67 notes &
On nation-state marriage licensing monopolies and the history of law.
Reblogged from clintirwin:
This is ridiculous on its face. It would mean that you are an unreliable source, your agenda being anti-Libertarian, and I am the reliable one, because I haven’t stated any agenda. If anything, a spoken agenda makes a source more reliable, because the alternative is a hidden agenda. BTW, mine is a partial libertarianism—for less government than the average conservative, but far more than a pure libertarianism or emergence.
Well, no, if you are a communist and you argue your “facts” with “proof” from the Daily Worker, I have to dismiss it, just the way I would against a Chritian who tells me homosexuality is wrong because Leviticus says so.
By your own logic, “I have to dismiss” your statement, because of your anti-Libertarian agenda. I don’t think that’s true, I choose to dismiss it because it is ridiculous. The Daily Worker may be unreliable for any number of reasons, its political affiliation is not among them.
I don’t think you read what I actually wrote. I’ll try again: there are two ways in which this can be seen as or said to be a monopoly, which I’ve explained above. While individuals can define marriage personally or for business purposes, none have the right to define it officially. If they did, there would be no legal question, they would simply define it to include whatever types of marriage they want. As it is, they need state approval.
It is not approval but protection under the law. Without that, a couple of any sex driving across country must be subject to the the approval of the local church or local individuals as to whether they are married or not and treated as such. Gay couples simply want that protection.
I’m sorry, what? This has no connection to reality. Why would “a couple…driving across country” be subject to approval by a local church or anyone else? Are there parish checkpoints along the freeway where they stop every car and ask the sexual orientation and the nature of the relationship of the occupants? Are we driving in and out of East Berlin in the 70s?
You’re making the libertarian point. If the state didn’t have the monopoly on defining (official) marriage, then same-sex couples wouldn’t need to seek state sanction. You don’t need to seek legalization for something that isn’t illegal.
Government acknowledgement is not so much the point the protection of their rights from locality to locality. Otherwise, couples have to do research about the particular locality they want to go by personal choice and decide what rights they give up if they go there, or even drive through.
First, the equal protection granted by the acknowledgement of same-sex unions would be limited to things like hospital visitation, inheritance, and tax filing. It won’t prevent discrimination by private citizens. Couples will still “have to do research about the particular locality they want to go…and decide.” If the locals don’t like homosexuals, they won’t be any more welcome because the government says their married. I can tell you that straight interracial couples aren’t welcomed everywhere, and there’s nothing the state can do about it.
That the state shouldn’t be in the “marriage business” is a moral judgement. The idea you have is that discrimination is okay, as long as it is not a government doing it. The only way to uniformly end discrimination is equal protection under the law. This cannot be achieved in your stateless utopia of “personal choice.”
That discrimination is not okay is a “moral judgment.” Are you suggesting we exclude all moral reasoning from political discourse?
Okay, then I say it is immoral to say that certain people, when in certain places, should be denied their rights because they are in the wrong place where the local community has decided they have no rights.
So moral judgment was bad, but now it’s okay? I’m having trouble keeping up with your constantly shifting position.
What rights are you imagining will be denied? I’m unable to call to mind anything that would fit into your scenarios—particularly the idea that somehow a local church is going to oppress some poor couple who’s just driving through town.
What it means is that the government in most states has, at this point, chosen to define marriage one way. For all government purposes—including taxes—anything outside of that definition is not marriage. Whether a family or community or church wants to define same-sex unions as marriage is not at issue.
Or we use the law to broaden what a couple is so that more people are insured of equal protection under the law.
Are you implicitly admitting that the government has the monopoly?
The question at issue isn’t broadening what a “couple” is, but broadening what a “marriage” is. And I ask again, protection from what? Please don’t say something about “rights”…be specific. Name one thing (other than joint tax filing, I got that one already) that would become available to same-sex couples that isn’t available already (visitation rights and survivor benefits are available to anyone, it just has to be in writing).
If I’m understanding, libertarians would rather heterosexuals lose the recognition from the state. Then every union is considered equal, and the state loses a teensy bit of power. And no more Prop 8 shenanigans.
Equal protection under the law makes more sense than “you can discriminate against whoever you want because it is your personal choice.”
What I described is “equal protection under the law”.
What law? Defined by who? Enforced by who? In what particular locality?
Equal protection isn’t about the presence of an ordinance on the books, but about a particular law applying to everyone equally. You can’t let every white or straight or male jaywalker off the hook while fining every asian or gay or hermaphrodite. That means that, if the government chooses not to license marriage at all, then everyone is treated equally under the law. There’s no need for definition or enforcement; once you’ve chosen not to define, there’s nothing to enforce.
Uh, I was referring to your “seat at the lunch counter” metaphor.
A gay couple goes into a diner. The owner doesn’t like them “looking like fags,” asks them to leave. Saying it is different makes no sense.
You’re response has nothing to do with the marriage issue. Aside from that, not all gay couples “look like fags”, as you so eloquently put it. All black people look like black people. Except for Anatole Broyard, I guess. Also, if it was one homosexual, would it apply? What if it was two gay men, but not a couple? What if it was seven gay men, and one straight couple? Is there a sign out front telling gay customers to pick up their food at the back door? Finally, if the state said the couple was married, do you think it would make a difference to this bigoted owner?
You’re also not being coherent. You say the government doesn’t have sole power to define marriage, but then you acknowledge that they do, by persisting in your argument for sanction. If they didn’t have a monopoly (within each state), there would be no reason to pursue inclusion in the official definition; there wouldn’t even be an “official” definition. Its existence demonstrates the existence of monopoly control.
I am being coherent. Individuals can define marriage anyway they want but if they want equal protection under the law everywhere they go in this country, they can choose to go and get that protection from the state. Gays should be able to do that.
Until you point out what particular protection the state will provide under the law (again, something more specific than “rights”) I’m going to leave the equal protection statement alone. “Individuals can define marriage anyway they want,” but if they want a marriage license, they have to meet government requirements. That means, among other things, they can’t be married to anyone else, they have to be over 17, and they have to be opposing genders. That’s the law. A law that no individual can circumvent, meaning that if two men want a marriage license, they have to convince the state to change the requirements. As whakahekeheke said originally, if the state didn’t have a monopoly, it would be a moot point. There would be no licenses, thus no requirements, thus nothing to change. But they do have a monopoly, which means that even though Gavin Newsome married some couple on the steps of San Fran City Hall, they aren’t “legally married”.
One thing you have never defined is exactly how marriage would work under your system. You’ve never even defined it and how it would even work, just criticized what we already have.
Did you mean to write two consecutive clauses that said almost exactly the same thing? The escalation at the end was interesting. In Hebrew poetry (Psalms, in particular) it’s called “climactic parallelism”. If it was intentional, it was nice. I’m assuming it was not.
What marriage would look like has been suggested several times: anyone could define it however they choose, and the state would recognize nothing officially. There would be no legal definition of marriage, because there would be no legal concept of marriage. The state would be out of it entirely. And by “state” I mean any government entity, down to the municipal officers in Wink, Texas.
Your greatest fears would be realized, though. Those local churches would be free to tell gay couples that they weren’t really married. Of course, they’d also be free to perform and sanction the ceremonies and call them Mrs. and Mrs. if they want. It would be their call.
Personally, I believe homosexuality to be a sin, and don’t support the idea of calling same-sex unions “marriages”. At the same time, if the Episcopal Church of the Christ-Sophia wants to perform ceremonies and call them marriages, whatever. I’d be against it if asked, but it really has nothing to do with me. It certainly has nothing to do with the law.
But let’s be honest, none of what we’ve discussed is what the fuss is all about. It has nothing to do with “rights” or “privileges.” It’s about the word. When offered an option identical in rights and privileges, but called “civil union” instead of “marriage”, it gets rejected. It’s about the word.
(via clintirwin, whakahekeheke)
