same sex couple dictate that an insurer offer them a rate competitive with a heterosexual couple? Uh oh. Looks like something the government is going to have to be involved in.

Second, replacing one, unified legal concepts with billions of private contracts actually would increase government involvement in the matter, not reduce it. Your 'plan' is simply unrealistic.

How so? I say it would radically reduce government involvement in the formation of the partnership, which is precisely the problem today. The complaint of gays is that the law forbids them from entering into a domestic relationship with one another that stands on equal footing with current legally-sanctioned and preferred heterosexual marriages. The oft-stated objective (by you and others) is for gays to achieve legal equality when it comes to intimate domestic partnerships. That's a valid objective, particularly here in the US where equality under the law is a constitutional right. You propose that the solution is for the law to recognize gay marriage as legally valid and equal to heterosexual marriage. This is not an inherently unreasonable demand, but it does cause a great deal of dissent and discontent among the general public, many (if not possibly most) of whom have strong objections to legal changes that, in their opinions, damage the "traditional" institution of marriage.

And those people are on crack. They'd be even less thrilled by your desire to privatize marriage.

Others simply object to putting gays on an equal legal footing for reasons of homosexual bigotry.

And we as a society have decided that such bigotry should not dictate the terms of marriage.

Moreover, the genesis of civil regulation of marriage in the US is based in racist bigotry to begin with.

Citation needed.

My solution is to eliminate the problem by eliminating the conflict over the use of the word "marriage" by eliminating the use of the word "marriage" in civil law as a term that authorizes government-sponsored discrimination or which confers extra benefits to some while denying them to others.

The problem was an inequality in treatment of same sex and heterosexual partners by independent entities. Privatizing marriage would do nothing to 'end' this problem and would likely worsen it.

So, if that's what you believe, then are you saying that banning gay marriage is appropriate? That's what government feels it has a legitimate interest in doing in many places, for precisely the reasons you cite. I thought you were opposed to such government interference. I'm confused as to your reasoning here.

Where that is the will of the people, so be it.

Ah, the mantra of the democratic proletarian pawn of tyranny. That being the case, what the fuck are you bitching about anyway? Right now it is "the will of the people" that gay marriage be banned in most states, so why aren't you satisfied with that democratic decision?

As it currently sits, that is not the legally decided outcome. Opponents of same sex marriage are welcome to propose a constitutional amendment should they feel they can win. Good on them if they do. They haven't succeeded in the past. Where are you getting your opinion that opposition to same sex marriage is the will of the people other than your finger in the wind? (Or more likely your finger up your ass....)

As to "unfair discrimination against persons in committed relationships," you do not provide any information about the sort of discrimination you are referring to or by whom committed, but I'm going to assume that you mean the internal workings of a particular domestic relationship and are concerned about one partner abusing the other without any possibility of recourse for the abused partner.

I was referring to discrimination in the public sphere such as in housing, employment, visitation rights, and so on.

Thanks for clarifying. Such issues are dealt with just as they are now, by public laws which, in this case, mandate certain standard provisions in all domestic partnership contracts, just as is the case today with many different types of contracts. This is nothing that isn't already dealt with adequately by the existing systems.

Except that such laws would have to be reduplicated everywhere. Such adjudication by legislature would be much more involved than it is today and would result in a morass of conflicting statutes.

The fact of the matter is that government has vested interests in regulating marriage.

What "vested interest" precisely?

We've been over this already. You haven't argued that government doesn't have an interest in regulating the treatment of committed partnerships, only that it would be better served by privatization.

Whether this is done by contract, or by having a unified concept of marriage, the ultimate goal is regulating marriage. Having a unified concept is simpler to administer and provides less fertile ground for abuses.

You need to justify and explain this "vested interest" and why government has it and why we should allow government to have it.

Cato Institute's Jason Kuznicki notes that marriage, properly understood, is a negative, pre-political right that in the liberal understanding of things the government doesn't grant, it guarantees. It makes as much sense, therefore, to abolish marriage in the name of unshackling it from the government's clutches as it would to, say, abolish property rights to "free" them from the government.

http://reason.com/archives/2015/07/21/p ... rible-idea

How so? Or are you saying that homosexuals are incapable of being petty, vindictive and petulant?

Your rhetoric and language parallels that used by people who are homophobic. You aren't this dense. What did you hope to accomplish by asking?

[Seth]

There are plenty of reasons why privatizing marriage is not a reasonable course of action. For one cogent response, see "Privatizing Marriage Is a Terrible Idea: It won't end the culture war but will lead to even more government interference in families"

At the most basic level, even if we can get government out of the business of issuing marriage licenses, it still has to register these partnerships (and/or authorize the entities that perform them) before these unions can have any legal validity, just as it registers property and issues titles and deeds. Therefore, government would need to set rules and regulations as to what counts as a legitimate marriage "deed." It won't—and can't—simply accept any marriage performed in any church—or any domestic partnership written by anyone.

That's a crock and is exactly why it's not a "deed" it's a "contract." Contract law is quite mature and needs no tweaking to deal with a domestic partnership contract. Government wouldn't "need to set rules and regulations as to what counts as a legitimate marriage "deed" because government has no authority to determine what is and is not a valid contract. It can outlaw unconscionable provisions but the Constitution explicitly forbids government to interfere with the "right of contract," (Constitution Article 1, Section 10: No State shall ... pass... any ... Law impairing the Obligation of Contracts.)

And why exactly "won't -- and can't-- government accept any domestic partnership written by anyone"? In the first place, government would be FORBIDDEN from accepting any "marriage performed in any church" as having any legal civil binding effect. That's the whole point of getting government out of the religious marriage biz. Second, other than unconscionable provisions and children what business does the state have meddling in a private intimate relationship in the first place? The author implies it does, but does it? I say it doesn't. I say domestic partnership are up to the partners to define.

[. . .]

In other words, this kind of "privatization" won't take the state out of marriage—it'll simply push its involvement (and the concomitant culture wars) to another locus point.

Yes, out of the government and into the contract law civil courts, where it belongs.

Furthermore, true privatization would require more than just getting the government out of the marriage licensing and registration business. It would mean giving communities the authority to write their own marriage rules and enforce them on couples.

Utter nonsense. Getting the government out of the marriage licensing business PRECLUDES communities from writing their own marriage rules. That's the whole idea.

In other words, letting Mormon marriages be governed by the Church of the Latter Day Saints codebook, Muslims by Koranic sharia, Hassids by the Old Testament, and gays by their own church or non-religious equivalent.

The religious aspects of a religious rite are strictly matters of religious scruples and voluntary participation. If a couple wants to obey Jewish marriage "laws" it may do so, the same for Muslims or Mormons, except for provisions the government deems unconscionable such as the Sharia provisions for "honor killings", stonings and other non-consensual acts by one partner or the religious community against another. This is already the case however, and criminal law deals nicely with such things and needs no tweaking except to make such laws superior over private contracts, which is already the case.

If someone "marries" under religious "law" and then refuses to abide by that "law," there's not a damned thing the partner or the religion can do to force or compel obedience against the will of the individual. That's the point of making marriage strictly a matter of religious practice without ANY recourse to the law for "violations" of such laws or rules. The worst penalty that can be administered by a religious sect for a violation of a marriage rule is expulsion from the religion, and not a damned thing else. Moreover, any person is free to repudiate such rules and walk away from the religion without sanction.

Inter-faith couples could choose one of their communities—but only if it allowed interfaith marriages. But here's what they couldn't get: a civil marriage performed by a justice of the peace. Why? Because that option would have to be nixed when state and marriage are completely separated.

Not exactly. There would be no such thing as "civil marriage" because "civil marriage" is the concept of creating a legal partnership bonding through the offices of the state (justice of the peace) and such events would be explicitly forbidden to the state. Those who wish to create a LEGAL partnership bond that is enforceable by the courts they must create and agree upon a domestic partnership contract agreement and record it with the county clerk. Only then would the provisions of that contract become legally enforceable.

This would mean that couples would be subjected to community norms, many of them regressive, without any exit option.

Utter nonsense.

For example, a Muslim man could divorce his Muslim wife by saying "divorce" three times as per sharia's requirement and leave her high-and-dry with minimal financial support (this actually happens in India and elsewhere).

Only if she agreed to that as a provision of the contract. There would be no such thing as "Sharia law" or "Jewish law" that would have any binding legal effect on anyone. A woman who "marries" a Muslim man under Sharia law is under no enforceable legal obligations and is entitled by law to nothing, it's as if she's just shacking up with the guy and she's not entitled to anything from him at all, and he's not entitled to anything from her either. They can live together however they please, but neither has any "rights" to anything and both can just walk away at any time without obligation...unless they produce children.

If the woman wants protections in the law then she has to get the guy to agree to, sign and record a domestic partnership contract. Otherwise she's up shit creek if he dumps her, but that's not society's problem, that's her problem and she should have used better judgment in selecting a mate and binding him to a valid and enforceable contract that protects her interests.

Obviously, that would hardly be an advance for marriage equality.

Wrong kind of "marriage equality" there, Sparky. Marriage equality is when anyone can marry anyone else without the government interfering. It has nothing to do with what happens inside the marriage, which is entirely up to the individuals party to the civil domestic partnership contract.

The reason calls to "abolish marriage"—to quote liberal columnist Michael Kinsley—lead to such absurd results is that they are based on a fundamental misconception about the function marriage serves in a polity.

No they aren't, they are based in stupid punditry by those who don't bother to think things through and stick their heads up their asses when discussing it.

Without marriage, every aspect of a couple's relationship would have to be contractually worked out from scratch in advance.

Eggzactly! And society will be much better off if couples are required to do so in order to gain the advantage of an enforceable relationship. Too many people get married without giving a single thought to the ramifications of doing so and then society has to clean up the mess.

This may—or may not—prove to be an onerous inconvenience (some people speculate that companies would start marketing canned contracts to couples).

It ain't speculation, it's reason. Lawyers will instantly seize on the opportunity to boilerplate such contracts and they would be available within days of the law being passed. There's no question about that.

But without licenses or registration for marriages, many things, including establishing paternity, would get really messy.

Again, nonsense. Establishing paternity has nothing whatever to do with marriage. It's established by DNA. If you screwed together and a baby results, that's paternity/maternity and it matters not whether you're married or not.

When a couple is in a recognized marriage, the children in their custody are presumed to be theirs—either because they bore them or adopted them.

[/quote]

Complete bullshit. And nonsensical non sequitur. It's much LESS difficult to deal with the obligations of childbearing/adoption in civil law than it is in current "marriage" laws. The participants make specific decisions and provisions regarding children and who is responsible for what and when, and the state intervenes only to the extent of acting as guardian ad litem by requiring certain child-care boilerplate obligations for both parties that simply duplicate the state-sanctioned rules about parentage and responsibility that currently apply to unmarried persons who create children. This is not plowing new ground at all.

This author says nothing at all that is not dealt with already in the law. The only change is from "marriage" to "civil domestic partnership" and the procedure by which such relationships are legally created and dealt with by the law.

[L'Emmerdeur]

At the most basic level, even if we can get government out of the business of issuing marriage licenses, it still has to register these partnerships (and/or authorize the entities that perform them) before these unions can have any legal validity, just as it registers property and issues titles and deeds. Therefore, government would need to set rules and regulations as to what counts as a legitimate marriage "deed." It won't—and can't—simply accept any marriage performed in any church—or any domestic partnership written by anyone.

That's a crock and is exactly why it's not a "deed" it's a "contract."

Note that the author put deed in quotes. Clearly this is not referring to the strict legal term, but is conveying the broader concept of deed, which does cover contracts.

See A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier.. (1856). Retrieved June 23 2016 from http://legal-dictionary.thefreedictionary.com/deed

A writing or instrument, under seal, containing some contract or agreement, and which has been delivered by the parties. This applies to all instruments in writing, under seal, whether they relate to the conveyance of lands, or to any other matter; a bond, a single bill, an agreement in writing, or any other contract whatever, when reduced to writing, which writing is sealed and delivered, is as much a deed as any conveyance of land.

Contract law is quite mature and needs no tweaking to deal with a domestic partnership contract. Government wouldn't "need to set rules and regulations as to what counts as a legitimate marriage "deed" because government has no authority to determine what is and is not a valid contract.

Courts are a branch of government. The courts in which contracts are litigated would be surprised to learn that they have no authority to determine what is and is not a valid contract. You're sounding very much like a sovereign citizen loon here.

It can outlaw unconscionable provisions but the Constitution explicitly forbids government to interfere with the "right of contract," (Constitution Article 1, Section 10: No State shall ... pass... any ... Law impairing the Obligation of Contracts.)

The government is in fact the source of the law by which a contract creates a legal obligation. See A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier.. S.v. "Impairing the obligation of contracts." Retrieved June 23 2016 from http://legal-dictionary.thefreedictiona ... +contracts

The obligation of a contract here spoken of is a legal, not a mere moral obligation; it is the law which binds the party to perform his undertaking. The obligation does not inhere or subsist in the contract itself, proprio vigore ["on its own strength"], but in the law applicable to the contract. [T]his law is not the universal law of nations, but it is the law of the state where the contract is made. Any law which enlarges, abridges, or in any manner changes the intention of the parties, resulting from the stipulations in the contract, necessarily impairs it.

And why exactly "won't -- and can't-- government accept any domestic partnership written by anyone"? In the first place, government would be FORBIDDEN from accepting any "marriage performed in any church" as having any legal civil binding effect. That's the whole point of getting government out of the religious marriage biz. Second, other than unconscionable provisions and children what business does the state have meddling in a private intimate relationship in the first place? The author implies it does, but does it? I say it doesn't. I say domestic partnership are up to the partners to define.

Fortunately for us all, the "Law of Seth Says" has no bearing on reality. Since marriage is one of the basic building blocks of society, government has an interest in regulating it as an institution, including assuring that the institution is not abused in such a way as to be harmful to citizens of the nation. You may not like this, but it is the reality we live in.

In other words, this kind of "privatization" won't take the state out of marriage—it'll simply push its involvement (and the concomitant culture wars) to another locus point.

Yes, out of the government and into the contract law civil courts, where it belongs.

You're not making any sense here. Civil courts are a branch of government.

Furthermore, true privatization would require more than just getting the government out of the marriage licensing and registration business. It would mean giving communities the authority to write their own marriage rules and enforce them on couples.

Utter nonsense. Getting the government out of the marriage licensing business PRECLUDES communities from writing their own marriage rules. That's the whole idea.

The author isn't talking about civil communities, as is clear from the context (see the quote immediately below). This is referring primarily to religious communities. Your chopping of the article may give you an opportunity to rant, but you're clearly ranting at a strawman here.

In other words, letting Mormon marriages be governed by the Church of the Latter Day Saints codebook, Muslims by Koranic sharia, Hassids by the Old Testament, and gays by their own church or non-religious equivalent.

The religious aspects of a religious rite are strictly matters of religious scruples and voluntary participation. If a couple wants to obey Jewish marriage "laws" it may do so, the same for Muslims or Mormons, except for provisions the government deems unconscionable such as the Sharia provisions for "honor killings", stonings and other non-consensual acts by one partner or the religious community against another. This is already the case however, and criminal law deals nicely with such things and needs no tweaking except to make such laws superior over private contracts, which is already the case.

If someone "marries" under religious "law" and then refuses to abide by that "law," there's not a damned thing the partner or the religion can do to force or compel obedience against the will of the individual. That's the point of making marriage strictly a matter of religious practice without ANY recourse to the law for "violations" of such laws or rules. The worst penalty that can be administered by a religious sect for a violation of a marriage rule is expulsion from the religion, and not a damned thing else. Moreover, any person is free to repudiate such rules and walk away from the religion without sanction.

Perhaps you're merely displaying your ignorance here, but if you have any knowledge of how young girls and women can end up effectively trapped in communities such as the Apostolic United Brethren or the Fundamentalist Church of Jesus Christ of Latter Day Saints, you know that your blithe assertions about "walking away" are counterfactual.

For example, a Muslim man could divorce his Muslim wife by saying "divorce" three times as per sharia's requirement and leave her high-and-dry with minimal financial support (this actually happens in India and elsewhere).

Only if she agreed to that as a provision of the contract. There would be no such thing as "Sharia law" or "Jewish law" that would have any binding legal effect on anyone. A woman who "marries" a Muslim man under Sharia law is under no enforceable legal obligations and is entitled by law to nothing, it's as if she's just shacking up with the guy and she's not entitled to anything from him at all, and he's not entitled to anything from her either. They can live together however they please, but neither has any "rights" to anything and both can just walk away at any time without obligation...unless they produce children.

The author isn't talking about "enforceable legal obligations." What is being discussed is how certain communities create a social context in which people can become effectively trapped. Some can and do break free, but often it is very difficult and in some cases practically impossible if, for instance, children are involved.

Obviously, that would hardly be an advance for marriage equality.

Wrong kind of "marriage equality" there, Sparky. Marriage equality is when anyone can marry anyone else without the government interfering. It has nothing to do with what happens inside the marriage, which is entirely up to the individuals party to the civil domestic partnership contract.

More of the "Law of Seth Says."

The reason calls to "abolish marriage"—to quote liberal columnist Michael Kinsley—lead to such absurd results is that they are based on a fundamental misconception about the function marriage serves in a polity.

No they aren't, they are based in stupid punditry by those who don't bother to think things through and stick their heads up their asses when discussing it.

You would know, having given copious demonstrations of that particular maneuver in multiple threads here.

Without marriage, every aspect of a couple's relationship would have to be contractually worked out from scratch in advance.

Eggzactly! And society will be much better off if couples are required to do so in order to gain the advantage of an enforceable relationship. Too many people get married without giving a single thought to the ramifications of doing so and then society has to clean up the mess.

Your solution would therefore provide ample scope for the creation of a class of "private marriage contract" lawyers. I didn't know that you had such respect and appreciation of the legal profession, and such a desire to help employ more lawyers.

But without licenses or registration for marriages, many things, including establishing paternity, would get really messy.

Again, nonsense. Establishing paternity has nothing whatever to do with marriage. It's established by DNA. If you screwed together and a baby results, that's paternity/maternity and it matters not whether you're married or not.

We'll just ignore adoption then, since it's convenient for your argument.

When a couple is in a recognized marriage, the children in their custody are presumed to be theirs—either because they bore them or adopted them.

Complete bullshit. And nonsensical non sequitur. It's much LESS difficult to deal with the obligations of childbearing/adoption in civil law than it is in current "marriage" laws. The participants make specific decisions and provisions regarding children and who is responsible for what and when, and the state intervenes only to the extent of acting as guardian ad litem by requiring certain child-care boilerplate obligations for both parties that simply duplicate the state-sanctioned rules about parentage and responsibility that currently apply to unmarried persons who create children. This is not plowing new ground at all.

This author says nothing at all that is not dealt with already in the law. The only change is from "marriage" to "civil domestic partnership" and the procedure by which such relationships are legally created and dealt with by the law.

The underlined is where the rubber hits the road. Apparently you think that under your proposal, not much would change. You're not taking into account the wonderful world of litigation, and the ability of clever lawyers to feather their nests at the expense of the populace. In any event, this really all depends on the fiction you've maintained that courts are somehow not part of government. In reality, they are, and so privatization of marriage doesn't get government out of the marriage business at all. As the author of the article says, it merely shifts the issue to a different branch of the government.

* * *

Now, on to a couple of . . . misconceptions you've been peddling in this thread.

As I understand it, you've asserted that many if not most people are against same sex marriage, as in the quote below.

You propose that the solution is for the law to recognize gay marriage as legally valid and equal to heterosexual marriage. This is not an inherently unreasonable demand, but it does cause a great deal of dissent and discontent among the general public, many (if not possibly most) of whom have strong objections to legal changes that, in their opinions, damage the "traditional" institution of marriage.

Until fairly recently the majority of the people in the US were against same sex marriage, but opinions have changed, and now the majority are in favor of it.





You've also asserted that civil marriage was instituted in the US "to prevent interracial marriages."

In the US, marriage was regulated and registered by civil authority at first only to "license" marriages to prevent interracial marriages. Prior to such miscegenation laws if you were married by a church official you were married and the government had no opinion one way or the other.

This is a falsehood. Civil involvement in marriages (issuing marriage licenses) in the United States goes back to Massachusetts in the 17th century, and that origin had nothing to do with preventing interracial marriage.

During the 16th through the 18th centuries, the extent of the adoption of common law marriage as part of the transfer of English common law to the American colonies varied. Because informal cohabitation existed in the American colonies, some of the colonies recognized common law marriage, while others required compliance with certain formalities. In general, the colonies adopted English common law "only so far as it could be made to fit and adjust itself to our local circumstances and peculiar institutions."

For example, in the Massachusetts Bay Colony, the dissenters from the Church of England objected to the regulation of marriage by canon law, and as early as 1639 adopted statutes and regulations governing marriage in that colony. Once these laws were passed, requiring a formal ceremony, licensing or registration, and designating the officiant, common law marriage was no longer available. Other colonies that followed this path included Connecticut, Delaware, Maryland, North Carolina, Vermont, and Virginia. In contrast to this, New York, Georgia, Pennsylvania, Rhode Island, South Carolina, and New Jersey chose to accept informal marriages.

[pErvinalia]

[Snipped unsupported bloviation.]
"It" doesn't say that, I say that. Feel free to post citations authoritatively disproving my claim...something you haven't yet done.

As I said, I'm content with the sources I've cited, as opposed to "Seth says," which is all you have on your side.

It's spectacular how he thinks logic and reasoning work. He thinks others are required to disprove claims he's pulled out of thin air (or his arse).

[Seth]

No, regulating societal disputes is one of the primary purposes of law.

A distinction without a difference. The goal is to make sure that societal disputes do not unduly disrupt the smooth functioning of society.

Which discrimination against gay couples was doing before the Supreme Court ruling. Committed same-sex partnerships were grossly disadvantaged on a number of fronts and solutions, applied piecemeal fashion, complicated rather than clarified the situation.

Indeed.

Non sequitur. A domestic partnership contract can contain any non-proscribed provisions that the parties to the contract agree upon, which can include housing and employment if that's what's desired.

Can it? Can a contract of a same sex couple dictate that an insurer offer them a rate competitive with a heterosexual couple? Uh oh. Looks like something the government is going to have to be involved in.

Nonsensical non sequitur. Antidiscrimination laws will still apply and regulating such things has absolutely nothing whatever to do with "marriage" or the internal functioning of a domestic relationship or who is permitted to enter such a relationship.

And those people are on crack. They'd be even less thrilled by your desire to privatize marriage.

Who cares? If their goal is to continue to institutionalize discrimination against gays then I'm all for stopping them from doing so. If they just dislike homosexuals, well, I don't care and my system makes it impossible for them to do anything other than bitch about it, which is their right. A contract is a contract and nobody not party to the contract (with certain exceptions) has a say in it. That's exactly what gays want: they want the government and everybody else to butt out of their private affairs and that's exactly what I'm proposing.

Others simply object to putting gays on an equal legal footing for reasons of homosexual bigotry.

And we as a society have decided that such bigotry should not dictate the terms of marriage.

Yes, but what's your point. My point is that the bigoty is inherent in allowing government to regulate marriage. Prevent government from regulating marriage and turn it over to private contract and such bigotry can no longer dictate the terms of a marriage, only the participants can do so.

My solution is to eliminate the problem by eliminating the conflict over the use of the word "marriage" by eliminating the use of the word "marriage" in civil law as a term that authorizes government-sponsored discrimination or which confers extra benefits to some while denying them to others.

The problem was an inequality in treatment of same sex and heterosexual partners by independent entities. Privatizing marriage would do nothing to 'end' this problem and would likely worsen it.

Again, non sequitur. I'm not arguing for the repeal of antidiscrimination laws here. Marriage has nothing to do with such things. They are matters of public policy that supersede marriage anyway. The fact that two people are "married" has little to do with whether some independent entity discriminates against them or not. You act as if "marriage" is some be-all and end-all for discriminatory behavior by others. It's not and never has been. Bi-racial couples were discriminated against by independent entities for a very long time. They could not rent a hotel room, they could not in places even drink together without the police harassing them. It didn't matter that they were "married."

The goal is to eliminate ALL government favoritism...and all government obstruction...to intimate personal relationships based on the identity of the participants. If government offers a benefit to those in a "committed relationship" for reasons of public policy, under my plan it can only do so with absolute neutrality as to the identity and class of the participants because any such law would apply equally to ANY AND ALL recorded domestic partnerships without distinction or discrimination. That's the benefit gained by creating such a contract and recording it with the state.

Private discrimination is another matter entirely and has absolutely nothing whatever to do with marriage, particularly since any law which purports to authorize a private entity to discriminate based on whether the individuals involved are married or not would be automatically void and nullified precisely because the term "marriage" would disappear from the law books and be replaces with "recorded domestic partnership contract." In such cases all the people would have to do, if some accommodation can (could previously be) be lawfully conditioned upon the individuals being married, would be to present a certificate of recordation...not the contract, merely a certificate with the names of the parties to the contract that shows the contract has been duly recorded, which would serve the same function as a marriage license.

I'd be interested to hear some specific examples of the sort of things you think would be more problematic under a contract-based system than under the present marriage licensing system.

So, if that's what you believe, then are you saying that banning gay marriage is appropriate? That's what government feels it has a legitimate interest in doing in many places, for precisely the reasons you cite. I thought you were opposed to such government interference. I'm confused as to your reasoning here.

Where that is the will of the people, so be it.

Ah, the mantra of the democratic proletarian pawn of tyranny. That being the case, what the fuck are you bitching about anyway? Right now it is "the will of the people" that gay marriage be banned in most states, so why aren't you satisfied with that democratic decision?

As it currently sits, that is not the legally decided outcome. Opponents of same sex marriage are welcome to propose a constitutional amendment should they feel they can win. Good on them if they do. They haven't succeeded in the past.

Pettifogging evasion. "They" succeeded for more than 200 years here in the US in banning gay marriage and the Supreme Court repeatedly upheld the power of the states to regulate marriage and ban gay marriage. Only recently has the Court even suggested that gay marriage is a matter of Congressional authority and THAT is the question that remains legally questionable and is under judicial review at this moment. The victories we've seen so far are the anomalies, not the standard, and they hang by the slender thread that state bans on gay marriage violate Equal Protection laws, which is, in the belief of many legal experts, a tenuous argument indeed.

Where are you getting your opinion that opposition to same sex marriage is the will of the people other than your finger in the wind?

From the fact that the majority of the states still ban gay marriage and the fact that gays have not been successful in, as you say, proposing a constitutional amendment authorizing Congress to regulate marriage.

(Or more likely your finger up your ass....)

Now, now, no reason to be nasty.

As to "unfair discrimination against persons in committed relationships," you do not provide any information about the sort of discrimination you are referring to or by whom committed, but I'm going to assume that you mean the internal workings of a particular domestic relationship and are concerned about one partner abusing the other without any possibility of recourse for the abused partner.

I was referring to discrimination in the public sphere such as in housing, employment, visitation rights, and so on.

Thanks for clarifying. Such issues are dealt with just as they are now, by public laws which, in this case, mandate certain standard provisions in all domestic partnership contracts, just as is the case today with many different types of contracts. This is nothing that isn't already dealt with adequately by the existing systems.

Except that such laws would have to be reduplicated everywhere. Such adjudication by legislature would be much more involved than it is today and would result in a morass of conflicting statutes.

Utter nonsense. At worst the only thing each state legislature would have to do is to pass a statute saying "Wherever in these statutes the word "marriage" or "married" occurs it shall be amended to say "subject to a recorded contract of domestic partnership." You don't appear to understand the legislative process very well. This sort of thing happens all the time. Words are changed or meanings adjusted by blanket amendments frequently. There is no "reduplication" (is that even a word? It's certainly repetitively redundant...) of anything required. The state would, however, need to come up with standardized contractual provisions that it deems necessary for each such contract to contain for it to be valid with respect to the rights of children, but that's hardly an impossible task because the laws are already on the books so the language merely needs to reflect what's already the state of the law when it comes to child welfare.

The fact of the matter is that government has vested interests in regulating marriage.

What "vested interest" precisely?

Code: Select all

We've been over this already.  You haven't argued that government doesn't have an interest in regulating the treatment of committed partnerships, only that it would be better served by privatization.

No, we haven't "been over this already," you continue to evade detailing what sort of "vested interests" the government has, you merely state it as a given. Where you have made arguments they have been non sequiturs that have nothing to do with whether the word "marriage" is used in statute or whether the term "recorded domestic partnership contract" is used.

And of course I haven't argued that government doesn't have an interest in regulating the LEGAL rights of members of a domestic partnership because it's implicit in my plan that such rights ARE to be protected and vindicated by the government through the civil court system. The difference I propose is that government not be permitted to determine what the nature of such a "committed partnership" is in advance, which is precisely how the present degree of discrimination against gays came to pass. The government has a very limited interest in regulating any sort of private domestic arrangement. It must prevent child abuse by regulating at what age a person may enter into such an arrangement. It must prevent non-consensual physical harm, which is done though criminal law already, without regard to the "marriage" status of the perpetrator and victim. It must regulate the treatment and parentage of minor children to ensure that the child's rights are respected and they are properly cared for. And it must provide a system whereby disputes within such relationships can be adjudicated and the relationship legally terminated where necessary, which we already have in place in the civil courts.

I can't think of anything else within the confines of an intimate domestic partnership that is any of government's business at all. Anything occurring within such a relationship short of those few things mentioned are, and should be entirely up to the partners to determine and agree upon. The present system fails in that respect because a "marriage license" provides only minimal protection for either partner within the relationship, usually with respect to termination of the partnership. Everything else is left unspoken and unregulated by the government, which is why we have divorce court, where lawyers make beaucoup bux arguing over inanities like who gets grandma's silver in the divorce.

In my system the terms of dissolution, how it works, who gets what, who pays what to whom are set forth in writing in advance of the activation of the contract and therefore there is nothing to dispute or argue about. Under an amicable dissolution of the partnership everybody gets what the contract has always says they get. Under a disputed dissolution the terms of the contract are evaluated by the court and what the contract says goes. Here's the catch, and it's a feature of the system: If something is not mentioned in the contract it cannot be brought up during a dissolution hearing.

If you failed to get agreement with your partner as to who pays "alimony" or whatever, you don't get it. Period.

This is good public policy because it prevents a great deal of wasted public resources when people argue about how much of the other person's estate or earnings they are entitled to. If you want to be entitled to twenty percent of your partner's income for 10 years then you have to put it in the contract before it's recorded and you have to get your partner's consent to that provision. There are no (well, few) surprises in a contract-based system, which is why business uses contracts to set forth everyone's rights and obligations. Intimate domestic partnerships are no less amenable to contract-based agreement than billion-dollar corporations are. A side benefit to the system is that it forces the couple to actually consider, discuss and agree upon the internal workings of the relationship before they commit to it legally. This is something too few people actually do. If you want to be sure that your partner will do his or her share in raising children, then you set forth your expectations in writing and he/she either agrees or not, and is then bound by the terms of that language under penalties for nonperformance that are likewise set forth. "Partner A agrees to change 50% of all diapers and respond to 50% of all night-time demands for service by the child. The penalty for failure to do so is that Partner A must purchase one pair of Jimmy Choo shoes of the Partner B's choosing from the proceeds of his own financial estate."

Whether this is done by contract, or by having a unified concept of marriage, the ultimate goal is regulating marriage. Having a unified concept is simpler to administer and provides less fertile ground for abuses.

You need to justify and explain this "vested interest" and why government has it and why we should allow government to have it.

Cato Institute's Jason Kuznicki notes that marriage, properly understood, is a negative, pre-political right that in the liberal understanding of things the government doesn't grant, it guarantees. It makes as much sense, therefore, to abolish marriage in the name of unshackling it from the government's clutches as it would to, say, abolish property rights to "free" them from the government.

http://reason.com/archives/2015/07/21/p ... rible-idea

This is entirely consistent with my plan. I am no more suggesting "abolishing" marriage than I am suggesting abolishing property rights. I'm merely suggesting that "marriage" be removed from the purview of government regulation, regulated to the religious/spiritual sphere where it belongs and that what state regulation of voluntary domestic partnerships is required be administered through the civil contract process in ways that makes discrimination regarding the status or identity of the partners in such a relationship completely irrelevant and beyond government's power to control.

How so? Or are you saying that homosexuals are incapable of being petty, vindictive and petulant?

Your rhetoric and language parallels that used by people who are homophobic. You aren't this dense. What did you hope to accomplish by asking?

It's not homophobic to recognize that homosexuals are just like everybody else and may act out of spite, jealousy, vindictiveness or petulance rather than out of reason, rationality and mutual respect for those who might not agree with them. What I often see when examining the gay marriage agenda political actions of some more-radical proponents is less reason and persuasion and rather more spite, vindictiveness and petulance...sometimes quite deliberately so. As I've said before, you don't persuade people to support your position (and that's the generic "you" and the generic "position") by alienating those who might instead be persuaded to support you through bad, offensive and deliberately harmful behavior...like by seeking out and targeting wedding cake bakers or photographers who have strong religious scruples against participating in a gay marriage and then abusing the law to force them out of business and cost them hundreds of thousands of dollars based on an asinine and abusive claim that the refusal on the part of the artist to produce an artistic creation espousing political ideals or notions that he or she finds objectionable that destroys the artist's right not to be compelled into participation with such speech and expression, constitutes compensable "psychological harm" to the fucking scumbags who perpetrate such wrongs.

Those several acts on the part of radical scumbags have done more to solidify opposition to the laudable objective of normalizing homosexuality in society than anything else. It's a stupid, stupid tactic engaged in by scum-sucking assholes. And they are scum-sucking assholes not because they are gay, they are scum-sucking assholes because they deliberate destroy other people's lives for no better reason than that they are vindictive, petty, spiteful scum-sucking assholes...as are the bureaucrats who allow such abuses to proceed.

Being a scum-sucking asshole who destroys other people's lives and livelihoods out of petty spite and vindictiveness is no way to make friends and influence people to support your agenda.

Just say'in...

[Seth]

Courts are a branch of government. The courts in which contracts are litigated would be surprised to learn that they have no authority to determine what is and is not a valid contract. You're sounding very much like a sovereign citizen loon here.

Courts are bound by law to adjudicate contractual disputes within the confines of the contract itself, subject only to overarching authority to declare provisions to be unenforceable because they are either inconsistent with existing public policy or are unconscionably unfair in some respect. The justifications for doing so are part of a very mature body of contract law extending back hundreds of years, which makes it very difficult for the government to insert the whims and caprices of public opinion into the operations of contract law. The point is to get the legislature out of deciding who gets to be domestic partners and what individuals in such a partnership want insofar as how the partnership operates, with a very few narrow exception, such as raising children.

It can outlaw unconscionable provisions but the Constitution explicitly forbids government to interfere with the "right of contract," (Constitution Article 1, Section 10: No State shall ... pass... any ... Law impairing the Obligation of Contracts.)

The government is in fact the source of the law by which a contract creates a legal obligation. See A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier.. S.v. "Impairing the obligation of contracts." Retrieved June 23 2016 from http://legal-dictionary.thefreedictiona ... +contracts

The obligation of a contract here spoken of is a legal, not a mere moral obligation; it is the law which binds the party to perform his undertaking. The obligation does not inhere or subsist in the contract itself, proprio vigore ["on its own strength"], but in the law applicable to the contract. [T]his law is not the universal law of nations, but it is the law of the state where the contract is made. Any law which enlarges, abridges, or in any manner changes the intention of the parties, resulting from the stipulations in the contract, necessarily impairs it.

Indeed, but contract law differs substantially from the sociopolitical aspects of the law that the legislature has direct control over, like gay marriage. To make a change in contract law the legislature must change the law for ALL contracts, which is to say primarily the procedural aspects of contracts with a few exceptions regarding unconscionable provisions. That's entirely different from the general authority of the legislature to legislate public opinion with respect to moral issues like marriage. The whole idea is to get the legislature out of the business of determining who can and cannot get married and out of the business of telling people what they can and cannot do in the privacy of their personal intimate relationships.

And why exactly "won't -- and can't-- government accept any domestic partnership written by anyone"? In the first place, government would be FORBIDDEN from accepting any "marriage performed in any church" as having any legal civil binding effect. That's the whole point of getting government out of the religious marriage biz. Second, other than unconscionable provisions and children what business does the state have meddling in a private intimate relationship in the first place? The author implies it does, but does it? I say it doesn't. I say domestic partnership are up to the partners to define.

Fortunately for us all, the "Law of Seth Says" has no bearing on reality. Since marriage is one of the basic building blocks of society, government has an interest in regulating it as an institution, including assuring that the institution is not abused in such a way as to be harmful to citizens of the nation. You may not like this, but it is the reality we live in.

Fallacious appeal to common practice. WHY does the government have such an interest and exactly how far does that interest extend? And what is the functional difference between the legislature directly regulating intimate domestic partnerships and a contract-law based system where the participants get to set forth the rules and agreements and the state merely arbitrates disputes within the four corners of the contract, with certain exceptions such as criminal laws that already supersede marriage rights and would continue to do so.

You seem hung up on the word "marriage." Why is that? If I proposed simply leaving everything else the same and changing the name of the institution in the law books to "domestic partnership," would you still object and argue against such a change?

In other words, this kind of "privatization" won't take the state out of marriage—it'll simply push its involvement (and the concomitant culture wars) to another locus point.

Yes, out of the government and into the contract law civil courts, where it belongs.

You're not making any sense here. Civil courts are a branch of government.

Yes, a DIFFERENT branch of government, and therein lies the whole point. Whereas the legislature has general authority to regulate whatever it deems reasonable and necessary to regulate in a manner constrained only by (in the case of the US) constitutional constraints, the judicial system has a much, much narrower mandate. It CANNOT make law, it can only adjudicate and enforce existing laws, and in my example it can only adjudicate and enforce the provisions of the contract brought before it by the parties to the contract. Nobody else, including the legislature, can intervene in that individual contract dispute and thereby change the provisions sua sponte or unilaterally. Yes, the legislature can still pass laws regulating contracts, but such laws must regulate ALL contracts, not just some of them, and contract law is a very, very mature field of law that legislators are loathe to meddle with unnecessarily. Moving "marriage" out of the legislative domain and into the judicial domain inserts a potent bar to legislative excess and abuse when it comes to individual domestic rights.

Furthermore, true privatization would require more than just getting the government out of the marriage licensing and registration business. It would mean giving communities the authority to write their own marriage rules and enforce them on couples.

Utter nonsense. Getting the government out of the marriage licensing business PRECLUDES communities from writing their own marriage rules. That's the whole idea.

The author isn't talking about civil communities, as is clear from the context (see the quote immediately below). This is referring primarily to religious communities. Your chopping of the article may give you an opportunity to rant, but you're clearly ranting at a strawman here.

As I say in detail, who gives a fuck what "religious communities" or any "community" at all that has no legal authority over anyone wants? I don't. Those who do care may submit themselves to religious control and even religious "justice," within bounds and subject to their own voluntary consent, but those who don't, or change their minds, can opt out of religious control any time they please because such "communities" have absolutely no legal authority to compel anyone to do anything. Their only power is that of persuasion that produces voluntary participation.

In other words, letting Mormon marriages be governed by the Church of the Latter Day Saints codebook, Muslims by Koranic sharia, Hassids by the Old Testament, and gays by their own church or non-religious equivalent.

The religious aspects of a religious rite are strictly matters of religious scruples and voluntary participation. If a couple wants to obey Jewish marriage "laws" it may do so, the same for Muslims or Mormons, except for provisions the government deems unconscionable such as the Sharia provisions for "honor killings", stonings and other non-consensual acts by one partner or the religious community against another. This is already the case however, and criminal law deals nicely with such things and needs no tweaking except to make such laws superior over private contracts, which is already the case.

If someone "marries" under religious "law" and then refuses to abide by that "law," there's not a damned thing the partner or the religion can do to force or compel obedience against the will of the individual. That's the point of making marriage strictly a matter of religious practice without ANY recourse to the law for "violations" of such laws or rules. The worst penalty that can be administered by a religious sect for a violation of a marriage rule is expulsion from the religion, and not a damned thing else. Moreover, any person is free to repudiate such rules and walk away from the religion without sanction.

Perhaps you're merely displaying your ignorance here, but if you have any knowledge of how young girls and women can end up effectively trapped in communities such as the Apostolic United Brethren or the Fundamentalist Church of Jesus Christ of Latter Day Saints, you know that your blithe assertions about "walking away" are counterfactual.

What does that have to do with the subject of state-sanctioned domestic partnerships? Nothing I suggest in any way impairs the government from interceding where people are being involuntarily abused by some religious sect, a power it already has and has had for a long, long time. The key point is that my system does nothing to change the status quo for the worse, and in fact it improves the position of such persons because the law would explicitly state that religious authorities have absolutely no compulsory legal power over anyone, ever.

The fact that some people may be "trapped" in a fundamentalist sect has nothing to do with the system for dealing with recorded domestic partnerships, so it's you (and your author) who are erecting strawmen, which is my point. His complaint about the consequences of "privatizing marriage" are specious, false and irrelevant in the extreme, particularly where my alternative is concerned.

For example, a Muslim man could divorce his Muslim wife by saying "divorce" three times as per sharia's requirement and leave her high-and-dry with minimal financial support (this actually happens in India and elsewhere).

Only if she agreed to that as a provision of the contract. There would be no such thing as "Sharia law" or "Jewish law" that would have any binding legal effect on anyone. A woman who "marries" a Muslim man under Sharia law is under no enforceable legal obligations and is entitled by law to nothing, it's as if she's just shacking up with the guy and she's not entitled to anything from him at all, and he's not entitled to anything from her either. They can live together however they please, but neither has any "rights" to anything and both can just walk away at any time without obligation...unless they produce children.

The author isn't talking about "enforceable legal obligations." What is being discussed is how certain communities create a social context in which people can become effectively trapped. Some can and do break free, but often it is very difficult and in some cases practically impossible if, for instance, children are involved.

Which has absolutely nothing whatever to do with the issue of marriage versus recorded domestic partnership contracts and is therefore a non sequitur. Nothing will change with respect to the argument you toss out as a diversion.

Obviously, that would hardly be an advance for marriage equality.

Wrong kind of "marriage equality" there, Sparky. Marriage equality is when anyone can marry anyone else without the government interfering. It has nothing to do with what happens inside the marriage, which is entirely up to the individuals party to the civil domestic partnership contract.

More of the "Law of Seth Says."

So, what is "marriage equality" in your view?

The reason calls to "abolish marriage"—to quote liberal columnist Michael Kinsley—lead to such absurd results is that they are based on a fundamental misconception about the function marriage serves in a polity.

No they aren't, they are based in stupid punditry by those who don't bother to think things through and stick their heads up their asses when discussing it.

You would know, having given copious demonstrations of that particular maneuver in multiple threads here.

Opinions are like assholes and sometimes they both reside in the same location.

Without marriage, every aspect of a couple's relationship would have to be contractually worked out from scratch in advance.

Eggzactly! And society will be much better off if couples are required to do so in order to gain the advantage of an enforceable relationship. Too many people get married without giving a single thought to the ramifications of doing so and then society has to clean up the mess.

Your solution would therefore provide ample scope for the creation of a class of "private marriage contract" lawyers. I didn't know that you had such respect and appreciation of the legal profession, and such a desire to help employ more lawyers.

That's the lamest argument yet. As if there isn't a class of "divorce lawyers" already to take over the market of providing marriage contract services...which will help compensate them for the complete loss of the divorce field of law.

But without licenses or registration for marriages, many things, including establishing paternity, would get really messy.

Again, nonsense. Establishing paternity has nothing whatever to do with marriage. It's established by DNA. If you screwed together and a baby results, that's paternity/maternity and it matters not whether you're married or not.

We'll just ignore adoption then, since it's convenient for your argument.

Pettifoggery. Why would adoption be handled any differently than natural parentage? The whole idea of adoption is that the child becomes the legal progeny of the adopting parents. Nothing in my plan changes anything with respect to adoption.

When a couple is in a recognized marriage, the children in their custody are presumed to be theirs—either because they bore them or adopted them.

Complete bullshit. And nonsensical non sequitur. It's much LESS difficult to deal with the obligations of childbearing/adoption in civil law than it is in current "marriage" laws. The participants make specific decisions and provisions regarding children and who is responsible for what and when, and the state intervenes only to the extent of acting as guardian ad litem by requiring certain child-care boilerplate obligations for both parties that simply duplicate the state-sanctioned rules about parentage and responsibility that currently apply to unmarried persons who create children. This is not plowing new ground at all.

This author says nothing at all that is not dealt with already in the law. The only change is from "marriage" to "civil domestic partnership" and the procedure by which such relationships are legally created and dealt with by the law.

The underlined is where the rubber hits the road. Apparently you think that under your proposal, not much would change. You're not taking into account the wonderful world of litigation, and the ability of clever lawyers to feather their nests at the expense of the populace. In any event, this really all depends on the fiction you've maintained that courts are somehow not part of government. In reality, they are, and so privatization of marriage doesn't get government out of the marriage business at all. As the author of the article says, it merely shifts the issue to a different branch of the government.

The whole point is to shift the authority away from the legislature, which is driven by public opinion, and into the judicial branch where public opinion is either irrelevant or strongly buffered against by the body of contract law that currently exists. As I said before, legislatures can regulate pretty much as they please and they are usually driven by political motivations directly linked to getting reelected, so they tend to pander to the whims and caprices of public opinion. Judges are much, much less likely to be so influenced and they are in fact restricted in their abilities by the very concept of a judicial system that adjudicates but does not make law.



You've also asserted that civil marriage was instituted in the US "to prevent interracial marriages."

In the US, marriage was regulated and registered by civil authority at first only to "license" marriages to prevent interracial marriages. Prior to such miscegenation laws if you were married by a church official you were married and the government had no opinion one way or the other.

This is a falsehood. Civil involvement in marriages (issuing marriage licenses) in the United States goes back to Massachusetts in the 17th century, and that origin had nothing to do with preventing interracial marriage.[/quote]

If you think not, you're wrong.

During the 16th through the 18th centuries, the extent of the adoption of common law marriage as part of the transfer of English common law to the American colonies varied. Because informal cohabitation existed in the American colonies, some of the colonies recognized common law marriage, while others required compliance with certain formalities. In general, the colonies adopted English common law "only so far as it could be made to fit and adjust itself to our local circumstances and peculiar institutions."

For example, in the Massachusetts Bay Colony, the dissenters from the Church of England objected to the regulation of marriage by canon law, and as early as 1639 adopted statutes and regulations governing marriage in that colony. Once these laws were passed, requiring a formal ceremony, licensing or registration, and designating the officiant, common law marriage was no longer available. Other colonies that followed this path included Connecticut, Delaware, Maryland, North Carolina, Vermont, and Virginia. In contrast to this, New York, Georgia, Pennsylvania, Rhode Island, South Carolina, and New Jersey chose to accept informal marriages.

And if you don't think that inter-racial marriages were flatly barred by such statutes and practices you'd be wrong. Your source fails to state why an objection to marriage by COE canon law was enacted in the first place and what those laws required. The point of "requiring a formal ceremony, licensing or registration" was precisely to quell common-law marriage, which is and always has been an intensely personal and non-governmental act. Common law marriage still exists in many places in the US, like Colorado. If you "hold yourself out as being married to the public" you are in fact legally married, and that happens without government let or hindrance.

Why do you think the governors of the early English colonies banned common-law marriage? It wasn't to enhance the right of individuals to marry whom they choose now was it? No, it was to gain the power to prohibit certain marriages...like prohibiting Catholics from marrying Protestants or Jews from marrying Christians or slaves from marrying free persons.

The power to license is the power to deny, and the state does not assume the power to license unless it fully intends to exercise that power however it chooses to deny licensing to some while granting it to others. That is exactly why our government cannot "license" newspapers (as it has tried to do more than once), because the First Amendment right to free speech flatly prohibits the government from denying the right to free speech to anyone and therefore the government is without the authority to license speech. The same is true of the right to free exercise of religion. The COE was a jealous church and apostasy was punishable by death in England after the schism created by Henry VIII so he could put the wood to Jane Seymour rather than his wife. Catholics were persecuted and killed in England and in the Colonies for a long, long time. That bigotry was codified in many state laws even after the formation of the United States, where specific provisions forbidding the use of any public money to fund Catholic schools still exist and are still enforced in many states.

Again, and this is of supreme importance, the ONLY reason to license marriage is to give the government the power to deny that license. That is the very meaning of "license."

My plan takes that authority away from the government entirely, which is as it should be. It modifies the common-law marriage principle by allowing people to create a domestic partnership at will but it requires ONLY the recording of a domestic partnership contract in order for the participants to gain legal secular civil standing to enforce the agreement. It gives the government NO authority to deny a "license" for the relationship and thereby prevents the government from entrenching political or moral constraints on such relationships.

I fail to see why you lot consider this to be a bad thing. It's completely supportive of gays enjoying equal civil rights to everyone else.

[rasetsu]

My solution is to eliminate the problem by eliminating the conflict over the use of the word "marriage" by eliminating the use of the word "marriage" in civil law as a term that authorizes government-sponsored discrimination or which confers extra benefits to some while denying them to others.

The problem was an inequality in treatment of same sex and heterosexual partners by independent entities. Privatizing marriage would do nothing to 'end' this problem and would likely worsen it.

Again, non sequitur. I'm not arguing for the repeal of antidiscrimination laws here. Marriage has nothing to do with such things. They are matters of public policy that supersede marriage anyway. The fact that two people are "married" has little to do with whether some independent entity discriminates against them or not. You act as if "marriage" is some be-all and end-all for discriminatory behavior by others. It's not and never has been. Bi-racial couples were discriminated against by independent entities for a very long time. They could not rent a hotel room, they could not in places even drink together without the police harassing them. It didn't matter that they were "married."

You're playing both ends off against the middle. You acknowledge the role that the equalization of marriage has had in ending discrimination against same sex couples with your example of the cake baker. Prior to marriage equality, such claims would have had no footing. Such cases send a clear message that illegal discrimination against same sex couples will not be tolerated. It acts both as a deterrent and to facilitate resolution of the specific dispute. I know from all your belly aching that you view the suit against the bakers as grossly unfair to them, but the law was applied correctly. Public businesses cannot be allowed to discriminate against protected classes of people as a matter of law. You want to claim that this was an illegitimate use of state power to enforce equity, and in doing so eliminate it from the realm of state interests in regulating marriage. I have no interest in playing your game nor arguing the state's interest in eliminating such discrimination. I'm sure you have plenty to say on the matter. I don't want to hear a retrial of the justice of that particular case.

The goal is to eliminate ALL government favoritism...and all government obstruction...to intimate personal relationships based on the identity of the participants. If government offers a benefit to those in a "committed relationship" for reasons of public policy, under my plan it can only do so with absolute neutrality as to the identity and class of the participants because any such law would apply equally to ANY AND ALL recorded domestic partnerships without distinction or discrimination. That's the benefit gained by creating such a contract and recording it with the state.

You may view that as a goal but the reality is that the state has an interest in discriminating in favor of certain kinds of partnerships and unions and not others. A pair of roomates do not possess the requisite characteristics of a relationship that should be recognized in the same sense that a marriage does. Again, you're just playing musical chairs with definitions here. The state would still be required to set standards for what does and does not constitute a civil partnership. You aren't eliminating the role of government, just moving it around a bit.

As it currently sits, that is not the legally decided outcome. Opponents of same sex marriage are welcome to propose a constitutional amendment should they feel they can win. Good on them if they do. They haven't succeeded in the past.

Pettifogging evasion. "They" succeeded for more than 200 years here in the US in banning gay marriage and the Supreme Court repeatedly upheld the power of the states to regulate marriage and ban gay marriage. Only recently has the Court even suggested that gay marriage is a matter of Congressional authority and THAT is the question that remains legally questionable and is under judicial review at this moment. The victories we've seen so far are the anomalies, not the standard, and they hang by the slender thread that state bans on gay marriage violate Equal Protection laws, which is, in the belief of many legal experts, a tenuous argument indeed.

Even prior to the SCOTUS ruling, marriage equality was experiencing success in multiple states. You're welcome to disagree with the court all you like. The ruling was what it was. If it is overturned by future events, that remains to be seen, not simply prognosticated by you.

Where are you getting your opinion that opposition to same sex marriage is the will of the people other than your finger in the wind?

From the fact that the majority of the states still ban gay marriage and the fact that gays have not been successful in, as you say, proposing a constitutional amendment authorizing Congress to regulate marriage.

The facts of the will of the people have already been covered by L'immerdeur. That you interpret the pre-ruling legislative history to be an indicator of the will of the people is simply an error.

As to "unfair discrimination against persons in committed relationships," you do not provide any information about the sort of discrimination you are referring to or by whom committed, but I'm going to assume that you mean the internal workings of a particular domestic relationship and are concerned about one partner abusing the other without any possibility of recourse for the abused partner.

I was referring to discrimination in the public sphere such as in housing, employment, visitation rights, and so on.

Thanks for clarifying. Such issues are dealt with just as they are now, by public laws which, in this case, mandate certain standard provisions in all domestic partnership contracts, just as is the case today with many different types of contracts. This is nothing that isn't already dealt with adequately by the existing systems.

Except that such laws would have to be reduplicated everywhere. Such adjudication by legislature would be much more involved than it is today and would result in a morass of conflicting statutes.

Utter nonsense. At worst the only thing each state legislature would have to do is to pass a statute saying "Wherever in these statutes the word "marriage" or "married" occurs it shall be amended to say "subject to a recorded contract of domestic partnership." You don't appear to understand the legislative process very well. This sort of thing happens all the time. Words are changed or meanings adjusted by blanket amendments frequently. There is no "reduplication" (is that even a word? It's certainly repetitively redundant...) of anything required. The state would, however, need to come up with standardized contractual provisions that it deems necessary for each such contract to contain for it to be valid with respect to the rights of children, but that's hardly an impossible task because the laws are already on the books so the language merely needs to reflect what's already the state of the law when it comes to child welfare.

Again, all you're doing is playing musical chairs with the law. That doesn't eliminate government involvement, it just shifts around some paper.

The fact of the matter is that government has vested interests in regulating marriage.

What "vested interest" precisely?

Code: Select all

We've been over this already.  You haven't argued that government doesn't have an interest in regulating the treatment of committed partnerships, only that it would be better served by privatization.

No, we haven't "been over this already," you continue to evade detailing what sort of "vested interests" the government has, you merely state it as a given. Where you have made arguments they have been non sequiturs that have nothing to do with whether the word "marriage" is used in statute or whether the term "recorded domestic partnership contract" is used.

And of course I haven't argued that government doesn't have an interest in regulating the LEGAL rights of members of a domestic partnership because it's implicit in my plan that such rights ARE to be protected and vindicated by the government through the civil court system. The difference I propose is that government not be permitted to determine what the nature of such a "committed partnership" is in advance, which is precisely how the present degree of discrimination against gays came to pass.

Funny how that is what I just said.

Stable families are a backbone institution in any society. They provide for the welfare of individual members, protect them against the vicissitudes of life, provide a stable and healthy environment for the raising of children, and provide for the emotional support of their members. The state has an interest in protecting those families and in promoting the formation of stable families.

[JimC]

I just sprained my scrolling finger!

[Seth]

You're playing both ends off against the middle.

Equal rights is equal.

You acknowledge the role that the equalization of marriage has had in ending discrimination against same sex couples with your example of the cake baker. Prior to marriage equality, such claims would have had no footing. Such cases send a clear message that illegal discrimination against same sex couples will not be tolerated. It acts both as a deterrent and to facilitate resolution of the specific dispute.

The issue of whether a cake baker may be compelled by law to engage in unwanted speech and expression by gay couples has absolutely nothing to do with the issue at hand. Whether a merchant is permitted to discriminate against this or that group or person based on this, that or the other criteria is unrelated to the state's involvement in "marriage." Under antidiscrimination laws it doesn't matter if the individuals that are ordering a custom-made and artistically decorated cake are a gay couple getting married, a straight couple getting married or members of the neo-Nazi party ordering a cake for a celebration of the opening of Dachau from a Jewish Holocaust survivor. The issue with cake bakers is about THEIR freedom of religious conscience and expression and their right to decline to be forced into producing speech or expression with which they disagree, for any reason or no reason at all.

The scumbags who sued the bakers didn't really want a wedding cake, they wanted a political confrontation between the gay community and religious people, so they misused totalitarian anti-discrimination laws to financially harm people they hate and loathe quite deliberately and intentionally, in a petulant and evil display of bad manners and arrogance.

But it had nothing to do with whether or not the state is involved in marriage or whether it merely records domestic partnership contracts because the very same anti-discrimination laws, for better or worse, still apply to the protected classes regardless of whether or not they are married. Thus, to refute your silly argument, if a gay couple went to a Christian baker demanding a "Gay Pride" themed cake the same rules would apply. The purpose of the compelled speech is utterly irrelevant to the marriage laws.

I know from all your belly aching that you view the suit against the bakers as grossly unfair to them, but the law was applied correctly.

The law is an ass and it was not "applied correctly" because any law which has the effect that Oregon's or Colorado's antidiscrimination laws had are facially unconstitutional because they violate the First Amendment rights of the artists involved. Their right to obey their religious scruples, even in their business ventures, is superior to the desire of someone else, anyone else, to compel them to do something they find morally or religiously objectionable. Thus, a religious wedding photographer is perfectly entitled to refuse to take pornographic nude photos at the wedding of a porn actor merely because the porn actor wants her to. The actor will simply have to find someone who is willing to do the job. The same reasoning applies to gay weddings or other demands for artistic output (as distinguished from non-artistic bulk manufacture consumer products) that the artist does not wish to contribute to.

One of the bakers involved told the couple who abused him that he would happily sell them any cake he had in stock, but he simply refused to be drafted into exercising his artistic cake-making talents for a cause that he does not support. That is his right and I fully expect the higher courts to overturn the administrative law judge's rulings in this matter for those reasons.

Public businesses cannot be allowed to discriminate against protected classes of people as a matter of law.

That's a whole different thread. This sub-thread is not about that, it's about government and marriage. This is nothing more than a derail attempt.

You want to claim that this was an illegitimate use of state power to enforce equity,

Indeed.

and in doing so eliminate it from the realm of state interests in regulating marriage.

Utter nonsense. As I have said above, the issue of discrimination in the providing of commercial services has nothing whatever to do with marriage or the state and its authority to regulate marriage.

I have no interest in playing your game nor arguing the state's interest in eliminating such discrimination. I'm sure you have plenty to say on the matter. I don't want to hear a retrial of the justice of that particular case.

I'm sure you don't, but there's going to be one anyway, eventually. But I've not been making that argument. You have mistakenly or deliberately conflated the issue of commercial discrimination with the issue being examined, which is the state's role in regulating marriage. I don't know how much more clear I can make it than to point out that gays were not discriminated against because they wanted to get married, they were discriminated against, and justifiably so, for having the gall to demand that a baker with religious scruples exercise his artistic talents on demand and over his objections in the baking and decorating of a cake. He wasn't preventing them from getting married or even objecting to their getting married, he just didn't want to be a party to the ceremony, that's all. So your whole argument is a complete non sequitur.

The goal is to eliminate ALL government favoritism...and all government obstruction...to intimate personal relationships based on the identity of the participants. If government offers a benefit to those in a "committed relationship" for reasons of public policy, under my plan it can only do so with absolute neutrality as to the identity and class of the participants because any such law would apply equally to ANY AND ALL recorded domestic partnerships without distinction or discrimination. That's the benefit gained by creating such a contract and recording it with the state.

You may view that as a goal but the reality is that the state has an interest in discriminating in favor of certain kinds of partnerships and unions and not others. A pair of roomates do not possess the requisite characteristics of a relationship that should be recognized in the same sense that a marriage does.

Why not? You are again stating the fallacy of an appeal to common practice. What is it about marriage, specifically, that justifies the state having administrative and regulatory control over it? Moreover, you do realize that your position supports the status quo ante because a "state interest" in regulating marriage may not align with your interests, given the historical "state interest" in regulating marriage that denied gays the right to marry for hundreds of years. You seem to have an unwarranted trust in government that is perhaps the result of a failure to carefully consider the unintended consequences of supporting state regulation of marriage should public opinion turn against your desired outcome.

I prefer to get the state out of the marriage business and let the participants in a domestic relationship decide the nature and details of that relationship without the interference of government.

Again, you're just playing musical chairs with definitions here. The state would still be required to set standards for what does and does not constitute a civil partnership. You aren't eliminating the role of government, just moving it around a bit.

Why would it be required to do so? My plan prohibits the state from doing that at all. The whole point is to remove the discretion that the legislature has to "set standards for what does and does not constitute a civil partnership." My plan lets the partners decide what constitutes a civil partnership and to codify that using a written contract that is recorded with the state. The recording of such a contract "creates" the legal civil partnership just as it does now when a commercial partnership is formed. The parties agree as to how the partnership will operate and who has what rights and duties and the state does nothing more than say "OK, we've recorded your agreement and it now has legal force and effect and may be adjudicated in civil court in the event of dispute." That's all the government does today with corporations and partnerships formed for commercial purposes. It's no different for domestic partnerships. In fact such domestic partnerships are already part of the law when it comes to "family partnerships" that dictate how family property like a farm or ranch is to be managed and distributed. A civil partnership between two individuals who are not related is no different.

Stable families are a backbone institution in any society.

Indeed. Nothing I suggest destabilizes families, in fact it further stabilizes them by getting the legislature out of the family's business.

They provide for the welfare of individual members, protect them against the vicissitudes of life, provide a stable and healthy environment for the raising of children, and provide for the emotional support of their members.

Indeed.

The state has an interest in protecting those families and in promoting the formation of stable families.

That's exactly the argument used by the states as justification for banning gay marriage, which the legislatures believed would not lead to the formation of stable families. Be careful what you wish for.

And a stable family does not require "marriage" at all, as so many gay activists have taken pains to point out. All it requires is stable people. The benefit of my plan is that stability is enhanced by examining the issues that arise in a family situation and addressing them with contract language before the situations arise so that there is no room for dispute over what is to be done.

Any issues the state may have with promoting the stability of recorded civil domestic partnerships can be handled by general legislation affecting ALL such partnerships without regard to the identities of the individuals who comprise the relationship. That prevents the government from regulating such partnerships based on the characteristics of the participants, which makes laws of general application that perform the functions you imply are needed are applied equally and without discrimination to everyone in such a relationship.

You still haven't explained if you would object to a simple name change from "marriage" to "domestic partnership" or not. I find that evasion more than a little revealing.

[Scot Dutchy]

[Scot Dutchy]

You will have to the Super Duper Anti Seth Scroll Wheel. It zips over Seth's posts.

[Hermit]

Better still is the ignore feature. I only get to see stuff of his other people quote, which never is anything he has not said in previous posts, and occasionally I make posts of his visible in threads where he is unlikely to be browbeating us with his political and social diarrhoea.

[Seth]

Better still is the ignore feature. I only get to see stuff of his other people quote, which never is anything he has not said in previous posts, and occasionally I make posts of his visible in threads where he is unlikely to be browbeating us with his political and social diarrhoea.

Just because you can't make a cogent argument is no reason to be petulant about it.