Tuesday, November 18, 2008

Amendments and Constitutional Rights - Define Marriage for us

El D, define marriage for us.


El Duderino said...

Has this become an eighth grade book report?
Historically Marriage has meant: "A contract made in due form of law, by which a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage.

To make a valid marriage, the parties must be willing to contract, able to contract, and have actually contracted.

They must be willing to contract. Those persons, therefore, who have no legal capacity in point of intellect, to make a contract, cannot legally marry, as idiots, lunatics, and infants; males under the age of fourteen, and females under the age of twelve; and when minors over those ages marry, they must have the consent of their parents or guardians. There is no will when the person is mistaken in the party whom he intended to marry; as, if Peter intending to marry Maria, through error or mistake of person, in fact marries Eliza; but an error in the fortune, as if a man marries a woman whom he believes to be rich, and he finds her to be poor; or in the quality, as if he marries a woman whom he took to be chaste, and whom he finds of an opposite character, this does not invalidate the marriage, because in these cases the error is only of some quality or accident, and not in the person.

When the marriage is obtained by force or fraud, it is clear that there is no consent; it is, therefore, void ab initio, and may be treated as null by every court in which its validity may incidentally be called in question.

Generally, all persons who are of sound mind, and have arrived to years of maturity, are able to contract marriage. To this general rule, however, there are many exceptions, among which the following may be enumerated:

The previous marriage of the party to another person who is still living.

Consanguinity, or affinity between the parties within the prohibited degree. It seems that persons in the descending or ascending line, however remote from each other, cannot lawfully marry; such marriages are against nature; but when we come to consider collaterals, it is not so easy to fix the forbidden degrees, by clear and established principles. In several of the United States, marriages within the limited degrees are made void by statute.

Impotency, which must have existed at the time of the marriage, and be incurable.

Adultery. By statutory provision in Pennsylvania, when a person is convicted of adultery with another person, or is divorced from her husband, or his wife, he or she cannot afterwards marry the partner of his or her guilt. This provision is copied from the civil law. And the same provision exists in the French code civil.

The parties must not only be willing and able, but must have actually contracted in due form of law.

The common law requires no particular ceremony to the valid celebration of marriage. The consent of the parties is all that is necessary, and as marriage is said to be a contract jure gentium, that consent is all that is needful by natural or public law. If the contract be made per verba de presenti, or if made per verba de futuro, and followed by consummation, it amounts to a valid marriage, and which the parties cannot dissolve, if otherwise competent; it is not necessary that a clergyman should be present to give validity to the marriage; the consent of the parties may be declared before a magistrate, or simply before witnesses; or subsequently confessed or acknowledged, or the marriage may even be inferred from continual cohabitation, and reputation as husband and wife, except in cases of civil actions for adultery, or public prosecutions for bigamy. But a promise to marry at a future time, cannot, by any process of law, be converted into a marriage, though the breach of such promise will be the foundation of an action for damages.

In some of the states, statutory regulations have been made on this subject. In Maine and Massachusetts, the marriage must be made in the presence, and with the assent of a magistrate, or a stated or ordained minister of the gospel. The statute of Connecticut on this subject, requires the marriage to be celebrated by a clergyman or magistrate, and requires the previous publication of the intention of marriage, and the consent of parents; it inflicts a penalty on those who disobey its regulations. The marriage, however, would probably be considered valid, although the regulations of the statutes had not been observed. The rule in Pennsylvania is, that the marriage is valid, although the directions of the statute have not been observed. The same rule probably obtains in New Jersey, New Hampshire, and Kentucky. In Louisiana, a license must be obtained from the parish judge of the parish in which at least one of the parties is domiciliated, and the marriage must be celebrated before a priest or minister of a religious sect, or an authorized justice of the peace; it must be celebrated in the presence of three witnesses of full age, and an act must be made of the celebration, signed by the person who celebrated the marriage, by the parties and the witnesses. The 89th article of the Code declares, that such marriages only are recognized by law, as are contracted and solemnized according to the rules which it prescribes. But the Code does not declare null a marriage not preceded by a license, and not evidenced by an act signed by a certain number of witnesses and the parties, nor does it make such an act exclusive evidence of the marriage. The laws relating to forms and ceremonies are directory to those who are authorized to celebrate marriage.

A marriage made in a foreign country, if good there, would, in general, be held good in this country, unless when it would work injustice, or be contra bonos mores, or be repugnant to the settled principles and policy of our laws.

Marriage is a contract intended in its origin to endure till the death of one of the contracting parties. It is dissolved by death or divorce.

In some cases, as in prosecutions for bigamy, by the common law, an actual marriage must be proved in order to convict the accused. But for many purposes it may be proved by circumstances; for example, cohabitation; acknowledgment by the parties themselves that they were married; their reception as such by their friends and relations; their correspondence, on being casually separated, addressing each other as man and wife declaring, deliberately, that the marriage took place in a foreign country, describing their children, in parish registers of baptism, as their legitimate offspring or when the parties pass for husband and wife by common reputation. After their death, the presumption is generally conclusive.

The civil effects of marriage are the following:

It confirms all matrimonial agreements between the parties.

It vests in the husband all the personal property of the wife, that which is in possession absolutely, and choses in action, upon the condition that he shall reduce them to possession; it also vests in the husband right to manage the real estate of the wife, and enjoy the profits arising from it during their joint lives, and after her death, an estate by the curtesy when a child has been born. It vests in the wife after the husband's death, an estate in dower in the husband's lands, and a right to a certain part of his personal estate, when he dies intestate. In some states, the wife now retains her separate property by statute.

It creates the civil affinity which each contracts towards the relations of the other.

It gives the husband marital authority over the person of his wife.

The wife acquires thereby the name of her husband, as they are considered as but one, of which he is the head. In general, the wife follows the condition of her husband. The wife, on her marriage, loses her domicile and gains that of her husband.

One of the effects of marriage is to give paternal power over the issue.

The children acquire the domicile of their father.

It gives to the children who are the fruits of the marriage, the rights of kindred not only with the father and mother, but all their kin.

It makes all the issue legitimate."

We used to define blacks as 3/5ths of a person too. We amended the constitution to change that sad fact of history with the 13th and 14th amendements. I’m still waiting and good naturedly answering you’re patronizing questions while you obstinately refuse to answer how preventing gays from marrying is not a violation of the equal protection clause. Is this because your vaunted reason and logic have found no compelling reason not to treat every citizen equally before the law?
If it’s some semantic thing you’re hung up on, i.e. marriage vs. civil union, asspartyforlife etc, I give in. I don’t give a shit about any of that nor am I concerned with celebrating the gay lifestyle with the exact language they or you or anyone else would prefer. What I am concerned about, is that before the law in matters civil and legal every person is treated impartially by the state without regard to race, religion or sexual orientation.
If this means the state gets out of the relationship approval business, so be it.
Curiously, to prevent gays from marrying, people like you want to amend the constitution again. Except this time instead of attempting to treat all people as equals before the law you would create a legal system where some are more equal than others. No thank you.

CultMan said...

Well, you've finally answered your own question/issue. Substantially cahnge the Definition of Marriage (with the sleight of hand of equating the Marital Right with completely different and obvious (to our minds now) Rights -- for what compelling reason? -- because....?

"Semantics, schmantics, it's only you who believe X should be defined as X; well, we think it should be defined as Y." Well give us a reason for the redefinition; and granted, your defintion is good, as far as it goes, bu a long legal history in Western Societies states that the Primary reason (End) for institutionalizing Marriage in the first place is for the propagation of the human family and the rearing of children; whereas the Secondary reason (End) for Marriage is the mutual support of the spouses. This is NOT dogma, it's historical fact. But then again, you have to actually read and understand 2-3,000 years of historical data.

What is the compelling reason for this change, now....? To guarantee tax relief & financial remuneration to those presently excluded? To press for "same-sex adoption"? To press for other unwarranted so-called "rights"?

PS It is "uncouth" online and in emails and among friends and family to suggest the obvious consequences of your train of thought, consequences which you mentioned in your original blogpost. Consequences, which, according to your "apparent" redefintion of marriage (although I don't quite see a re-definition...hmmmm... there's a kind of postscript attached the the legal lectionary-online database, but...) redefinitions which allow for all sorts of variations on sundry relationships which might (should) qualify as marital relationships. According to your definiton... but yet you really haven't stated your definiton yet, not precisely. You quoted the legal definiton, and then added some hyperbole...

The REASON I don't answer your question re: the "equal protection clause" is you haven't defined Marriage for me yet. [Except in this cut and paste job which clearly states Marriage is between a Man and a Woman.] Hey i cut & paste, but I at least agree with the substance of my pastee's argument.

zaphod said...

You've already been shown why it's not a violation of the equal protection clause.

El Duderino said...

No I haven't, especially not by your oh so flimsy reasoning. You act like this is a settled issue even among the various states’ supreme courts. It's not.
What I'd like to hear from either of my two brain trusts, other than requests for definitions, is how a society that treats everyone equally is not preferable to one that does not.

zaphod said...

Yeah I did. Instead of stomping your feet, and holding your fingers in your ears you might want to actually engage what I wrote. You know, like I did with your so-called arguments.

In 1973 the kind of thinking you are employing here gave women a “right” to abortion. (Instead of the equal protection clause the Supreme Court relied on the due process clause of the fourteenth amendment.)

Clever move, Dude.

El Duderino said...

Or, it's thinking that some people are more deserving of rights and priveledges than others that allows people to deny the unborn their right to life.
Perhaps through all the noise I didn't hear your argument against gay marriage. Is it re-defining the term? No problem, call it something else. But as it stands my wife can make life and death decisions for me if I am unable. She will get my paltry SS benefits and I hers. She can visit me in intensive care without a huge hassle. etc etc. Why can't gays do the same for their partners? There is a huge bundle of rights that come with a marriage license, some of which do not convey with a civil union. Do we really want to create - again - a seperate but not quite equal caste in our society?

zaphod said...

I didn't hear your argument against gay marriage. Is it re-defining the term?

First, I wrote this: "It's by definition not a marriage - unless you first redefine what marriage is."

In a subsequent post I wrote this: "... two guys can't get married because by definition it isn't a marriage."

So yes, it's in re-defining the word. Marriage means what it means. A gay union may be profound and meaningful and important, et cetera, et cetera, but it's not a marriage.

No problem, call it something else.

I did call it something else: civil union.

Most of the inequities with respect to civil unions comes from the fact that many states don't yet recognize them. Basically your "solution" involves ramming down the throats of others your idea of justice... just like the "solution" the US Supreme Court offered with respect to the abortion issue when it crafted "Roe".

CultMan said...

Thanks for continuing -- yes Zaphod is on the right track; and El D, the numerous issues you raise are important vis-a-vis "peripheral" rights of those legally and properly married, man & woman.

El D: you still haven't explained your original blogpost's concern about how, in redefining marrriage (as opposed to or even in line with creating 'civil unions,' but even that does not stem the tide), exactly how that prevents me from gaining those rights with my brother, my sister, all of my cousins, any 'man in the street' who wants those benefits like me, my neighbor, my widowed mother, my daughter, etc.

What precisely constitutes "Gay Marriage" of even "Civil Unions" in such a way as to prevent everybody from jumping on the bandwagon?

And if it prevents such a mess, isn't that un-equal protection?

By the way, obviously gay men and women have the Right to marry under our present system; they simply must do it according to El D's formula: one man and one woman.

I am still awaiting a coherent response about the Naturalt Law, which underpins our whole legal system; we haven't/don't create legal definitions out of the air, except for teh right to kill the unborn.

El Duderino said...

If natural law is based on the structure of reality itself, are not gays part of this reality, throughout both human history and animal existence? Do you ignore reality and therefore abrogate natural law by asserting that these creatures are somehow fundamentally disordered and proceed to limit the rights and privileges they enjoy? I think I can assume what your answer will be, I would warn you that proponents of gladiatorial combat, slavery, eugenics and other questionable practices claimed support of natural law, the interpretation of which, if history is any guide, is not as immutable as one would hope.
Ah back to definitions, the last refuge of the hopelessly pedantic. I don’t care about the definition or nomenclature of gay marriage. As long as every citizen in our republic is treated equally by the government, I am happy. Gays may demand to change the definition, again I don’t care. Like I said I don’t have a dog in that fight on their side or on yours. See my post on Pericles’ defense of Athens, which pretty much describes how I view my neighbor’s activities, i.e. I don’t care so long as it doesn’t interfere with the rights of others.
Your assertion that gays can marry, they just have to abandon their intended or pursuit of happiness to squeeze into YOUR conception of what marriage means. A. This is fatuous nonsense. B. How is this compatible with the animating principles of our republic?
You bring up a fair question, what’s to prevent people from marrying their cousins, siblings, Jack Russell Terrier or engaging in bigamy or worse. The short answer is, under my line of reasoning: nothing. Which is why a constitutional amendment is needed to define marriage as existing between one man and one woman, as it stands constitutionally anyway, I think lots of bizarre arguments can be made.

CultMan said...

Well thank you one and all; I love this sh**.

We now know that the defintion of marriage allows gays, with absdolutely NO discrimination, to marry one another, as long as they are of different sexes. REVELATION. Same, undisputed rights according to the law.

Question: El D: you have done us a good service, and I hope/pray that you continue to do so; you question: "Exactly what founds the basis for the anti 'same-sex union' line of thinking, or the more popular but less accurate, anti-'pro-gay-marriage' line of thought."

Answer: I believe and know it to be the basis/background upon which all of our Constitutional laws are based: Natural Law (ie NOT the Law of Nature! but Natural Law, which you absurdly equate with ridiculous, ancient claims which have no basis in any normal persons' assessment of Natural Law Theories.).

Re-defining core principles of our existing law/s should be done with care. I still don't see how your arguments meet that conservative test. And if it's about equal protection, why can't my widowed great aunt be "civilly unioned" with my crazy second cousin or my recently widowed aunt? Why shouldn't me and all of my brothers & sisters claim that tax-relief status? Gets us a couple of grand, under Bush.....

What is the defining characteristic about "marriage" which 0.5 to 2 % of the population want to claim (a generous percentage)?

With great affection, CM.

CultMan said...

It is NOT the "LAWS OF NATURE", you dickhead, it's the "Natural Law". Of course, if you understood that, you'd know the basis for the Constitution and everything else you've been blathering about.

johnnyc said...

Maybe if these 2 points are revisited or recapitulated it will help some of us who follow with interest. Whatever your viewpoint I am glad you have thanked El D for raising this issue and providing lines of thought on this which whether you deem them right or wrong, are important for you to address carefully so as to reach those on the other side of this issue.

1. El D mentions, “There is a huge bundle of rights that come with a marriage license, some of which do not convey with a civil union”. Cultman and Zaphod please address for those of us interestedly following the lines of reasoning and educating ourselves on the facets of the issue at hand the following question:
Are there some benefits to which people who cohabitate (even roommates in college, housemates sharing an apartment, etc) either by the pair or by the group should have access in order to attempt to ensure the equality that El D wants to make sure is not lost in this? Somewhere in this exchange it was mentioned that marriage provides something valuable to society which society seeks to protect and preserve. In contrast to a marriage - and now I must add “between a man and a woman” - the cohabitation of housemates or roommates hardly gives society much in return for benefits; maybe energy savings and some other things can be thought of; in which case it seems that maybe a commensurate amount of “benefits” can be given there, but nowhere near those of a married man and woman. Therefore perhaps some “sharing the same living space” benefits could be put into effect, but they’d be a small fraction of the benefits granted to married couples I would think in order to preserve equality / protection. One detriment to this argument among others is what El D aptly pointed out: that many marriages don’t result in offspring, or fall short of providing any good to society. Apologies if I’ve taken liberties in paraphrasing and so call me on it when needed; but I hope I’m preserving the intents of the people I’ve paraphrased.

2. Dl D mentions these “creatures” somewhere and I wonder if you might comment also on the following: What should society do if anything in order to acknowledge the existence of homosexuals? Prison, help toward change, endorsement? Certainly to equate marriage between same sex people with marriage between man and woman is a mismatch. However some things are similar, whether they be anti-natural or not.
If the answers are clearly enough stated in the above, just tell me and I’ll reread (after the kids are asleep).

El Duderino said...

I think society should leave gays and everybody else the hell alone. They should be neither celebrated as is often demanded or re-educated as you suggest. I think for most people no amount of coercian could change their sexaul orientation. For some who can go either way perhaps societal pressure encourages them to choose a heterosexual lifestyle.

johnnyc said...

El D, you had already made this point with a single word when you said (not disparagingly) “creatures”.
My point with that 2nd point was to ask this of Cultman and Zaphod: When you (El D) mention "creatures" (again not disparagingly, rather to make the point which you now reiterate, "I think for most people no amount of coercion could change their sexual orientation...") I believe you were also making the point that they would like not only the benefits but some endorsement, vindication, validation or at least acceptance of their love and lifestyle. If you were not making this point, well then let me make it here: homosexuals do want society to at least accept their lifestyle. To legalize same sex unions would proffer at least acceptance. I’m not saying such acceptance should be adopted. Nor am I saying that if society were to accept it, that this would be the way to do it. I’m asking what should a society do with these people who probably can’t change and who desire acceptance? Sure all kinds of horrible people want acceptance by society and it doesn't mean society should grant it. However my point is to ask: what sort of people are we dealing with here; bad people whose lifestyle, like that of criminals, should not be given acceptance? and what's society's best posture toward such people? It seems to be tricky because as Zaphod points out, “A gay union may be profound and meaningful and important, et cetera, et cetera, but it's not a marriage.” It seems to involve some of the noble aspects of being human. Of course being a cleptomaniac or murderer could also involve some of the noble aspects of being human and that doesn’t seem to trip me up. Maybe it’s our fate – no our choice - to be sinful creatures who have sin layered at times with the most noble aspects of our nature. Another was to say this would be that if we are created in God’s image then I’m finding tricky that there should be diamonds mixed in that dung pile, rather than focusing on the dung and its adulteration of the diamonds. (I mean here to have dung represent sin in general, not specifically homosexual lifestyle).