Monday, March 19, 2007

Kissing Cousins

I’ve not had time to prepare a new post but, as I’ll soon be posting on the argument that marriage is about children soon, I may as well put this old bit of info out there.

Even ignoring the fact that many gay couples are adopting and producing children with aid, there is not one law I can find that makes children, parenting ability, or the ability to have children a requisite for marriage (if you know of one, let me know). The laws handling children’s rights and parent’s obligations are handled separately and for good reason.

Even convicted and incarcerated pedophiles who’ve preyed on their own children have the right to marry (as long as it’s heterosexually) by law, and yet no one in their right mind would say their children “deserved” them as parents. In fact, in the laws of the US, the best I can find for a legal connection to the ability to have children is found in laws that forbid a couple from marriage if they are able produce children.

a marriage between first cousins is not prohibited if: both parties are 50 years of age or older; or (ii) either party, at the time of application for a marriage license, presents for filing with the county clerk of the county in which the marriage is to be solemnized, a certificate signed by a licensed physician stating that the party to the proposed marriage is permanently and irreversibly sterile;

two (2) individuals may marry each other if the individuals are:
(1) first cousins; and
(2) both at least sixty-five (65) years of age.

first cousins may marry if both are sixty-five years of age or older or if one or both first cousins are under sixty-five years of age, upon approval of any superior court judge in the state if proof has been presented to the judge that one of the cousins is unable to reproduce.

First cousins may marry under the following circumstances:
(a) both parties are 65 years of age or older; or
(b) if both parties are 55 years of age or older, upon a finding by the district court, located in the district in which either party resides, that either party is unable to reproduce.

that marriage may be contracted between first cousins where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile.

There is no law I can find forbidding infertile couples from marriage, or women who are old enough to be past menopause, or the intersexed, or anything like that. But here the states (Utah among them, of course, for irony’s sake :-)) make a special exception for certain couples in order to give them marriage rights and obligation, only if they cannot produce children. They even make the couple (if they are young enough to be fertile) get a letter from a physician.

This notion that marriage is all about having children, is a relatively new political argument, used to keep gays from marriage (though you can find it in the more distant past, and a variant of such was used during the debate over interracial marriage). I know many sincerely believe it, and with good intentions. It's tough not to heed when someone yells the old "Think of the children!" But the benefits to the public for giving marriage rights to infertile and life-long childless couples have been clear for a long time (Many of them listed here, here, and here), and only recently has the goalpost moved into this emotion laden territory of deep and yet debasing concern for other's families. I watched the argument crafted over many months and tested, and it worked here, even though gays do have children, in far greater numbers than most understand.

I mean, how many know Utah is in the top 3 of states in the percentage of gay headed homes raising children? Clearly Utah’s laws don’t stop these children from being born or adopted. And yet, all through our amendment debate one side somehow convinced the public that to help our children they had to solidify their family’s invisible and second-class status in our constitution.

But I'm getting ahead of myself :-).


Loyalist (with defects) said...

what a boring family reunion that would be. bunch of married cousins. from a genological point of view it would maked documentation easier. LOL

However, there would have to be a footnote regarding stating "But we didn't have kids."


-L- said...

I'm irritated already, and you haven't even gotten into the real post yet... ;-)

It is a perfectly legitimate argument that society concerns itself with marriage (and has done so for millenia) because of the stability it provides for child-rearing. That it is tidier policy-wise not to force people to prove fertility or intent to procreate is completely rational, and the lack of focused policy limiting individuals in such a manner is by no means a legitimate counter-argument (although I've heard it ad nauseum).

Oh, but if you're getting ahead of yourself, so am I. I'm listening.

Scot said...

"what a boring family reunion that would be."

We’ve members of our family who are children of 2nd cousins… I think too many of their quirks get unfairly blamed on their genetics. :-)

"It is a perfectly legitimate argument that society concerns itself with marriage (and has done so for millenia) because of the stability it provides for child-rearing."

Sure. That’s a reason government is involved and I’m not saying that reason doesn’t exist, nor that it’s not very important. It is in fact one main reason to offer these rights to gay couples; again, in Utah, of those gay couples most likely to marry, those living together, about a third are raising children in their home, according to the 2000 census.

It should also be kept in mind that it’s a chicken or the egg thing. People are concerned with marriage for many reasons with or without society, and those reasons are the only reasons “society” can have to dictate back to people. It used to be about wealth, social status, parental arrangement, race, and more.

"That it is tidier policy-wise not to force people to prove fertility or intent to procreate is completely rational, and the lack of focused policy limiting individuals in such a manner is by no means a legitimate counter-argument (although I've heard it ad nauseum)."

One of the problems I have with the area here is that, sure, given the premises of the opposition, one can make a fine argument from them. But it’s greatly all-abstract, with little or no evidence given and little attention paid to the actual real life, demonstratable costs. The point of this post(though lost in my ramblings :-)) was to offer some more evidence, regarding the motivation of government, beyond the way’s government benefit by giving marriage obligations and rights to even permanently childless couples I’ve already given, long ago.

Take out the emotion and religious connection in the marriage debate and consider the following: Person A claims the reason for government offering X applies only to couples with Y, though it may, for sloppiness or concern for privacy, allow those without Y into X. Then Person B points out there is no instance of law requiring Y for X, and, not only that, the only link between a requirement for X and having Y is found in laws that forbid giving X, if the couple has Y. The law goes out of its way to give X to certain couples, controversial couples that go against the norms of society, only if they don’t have Y. Wouldn’t you think that at least weakens Person A’s premise?

In short I think its clear most people, and governments see a benefit to treating couples, Y or no, as having X, even though it gets an even greater benefit in treating couples with Y as having X. Well, they would until the baggage surrounding gay issues is added on ;-).

Silus Grok said...

Not to belabour a point that -L- made, but you're pitching straw men.

"If the state's interest in marriage is largely founded in its interest in child-rearing, then why doesn't the state get into the business of policing couples who don't have / refuse to have children? If they don't, then saying that the state's interest is the children is disengenuous."

Is that an accurate restatement?

My response is by way of analogy: our compelling interest in the middle east is oil... but many analysts agree that the best way to keep oil running has nothing to do with pipelines or drilling, but in encouraging a flourishing middle class. Just because the connection isn't immediately apparent, doesn't negate the compelling state interest.

Because I assume that this post is, in part, a response to my comments on your last post, I can't help but interject that you're cherry-picking my comments. For the record, the logic of my argument is (in short):

The state's compelling interest in marriage is the successful rearing of children.

Because child rearing is an intensely private/delicate/complex issue, the non-authoritarian state has limited tools at its disposal (and since authoritarian states tend to fail — often spectacularly — its in the state's interest to avoid authoritarian means), so it must chose tools with the greatest influence and the smallest footprint.

I submit that the ideal is a child being raised by their biological mother and father in a loving and materially sufficient home. I further submit that the state should favor the ideal when weighing competing interests.

Gay marriage would make favoring the ideal artificially impossible in various instances by taking gender out of the equation. As such, it should not be sanctioned.

That's the argument.

Here are some ancilliary arguments (in no particular order, and only tangentially related to each other):

There are a lot of worthy issues that are being short-shrifted by the omnibus approach to policy-making encouraged by the fight for/against gay marriage... there are other, better ways to address many of the short-comings of the status quo that do not tie the hands of the state and would benefit a larger segment of population — if not the population as a whole. As such, gay marriage as a vector of policy-making is injurious to the body of law, and the state by extension.

Marriage law is (unnecessarily and unfortunately) messy, and requires a lot of work. Citing the short-comings of marriage law as an argument in favor of further corruption of the law is the policy equivelent of children quoting their parents' inconsistencies back to them. It's juvenile and refuses to address the issue on its merits.

The burden of proof on this weighty matter falls squarly with those wishing to change the status quo.

Yeah... I think that's it.

: )

Silus Grok said...

To clarify: Scot, if you're responding to my previous comments, then you're pitching strawmen... if your goal is something else, then perhaps the post is actually germane. I don't know, but I assumed (which puts me at a disadvantage) that you were, indeed, responding to me or my kind.

If you're not responding to me, I'm curious what your motivation is in this post... I grant that, as you've said, you're getting ahead of yourself — that this isn't a completed though — but I don't understand what your post accomplishes. Is it just to shoot the messenger? It's a common and effective rhetorical tool — filling the landscape with tangential arguments — but it hardly seems a worthwhile endeavor.

Silus Grok said...

* a completed thought

Loyalist (with defects) said...

I dont like to chime in on "hot" button issues, such as gay marriage or child rearing by gay couples, while a debate is in progress.

Emotions are a tricky thing and the writen word can often be misunderstood. And I like everyone here, to the possibility that my words may cause hurt, puts me to pause.

and here is the inevitable "but", I do find that I must point out a couple issues here. And I do this ever so delicately. Unlike the AM radio hosts, I dont believe that there is a singularity of truth when it comes to general opinion and public policy.

First, let me begin by saying that the only interest a state has is Self Insterest and that self interest is tied directly to survival.

Survival is dependant people. Individuals direct the survial insticnts of the state. Which means that motives change over time. It's a very rudimentary explanation and i appologize.

State involves inself in marriage for 1 of 2 reasons. Either b/c of social taboos or b/c of regulations (protection of the weak).

Marriage can be understood from two seperate view points. (1) it is a religious institution defined by God (*even this is can be broken down into two subunderstanding as well) (a) {and i will only speak of the JudeoChristian understanding here}God as defined by man; and (b) God as defined by Himself.

I will get to view point 2 in a sec, however let me discuss 1.a for a moment.

God being a maluable entity can be changed because of the growth and understanding of the people. Hence marriage can eventually be adjusted and accomidations can be met over time. At the same time though growth and understanding are not constants so progression is not readily available.

In definition 1.b God Himself defines marriage. And for a believer to change what God has so instituted is tantamount to High Treason. Only God can redefine in this arena.

On to viewpoint 2: Marriage is simply a legal contractual obligation with clauses to provide for (physically & emotionally) for another.

Historically, the state was never involved in marriage until social taboos were crossed vis a vis interracial marriages. It wasn't until the Catholic Church combined both the religious sword and the government sword that marriage entered the 'legal' world.

Marriage has tied to it the obligation or the potential obligation of raising children.

I may have lost some of you in this and I can understand. I've lost my thoughts a few times already. :)

In a modern age where the ideal does not exist, what are the cercumstances to which the state can define who raises who.

Ideally i would like to see a world without divorce. However, have had friends who experienced some of the worst slimes out there, I understand that divorce is needful.

Idealy, I would like to see children raised in a two gendered home for the sake of balance. However, this is not always possible. death, divorce, and abandonment rips children from the ideal.

The state is then left to find homes for these children. The arguement (i like 'rational discussion' better) should be if the ideal cannot be found what is next best thing? Then go from there.

I am sorry Scot that I took up so much room.

I also hope that I hurt no one. I tried to be as diplomatic as possible as it is not my intension to cause anyone pain. Scot and his R have shown me that once gain the "impossible" is possible.

Scot said...

I should be clearer. Silus, this post (like an embarrassing number of my posts) is stitched together from old material. You did bring this argument to mind, one which I’ve had many times, and it’s one I’ve been meaning to get to here (and I will :-)). This was more of a reaction to the other people I’ve had this same debate with and was a subject on which a post could be put together in a hurry, where I don’t have a lot of time this week. I may not get much farther until the weekend in fact.

Like me, you got ahead of me ;-).

To be quick:
"If the state's interest in marriage is largely founded in its interest in child-rearing, then why doesn't the state get into the business of policing couples who don't have / refuse to have children? If they don't, then saying that the state's interest is the children is disengenuous."

Is that an accurate restatement?

I’ll get to this, but no, not really. Children area huge interest, and I’m not asking why policing isn’t done on infertile couples (I think the benefits to the state of infertile married couples are evident).

This post shows only that the state goes out of it’s way to give marriage rights and obligations where it also shows an active interest in there being no children. You can get married, if you prove you’re infertile. There is no example of the opposite I can find in law, and it is a bit of evidence towards the motivation of the state. Why would it want to go out of its way and specifically recognize marriages where the couple is infertile or too old to have children? It's not an accident; it's purposeful.

That's the argument.

I understand and I will address it.

I’ve just got a bunch going on right now.

Silus Grok said...

I'm patient, and it's certain to be worth the wait.

And thanks on the clarification: the post makes _much_ more sense now.

You're still wrong, whatever you say... but it's nice, at least, to understand you.

; )

Scot said...

Loyalist, no worries. If I get hurt, I heal fast; I’ve been in this debate for so long and mainly with people who are outright cruel and violent, not merely those with an honest and well meaning difference, as is what we have here. You might say, I’m an emotional Clare ;-).

And thank you.