dgs49 wrote:I don't know what planet you are living on, Scoots, but on this particular planet, the very idea of a person adopting the child of their same-sex partner is a very recent development, one that would have been considered absurd (and is still considered absurd outside large metropolitan areas) and nonsensical. Issues of custody, support, and inheritance all flow from these now-sanctioned adoptions.
But that's exactly the point. The laws of custody, support and inheritance did NOT have to change to accommodate them. Those relationships were able to be accommodated within the existing legal framework of custody, support and inheritance. If I am wrong, then show me otherwise. Would a custody order regarding the children of two same-sex parents be materially different from one issued to opposite-sex parents? Would an order for spousal or child support look different if the spouses/parents are of the same sex, than if they were of the opposite sex? Would not the spouses and children in a same-sex marriage or other relationship be treated exactly the same for inheritance purposes as heterosexual spouses/significant others and their children?
Very recent developments have thrown out centuries of precedent in those areas...
Name one. Name one precedent in custody, support or inheritance law that was in any way altered by the emergence of same-sex relationships and their children.
You can't, because it was not necessary to do it.
Just because a law is applied to a new situation, does not mean that new law is being created. In this case, existing law of custody, support and inheritance was quite sufficient. The same will not be true, however, upon the recognition of plural marriages.
...and you personally have cheered for every bit of it. Which is why your pretending that centuries of precedent carry any weight whatsoever in your mind, if you happen to disagree with it.
Precedent does not have value in itself. Its value comes from the ability to use it to formulate a coherent and consistent interpretation of the law going forward. And yes, sometimes precedents have to be set aside or reformulated when circumstances have changed so much, in a manner which those who created the precedent could not have foreseen, that it no longer results in a coherent and consistent application of the law. I mentioned precedents in family and estate law because following existing precedent would not be enough to address the complications posed by plural marriage. There is no getting away from the fact that family and estate law in Western civilization have always been predicated on a marriage consisting of only two people (the sex of either or both of them stopped being relevant for those purposes when women gained the ability to enter into contracts and own property in their own right, and came to be seen as having responsibilities equal to men vis-à-vis spouses and children). So there is no way to shoehorn plural marriage into that framework. A new one would have to be developed, which as I already said could never hope to accommodate everyone's idea of what plural marriage should look like.
But more than that - any new formulations of law around custody, support and inheritance to accommodate plural marriage will almost surely have unintended effects on how the law is applied to two-person marriages. For example, inheritance law provides that a surviving spouse be entitled to a preferential share of the estate of a deceased spouse, usually between 1/3 and 1/2 of the estate. That is a rule that clearly could not be applied to a plural marriage, so some other formula or formulas would have to be devised. But if that change is seen create legal inequities in the treatment of surviving spouses in a plural marriage vs. a two person marriage, then the only viable solution might be to change inheritance law as it is applied to two-person marriages.
Say whatever you want about same-sex marriage (and you will), but its legal recognition did not carry the slightest risk of changing the legal framework of any marriage between two people of the opposite sex. The same cannot be said about recognizing plural marriage.
The word "Marriage" has both a legal and a cultural definition, as you very well know. Same-sex couples can never be married in the traditional, cultural sense because that word refers to a certain type of relationship which people of the same gender cannot have. So for a couple of Pennsylvanians to say that they are "married," is a mis-statement both culturally and legally. Quotation marks are completely appropriate. In the jurisdictions and in situations where they are legally married, if the discussion is about whether they are legally married, the quotations marks are not appropriate; if the discussion is about whether they have entered into a traditional/cultural marriage, the quotation marks are appropriate, for the reason mentioned above.
That's all very neat, except that any discussion that has ever taken place here about same-sex marriage has always been about its legal standing, and not whatever other significance it might have. And in those discussions about its legal standing, you have repeatedly put the word in quotation marks when referring even to those who had been legally married.
What people like you refuse to acknowledge is that the general public does not begrudge any same-sex couple the right to have whatever sort of relationship they like, or to live happily ever after. The public policy issue is whether the rights, protections, and prerogatives of traditional marriage ought to be granted to same-sex couples, whose lifestyle - unless they artifically alter it through adoption, artificial insemination, etc - is fundamentally different from that of the "family" for whom the institution was created (a couple thousand years ago, I might point out).
And how would the public policy implications be different from recognizing the marriage of anyone who remained childless or whose children were not the result of natural procreation? As for the canard that same-sex marriage doesn't fulfill some loosely defined and inconsistently applied rule of what marriage is supposed to be, just take a look around you. Same-sex couples have ordered their lives around their relationship with each and with their children every bit as much as heterosexual couples. They are dealing with the same challenges that every family faces. To do that they need and deserve the same legal protections and supports as everyone else.
Otherwise, we're going to have to declare millions of heterosexual marriages invalid after the fact, for wont of natural children
In my view, if the state chooses to create an institution for same-sex couples, or to include them within the confines of what it calls "marriage," I'm fine with it, as long as it is done by the legislature, acting according to the state constitution. When a court does it, as in Massachusetts, it is bullshit (legally).
According to you, but your opinion doesn't count.
The very reason we have courts is to act as a check on legislators who might well decide to ignore infringements of Constitution rights and denials of Constitutional protections if they don't see taking action to change it as a vote getter.
