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18 March 2008 @ 11:22 pm
Ok, here's a question for folks...  
Before I get started, lemmie say I have no problem with same-sex marrage. So that said, my post is asking for comments on something I'd read earlier today in a blurb on the state supreme court's review of the state prohibition against it. The item that struck me, that I hadn't thought of before was the presidence of establishing arbitrary restrictions on marrage already being a practice. I thought "huh, what restrictions", and it mentions both the standing laws against polygamy, first cousin marrages, etc.

To be completely honest, I'm for the notion if they're of age (also somewhat of an arbitrary standard, 18 or 21), they should be able to marry. And it did seem arbitary to say that a man/woman can marry, but not same sex. But it hadn't struck me that random cultural elements already have an established history of setting up restrictions.

So the question at hand is: 1) does the prescedent of random cultural rules about marrage give weight to being able to say it should be male/female only. and 2) if it's consenting adults that want to be married then they should be allowed to do so, doesn't that also indicate that all the other prohibitions also have to be set aside? and just as it just hit me, 3) what catagory do post-sex change individuals fall into for the purposes of marrage filings?
Renfieldcuddlycthulhu on March 19th, 2008 03:25 pm (UTC)
1. The random cultural rules that you mention aren't random. For instance, the rules against polygamy have a firm basis in Christian religious ideas of marriage. Depending on when they were inacted I'd say that they might also have been a reaction to the rise of LDS and the Mormons in the 19th century. The rules regarding first cousins is a health/bioligcal thing; there isn't enough genetic drift to stem off the possibility of birth defects (though not as much as if there was a direct link pairing like brother-sister or parent-child).

2. Not necessarily. BDSM is technically illegal in many states and counties; the only reason why it isn't actively sought out by law enforcement is that it is typically between consenting adults. However, there could be other things that just because a person consented to it would, and should, remain illegal; for instance, it is not legal for you to knowingly place yourself in a situation that has a very good chance of causing your death or to sign away your life (as in extreme forms of fighting sports).

3. That's a very good question and one I don't have an answer for (and no time to google as work must begin now).
The Pocket Wopgianni on March 19th, 2008 03:33 pm (UTC)
Random was perhaps too strong a word, but the notion that it was set due to prevailing concepts of morality (the Christian ethos, etc). But given the level of whining on the topic that one hears in many quarters (read: red states, etc) it would seem this falls under that same catagory.

I know the reasons behind the original prohibitions, the point was that in the end, they were set up out of a particular world view/ethic position (the cousins issue beginning long before they knew why it was a bad genetic idea) and not for anything more solid than it was the morality position of the day.
Deanna Jesusbrthnbabies on March 19th, 2008 03:40 pm (UTC)
Very interesting...and definately a social moray...hmmm...you've made me think on this one. And, I think you may have just helped me to settle my own cunundrum...

I believe marriage is a vow for lifetime companionship...through good and hard times, chosing to stick together regardless... and that VOW is taken before God/dess...ceremony shouldn't matter.

so...to me, it doesn't matter who is taking the vow...one, two, more, man, woman, transgender, etc and if they break that vow (and even the vow can be determined by the people involved) then they and their God/dess will have to settle the issue.

...as you said, I now believe the only legal function should be that is must be consenting adults.
Pimp D. Cookpimpcook on March 19th, 2008 05:26 pm (UTC)
1. I don't believe that cultural rules should give any weight to the issue, though the reasons behind those rules should. For example, cultural rules about not marrying your siblings evolved from siblings marrying way way long ago and the resulting offspring being deformed. Still a bad idea. I believe that same-sex taboos came about because those unions produced no children, and back in those days society NEEDED lots of children because so many died from illness, etc. That issue does NOT hold true anymore, so the main reason for the cultural rule is void now.
2. It really depends on the prohibition. Again, what is the historic basis behind the prohibition, and does it still apply logically? Looked at as an issue on its own, does it make sense for our society today?
3. Post-sex change individuals fall into the same category of every consenting adult: They're people. Love doesn't distinguish between race, gender, or the history of one's gender, therefore our society has no right to deny two people the right to join themselves together.
Toranekotoraneko on March 19th, 2008 05:44 pm (UTC)
I have such issues with marriage and legal to begin with. I do not believe that gubment should be involved in it at all. Marriage is between the people involved and their God if they so believe. Yes, prohibitions should be set aside. I can hear the questions forming about that first cousin thing. Face it, first cousin lovers are not going to let a piece of paper dictate to them anyway. Hopefully they are smart enough to not procreate since that is the issue anyway. I think restrictions should come from the church.
Anthony: standardsterpsichoros on March 19th, 2008 07:05 pm (UTC)
There are several things called marriage. What the law is dealing with is a legally-privileged contract. The legal argument for same sex marriage - the argument being made in the courts - is not that the government does not have the right to place restrictions on who may enter into the legally privileged contract called marriage, but that the particular restriction (that the two parties must be of opposite sex) is not a restriction the government is allowed to make, based on its laws regarding discrimination on the basis of sex.

Incidentally, the good reason for restricting cousin marriage isn't the possibility of birth defects, it's to restrict clan feuds. Many non-Christian societies (and some more isolated Christian societies) allow cousin marriage, and the result is that society organizes around family lineages which have very strong loyalties to each other and none whatsoever to the broader society. Requiring people to marry non-cousins means that they have relatives all over, that actions at the expense of the society at large may affect those relatives, and that their loyalty is diffused into a much wider community than happens where cousin marriage is the norm.

The restriction on polygamy is partially because it's not always clear that polygamous marriages involve consenting adults, and historically that is a much larger problem for polygamous marriages (in the U.S.) than for two-person marriages.
kakizaki_bkakizaki_b on March 19th, 2008 09:55 pm (UTC)
Such a complicated topic.

Part of the complication here is that Marriage really has 2 distinct parts...the State part, which is a bond between the 2 people and their government and where you have to conform to certain legal rules, and the Religious part which is largely voluntary and between the 2 people themselves. The problem is where does Religion and the Government overlap? And where should it overlap?

As for your first question, some of the rules are there for good measure, as Cuddly pointed out with regard to cousins and such. Also, I think most of us would agree that there is a point at which a person can make a good decision about sexual relationships, and while that age may vary from person to person, I have no problem airing on the side of mild caution with 18 as the basic.

I would argue that Religion and state should be seperate. So Things like Polygamy/Bigamy and Gay marriage should only have laws against them if they are truly harmful (like child sexual abuse...I really dont care that the Greeks did it, its harmful to the child who doesnt have the ability to consent) thus marrying 14 year olds is out regardless of the type of relationship...same with animals...they dont have the capacity to consent either.

The trick here, I think, is that people who want to have a strong religious focus in their marriage can do that. No one is stopping them. If others do not want to do that, they can have different norms entirely. Government isnt here to force us to get along, but it is here to create certain rules that a polite society needs to be able to function. Murder? Disruptive to society as a whole. Your neighbors doinkin in their chose fashion? Not so much.

As for part 2, yes, many other laws about personal choice should be kicked out (Sodomy laws for instance)

3) What sex are they after the operation? I am assuming that legally, they are what ever they become. Thus a Man>turned woman, is now a woman and can marry a man. People with sex changes have been allowed to marry...but gay people are not...so it would follow that part of a sex change is legal recognition.