The evolving “purpose” of marriage

Timothy Kincaid

June 17th, 2010

The very clear, not at all contradictory, easy as pie, self-explanatory, slap-happy purpose of marriage as laid out by Proposition 8 defender Chuck Cooper:

* the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.

* the purpose of marriage is to provide society’s approval to that sexual relationship and to the actual production of children.

* the purpose of marriage, as Justice Stevens says, is to license cohabitation and produce legitimate children. That was the purpose of it.

* this fundamental historic purpose and who present, most importantly, uniquely, the threat to the society’s interests that marriage is designed to minimize, the threat of irresponsible procreation, the threat — the reality that when procreative sexual relationships between men and women are not channeled into marriage and these stable unions with these binding vows, then much more frequently the society has to — has to itself cope with the adverse social ramifications and consequences of that kind of irresponsible procreation

* but for reasons that we discussed earlier with respect to the opposite sex but infertile couple, allowing them to marry isn’t something that is inconsistent with the purposes of — the core procreative purposes of marriage and, in fact, in certain respects it advances those purposes and it would just not be possible or realistic, as case after case has said, for the state to try to implement its policy on a more narrow or fitted basis.

* There is a distinction, however, with respect to the fundamental procreative purpose, responsible procreative purpose of marriage; and that is that the gay couple, unlike the opposite-sex couple where one of the partners may be infertile, doesn’t represent — neither partner in the — with respect to the same-sex couple is — again, assuming homosexual sexual orientation — represents a concern about irresponsible procreation with a third party.

* The right to marry is bound up with and proceeds from the fundamental nature and its fundamental purpose relating to procreation and the existence and survival of — of the human race.

* we — as we attempt to step into the shoes of the state — don’t have to submit evidence to the Court in support of the claims of purpose and justification.

Edwin

June 17th, 2010

So what does this all mean?

Richard Rush

June 17th, 2010

I notice that every one of those bullet points indicates a view of marriage strictly as something to be imposed on people by some authority. There is no thought at all to the desires, concerns, opinions, or emotions of the people who would actually be entering into a marriage.

And similarly, has anyone ever heard an anti-gay fanatic ever consider for a fleeting moment the concerns, opinions, or emotions of a gay person?
. . . Me neither.

It’s always exclusively about THEM, about catering to THEIR needs, and about us recognizing THEIR uniquely superior qualifications and assumed authority to have dominion over everyone else. Essentially, they are very needy, and like all needy people, they drain the life out of everyone around them. The only legitimate function of a gay person is to submit to THEIR needs.

DN

June 17th, 2010

After reading some of Scalia’s writing on gay cases (Romer v. Evans for example), I’m not convinced that some Supreme Court Justices won’t be swayed by the “well duh it’s obvious so I don’t need any evidence” argument. Maybe I’m just being a pessimist – after all, what court in the WORLD would rule a case in favour of the party that provided no evidence?

Regan DuCasse

June 17th, 2010

I cannot, absolutely cannot understand why the keep harping on the procreation issue, as IF those who do or don’t have children doesn’t COEXIST within the current guidelines of legal marriage.

Which at no time when you apply for marriage is that a question to a prospective couple.
It’s not in the traditional VOWS of marriage.
There is no moral or religious test for fitness to marry, let alone have children, required by the state.

Yet, here they are, expecting judges and legislators and so on, to exact enforcement of such non existence, rather than accepting this as a COEXISTENT reality.
The IOWA court’s unanimous decision actually reflected, as did Boise and Olsen’s testimony, that gay AND straight adults are living and doing pretty much the same things, have the same needs, and responsibilities.
And this ban serves no GOOD purpose to justify it’s existence.

So the question is, since it doesn’t and can’t preserve marriage or protect it, why have it?

And the opposition couldn’t figure it out either.
Tough shit.

DN

June 17th, 2010

dur – I meant “some Supreme Court Justices *will* be swayed” hehe

Ben in Oakland

June 17th, 2010

Also, Regan, there is nothing in the marriage laws which state that they have the slightest thing to do with procreaiton. And apart from the utter nonsense of gay people de-institutionalizng marriage, whatever that means and however it could possibly be, there is also not a ingle explanation coming from them which indicates how gay people getting married has the slignest impact on straight people and their reproduciton.

WMDKitty

June 17th, 2010

“(blah blah blah) represents a concern about irresponsible procreation with a third party.”

Yep. Because ADOPTION is just SO irresponsible…

/sarcasm

Christopher

June 18th, 2010

Ben, you beat me to it, but because the issue of procreation keeps coming up, I have to ask, how would allowing same-sex marriage affect the ability of anyone to procreate? As far as I know there’s never been any evidence to even suggest that same-sex marriage causes infertility.

I think the argument is that if same-sex marriage is allowed then it will prove so overwhelmingly irresistible that there will be so many same-sex couples marrying and not having children that the population will shrink and humans will become extinct.

And yet the same people making this argument also can’t resist saying that the number of same-sex couples who want to marry is small (see “the will of the people”).

So my question is, if the number of people who want to marry someone of the same sex is so small, how does it threaten the population?

Aeval

June 18th, 2010

“..represents a concern about irresponsible procreation with a third party.”

And yet experts have generally agreed the number of men unknowingly bringing up a child they believe to be their own is about 10%, and in some studies it vary from 1% up to 30%, depending study, country and group.

“…irresponsible procreation with a third party.” seem to me be a much bigger problem within the straight community. So if they want to “troublshoot” the “third party” irresponsible procreation problem, they don’t have to look further than their straight neighbours.

Paul in Canada

June 18th, 2010

Cooper’s ‘arguements’ distill, quite nicely, the desparation of these folks. That is, the only ‘difference’ they can try and manipulate within the context of legalizing a relationship between 2 people, is the physical ability of opposite-sex couples to procreate. Wow!!! Now that in itself, is the weakest arguement I’ve ever seen ‘defended’ by the religious-right.

Peel away this nonsense, in the legal context, and they have….. nothing!

I hope they take the same approach when this reaches SCOTUS….

I am bewildered how the religious-right are leading the nonsense on ‘marriage’. Interesting how you don’t see any non-religious civil organizations joining them. I agree with another person who posted the need to legally separate the churches role completely in marriage. This is NOT a religious right. If they wish to have their civil-sanctioned, legally recognized marriage ‘blessed’ by the church, then so be it, but the church should not form the basis for its ‘legality’.

…I see the light at the end of this very long tunnel for you folks in the US!

Richard Rush

June 18th, 2010

Paul in Canada wrote, “Peel away this nonsense, in the legal context, and they have….. nothing!”

That’s the real reason they had so few witnesses at the Prop-8 trial. While their bullshit claims often go unchallenged among the general public, they know that, without evidence and facts in a courtroom, their testimony will be exposed to ridicule.

So, as a cover for the real reason, they were reduced to whining about many of their potential witnesses being fearful of revealing their identities in a courtroom and thus becoming vulnerable to threats from vindictive homos. But it’s interesting how they don’t fear revealing their identities in venues other than courtrooms. We already know who they are through their writing, speaking, and their organizing of relentless campaigns against us.

Lymis

June 18th, 2010

Straight people who are mutually infertile are still supposed to get married because 1) it sets a good example to the fertile ones and encourages them to marry, 2) it “channels” the sexual drives of the spouses away from creating babies with other people, and 3) they can still raise kids via adoption or medical assistance, and the state has reason to care about those kids.

Gay people, however, who are mutually infertile, AREN’T supposed to get married, even though all of the above still apply to us.

They specifically state that gay people aren’t a risk for irresponsible procreation outside their relationships because they won’t be having sex with the other sex, because our sexual attractions and behaviors are fixed and firmly directed only toward same-sex partners.

However, when it comes time to consider whether sexual orientation should be given heightened scrutiny, suddenly there is no such thing as an immutable gay orientation, and gay and lesbian people are turning straight and back again willy-nilly so often that we can’t even be identified as a group.

Even when limited to about 45 minutes, these people can’t avoid irreconcilable conflicts in their own arguments. Normally, when you just make stuff up, you try to be at least consistent.

Jon

June 18th, 2010

“After reading some of Scalia’s writing on gay cases…”
Scalia’s dissent in Lawrence v. Texas makes clear that he believes that state has a legitimate interest in outlawing masturbation, and that individuals have no constitutional right to masturbate in private. He’s a loon, in other words.

CPT_Doom

June 18th, 2010

What strikes me is the word that is missing from his arguments – although, to be honest, I have not read his entire closing, so he might have said it elsewhere – and that is the word “family.”

One of the central legal purposes of marriage is to recognize a new legal family unit, comprising the couple and any children they may have biologically or adopt. Of course, children are not required in order for the legal family to exist.

This legal recognition of the new family allows the state a shortcut route to creating both family and property law. In fact, our law recognizes not only the nuclear family described above, but also the larger extended family created through several such nuclear families. In child custody cases, for instance, the closeness of a relation to the child (say, an aunt versus a second cousin) can be a deciding factor in determining custodial issues.

Cooper could not use this specific argument, though, because it is an argument in favor of same-sex legal marriage. Because the state already allows same-sex couples access to some of the legal framework of families – through adoption for instance – these families already exist, albeit without the full protection of marriage. To allow the families to form, but only provide them partial protection, has been a powerful argument against “traditional” marriage laws, and I find it ironic that Cooper was robbed of the ability to use the word “family” and all the warm, fuzzy feelings that go with it.

Jason D

June 18th, 2010

* The right to marry is bound up with and proceeds from the fundamental nature and its fundamental purpose relating to procreation and the existence and survival of — of the human race.

How do they keep getting away with this flimsy argument??

“Marriage is about children!”

Really? When I see a traditional man get down on his traditional knees and present a traditional ring, it’s not to a child (well, not in the USA) it’s to an adult traditional woman.

When they register at Macy’s, they register as Bride and Groom, not Bride and Groom, and Son, and Daughter.

No spaces on any marriage license or application for kids to sign or even be mentioned.

There are two rings, not two rings and a pacifier.

“Do you take ____ to be your lawfully wedded ____ to have and to hold, in sickness and health, till death do you part?” — Nothing about kids there.

While there are certain tax incentives for couples with children, don’t those same tax incentives apply to single parents? Don’t “family” discounts apply to single parent homes?

Marriage is, and always has been about two people coming together. Our laws don’t demand they have kids, nor do our laws force unmarried parents to marry.

Marriage is about two people becoming legally bonded by law. We often assume children will follow, but this is not a requirement. We let people well past the point of fertility get married. There is nothing in the application, license, or even ceremony that has anything to do with kids.

Timothy Kincaid

June 18th, 2010

Lymis

Normally, when you just make stuff up, you try to be at least consistent.

True. But this time the judge didn’t let either party stand up and talk at him. He asked questions. Hard questions.

Which is why Cooper’s “purpose” of marriage went from encouring procreation to discourage procreation. Given another hour it might have gone on to whatever else his desperation drove him to.

Jason D,

One of my favorite parts of Closing was when the judge called him on that nonsense. He told Cooper that the logic conclusion of his argument was that the State do fertility tests, ask the intention of the parties, and desolve childless marriages.

Jim in MA

June 18th, 2010

Let’s not forget the original purpose of marriage: for two kings to combine their resources (land, armies) in order to defend themselves against or take over a third kingdom. Love and children had nothing to do with it.
If you want to get a little more recent, marriage is a slave contract for one man to take an (unwanted) daughter off another man’s hands. A dowry exists to basically bribe someone to take a man’s daughter. Because daughter’s cannot take over the throne. That’s a job meant for the male children.
So basically marriage is only valid between royalty. If you don’t have documentation for your bloodline, nobody will let you have their daughter.

John

June 18th, 2010

Reading it all just makes me feel ill. I have been googling all day to try to come across interesting stuff about the trial (I don’t know how much longer I can read closing arguments that suggest a rational basis for discrimination can somehow be justified)…this link (http://www.newdeal20.org/2010/06/18/in-california-gay-makes-pay-12706/) was pretty cool.

I’d say check it out if you want some lighter reading.

MattNYC

June 18th, 2010

My head hurts. he gets paid to speak like that??? W should become a lawyer then.

Is he actually stating that even if one or both parties in a heterosexual marriage are infertile, that marriage is still OK because it takes them out of the heterosexual gene pool???? If not, what the f*ck is his point?

Christ, I can’t believe that W never nominated THIS GUY for SCOTUS.

Lucresh

June 19th, 2010

This is pretty easy to shut down as long as you have an Anthropologist on the overturn prop 8 side. No, marriage has not always been for the children. In fact, in more cases than not, in the past it was about the passing down of Property. And then there are the tribes in africa that will do same-sex marriages incases a family has all Female Children. There for one of their female children will take the roll of “man” and will be the inheriter.

Brennin

June 19th, 2010

“This is pretty easy to shut down as long as you have an Anthropologist on the overturn prop 8 side.”

And all you need on the pro-Prop 8 side is someone who can immediately cut through his/her content-free blathering. Who cares about the marriage customs of backwater, obscure tribes? I know I don’t, anymore than I fret about being the victim of their witch doctors’ sympathetic magic.

Homosexual couples lack the biological, sexual, and psychological complementarity of heterosexual couples, which is all that needs to be said by Prop 8 supporters. Well, that and to note that the Constitution has no “right” to SSM and that any judge who presumes to conjure such a right is acting illegitimately.

Priya Lynn

June 19th, 2010

Brennin, gay couples are perfectly complentary to each other. Its irrelevant that gay couples don’t have the same physical makeup of heterosexual couples. In Loving vs Virginia it was determined that the right to marry the person of your choice is a fundamental human right. The right to marriage means nothing if you are not allowed to marry the person of your choosing.

Richard Rush

June 19th, 2010

Brennin,

My partner and I have had perfect “biological, sexual, and psychological complementarity” for nearly 29 years. Actually, we have more complementarity than many straight couples we know or know of. For example, how much complementarity did Rush Limbaugh have with his first three wives in those God-ordained traditional marriages?

While you are certainly entitled to your opinions, what qualifications do you have that would allow those opinions to be seen as anything more than mindless visceral bigotry? The few Prop8-supportive witnesses willing to testify in the trial attempted to put a scholarly veneer on their bigotry-based position, and they were apparently exposed every step of the way.

Did it ever occur to you that gay people are the most qualified people to speak on the subject of homosexuality? No, off course not, because it’s all about YOU, isn’t it? For some sick reason YOU feel the need, along with the entitlement, to control how everyone else conducts their lives so that YOU can be anxiety-free and feel the satisfaction and contentment that YOU so richly deserve as a privileged member of the majority.

Human beings voluntarily form bonds that provide them mutual benefits in various aspects of living. Why is it so important to you to prevent people of the same gender from forming those bonds? How exactly does it diminish some aspect of your life when that happens? Why are you so needy?

Burr

June 19th, 2010

the Constitution has no “right” to SSM and that any judge who presumes to conjure such a right is acting illegitimately.

The Constitution gives no right to the existence of heterosexual marriage either. In fact, the whole construct of state governments only recognizing some contracts between two consenting adults and not others is completely unconstitutional.

Timothy Kincaid

June 20th, 2010

Brennin’s premise is that the government holds all rights and doles them out as it wishes.

But our principles are quite the opposite. We believe that people hold rights and that they can only be limited by the government for good cause.

It’s the debate between the collectivist and the individualist. I wonder which one Brennin (probably incorrectly) thinks he is.

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