Same Sex Marriage and the U.S. Supreme Court

[DMistan]

Actually, if a biological parent already has custody of a child, a non-biological parent can only become a guardian if they are married to the biological parent. Child custody can be shared either through biological ties - both biological parents share custody by default - or through marriage - the spouse of a biological parent can adopt the child and share custody.

I'd have to check that. For the sake of time, let's assume that every state in the union requires marriage to a legal guardian before even considering granting guardianship. This requirement would then be null and void if state recognition of marriage were abolished. So, after that, the current legal guardian would only need to give their say-so?

Birth certificates don't make your chosen spouse your next-of-kin, now do they?

Exactly right. That's why if a person wanted another person, with whom they were in love, to act as the executor of their estate and make decisions for them if they could not, then that that would have to be explicitly specified in a will. Otherwise, yes, the next-of-kin would make the decisions.

In other words, spend lots of money and time filling out lots of forms and writing various legal documents, when it could otherwise be done in one single form and a relatively small fee.

I was not aware a will was so expensive. I mean, you make it sound like a painful process.
But okay, let's run with that.

How expensive is a divorce? How painful are divorce proceedings?

How much time and pain and money and paperwork does divorce take, whereas, with the will method, you just call up a lawyer and change it, and no judge need be involved.

No state legislature will be able to force you to wait a year, because they don't like the explanation "irreconcilable differences." Currently, many states make couples wait a year before granting a divorce, requiring "a year of separation." Only acts such as adultery or abuse will side step the delay.

So, I ask ya, which is the more painful?

But why?

Liberty? Why else?

[DMistan]

The only role marriage has with property rights is by heirs, meaning reproduction.

This is patently incorrect. The most obvious role marriage plays in property rights is the fact that the assets of both people entering the marriage become jointly owned.

If people want joint ownership, why don't they just have joint ownership? Like two people who invest in real estate together, that's joint ownership.

There are many people today who live together, without marriage, and in the event their relationship is terminated, they can settle their property rights are settled without marriage or divorce proceedings. Small claims courts often hear cases of scorned lovers fighting over some belonging or another. No marriage license need be involved. That happens quite naturally.

Yes, it's better to take all these cases to the courts and tie them up in litigation rather than having a more organized way to do it most of the time.

Are you suggesting married couples, when they break up, do not go to court? You're painting this picture, that, without marriage, we'd have frivolous lawsuits. We already have frivolous lawsuits!

I agree. I think the only thing on which we disagree is the original cause of the state's involvement in those issues.

I don't really care about the "original cause." I care about the current reasons for it.

If the institution is failing to meet its original objectives, if the institution is simply archaic and passe, then it is undeserving of continuance.

[Dempublicents1]

Actually, if a biological parent already has custody of a child, a non-biological parent can only become a guardian if they are married to the biological parent. Child custody can be shared either through biological ties - both biological parents share custody by default - or through marriage - the spouse of a biological parent can adopt the child and share custody.

I'd have to check that. For the sake of time, let's assume that every state in the union requires marriage to a legal guardian before even considering granting guardianship. This require would then be null and void if state recognition of marriage were abolished. So, after that, the current legal guardian would only need to give their say-so?

Bad idea. There really needs to be some reason to believe that the new parent is going to be around for the long haul before taking over custody of a child.

I was not aware a will was so expensive. I mean, you make it sound like a painful process.

It's not just a will (although a legally binding will is not as easy to write as some might think). To get the protections afforded through marriage, you'd need a will, a medical proxy, and some sort of form changing your legal next-of-kin. You'd need some sort of contract dealing with joint possessions - and even that sort of arrangement wouldn't provide as much protection as marriage law does. And there's plenty more - some of which you cannot acheive through any form or contract law.

In order to get the protections I got with one form and a $50 payment, I'd likely need to go through $100's of dollars of legal fees and who knows how many forms.

How expensive is a divorce? How painful are divorce proceedings?

If a divorce isn't contested, it isn't very expensive. Most divorces are simple. The ones that you hear a lot about are the difficult ones - where people decide to fight a lot over the terms (which would happen even more often without some sort of default arrangement).

How much time and pain and money and paperwork does divorce take, whereas, with the will method, you just call up a lawyer and change it, and no judge need be involved.

You're comparing apples and oranges. A divorce is a separate proceeding altogether from a will. A marriage contract certainly has bearing both on the dissolution of that contract and on inheritance, but that does not make the two equivalent.

If you want to make a comparison, let's compare the average divorce to what would happen if two people who had been living together as married for 20 years decided to break up and were not amicable about it. Unlike with a marriage contract, there would be no legal default for ownership of all of the belongings they would have gained together over the years. They'd need to bring out some sort of proof of ownership of any particular thing they wanted to keep - and someone who had put a great deal of time and money into their belongings could find that they own nothing - so long as their partner had better records. As it stands, a divorce is set up to involve a fairly equitable split of assets - and a judge has reason to enforce that.

Or let's compare what happens when a married person who hasn't written a will dies vs. an unmarried person who has lived as married for 20 years in the same boat. In the former case, the spouse gets everything by default, as it is already considered to belong to the spouse. In the latter, anyone can make a claim to the assets - and familial ties may be given greater consideration. In addition, there are inheritance taxes to deal with. The surviving spouse could lose an awful lot of assets that really belong to him.

Liberty? Why else?

[/quote]

I don't see how there is any more liberty involved in having access to less legal protection - in having to jump through lots of hoops to gain a subset of marriage protections, rather than jumping through one hoop to gain them all.

If people want joint ownership, why don't they just have joint ownership? Like two people who invest in real estate together, that's joint ownership.

Not in the same way.

Are you suggesting married couples, when they break up, do not go to court? You're painting this picture, that, without marriage, we'd have frivolous lawsuits. We already have frivolous lawsuits!

No, I'm suggesting that we'd have more frivolous lawsuits. In the vast majority of divorces, the paperwork is drawn up and a judge merely looks over it to ensure that it isn't too crazy - too far outside the default, and then signs off on it. Without that legal framework, we'd end up with most people ending up in court (not just filing legal paperwork) after the dissolution of a long-term relationship.

If the institution is failing to meet its original objectives, if the institution is simply archaic and passe, then it is undeserving of continuance.

The latter does not follow from the former. The objectives of an institution can change over time.

[Soheran]

But if the Supreme Court does hear the case, hopefully Chief Justice Roberts and Justices Scalia, Thomas and Alito will drive a stake through the heart of that vampire once and for all, and Justice Kennedy will at least concur.

Bowers v. Hardwick.

[Al-Aqar]

What do you mean (in the poll) by this phrase?

...changing the meaning of marriage...

Since the other choice is changing the meaning of marriage to 'heterosexual marriage,' I assume this is supposed to mean 'not changing the definition of marriage.' Please correct me if I am wrong.

[DMistan]

Bad idea [granting guardianship on the basis of the "say-so" of the current legal guardian]. There really needs to be some reason to believe that the new parent is going to be around for the long haul before taking over custody of a child.

I might concede this...

I was not aware a will was so expensive. I mean, you make it sound like a painful process.

It's not just a will (although a legally binding will is not as easy to write as some might think). To get the protections afforded through marriage, you'd need a will, a medical proxy, and some sort of form changing your legal next-of-kin. You'd need some sort of contract dealing with joint possessions - and even that sort of arrangement wouldn't provide as much protection as marriage law does. And there's plenty more - some of which you cannot acheive through any form or contract law.

In order to get the protections I got with one form and a $50 payment, I'd likely need to go through $100's of dollars of legal fees and who knows how many forms.

A contract dealing with joint possession is common place, as are Prenuptial Agreements, nullifying the property benefits of which you speak. The frequency of divorce erodes the property argument and the expedient judicial process argument. Which is exactly why legislatures have tried to make divorce unpalatable, and that erodes liberty.
EDIT: Legislatures also make divorce difficult because they find it "immoral." They use their power over marriage as a vehicle to inflict their morality on others. Some in the legislature are, though, trying to clean up the mess divorce causes in the judiciary.

How expensive is a divorce? How painful are divorce proceedings?

If a divorce isn't contested, it isn't very expensive. Most divorces are simple. The ones that you hear a lot about are the difficult ones - where people decide to fight a lot over the terms (which would happen even more often without some sort of default arrangement).

A break-up can be just as simple. I think we'd both need to qualify our claims. Unfortunately, most "singles living together" who "break-up" aren't in 20 year relationships. Unfortunately, I think you'd find that the current data would suggest that divorce consumes far more of the judiciary's time. However, in the interest of fairness and intellectual honest, I'll concede that this is likely because we haven't tried abolishing marriage yet, and thus the current data paints a skewed picture.

How much time and pain and money and paperwork does divorce take, whereas, with the will method, you just call up a lawyer and change it, and no judge need be involved.

You're comparing apples and oranges. A divorce is a separate proceeding altogether from a will. A marriage contract certainly has bearing both on the dissolution of that contract and on inheritance, but that does not make the two equivalent.

If you want to make a comparison, let's compare the average divorce to what would happen if two people who had been living together as married for 20 years decided to break up and were not amicable about it. Unlike with a marriage contract, there would be no legal default for ownership of all of the belongings they would have gained together over the years. They'd need to bring out some sort of proof of ownership of any particular thing they wanted to keep - and someone who had put a great deal of time and money into their belongings could find that they own nothing - so long as their partner had better records. As it stands, a divorce is set up to involve a fairly equitable split of assets - and a judge has reason to enforce that.

Actually, I'm glad you mentioned those precedents. Many of them contain "gender-specific language," especially in custody and alimony, in which the wife is preferred. Is this equitable?

Liberty? Why else?

I don't see how there is any more liberty involved in having access to less legal protection - in having to jump through lots of hoops to gain a subset of marriage protections, rather than jumping through one hoop to gain them all.

You skipped this part:
No state legislature will be able to force you to wait a year, because they don't like the explanation "irreconcilable differences." Currently, many states make couples wait a year before granting a divorce, requiring "a year of separation." Only acts such as adultery or abuse will side step the delay.

If people want joint ownership, why don't they just have joint ownership? Like two people who invest in real estate together, that's joint ownership.

Not in the same way.

I agree. In "joint ownership" the exact terms are drawn up in advance. It's far less ambiguous, far more equitable, and people are free to choose their own terms.

Are you suggesting married couples, when they break up, do not go to court? You're painting this picture, that, without marriage, we'd have frivolous lawsuits. We already have frivolous lawsuits!

No, I'm suggesting that we'd have more frivolous lawsuits. In the vast majority of divorces, the paperwork is drawn up and a judge merely looks over it to ensure that it isn't too crazy - too far outside the default, and then signs off on it. Without that legal framework, we'd end up with most people ending up in court (not just filing legal paperwork) after the dissolution of a long-term relationship.

I don't see why we pander to those incapable of protecting their own assets. In any case, that's exactly what a small claims court judge does, "the paperwork is drawn up and a judge merely looks over it to ensure that it isn't too crazy." So long as nothing is contested, I don't see how it consumes more of the judiciary's time. Two people, married or not, can have paperwork drawn up and have a judge look it over.

If the institution is failing to meet its original objectives, if the institution is simply archaic and passe, then it is undeserving of continuance.

The latter does not follow from the former. The objectives of an institution can change over time.

Not without a great deal of debate, n'est-ce pas?

[Tmutarakhan]

If people want joint ownership, why don't they just have joint ownership? Like two people who invest in real estate together, that's joint ownership.

No. "Joint" possession refers specifically to ownership by a married couple. It means that if one dies, the other automatically owns all of it, without having to pay anything or having any tax liability, and so on, unlike in your real investment scenario.

[DMistan]

If people want joint ownership, why don't they just have joint ownership? Like two people who invest in real estate together, that's joint ownership.

No. "Joint" possession refers specifically to ownership by a married couple.

Sorry, lots of things fall under "joint ownership" and no one needs any wedding vows.

>>Joint ownership of property is not limited to spouses. <<
http://www.wisegeek.com/what-is-joint-ownership.htm
http://www.diyestateplanning.com/joint-tenancy.html
http://www.pck-law.com/Publications/new ... 20TOOL.pdf

"Joint Ownership in Intellectual Property Rights"
http://www.legalzoom.com/legal-articles ... tents.html

[Dempublicents1]

A contract dealing with joint possession is common place, as are Prenuptial Agreements, nullifying the property benefits of which you speak.

A prenup is something that people do - usually very rich people. It's also an expensive process - much more expensive than a marriage license.

The frequency of divorce erodes the property argument and the expedient judicial process argument.

Not really. If anything, it backs up the need for such a judicial process.

A break-up can be just as simple.

Can be, but there's more legal room for bickering.

Actually, I'm glad you mentioned those precedents. Many of them contain "gender-specific language," especially in custody and alimony, in which the wife is preferred. Is this equitable?

(a) I'm not sure exactly how you got this from what I was talking about, but ok.

(b) Actually, there really isn't gender-specificity in either alimony or custody. In most custody cases decided by the courts, joint custody is awarded. It is uncontested cases in which the majority of children go to the mother. Alimony also can (and has) been awarded to spouses of either sex. Now, based on our society - in which women are expected to earn less money and to be the primary caregivers of children, one would expect women to get alimony and child custody more often. But that isn't an issue with the law, it's an issue with the norms of our society.

You skipped this part:
No state legislature will be able to force you to wait a year, because they don't like the explanation "irreconcilable differences." Currently, many states make couples wait a year before granting a divorce, requiring "a year of separation." Only acts such as adultery or abuse will side step the delay.

I don't agree with mandatory wait times. But, even if I did, the state still can't force you to wait a year before you begin living your separate lives. It's the dissolution of legal ties that takes that long. And the same thing could be true of any contract type. Like it or not, the government is responsible for enforcing contracts.

I agree. In "joint ownership" the exact terms are drawn up in advance. It's far less ambiguous, far more equitable, and people are free to choose their own terms.

Not entirely. My husband and I bought a house together before we were married. Now, if I had died prior to our marriage, my "share" of the house would have gone to my next-of-kin. She likely would have been taxed on it. Should she choose to get rid of her stake in the house - even by simply giving it to him - a refinancing would have been necessary. And so on...

This is not the same type of joint ownership that we have now, in which the house would be his - free and clear.

I don't see why we pander to those incapable of protecting their own assets.

It's not really a matter of pandering. It's a matter of protecting. Meanwhile, I don't know if you've ever been married, but it isn't really a matter of "protecting their own assets." My husband and I share our life and our assets. We both put money, time, and effort into them. Sure, there are a few things that are pretty unequivocally mine or his - ie. clothing, a few hobby items, sentimental gifts; but the vast majority of our assets are ours. Obviously, if we ended our relationship, we'd have to figure out how best to split those things upl

In any case, that's exactly what a small claims court judge does, "the paperwork is drawn up and a judge merely looks over it to ensure that it isn't too crazy." So long as nothing is contested, I don't see how it consumes more of the judiciary's time. Two people, married or not, can have paperwork drawn up and have a judge look it over.

But there are no real guidelines without the legal structure of divorce. Thus, far more room for either party to contest (or to take advantage of the other person).

Not without a great deal of debate, n'est-ce pas?

Debate isn't really all that necessary. The legal structure and the apparent purpose of marriage has changed over time simply due to changing attitudes towards the institution.

[Tmutarakhan]

Sorry, lots of things fall under "joint ownership" and no one needs any wedding vows.

>>Joint ownership of property is not limited to spouses. <<
http://www.wisegeek.com/what-is-joint-ownership.htm
http://www.diyestateplanning.com/joint-tenancy.html
http://www.pck-law.com/Publications/new ... 20TOOL.pdf

"Joint Ownership in Intellectual Property Rights"
http://www.legalzoom.com/legal-articles ... tents.html

My bad. The technical term for what spouses have is "tenancy by the entireties": they do not have a 50/50 split, each owns 100%.

[Skibereen]

I am pathetic.
Popular Vote, feck SCOTUS.

[Muravyets]

I am pathetic.
Popular Vote, feck SCOTUS.

I hope you meant A-pathetic.

Unless you realize that you can't be apathetic and express support for one side of the issue at the same time.

[Triniteras]

Popular Vote, feck SCOTUS.

What is popular vote relevant to in and of itself?

[Farnhamia Redux]

Popular Vote, feck SCOTUS.

What is popular vote relevant to in and of itself?

He probably means we should have a national referendum on the issue and then stop making noise about it because he's trying to sleep.

[Triniteras]

He probably means we should have a national referendum on the issue and then stop making noise about it because he's trying to sleep.

How does something go away just because a majority declares it so?

[Skibereen]

I am pathetic.
Popular Vote, feck SCOTUS.

I hope you meant A-pathetic.

Unless you realize that you can't be apathetic and express support for one side of the issue at the same time.

Read the pole options. There was no option for people who feel a popular vote is the only fair way to make a ruling. The final option. I am pathetic. So I took, it I dont agree with same sex marriages but it isnt right for a handful of people in the nation to decide for the many--so the many should get to make the call. Democracy.

[Farnhamia Redux]

What is popular vote relevant to in and of itself?

He probably means we should have a national referendum on the issue and then stop making noise about it because he's trying to sleep.[/quote]
How does something go away just because a majority declares it so?[/quote]
It doesn't, I agree. Just 'splainin'.

[Skibereen]

How does something go away just because a majority declares it so?

It doesnt, but everyone cant just do whatever they want.

Some people feel murder should be legal--but the MAJORITY dont.
If your part of a group, and the majority of the group make a decision-abide by it or find a new group.
So I say again feck SCOTUS put the decision to the people.

[Treznor]

How does something go away just because a majority declares it so?

It doesnt, but everyone cant just do whatever they want.

Some people feel murder should be legal--but the MAJORITY dont.
If your part of a group, and the majority of the group make a decision-abide by it or find a new group.
So I say again feck SCOTUS put the decision to the people.

That's kind of the point. The majority gets to decide what rights the people get, but they don't get to decide who gets to share in them and who don't. So long as marriage is considered a right, it is a right that must be applied equally to all citizens, not just to those whose sexual orientation the majority approves of. That's what our highest laws have stated, and no amount of state referendums will change that.

Thus, the constitutionality of the decision put to the people gets decided by the courts.

[Farnhamia Redux]

How does something go away just because a majority declares it so?

It doesnt, but everyone cant just do whatever they want.

Some people feel murder should be legal--but the MAJORITY dont.
If your part of a group, and the majority of the group make a decision-abide by it or find a new group.
So I say again feck SCOTUS put the decision to the people.

That's kind of the point. The majority gets to decide what rights the people get, but they don't get to decide who gets to share in them and who don't. So long as marriage is considered a right, it is a right that must be applied equally to all citizens, not just to those whose sexual orientation the majority approves of. That's what our highest laws have stated, and no amount of state referendums will change that.

Thus, the constitutionality of the decision put to the people gets decided by the courts.

Exactly.

Oh, and even though you don't care, Skibereen, same-sex marriage =/= murder.

[Muravyets]

I am pathetic.
Popular Vote, feck SCOTUS.

I hope you meant A-pathetic.

Unless you realize that you can't be apathetic and express support for one side of the issue at the same time.

Read the pole options. There was no option for people who feel a popular vote is the only fair way to make a ruling. The final option. I am pathetic. So I took, it I dont agree with same sex marriages but it isnt right for a handful of people in the nation to decide for the many--so the many should get to make the call. Democracy.

Go to a dictionary site. Look up "apathetic." Then look up "pathetic." Then laugh at yourself.

And I suppose if a national majority voted to lock you in a giant wicker statue and set it on fire for good luck, you'd be okay with that, eh? Or if they just decided that whatever group you belong to isn't allowed to get married, isn't allowed to hold jobs, has to wear a special badge on your coat so the cops can spot you, isn't allowed to use the same public facilities as other groups (yes, I'm mixing examples), you'd be okay with all that, too, because you think democracy = whatever the majority says goes. Right? After all, if you really believe in democracy, you should be willing to live by its dictates (as you imagine them).

Or do you apply your BS only to gay people?

[Muravyets]

How does something go away just because a majority declares it so?

It doesnt, but everyone cant just do whatever they want.

Some people feel murder should be legal--but the MAJORITY dont.
If your part of a group, and the majority of the group make a decision-abide by it or find a new group.
So I say again feck SCOTUS put the decision to the people.

Who had "murder" in the fallacy pool?

That's the first call-out from the classic list of crimes and vices that homophobes like to compare gayness too. What will be next? Bestiality? Pedophilia? Addiction?

[Soheran]

If your part of a group, and the majority of the group make a decision-abide by it or find a new group.

All right.

Now, the majority has decided that all laws in our society should be in accordance with equal protection: if you grant certain rights to some, you must grant those rights to all, unless you have a good reason for making the distinction.

Why shouldn't the courts do their actual job and enforce the laws approved by the democratic process?

[Farnhamia Redux]

How does something go away just because a majority declares it so?

It doesnt, but everyone cant just do whatever they want.

Some people feel murder should be legal--but the MAJORITY dont.
If your part of a group, and the majority of the group make a decision-abide by it or find a new group.
So I say again feck SCOTUS put the decision to the people.

Who had "murder" in the fallacy pool?

That's the first call-out from the classic list of crimes and vices that homophobes like to compare gayness too. What will be next? Bestiality? Pedophilia? Addiction?

Necrophilia!

[Triniteras]

Read the pole options. There was no option for people who feel a popular vote is the only fair way to make a ruling. The final option. I am pathetic. So I took, it I dont agree with same sex marriages but it isnt right for a handful of people in the nation to decide for the many--so the many should get to make the call. Democracy.

You're babbling. The masses don't make decisions. Nor do they have positions. They make the portrayed positions of others their own and carry them out.

If your part of a group, and the majority of the group make a decision-abide by it or find a new group.

There is one world. Groups don't have sovereignty, and the majority of a group doesn't have sovereignty just because it is the majority.