The purpose of marriage

Timothy Kincaid

November 1st, 2011

Gage Raley, a good ol’ Texas Mennonite studying law in Japan has come up with his most excellent reason for denying civil marriage rights to gay folk. And it’s all based on the marital presumption of paternity.

Or so Mr. Raley informs us in a late-filed amicus brief to Perry v. Schwarzenegger. And Judge Walker’s ruling should be overturned.

Now first I’d like to congratulate Mr. Raley on a most informative essay. The history of the legal and social efforts to ensure that men support their offspring – going back as far as the first human who stood erect on her hind legs – is actually a fascinating read.

But sadly, it seems that young Gage is pursuing the wrong career. He should have chosen history so as to take advantage of his story telling skills. Because law requires logic, a tying of facts to consequences that reflect a process of thinking that can withstand and opponent’s review.

And, sadly…. well, let me just give you his premise.

Mr. Raley tells us that in the American judicial system, there is a maternal presumption of paternity whose purpose is to “provide every child with a legal father.” And, though he probably doesn’t realize it, for some dozens of pages he uses the word “father” in terms of the role he plays, providing for the survival of the child.

Interestingly, a great deal of attention is spent on the argument that a genetic father must be known in order to naturally trigger this provision (a biological imperative for the continuation of his genes). And marriage’s purpose was to tie the care of the child to the continuation of his lineage. The result being that through marriage a man knew who his children were (or, at least, thought he did).

But by page 47, Raley’s evolution of law has come to the point where legal requirements are as much in play as emotional ones. And it is there that he finally tells us what the marital presumption of paternity actually is: “presuming a woman’s husband to be the father of her children”.

Irrespective of biological reality, the legal father of a child, the one responsible for its care and needs, is presumed to be the mother’s husband at the time of the child’s birth. And that is true.

Even if the child is of another race, if the husband is sterile, and if everyone in town knows that they mother is carrying on an affair, that child’s father is presumed to be her husband. Follow me? Even if it is impossible for the man to actually be the genetic father of the child, in the eyes of the law, as long as no one disputes it, he is the father.

And while there are ways to void this presumption, if the father is aware but doesn’t act in a timely manner, then he will remain that child’s father. And if they divorce, he can be legally responsible for child care. Courts have upheld such rulings.

(And this is a presumption that is not entirely unfair to men. More than a few children have been born to fathers who cannot impregnate with the full intention and even participation of men who want to be a dad.)

And it is at his grand “and thus” moment that Mr. Raley beams and presents his smoking gun: in a same-sex marriage, there’s no man to be the presumptive father of the woman’s child. A state has an interest in ensuring that its children are cared for and, it is impossible for both parties in a same-sex marriage to be the genetic parents, then the legal presumption of paternity of a child born in such a union can’t apply and no one can be held liable for that child’s care.

Oh, but what Mr. Raley didn’t notice (the elephant which was not only in the room but tap dancing while playing a trumpet) is that it was for just such a purpose that the presumption of paternity (or, from the state’s perspective, the presumption of a legally obligated provider) came to be. This presumption assigns a provider even when the neighbors scoff at the notion. It’s a legal assumption, not a literal one.

And Mr. Raley apparently is unaware that legal presumption is one of the tools that gay couples use to establish parental rights in states that allow marriage equality. It gives the child a legal parent even when biology fails to do so.

So, Mr. Raley’s argument (like most of the arguments presented to defend Proposition 8) ultimately supports same-sex marriage. But it was a nice history lesson, nonetheless.

UPDATE: 11/3/11

It seems Mr. Raley made an eensie teensie mistake. In filing the brief, he states:

Both parties have granted their consent to the filing of this amicus brief.

Well, no. Not exactly. The Plaintiffs have a quite different perspective:

Plaintiffs-Appellees have not consented to the filing of Mr. Raley’s untimely brief. Rather, Plaintiffs-Appellees informed Mr. Raley that the parties previously had consented to those amicus briefs that complied with this Court’s rules. Because Mr. Raley’s brief is filed long after the deadline established by the Court for the submission of amicus briefs, it does not comply with the Court’s rules and Plaintiffs-Appellees do not consent to its filing.


David in Houston

November 2nd, 2011

Since having children (procreation) has never been a legal requirement to getting married, Mr. Raley’s entire argument is moot. I guess he’ll have to come up with some other convoluted reason to discriminate against gay Americans.

Safe Bet's Amy

November 2nd, 2011

Apparently attending law school in Japan is like attending a med school in the Caribean. :rolleyes:.


November 2nd, 2011

I see David in Houston beat me to it – this is just a dressed-up version of the “same-sex couples can’t procreate, so they can’t marry” argument.

Tony P

November 2nd, 2011

Yep, all about the children. I posted on this years back that I could see this turn in ‘logic’ coming.

People get irrationally emotional when it comes to kids and the bigots know that.

What people don’t know about kids is that they are reasonably resilient and that what they really need are consistency and love and not necessarily in that order.

Richard Rush

November 2nd, 2011

Did any of the marriage “protection” zealots ever think so much about the nature of marriage before the gays wanted to participate?

My husband grew up with a wonderful dog who helped run the family’s retail shop, and the customers adored her. There was always a bowl full of dry dog food available that usually went uneaten because she preferred the more tasty meals served at home. But whenever customers came into the shop with their own dogs, the family’s dog would immediately trot over to her bowl of food and eat it all.

Jim Hlavac

November 2nd, 2011

It’s true that gay men aren’t having babies (well, some do, too, I guess, few.) Indeed, it’s the chief complaint about us, I would think. But we do, well, some of us, adopt the excess from the heterosexual lifestyle of wanton sex coupled with a lack of means and a sense of responsibility. And since adoptive hetero parents, single or as couples, become the legal parents, then adoptive gay couples, or even single men, would become legal parents. Biology is not involved much at all. It strikes me that the issue is — is there a legal parent of any sort, and not the kid languishing in an orphanage. And this poor gentleman, sadly, would seem to like the latter.

And, as is true too; having kids is not a requirement for marriage, as was mentioned.

More weirdly, gay couples are already recognized by gov’t — but under commercial partnership laws, and whatever other tortured legal arrangements we must make to effect what would be automatic under family law.

Regan DuCasse

November 2nd, 2011

I cannot get over how these people keep moving the goal posts and standards, as if THEIRS exist and the well established ones DON’T.
Perhaps Gage Raley needs this list, so he doesn’t waste any more time and money on law school in JAPAN.

1. Marriage and it’s well established laws are based on age minimum, consent and kinship status as non married and non closely related. NOT procreative ability and intention.

2. There is no fertility or fecundity test to qualify to marry.
3. There is no competence or morals test to qualify to marry.

4. There is no restriction on how many marriages or children an individual might have in their lifetimes, see # 2 and 3. Because the #3 factor is why individuals are allowed many tries, regardless of never getting it right.

5. There is no restriction on marrying if one or neither parent is biologically related to the child (as in step and adoptive arrangements). Meaning, as stated in Tim’s article, that a parent/father is what his LEGAL/financial/contractual commitment is, NOT his biological one. And it’s the biological CONNECTION that is the most severed and abandoned without the former commitments.

6. Not singularly, nor collectively, are the marriage equality opponents arguments a matter of law NOW. If they were to their full conclusion, there are HETERO couples who also meet their criteria. So it would have to be equal discrimination, or equal treatment under the law.

7. They treat this issue as if NO gay people meet the current legal requirements now. But they DO. And apparently the opponents want to forget this, as much as they want to forget that NONE of their arguments exist in marriage law now.

8. And because of the aforementioned realities, marriage discrimination against gay couples and THEIR children (apparently the children of gay people now have a distinct difference from other children), doesn’t protect anything. No actual marriages, children or couples are protected at ALL by such ad hoc laws.
So the reason for the existence of the amendment, doesn’t have the legal effect they say it does.

I hope SCOTUS can figure it out for them, because NOM, AFTAH and so on are wasting a LOT of people’s time and money on the most worthless folly I’ve ever seen in my life.
Raley, doesn’t look like much of a candidate for passing the bar.
Anywhere. Not even in Japan.

Regan DuCasse

November 2nd, 2011

9. There also is no marriage restriction based on the religious choice and beliefs of others.

10. And considering that spousal and parental duties can easily be (and are often) severed, with NO LAWS that can MAKE an individual NOT abandon those duties, it doesn’t make sense to punish the gay people who DO commit to those duties.
Because the opponents certainly aren’t going to care for these gay people or their children at any time.

If any opponents gives you this much time to make your case, please refer to this list.
Usually they don’t give any of us that much time, but the reality and truth of this list certainly is there.

Thanks for letting me have my say! xoxo

Timothy Kincaid

November 2nd, 2011


Excellent list.

And if you just want to keep it short and sweet, you can say that our federal government recognizes the marriage of Woody Allen to Soon-Yi Previn, but not of any gay couple.

Holy Prepuce!

November 3rd, 2011

I agree — the brief is actually a fascinating read as a history lesson. The kid clearly has promise as a legal historian, just not as a logician.

Plus you’ve got to love the chutzpah of a law student taking his law review note, which would never otherwise have been read by more than a dozen people, and formatting it as an amicus brief in a widely-followed appeal, guaranteeing an audience hundreds of times larger.

Holy Prepuce!

November 3rd, 2011


Docket Text:
Filed order (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) Gage Raley’s motion to file an amicus curiae brief out of time is denied.


November 3rd, 2011

My view is that genealogy belongs in the fiction section of libraries. What’s the point of tracking down the ancestors of a man who was not your father (grandfather, ggrandfather, etc.)? Which leads to a question I hadn’t considered; will equal marriage put an end to this fictional exercise? “This is my Dad and this is my Daddy. These are my Dad’s Dad and Daddy. These are my Daddy’s Ma and Mommy.”

If it’s often fiction for heterosexuals, for LGBT families it quickly becomes pointless. What family narrative will replace genealogy?

Heather Self

November 4th, 2011

Gage Raley is about as far from a mennonite as you can get. Clearly you have never read his other briefs.


November 4th, 2011

Surprisingly enough I’m in no hurry to read his other briefs, Heather. (Though I will happily help him out of his briefs, but that’s some other topic.)


November 4th, 2011

I think it’s his name. If you reverse the two first letters it becomes Rage Gayley. He must have gotten hell in junior high…

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