On the sickness of our community

Posted Oct 29, 2014 16:39 UTC (Wed) by mathstuf (subscriber, #69389)
In reply to: On the sickness of our community by zlynx
Parent article: On the sickness of our community

> hospital visitation, tax writeoffs, powers of attorney, asset sharing, etc.

You don't think these are important to people who may have been together for decades but then are not allowed to sit by their partner's deathbed or make decisions on their behalf in such an instance because they're not "married"? Like I said earlier, the first problem was conflating the term "marriage" with these things, but since no one is going to get legislatures to amend everything on the books to say "civil union", expanding "marriage" is the simpler path.

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On the sickness of our community

Posted Oct 29, 2014 19:52 UTC (Wed) by zlynx (guest, #2285) [Link] (27 responses)

> You don't think these are important to people who may have been together for decades but then are not allowed to sit by their partner's deathbed or make decisions on their behalf in such an instance because they're not "married"?

Sure it is important. But come on, write that you agree with me that if it is a civil rights violation to deny marriage for LGBT so they can get these things, then it is equally a violation to deny it to someone else because he can't marry his mother.

On the sickness of our community

Posted Oct 29, 2014 20:31 UTC (Wed) by mathstuf (subscriber, #69389) [Link] (2 responses)

Except for tax writeoffs and asset sharing, of those explictly listed here, you get the rights by virtue of being family already (though power of attorney is only if no one else has already taken the position…such as a spouse). Arguably, your mother already got tax writeoffs via the tax refunds for children and asset sharing is already there if you're each other's beneficiaries (and there's no real base to fight such a declaration as there might be between family and "lifetime partners" over assets).

Anyways, I don't see any obvious reason to deny it out-of-hand from a legal viewpoint.

However, this does make me think of an interesting scenario. Since corporations are legal people now and are basically treated easier when they break laws (in relative terms, not absolute), how long until someone tries to marry their business? Does this mean that corporate takeovers are slavery? I wonder if any pioneering lawyer would be willing to try such an argument.

On the sickness of our community

Posted Oct 30, 2014 18:57 UTC (Thu) by zlynx (guest, #2285) [Link] (1 responses)

> Since corporations are legal people now

If you are referring to the Citizens United US Supreme Court decision, this is another myth. You should actually read the decision. It isn't horribly long and is very interesting.

The way that *I* read it, the *people* in charge of corporations cannot have their legal rights restricted merely because they are using corporate assets to exercise those rights. This includes freedom of speech.

On the sickness of our community

Posted Oct 30, 2014 20:53 UTC (Thu) by Cyberax (✭ supporter ✭, #52523) [Link]

> The way that *I* read it, the *people* in charge of corporations cannot have their legal rights restricted merely because they are using corporate assets to exercise those rights. This includes freedom of speech.
How is that materially different from: "Corporations are legal people now"?

On the sickness of our community

Posted Oct 29, 2014 21:15 UTC (Wed) by tao (subscriber, #17563) [Link] (23 responses)

Not being able to marry parents or siblings is closely tied to the fact that incest is illegal, mainly due to the incestuous relationships resulting in offspring posing high risks of birth defects, etc., but also because of the parent-child power imbalance.

So no, the situations are by no means comparable (I'm at least glad you didn't bring up the good old slippery slope strawman "next people will wanna marry their pets!").

While prohibiting incestuous marriage has legal reasons, LGBT relationships are none such. In some countries being outside the heteronorm is illegal, but luckily that is not the case here. Hence blocking LGBT couples from equal legal protection and benefits *IS* discrimination.

I leave it up to you to decide whether discriminating against people solely based on their sexual orientation is a violation of their civil rights. Personally I think it is, just like I think discriminating against people based on their gender, colour of skin, etc.

PS: Just in case you intend to drag up the polygamy strawman -- I'm not opposed to that either on a conceptual level, though I do believe that it is fraught with legal complexities that would take a lot of thinking to solve.

On the sickness of our community

Posted Oct 29, 2014 22:05 UTC (Wed) by dlang (guest, #313) [Link] (22 responses)

This is still off topic, but since this branch of the discussion is remaining civil, I'll make another comment here.

> Not being able to marry parents or siblings is closely tied to the fact that incest is illegal, mainly due to the incestuous relationships resulting in offspring posing high risks of birth defects, etc., but also because of the parent-child power imbalance.

And this gets to the real reasons for government imposed Marriage laws.

They are intended to protect Women and Children and encourage the formation of a healthy next generation.

Now, the argument I've heard made that childless couples shouldn't get Government Marriage benefits has a little truth to it, but since it's really hard to make a legal distinction between a couple trying to have children and one that isn't (or can't), it seems a very reasonable thing to let this minor distortion to the system slip through (and a substantial number of couples that "aren't intending" to have kids end up doing so anyway)

Marriage can't just be devolved to a contract between willing adults because the children that come along don't have a chance to agree or influence the contract.

Please explain how Gay Marriage helps produce a next generation and so deserves to be added to the subset of legal groupings.

As others have noted, it's not enough to be deeply committed to someone for years in the case of Incest and Polygamy, what makes Gay Marriage so much better? Especially, why does this get elevated to the status of a "Civil Right" for these people, but not for other combinations?

On the sickness of our community

Posted Oct 30, 2014 16:03 UTC (Thu) by njs (subscriber, #40338) [Link] (21 responses)

> They are intended to protect Women and Children and encourage the formation of a healthy next generation.

This is a simplified fantasy you made up to make a convenient argument; reality is more complicated. If this were really the sole and only purpose of legal marriage, then why is it that marriage e.g. gives spouses special rights to decide on medical care for each other? Marriage has a lot of complicated cultural, social, and legal aspects; child-care is just one piece of it.

Even accepting this for the sake of argument though, it doesn't help your position at all because:

> Please explain how Gay Marriage helps produce a next generation and so deserves to be added to the subset of legal groupings.

Same-sex couples have kids all the time. It's totally normal; it happens every day. And those kids do totally fine, but better if their parents can be legally considered their parents, and get the various advantages that are granted to married mixed-sex couples.

On the sickness of our community

Posted Oct 30, 2014 17:14 UTC (Thu) by dlang (guest, #313) [Link] (13 responses)

> Same-sex couples have kids all the time. It's totally normal; it happens every day.

They adopt or they they are commuting adultery, biologically same sex couples are not going to have children of their own.

On the sickness of our community

Posted Oct 30, 2014 17:22 UTC (Thu) by rahulsundaram (subscriber, #21946) [Link] (11 responses)

> They adopt or they they are commuting adultery, biologically same sex couples are not going to have children of their own.

Heterosexual couples adopt etc all the time too. I don't see how the method of conception is relevant to the health or well being of a children. What is more important is how they are treated after they are born.

On the sickness of our community

Posted Oct 30, 2014 17:35 UTC (Thu) by dlang (guest, #313) [Link] (10 responses)

adoptions and childless couples are statistically irrelevant when it comes to producing the next generation.

On the sickness of our community

Posted Oct 30, 2014 17:49 UTC (Thu) by mathstuf (subscriber, #69389) [Link]

Are you being stubborn or desperate here? Let's try something similar:

> Linux on the desktop is statistically irrelevant when it comes to modern computing.

What point are you trying to prove?

On the sickness of our community

Posted Oct 30, 2014 17:50 UTC (Thu) by rahulsundaram (subscriber, #21946) [Link] (8 responses)

I don't see what your point is. If they are irrelevant according to you why are you against it?

On the sickness of our community

Posted Oct 31, 2014 0:21 UTC (Fri) by dlang (guest, #313) [Link] (7 responses)

children are not created by a Gay Marriage (this is a fact of nature, not opinion) as such, Gay couples are not any more relevant to creating the next generation than singles are.

On the sickness of our community

Posted Oct 31, 2014 1:10 UTC (Fri) by rahulsundaram (subscriber, #21946) [Link]

I don't buy that they are irrelevant. They might not be biologically creating them but they adopt them, do artificial insemination etc and help them grow into adults just like many hetrosexual couples do and therefore are in part responsible for the next generation. So if such straight couples can marry, there is no particular reason you have provided to deny that right to gay couples.

On the sickness of our community

Posted Oct 31, 2014 10:01 UTC (Fri) by tao (subscriber, #17563) [Link] (5 responses)

I know infertile heterosexual married couples.
I know heterosexual married couples that just don't *WANT* to have children.
I know heterosexual couples who have no common children, just children from a previous marriage.
I actually don't know any heterosexual couples that have children through insemination, but there are plenty.
I know heterosexual couples who have adoptive children.

All of these are apply equally to your "not any more relevant to creating the next generation than singles are", yet they are all entitled to get married.

How about bisexuals, btw? A heterosexual person having a child before getting married to another person than the other parent and then no more children after is no different than a bisexual person having a child before getting married and then getting married to another person after.

No matter how you put it, unless you explicitly tie marriage to childbearing (say through not allowing marriage until birth, or having mandatory divorces after a certain time limit without a child) -- which would be a horrible thing indeed -- then you *ARE* discriminating against non-heterosexuals.

On the sickness of our community

Posted Oct 31, 2014 11:09 UTC (Fri) by dlang (guest, #313) [Link] (4 responses)

This is why I used the term 'statisticly' earlier in the thread.

Yes, childless couples are 'cheating the system', but in this case perfection is very definitely the enemy of good enough. And many of the couples that intend to be childless end up having children.

On the sickness of our community

Posted Oct 31, 2014 11:51 UTC (Fri) by tao (subscriber, #17563) [Link] (3 responses)

http://www.stat.fi/til/perh/2011/02/perh_2011_02_2012-11-...

"The commonest family type in Finland is still a married couple without children, making up 36 per cent of all families in 2011."

Of course that includes couples that have not *YET* had children (but will some time in the future), but it's still far from just a statistical blip.

Still if you accept childless heterosexual couples (something that according to you is a statistical blip), why don't you accept the statistical blip that is childless non-heterosexual couples?

Let's put it succinctly: *WHAT* are the negative consequences do you think equal marriage rights will cause and *WHY* do you consider them so important that discrimination would be justified?

On the sickness of our community

Posted Oct 31, 2014 12:12 UTC (Fri) by corbet (editor, #1) [Link] (2 responses)

I hate to say it, but...this discussion has wandered pretty far afield. Could it maybe be about time to wind it down or to find a more appropriate forum for it? Thanks.

On the sickness of our community

Posted Oct 31, 2014 20:06 UTC (Fri) by Cyberax (✭ supporter ✭, #52523) [Link] (1 responses)

Can you create a forum for such "spillover" threads which is well-insulated from LWN? So that such discussions could be painlessly moved there.

On the sickness of our community

Posted Oct 31, 2014 20:15 UTC (Fri) by raven667 (subscriber, #5198) [Link]

You can get this kind of discussion anywhere, if you wanted to cater to LWN readers you or I could pretty easily create our own lwn-lounge.net domain and run a forum there as an unofficial and separate thing, it just wouldn't have LWN authentication data.

On the sickness of our community

Posted Oct 30, 2014 17:26 UTC (Thu) by joncbender (guest, #82805) [Link]

Or they have children from a previous relationship, from a surrogate, artificial insemination, etc.

the method doesn't matter, unless you are trying to argue that both the child and parents are less deserving of legal rights and protections.

On the sickness of our community

Posted Oct 30, 2014 18:23 UTC (Thu) by tialaramex (subscriber, #21167) [Link] (4 responses)

Indeed, and it's evident that state marriage laws on the whole weren't really intended as any sort of system for encouraging good child-care or anything like that. One of the circuit court decisions does a nice job of skewering that assertion, which is often made by anti-gay-marriage people, I will see if I can find it (or perhaps someone else will post it first).

On the sickness of our community

Posted Oct 30, 2014 19:00 UTC (Thu) by tialaramex (subscriber, #21167) [Link] (3 responses)

Here we go, Posner's decision against Indiana and Wisconsin, both of which tried to argue their marriage laws are about childcare even though they have a bunch of special cases in their marriage law for couples that can't conceive and are unlikely to adopt.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=D...

I think this was the best judicial decision I read in October (it was written in September but didn't come to my attention until earlier this month). It's a sharp contrast to Windsor (I know gay marriage advocates were happy to take Windsor as a "win" but it's _terrible_ law). Let's hope that people citing judicial decisions on this topic in fifty years are quoting Posner and not Kennedy (I think we can safely assume they won't cite Scalia).

On the sickness of our community

Posted Oct 31, 2014 0:33 UTC (Fri) by dlang (guest, #313) [Link] (2 responses)

While I have great respect for Judge Posner, and think that he is doing great work on clarifying technology related issues. In this field I think he is wrong and was looking to justify a position he reached for other reasons.

Not all legal cases come out the way they should, even the Supreme Court makes some disastrously bad decisions at times (The Dread Scott decision is a good example), and the bad decisions are usually nto clear immediately (if they were very clear, the Judges wouldn't make them)

On the sickness of our community

Posted Oct 31, 2014 8:40 UTC (Fri) by tialaramex (subscriber, #21167) [Link]

_Dred_ Scott http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford

On the sickness of our community

Posted Nov 1, 2014 2:12 UTC (Sat) by tialaramex (subscriber, #21167) [Link]

Now I have a bit more time to engage with the substance rather than the typo.

The nice thing that many people miss about judicial decisions is that the judge is expected not just to say "Bloggs wins" but how and why. So it's not really enough to just insist Posner was wrong, you'd have to tease out why exactly and I appreciate that LWN is really no place to do that.

I do invite you to attempt this somewhere else though.

On the sickness of our community

Posted Oct 31, 2014 0:27 UTC (Fri) by dlang (guest, #313) [Link] (1 responses)

> This is a simplified fantasy you made up to make a convenient argument; reality is more complicated. If this were really the sole and only purpose of legal marriage, then why is it that marriage e.g. gives spouses special rights to decide on medical care for each other?

Purely pragmatic reasons, it's much easier to incorporate this into an existing structure than to require that all couples take additional legal actions. Remember that the law (at least in many places) recognizes Common Law Marriages, which basically boil down to "if you act like you are married, you will get treated as if you are married"

And this sort of visitation/medical care access has never been something that opponents of Gay Marriage have been opposed to.

> Marriage has a lot of complicated cultural, social, and legal aspects; child-care is just one piece of it.

I will agree with this statement. However I think that the child-care and child-creation aspects are what drive the rest of it.

On the sickness of our community

Posted Oct 31, 2014 0:59 UTC (Fri) by dlang (guest, #313) [Link]

to be clear, I am not saying that this is the conscious reason that all the government support for marriage has evolved, but I'm sure it is the conscious reason for some of the portions (laws regarding incest or adultry for example) and all of the policies seem to make the most sense when viewed from this lens, so I believe that it's been an unconscious reason for this.