Rights Theory, Liberty

Gender Rights

In the wake of North Carolina’s awfulness, I thought I’d share some happy LGBT news. On Wednesday Argentina passed a law that protects citizens’ rights of gender self-determination. From the AP:

No other country has gone so far to embrace gender self-determination. In the United States and Europe, transgender people must submit to physical and mental health exams and get past a series of other hurdles before getting sex-change treatments. Argentina’s law also is the first to give citizens the right to change their legal gender without first changing their bodies.

Bravo Argentina! I think the best part of the law is that it doesn’t require approval from judges or doctors for gender identity changes. Maya, at the wonderful Feministing blog writes,

Not having a valid ID that matches your gender identity is a huge barrier to access to education, employment, health care, you name it. As Kalym Sori, an Argentinian trans man said, “This is why the law of identity is so important. It opens the door to the rest of our rights.” But in most places in the world–and in the U.S.–trans people must show proof of a medical diagnosis and often major interventions, like surgery or hormone therapy, before they can get that legal recognition.

From a libertarian perspective, this law makes right what is so wrong with trans policy everywhere else. All states should have laws like Argentina’s, which is just to say, all citizens should be free from oppressive legal restrictions on gender identity. First, states shouldn’t be empowered to require that people declare a gender on their ID’s in the first place. (As an aside, I don’t think we should have state ID’s either, but that’s another post I guess.)

Second, we should reject the language of ‘disorder’ for people who choose gender identities because gender dysphoria isn’t necessarily (if ever) a medical problem that needs to be treated. It’s not wrong to change genders, and it doesn’t hurt anyone else, so there’s no reason to empower public and medical officials to decide who can and cannot adopt a particular gender. Just watch Deirdre McCloskey discuss her experience with judges, psychiatrists, and the police during her transition- anyone who is concerned about the state coercively regulating people’s behavior should object to this kind of treatment.

Third, and this is really the worst, some places still require sterilization and divorce before a person can officially change gender. The US just changed its requirements in 2010, but many states still require sterilization for drivers licenses.

Sometimes libertarians argue that we should be silent about ‘cultural issues,’ (aka, everything but property). Yet LBGT rights are one topic where it’s clear what it means to embrace a culture of liberty. My co-bloggers have pretty much made the case for gay rights, and for similar reasons, justice also requires rights of gender self-determination. Public policy should not disadvantage people just because their gender doesn’t ‘match’ their biological sex. Instead, the state should get out of the gender business and let everyone choose their own gender identity.

PS: For more on this topic, Javier Hidalgo just sent me this new article, which looks like a good read!

  • So we are supposed to be excited about a system where one is dependent on government provided or controlled services which require an ID to access, and that it is being streamlined?

    Real queers aim to be off the grid.

    • Jessica Flanigan

       Totally, but it’s like the gay marriage thing. First best, the state never got into the marriage business in the first place, but given that it is, it shouldn’t make the state-run marriage business hurt gay people.

      Similarly, first best, no ID cards and anarchy in the USA. Failing that? Choose your own gender, right?

  • martinbrock

    Changing one’s “legal gender”, without even changing one’s body, just sounds incredibly Orwellian to me. Gender is a biological characteristic, not a political characteristic. If I need to change my gender for some legal reason, I’d say that’s a problem with the law, but the whole idea of a “legal gender” just creeps me out.

    • Andrew Cohen

      Gender is not a biological characteristic; sex is.
      Added: I see Sharon Presley beat me to that.

      • martinbrock

        “Gender” is a word that often denotes biological characteristics, and dictionaries record this usage.

        • valeriekeefe

           And dictionaries record that the brain is abiological?

          • martinbrock

            No. I’m not the one distinguishing psychology from biology here.

          • Gender is how we associate others based on masculinity and femininity, or sex.

        • Sharon Presley

          Actually what MB says here misrepresents what is in the dictionary as I have said elsewhere. The dictionaries actually say (and this is a quote from the Merriam Webster Online:
          1.
          : sex 1
          2: the behavioral, cultural, or psychological traits typically associated with one sexIt does not define gender as biological sex.

    •  Given the limitations of current surgical techniques… well, now you’re just bragging.

      • martinbrock

        I said legal penis length. Surgery is costly and scary, but I’m a long penis man trapped in a short penis man’s body, and I want government do something about it by declaring my short penis long.

        I know. South Park beat me to it.

    • How many documents require you to list your legal penis length? How much discrimination would you expect to face from people comparing your everyday appearance to your legal penis length? How often have you been beaten for your penis length?

      • martinbrock

        How you declare your gender on a form is up to you, but if the declaration has some material relevance, you might be guilty of fraud for declaring “female” when you have a Y chromosome and a penis. If you prefer to appear female, I have no problem with it. It might even appeal to me, but that’s a separate issue.

        If I ask your gender and you know that I’m asking about your biological characteristics, you should answer honestly or not at all. If my question is vague, or if your biology is ambiguous, your answer may be correspondingly vague or ambiguous; however, even if the law allows you to answer “female” knowing that you haven’t answered the question I asked, I do have a problem with it.

        I don’t want you beaten for any reason, and if I seem insensitive, I apologize, but I don’t see the point of gender being a legal category. The law doesn’ t make you who and what you are.

        • valeriekeefe

           And again, I’m going to maintain that the only legitimate metric of sex in a sapient species with a non-neuroplastic sexually dimorphic midbrain is neurological. If a trans woman, chromosomes and genitalia not withstanding against a cisessentialist standard says she’s female, it’s because it’s the only legitimate answer.

          If you put a person’s brain in a robot, it’s still a person. If you put a computer in a human body to replace a non-functioning brain, it’s a walking corpse.

          • martinbrock

            Well, many medical doctors would argue that a Y chromosome, penis, testicles and many secondary male characteristics are legitimate metrics of sex relevant to their everyday business, but I’ll let you debate the proposition with them.

            As for the robot, you’re more on my turf there, and I’m not sure I agree. The brain is an information processing organ, not a vessel of the “living spirit”, in my way of thinking. If human beings have an immaterial spirit at all, I don’t know why it couldn’t inhabit the heart, as people once commonly thought, or the liver or the kidneys or the testicles, rather than the brain.

            In fact, folks tell me that I think with my dick all the time.

          • valeriekeefe

             And there are many medical doctors who would argue that trans lesbianism is a result of romantic targeting errors, that transsexuality can be cured with application of hormones in line with CASAB, or reparative therapy. As well as medical doctors who would claim that hormone replacement therapy is dangerous, despite having a lower incidence of fatality than low-dose aspirin therapy (10.4/100,000/year vs 4.2/100,000/lifetime for Deep Vein Thrombosis deaths attributable to HRT). All of these claims have failed to be bourne by the evidence.

            Doctors are not immune to cissexism, in fact, given the rewards that psychiatrists, for example, receive for orthodoxy, the profession as a whole is more likely to treat nonconformity as a mental illness, regardless of any patient distress that may or may not exist.

            A doctor who says those things is ignoring the outliers and endangering their patients. A doctor who says those things is also cissexist.

          • martinbrock

            Most urologists don’t deal much with transsexuals.

            I don’t know about the efficacy of hormones or surgery altering a transsexual’s secondary sex characteristics or psychiatric state, but I’m skeptical of these therapies, and I would approach them with extreme caution regardless of the published results of clinical trials.

            Doctors have differing opinions, and I don’t leap to the conclusion that opinions differing from mine reflect an irrational bias.

    • valeriekeefe

       Gender (aka sex) is biological, yes. Specifically, it’s neurological. Hardwired before birth. Transition doesn’t change one’s gender, so transition should not be a precondition for recognition of that gender.

      • Sharon Presley

         Where did you read this?  It’s not true. See my other comments. Self-perception is a part of “gender.”  That depends on many different factors, biology is only one of those factors. There are people who were raised different from their chromosomes and they are satisfied with the gender identity they were taught.

        • valeriekeefe

          I think you’re confusing “gender/sex, like orientation, is immutable” with “gender/sex and orientation occupy only one fixed point,” Just as some people have more flexible orientations, some people have more flexible neurological sexes, undoubtedly, and as a result one person’s life-threatening dysphoria is another person’s, “sure I’d like to but… [cissexist society would hand me my ass on a platter]” but that’s not an argument for reinforcing CASAB, that’s an argument for self-determination.

  • Sergio Méndez

    Martin:

    So for you it is orwellian to want to change gender but not that you have to ask permision to the State to do that? Unbelievable. 

    • martinbrock

      I never anywhere suggest that it’s Orwellian to want to change one’s body. I say very explicitly that it’s Orwellian for “gender” to be a legal status.

      Do you ever stop to think that I might not be your “right wing” straw man?

  • martinbrock: You’re dead wrong again. “Gender” does not mean the same thing as “sex.” The latter *is* biological/anatomical. Gender as used in the social sciences and biology is variously defined but always includes a psychological component. Here is one definition from one of my Psychology of Women textbooks (I taught it for over 20 years): Gender is “the nonphysiological aspects of being female or male–the cultural expectations for femininity and masculinity.” Gender identity is generally defined as one’s self-perception of being male or female. No social or biological scientist defines gender identity in biological terms.
    Some people may misuse the word “gender” (not Jessica) but nonetheless it does *not* mean “sex.”  No, it is not a political term but it *is* a psychological term that does not mean what you want it to mean.

    Furthermore there are people whose are physiological sex is not as clear cut as you seem to imagine things are. There is a whole category of people who are called “transgender” (not the same thing as transsexual) who, for a variety of physiological reasons, are born with ambiguous genitalia. Some of them end up being raised opposite from their chromosomal sex. Some who are male chromosomally are deliberately raised as female because they will never have male secondary sex characteristics and their phallus is closer to being a clitoris than a penis. This is called Androgen Insensitivity Syndrome. Thus even “sex” is more complicated than you imagine, let alone gender.

    While we might not want the state involved in an ideal world, we don’t have an ideal world and  people who are transgender, transsexual or whatever need a mechanism to be able to be recognized as the gender they choose, according to the gender identity that they assume.

    Furthermore in regard to one’s choices about the self –the state has no business interfering in one’s choices whatever they may be. The libertarian tradition of autonomy (which is a psychological concept, not just a political one) and individual sovereignty (free to make choices about and for the self) logically require that people have the right to make choices about their selves that do not harm others, no matter what those choices are.

    This is the second time I have seen you make pronouncements about areas in which you are ignorant (see Roderick Long’s recent post where you were also quite wrong about American history). You would be well-served to learn more about these areas (history and psychology) before you make such arrogant assertions.

    •  Thank-you, Sharon. Apparently I was ignorant of the scientific meaning of the word “gender”. I’ve been using it wrong. Now I know better.

    • martinbrock

      You’re dead wrong again.

      Can I just be wrong without being dead wrong?

      “Gender” does not mean the same thing as “sex.”

      “Sex” doesn’t mean the same thing as “sex” either. I don’t want an endless debate with you over the true meaning of “gender”. Words mean what people commonly mean by them. My usage here is completely conventional.

      Gender as used in the social sciences and biology is variously defined but always includes a psychological component.

      Words have more specialized usage in specialized contexts. If you want to discuss a more specialized notion, that’s fine with me, but spare me the “dead wrongness” of a common usage appearing in Websters.

      Here is one definition from one of my Psychology of Women textbooks (I taught it for over 20 years): Gender is “the nonphysiological aspects of being female or male–the cultural expectations for femininity and masculinity.”

      I didn’t realize that this forum was a women’s studies course, but I’m happy to hear what you know about the subject.

      Some people may misuse the word “gender” (not Jessica) but nonetheless it does *not* mean “sex.”

      The word has multiple uses. So does “sex”. I used the second meaning listed here, the one that you say is categorically wrong.

      http://dictionary.reference.com/browse/gender

      Though this one doesn’t, other dictionaries also list your usage, which is not news to me believe it or not; however, a specialized, academic usage is not the right one.

      No, it is not a political term but it *is* a psychological term that does not mean what you want it to mean.

      A legal classification is political, and I discussed a legal classification.

      Furthermore there are people whose are physiological sex is not as clear cut as you seem to imagine things are.

      You have no idea how I imagine things. I’m always amazed by other people’s stereotypes of me.

      There is a whole category of people who are called “transgender” (not the same thing as transsexual) who, for a variety of physiological reasons, are born with ambiguous genitalia.

      I have a web browser, you know. I’m aware of the physiological diversity.

      Thus even “sex” is more complicated than you imagine, let alone gender.

      I can imagine quite a bit, and I’m also quite curious. If you think I’ve lived a sheltered life, you really don’t know me very well.

      Furthermore in regard to one’s choices about the self –the state has no business interfering in one’s choices whatever they may be.

      I agree, so I don’t know why I need a “legal gender” or why I would want to register my sexual orientation at a courthouse.

      This is the second time I have seen you make pronouncements about areas in which you are ignorant (see Roderick Long’s recent post where you were also quite wrong about American history).

      This is the second time you’ve lept to all sorts of incredible conclusions about me. Others may reach their own conclusions about our discussion of American History.

      You would be well-served to learn more about these areas (history and psychology) before you make such arrogant assertions.

      You would be well served to learn more about the people you presume to judge here. I’ve probably had sex with more men than you have.

      One further note: The definitions of these terms are not matters of opinion for anyone to use as they wish.

      For common usage, I’ll leave definitions to the dictionaries. You may believe your more specialized, academic usage the only permissible usage, but vulgar speech will always be with you.

      So when I say you are wrong, I mean factually wrong.

      You mean that Dictionary.com is factually wrong. Your own matronizing arrogance is laughable.

      •  

        Oh my, MB, did I make you mad? Well, really, you’re so easy
        to bait. As for arrogance, you need to look in the mirror. If I am arrogant,
        it’s the annoyed arrogance of expertise; yours is the smug arrogance of
        egotism that doesn’t know how much it doesn’t know. You respond to Jessica as if *you,* unlike her, know what you are
        talking about, but of course you don’t and now everyone knows it. Thus you are
        furiously scrambling for some bit of something to make it look like you are
        right after all.  Pathetic. Who do you think you’re fooling?  Only your cronies and a few men who don’t like “uppity” women.

        You dismiss my definitions of gender, calling them technical.
        Nice try but no Havana
        cigar. In fact these definitions are widely understood and known. You quote a
        Dictionary, but you take it out of context. Dictionaries say “sex,” (just that
        one word) they do not say “biological sex.”   Show me differently, I dare you. It is the meaning for contexts such
        as filling out an application, they ask for your “gender” now instead of the
        old term “sex.” [Actually a more accurate question in today’s world.]  *Then* all the dictionaries have a definition
        like this from the Merriam Webster Online: “the behavioral,
        cultural, or psychological traits typically associated with one sex.”   Exactly
        what I said.   It doesn’t say it is a specialized technical term either.  So you see, the Dictionary *is* right but you have simply left out the part that was inconvenient for you. Tsk, tsk, not very honest of you…

         

        Furthermore, it is very clear from context that what Jessica
        is talking about is gender in the sense that I have defined it. I’m sure
        Jessica would concur but she is wisely staying out of this unpleasant confrontation.

         

        All you have done is pathetically try to cover up your own
        ignorant mistake about this topic. I seriously doubt that it is succeeding.

        •  In many languages all nouns have a gender. They don’t, however, have a sex.

          • Martin Brock

            That’s true, but a medical dictionary doesn’t list this usage of “gender” at all, understandably.

        • Martin Brock

          Oh my, MB, did I make you mad?

          “Bemused” is more like it, maybe “exasperated”.

          If I am arrogant, it’s the annoyed arrogance of expertise; yours is the smug arrogance of egotism that doesn’t know how much it doesn’t know.

          Your own certitude is very evident here. More assertions of expertise and labels like “smug” don’t add anything.

          You dismiss my definitions of gender, calling them technical.

          I never dismiss your definition of “gender”. I explicitly acknowledge it, and I’m happy to discuss it. You dismiss mine, but dictionaries don’t.

          In fact these definitions are widely understood and known.

          I explicitly state that your definition is known to me.

          Show me differently, I dare you.

          http://www.merriam-webster.com/medical/gender

          To see what this dictionary implies by “sex”, you simply click on “sex”.

      • Don’t be a moron. Gender is how we associate others based on sex.

        • martinbrock

          Again, “gender” is a word. Words mean what people commonly mean by them. Dictionaries record common usage. I link dictionaries recording my usage including a medical dictionary.

          http://www.merriam-webster.com/dictionary/gender

          Labeling someone “a moron” is an ad hominem attack and customarily diminishes an argument rather than substantiating it. You may research the term in dictionaries of your choice.

          • Gender is a social group based on masculinity and femininity, masculinity being the characteristics associated with males and femininity being the characteristics associated with females. These characteristics are the roles, behaviors, personalities, and body traits.

            What makes you male or female is your genitals and chromosomes, what makes you man or woman depends on your appearance and actions.

          • martinbrock

            The word “gender” has your usage in particular contexts, and I acknowledge this fact again, having never denied it.

    • valeriekeefe

       Sex may be biological, but it’s fallacious to argue that neurology is not a function of biology, and for that matter that neurology isn’t the ultimate metric in a society of sapient beings.

      Trans men are sexually male and trans women are sexually female by the only legitimate metric in a species like ours.

  • Jessica: Thank you for your comments. Too few libertarians understand the problems of gender identity  and its legal implications.  There are libertarian answers to these issues and you have drawn them out well.

    •  FWIW, I believe the vast majority of “standard” liberals would agree with your position. I do anyway.

  • Famadeo

    “Sometimes libertarians argue that we should be silent about ‘cultural issues’”

    I don’t even see this a cultural issue. This very much creeps into a fundamental theoretical consideration of political philosophy: individual liberty. I can’t take seriously any libertarian who is “neutral” on these matters.

    • zhinxy

      Amen to that. 

  • Famadeo

    So, yeah. It’s not always the case, but sometimes in Argentina we do things right.

  • Damien S.

    A: 2 of the last 3 comment threads.
    Q: “Why aren’t there more women libertarians?”

    • Martin Brock

      Why aren’t there more women skydivers?

      “The personal is political” is not my idea of a libertarian slogan.

  • Adam.

    I do totally agree with Jessica’s post and position. It would be ideal to have gender removed from the ID, or having no IDs at all, but as a second-best, this would be ok. The problem with this law, and that hasn’t been mentioned here, is that a few articles after declaring “gender-freedom”, the law requires to Health Insurance companies, and public hospitals, to provide “free” sex-change surgeries. 
    Unfortunately, this is not the dawn of a libertarian wave in Argentina, this new law has been conceived as a new right that government created  for the welfare of argentinians. Anyway, I don’t care the reason why they passed this law and I don’t care the flaws that may have, we have “gender rights” now. The following step should be to repeal those issues with this law that are wrong.

    • Jessica Flanigan

       I agree about the health care stuff, but really that’s an objection to lots of public health services, this issue isn’t unique. It’s always controversial how we draw the line between elective and medically necessary surgery and treatment, and whether that is even the criteria we should be using (I doubt it– why is health special? It’s not). Still, if you are gonna have a health care system like theirs, i dont think that this is a uniquely problematic thing for them to spend money on, but yeah, the health system is obvs too spendy, but not cause it covers a rare surgery like gender reassignment.. thats not the problem.

  • Damien S.

    “why is health special? It’s not”

    Kenneth Arrow disagreed.
    http://krugman.blogs.nytimes.com/2009/07/25/why-markets-cant-cure-healthcare/
    Krugman links to Arrow’s article, as well as outlining his own argument.

    • Martin Brock

      Krugman writes:

      Consumer choice is nonsense when it comes to health care. And you can’t just trust insurance companies either — they’re not in business for their health, or yours.

      This statement is nonsense. An individual purchases health insurance, and an insurance company purchases health care. Both are consumers making choices.

      Insurance companies can be trusted to be insurance companies, and states can be trusted to be states. Both are in business for their own health, but I presumably may drop my private insurance company at will, without crossing a national border or surrendering countless other rights. I may not drop my state so readily. Which entity in business for its own health pays more attention to my needs?

      This means both that insurers try to deny as many claims as possible, …

      And my freedom to change insurance companies severely limits the possibilities.

      I want my insurance company to limit costs by denying many claims. It’s not a “buy policy holders anything they ever want” company.

      … they try to avoid covering people who are actually likely to need care.

      In my lexicon, “insurance” covers uncertain needs by definition. You here argue for something other than insurance, and I take the argument seriously, but you don’t argue against private insurance here at all.

  • DavidCheatham

    Changing the topic slightly, I wonder if anyone else notices that the right to change your legal gender without changing your body rendered all discussion about same-sex marriage utterly moot: Gay couples that want to get married could just change one of their genders legally and get married. (And then presumably change it back.)

    Of course, this because of the point I’ve always been making…there’s no such thing as ‘gay marriage’. 

    What people are talking about with ‘gay marriage’ is that many places appear to have restrictions on who women can marry, and who men can marry. We don’t need to invent any sort of new classifications or worry about ‘orientation’ or anything when talking about gay marriage. We’ve already outlawed _sexual_ discrimination, which that clearly is.

    We just need people to stand there and say ‘I am a man, and like all men I can marry Jennifier. However, Sally here is barred from that action, by the government, because of her gender.’.

    Tada, it’s clearly sexual discrimination.  It’s not debatable, it’s not arguable, it has nothing to do with polygamy or marrying cats or whatever nonsense keeps getting made up, and it has nothing to do with religion. (Religions may say, for example, that women cannot be leaders, but Hillary Clinton is still eligible for the presidency.)

    The simple fact is that women are barred from specific _governmental_ things that it is legal for men to do (And vis versa), and that sort of discrimination is illegal without a compelling government reason. (Even the most libertarian person _should_ admit this, even someone like Rand Paul that thinks that it would be reasonable to allow private citizens to discriminate should draw the line at the government doing so, although I expect Rand would come up with some complete gibberish if this was pointed out.)

    Just because we failed to notice this back during the gender equality fight, and didn’t realize it until now, doesn’t mean that isn’t true. Just like we failed to notice ‘separate but equal’ was not equal’.

    If you want to say that a man and a woman are equal, you have to say that neither of them can be barred from marrying a specific person based on their gender.  And neither can a trans person, regardless of what gender they consider themselves or present as.

    • Martin Brock

      Making gender a legal designation and creating a right to change it renders gay marriage moot only if “marriage” is another legal title and having opposite genders is the only qualification for this title. As long as we’re reforming the law here, having opposite genders need not be the only qualification for marriage.

      Procreation or adopting children jointly, with all of the indissoluble bonds that shared parenting implies, or a declared intention to procreate or to adopt jointly could be a qualification for marriage. A reformed institution with this added requirement is much closer to the historical institution called “marriage”.

      • DavidCheatham

        Procreation or adopting children jointly, with all of the indissoluble bonds that shared parenting implies, or a declared intention to procreate or to adopt jointly could be a qualification for marriage.
        Meanwhile, I want, as qualification for marriage, that the woman be no taller than the man. Oddly enough, despite that being clearly insane, a lot _less_ people would end up divorced under it than under your plan.

        If you want to give special rights to parents, _give special rights to parents_. Don’t go around removing something like 75% of all marriages. (Or, alternately, forcing everyone to lie.)

         A reformed institution with this added requirement is much closer to the historical institution called “marriage”.

        That’s not even _vaguely_ close to the historical institution known as marriage. Marriage has pretty much never included an intent to have children.

        Statistically speaking, across history, a marriage:
        Has the wife being given to the groom.
        The wife has no rights or property.
        There is often no divorce possible except for infidelity on the part of the wife.

        And that’s pretty much it. That’s about _all_ you can generalize from history. (And you’ll notice we’ve changed all of those.) Most of the rest is random, like whether or not mistresses were acceptable, the number of wives allowed, the social standing of the wife, etc.

        Children were expected, because there was no real birth control, but ‘expectation’ and ‘intention’ are nowhere near the same thing. People who intended to have children generally got married (Unless something outside stopped that.), but that doesn’t mean that everyone who got married intended to have children!

        • Martin Brock

          Meanwhile, I want, as qualification for marriage, that the woman be no taller than the man. Oddly enough, despite that being clearly insane, a lot _less_ people would end up divorced under it than under your plan.

          You may want anything you like, but I don’t understand a reason for your plan.

          I do understand the reasons for an institution governing the relationship between parents and their children and between parents of the same children.

          I don’t see the point of an institution governing the relationship between two adults exclusive of children, because contract covers this relationship adequately. Two adults may craft their relationship however they like, and if they want to terminate the relationship at any time for any reason, they just do it.

          If you want to give special rights to parents, _give special rights to parents_.

          I want states to recognize parental rights. I want parents and only parents to have these rights. If you want to call these rights “special”, I don’t object.

          Don’t go around removing something like 75% of all marriages. (Or, alternately, forcing everyone to lie.)

          Who is forced to lie?

          Among straight couples, what I’m describing is already happening, i.e. straight couples without children and contemplating no children often do not marry. I’m only talking about reforming an institution to recognize this reality.

          Among libertarians, I suppose this practice is even more common.

          That’s not even _vaguely_ close to the historical institution known as marriage. Marriage has pretty much never included an intent to have children.

          The whole point of monogamy is ensuring that a couple procreates exclusively with one another. The idea that marriage is primarily about romance and non-procreative sex is thoroughly modern.

          Has the wife being given to the groom.

          In Angican marriage, the woman leaves the cover of her father and enters the cover of her husband.

          The wife has no rights or property.

          The wife has no direct, legal relationship with the state, because the husband stands between her and the state. This relationship with the state is itself a right. Common men fought for this right. The state respected it only because commom men fought for it.

          Within traditional, English marriage, family possessions actually belong to the wife, not to the husband. The husband exclusively endows the wife with all of his worldly goods upon marriage. This language is not symmetric. The wife often wore the keys to the family home on her person.

          That’s the actual tradition, at a time when states did not provide welfare to common men or women but only provided law enforcement in the characteristically self-serving manner of statesmen.

          Common husbands exclusively enforced a family’s property rights within the bounds of propriety imposed by their lords, and a husband was excluslively responsible for any violation of these rights emanating from the family. If the wife violated property rights, the state punished the husband, not the wife.

          This tradition is chivalry. I have no illusions about it, but I have a certain, romantic respect for it.

          There is often no divorce possible except for infidelity on the part of the wife.

          In English marriage, either spouse violates the expressed agreement by an act of infidelity. This language is completely symmetric. Presumably, common husbands were unfaithful more often, and a wife’s infidelity more often led to divorce, but this asymmetry was not a matter of law.

          Before you damn me for painting the past as some kind of utopia of women guarded by chivalrous men, I am not painting this picture, but people in the past understood their traditions this way.

          And that’s pretty much it.

          No. It isn’t. Your summary is incredibly revisionist and insulting to hundreds of generations of common men, as well as common women.

          Children were expected, because there was no real birth control, but ‘expectation’ and ‘intention’ are nowhere near the same thing.

          Throughout history, people are just waiting around for sexual liberation through birth control? This idea is laughable.

          Historically, children are not intentions. They are blessings, like the rain.

          People who intended to have children generally got married (Unless something outside stopped that.), but that doesn’t mean that everyone who got married intended to have children!

          People who married expected to have children, rather than intending to have them, just as you say. If you asked if they “intended” to have children, they’d think you very odd.

          • DavidCheatham

            I’m only talking about reforming an institution to recognize this reality.

            Uh, no, you’re talking about removing an insitution from people who do not fit your definition of it. For what appears to be no reason at all, or at least, you have not bothered to _give_ such a reason. As I pointed out, if you wish to give benefits to children, the correct and obvious way to is, tada, give benefits to children.

            Even if it wasn’t anything to do with marriage, even if it was called ‘flooble’ or something, giving it to people that _say_ they want children makes no sense, and is subject to scammers and liars.

            This is so obvious it’s hard to even _argue_ about it in any manner, especially as you’ve given no reason we might want to do this. No, we do not flooble couples, and give priviledges to people who want children. I can no more come up with an argument for that than I could for giving tax credits to people who say they _want_ to donate to charity. We give them to people who _have_ children, just like we give tax credits to people who _do_ donate to charity.

            It makes even less sense when you call that ‘marriage’ and thus have to remove all other sorts of marriage. But it wouldn’t even make sense if we called it flooble and it was unrelated to marriage. The government gives people rights and priviledges _after_ people do things, or _while_ they do them, not because they say they want to.

            I don’t see the point of an institution governing the relationship between two adults exclusive of children, because contract covers this relationship adequately.

            Uh, no. They don’t. As gay people have repeatedly pointed out.

            I want states to recognize parental rights. I want parents and only parents to have these rights.

            States _do_ recognize parental rights, and only parents _do_ have those rights. Which they have by virtue of being parents. You’re the one trying to extend them to ‘people who want to be parents but aren’t’ for some crazy reason. (And have decided to do this extention via marriage, for yet some other crazy reason.)

            The whole point of monogamy is ensuring that a couple procreates exclusively with one another. The idea that marriage is primarily about romance and non-procreative sex is thoroughly modern.

            Uh, no. The entire history point of monogamy is ensuring that _women only procreate with known men_. You’re trying to foist a general neutral definition onto something that, historically, is entirely about ensuring that a man knows the offspring of a woman is his. 

            Historically, children are not intentions. They are blessings, like the rain.

            Wow, like halfway into through that you completely forgot what you were trying to say, which was that having ‘people who wish to get married declare their intention of having children’.

            People who married expected to have children, rather than intending to have them, just as you say. If you asked if they “intended” to have children, they’d think you very odd.

            Firstly, no, they would not think me odd. Plenty of people got married, throughout history, for the _express_ purpose of having children, so of course they intended to have them.

            However, as I was pointing out, plenty of people got married with the intention of _not_ having them. (Although this was a crapshot.)

            So no one would have the slightest bit of problem with understanding ‘Do you intend to have children?’, even if some of them pointed out it wasn’t exactly up to them.

            However, more to the point, you’ve completely forgotten what you were arguing, which that ‘Marriages only existing with the intention of having children’ should be enacted, because that is what they were ‘historically’.

            That is _not_ true in any sense whatsoever. Even _you_ appear to be arguing against this point now, or have at least completely forgotten about where you were going with that logic.

            But congratulations on your incredible absurd libertarian way of dodging the gay marriage bullet, which is like the traditional ‘The government shouldn’t do marriage at all’, but with enough of a twist to sound brand new, and yet being so crazy it’s hard to argue against.

          • martinbrock

            @DavidCheatham:disqus 

            Saying ‘We can do without marriage, people can just sign contracts with each other’ is like saying ‘We can do without adoption, people can just sign contracts with the birth parents’.

            It’s not the same, because the child does not sign any contract, and other interested parties like grandparents don’t sign either; however, birth parents do choose adoptive parents ordinarily, directly or indirectly, and I wouldn’t change this practice.

            No, no they _really_ cannot. It simply does not work that way.

            Romantic couples can and routinely do form relationships of all sorts without accepting the terms of a statutory institution.

            Also, marriage brings a well-defined and pre-existing system of divorce, with centuries of case law, instead of having to contractually build one and then sue if the other spouse does not agree during the divorce.

            Yeah. Divorce is such a roaring success that gay couples should be standing in line. I expect few gay marriages, even if laws allow them, for precisely this reason. Childless straight couples are moving in the opposite direction. “No marriage, no divorce.”

            Turning divorces into lawsuits benefits no one at all.

            We could poll divorcees on this question. In retrospect, do you wish that you had contracted with your partner rather than accepting the statutory package? I’m not at all sure that the poll would support your assertion.

            Just to make it clear: If you wish to make _all_ rights and privileges that ‘marriage’ has extendable to random people, …

            I certainly do not. Gay marriage is a step in this direction, and I oppose the reform for precisely this reason.

            Of course, you could make this simple by just having one form they could fill out that will give them all the rights and privileges.

            I advocate the opposite. If you want benefits of marriage (or whatever it’s called), you must bind yourself strongly to children and a coparent and make many costly sacrifices and highly uncertain investments in often challenging relationships that constrain your choices for a lifetime, as well as enjoying the benefits; othewise, I don’t see the point of the benefits.

          • DavidCheatham

            I advocate the opposite. If you want benefits of marriage (or whatever it’s called), you must bind yourself strongly to children and a coparent and make many costly sacrifices and highly uncertain investments in often challenging relationships that constrain your choices for a lifetime with little hope of escape, as well as enjoying the benefits; othewise, I don’t see the point of the benefits.
            Really. Your premise is that someone who _doesn’t_ want children, and knows they don’t want to do that, shouldn’t have the right to visit their partner of 20 years in the hospital?

            I have the feeling that you have the same beliefs that a lot of people have about marriage benefits. You think the benefits of marriage are mostly economic or something, and want to only give them to people with with kids.

            The problem is that this idea is almost completely wrong. Besides various ‘defaults’, which can often be mimicked with power of attorney and whatnot, almost all the economic benefits of marriage actually are for children, and only show up when children do. (The one exception being inheritance tax.)

            The actual reason and purpose for marriage, the parts of it that gay people cannot mimic with contract law, is that it extends, legally, someone’s _family_. It makes someone a family member. In fact, legally, it makes them the closest family member. (As it puts them in a position of ‘spouse’, which beats ‘parent’ and ‘child’.)

            The closest thing to marriage is not a business partnership. The closest thing to  marriage is _adult adoption_.

          • martinbrock

            @DavidCheatham:disqus 

            Really. Your premise is that someone who _doesn’t_ want children, and knows they don’t want to do that, shouldn’t have the right to visit their partner of 20 years in the hospital?

            No. If you want a right to visit a partner in a hospital, obtain the partner’s durable power of attorney. If that doesn’t suffice, I want the law changed so that it does suffice.

            You think the benefits of marriage are mostly economic or something, and want to only give them to people with with kids.

            I think marriage with children is not primarily a benefit at all. It is an extremely burdensome obligation. For a married couple with children, the idea that it’s all about benefits is laughable.

            … almost all the economic benefits of marriage actually are for children, and only show up when children do. (The one exception being inheritance tax.)

            Most of these benefits, like dependent exemptions, don’t require marriage. The biggest tax advantage of marriage, primarily for a couple with a non-working spouse, is the right to file as “married filing jointly” and pay the lower rates, and this benefit does not require children. I would eliminate this filing status altogether. It is archaic.

            The actual reason and purpose for marriage, the parts of it that gay people cannot mimic with contract law, is that it extends, legally, someone’s _family_.

            If you want to think of someone as a member of your family, you don’t need the state’s permission. I’m only discussing statutory rights and obligations here.

          • DavidCheatham

            If you want a right to visit a partner in a hospital, obtain the partner’s durable power of attorney. If that doesn’t suffice, I want the law changed so that it does suffice. 

            That does _not_ suffice. Often only family members have visitation rights, such as in ICU. Likewise, if the person is unconscious, the _family_ controls who is in the room, not power of attorney.

            Most of these benefits, like dependent exemptions, don’t require marriage.

            And if you want to change them to require marriage, I have no problem with that.

            You seem to have a ‘solution’ that has nothing to do with the ‘problem’, nor do you appear to have a problem with marriage at all. Your problem appears to be with taxes and children, neither of which actually has anything do with ‘marriage’ at all, and if you want to alter tax rules about marriage, feel free.


            If you want to think of someone as a member of your family, you don’t need the state’s permission.

            Except that absolutely no one, from random people to the government, will _recognize_ them as family. They can’t, for a completely random example, testify during the sentencing phrase for someone who killed their lover. (Like some states allow for family members.)

            The idea of ‘family members’ legally exists. It’s a real thing, it allows a whole host of assumptions about all sorts of things, which a very large section of society uses. It’s actually _codified in law_ in all sorts of places, and that’s just the law…it’s all over the place in private institutions also. 

             Yes, _some_ of those assumptions can be done contractually…but some can’t. (And why anyone would think it would be useful to _remove_ the ability to do those assumptions and make everyone use contracts is beyond me.)

            That’s _why there is a formal process to turn lovers into family members_, called ‘marriage’.

            You propose removing that process because a) you don’t like the tax benefits (Which are a completely independent issue and can be removed separately.), and b) I have no idea.

          • martinbrock

            My reply is at the bottom of the thread.

          • martinbrock

            @DavidCheatham:disqus 

            Uh, no, you’re talking about removing an insitution from people who do not fit your definition of it.

            You’re right. I am.

            For what appears to be no reason at all, or at least, you have not bothered to _give_ such a reason.

            I have given the reason. I don’t see the point of tax breaks and other benefits for childless couples, and I don’t see the point of a legislature writing the terms of a relationship between two people, terms involving only the two people that are no one else’s business, regardless of sexual orientation. In my way of thinking, advocates of this statutory institution and its benefits bear the burden of proving its utility.

            As I pointed out, if you wish to give benefits to children, the correct and obvious way to is, tada, give benefits to children.

            Of course. A childless married couple receiving benefits designed for a family with a non-wage earning mother makes no sense to me. This benefit is an accident of history. These days, when most couples have two earners, if a childless couple wants one earner not to work, I see no reason to subsidize this choice.

            But I don’t want to “give benefits to children”. Parents are obliged to support their children, rightly so. I want children to owe their supportive parents reciprocal support in old age. Labor is the most valuable means of production, empirically. Raising children is a real investment in a real means of production, and a recipricoal obligation to support aging parents is a real return on investment. The rationale for this benefit is its economic rationality, the real proportionality between current expendture and future production.

            Even if it wasn’t anything to do with marriage, even if it was called ‘flooble’ or something, giving it to people that _say_ they want children makes no sense, and is subject to scammers and liars.

            I added “declared intention to have children”, because marriage historically involves the expectation that you describe, but defining marriage strictly in terms of the children makes more sense.

            No, we do not flooble couples, and give priviledges to people who want children.

            If that’s your point, I withdraw “declared intention to have children”. I would define marriage strictly as the relationship between parents of the same children, already conceived. The legal relationship begins with a pregnancy that the mother intends to continue. A father’s obligation should begin at this point.

            Today, we simply give benefits to straight couples that get a license from the state, for no apparent reason, and gay couples and others rightly feel short-changed, but healing this inequity by extending the same benefits to gay couples makes no sense to me.

            Historically, these benefits are related to a presumption that married couples found families with children. This presumption becomes archaic in the 20th century with the emergence of more reliable birth control and changing cultural norms.

            Uh, no. They don’t. As gay people have repeatedly pointed out.

            Which terms of the relationship are not addressed by contract, power of attorney, wills and joint ownership of property?

            I’m not discussing statutory benefits that gay people associated with childless straight marriage. The existence of these benefits for childless straight couples does not justify extending them to gay couples. If the benefits are not defensible for childless straight couples, withdrawing them for childless straight couples is the solution.

            Uh, no. The entire history point of monogamy is ensuring that _women only procreate with known men_.

            Well, that’s equivalent to the partners procreating only with one another, which is what I said. The issue is paternal certainty. I make this point repeatedlyTraditional marriage protects interests of fathers. It is part of a system of governance properly called “paternalism”.

            I don’t defend paternalism, because I support gender equality, but I want to replace many statist institutions with a customs that might be called “parentalism”, a more gender neutral form of the traditional standards.

            You’re trying to foist a general neutral definition onto something that, historically, is entirely about ensuring that a man knows the offspring of a woman is his.

            I’m not trying to neutralize anything. A man reasonably wants to know that his wife’s children are his progeny; otherwise, he has no control over his own reproduction. I’m not hiding this motivation. I have no reason to hide.

            Wow, like halfway into through that you completely forgot what you were trying to say, which was that having ‘people who wish to get married declare their intention of having children’.

            I didn’t forget anything. I describe a possible reform of current law in one context, and I describe the past in another. Again, if your objection is all about “declared intention”, I withdraw it.

            Firstly, no, they would not think me odd.

            Everyone who married expected children unless they knew they were infertile, which was very hard to know unless you were a post-menopausal woman, or they intended to be chaste, which is hard to imagine. Shakers were celebate, but they didn’t marry.

            People understood marriage with a strong desire to have children, but fertile people didn’t understand marriage with no intention of having children. If you ask a marrying couple if they intend to have children, even if they don’t seem interested in children, you’re basically asking them if they intend to have vaginal intercourse. They might look at you and say, “Uh. Night follows day …” Or they might think you rude and say nothing.

            However, as I was pointing out, plenty of people got married with the intention of _not_ having them. (Although this was a crapshoot.)

            People with an intention of not having children became nuns or Shakers or something. Plenty of people marry with an intention of not having children today, but this plenty is thoroughly modern.

            However, more to the point, you’ve completely forgotten what you were arguing, which that ‘Marriages only existing with the intention of having children’ should be enacted, because that is what they were ‘historically’.

            I say that marrying with a declared intention to have children is “much closer to” traditional marriage, when marriage generally involved an expectation of children, but this intention is not my point. Most children are not carefully planned. Intention is highly overrated. It’s a comforting illusion of control.

            But congratulations on your incredible absurd libertarian way of dodging the gay marriage bullet, which is like the traditional ‘The government shouldn’t do marriage at all’, but with enough of a twist to sound brand new, and yet being so crazy it’s hard to argue against.

            I concede your point, but review the post you’re disputing. “Declared intention” did not rule out gays marrying. I say, “a declared intention to procreate or to adopt jointly“, precisely anticipating your objection.

            You argue against a single phrase that I introduced recently and is not particularly relevant, so I’ll just withdraw that phrase. Calling me crazy doesn’t bother me. I can get that just for having sex with men.

          • DavidCheatham

            I have absolutely no objection to altering marriage benefits to mostly be about children, or rather removing most marriage benefits (Many of which do not actually exist and are just imagined.) and putting them on children. Or just removing them.

            I just have no idea what changing what marriage has to do that.

            In fact, as you’ve now changed that from ‘benefits should start at marriage, which should involve a public declaration of intent to have children’ to ‘benefits should start at pregnancy’, I don’t even understand what marriage has to do with _anything_ you’re talking about.

            If you want to invent some sort of category of ‘married with children (or pregnant)’ that get special benefits, go ahead. If you want to argue no benefits should exist at all, go ahead. 

            But I cannot imagine what that has to do with people who are married without children, or why you’d take ‘married’  away from those couples.

            Which terms of the relationship are not addressed by contract, power of attorney, wills and joint ownership of property? 

            Hospital visitation rights. Joint adoption rights. No inheritance tax. Right not to testify against in court. Immigration rights. Those are the ones I can think of off the top of my head. There’s a whole list out there. (Incidentally, joint ownership of property by unmarried people is full of pitfalls in various states.)

            In essence, marriage is rather like adoption. It is a legal way to extend ‘family’, along with the all the presumptive abilities that come along with ‘family’, in the hundreds of places that ‘family’ shows up in society, both public and private.

            Saying ‘We can do without marriage, people can just sign contracts with each other’ is like saying ‘We can do without adoption, people can just sign contracts with the birth parents’. No, no they _really_ cannot. It simply does not work that way.

            Also, marriage brings a well-defined and pre-existing system of divorce, with centuries of case law, instead of having to contractually build one and then sue if the other spouse does not agree during the divorce. Turning divorces into lawsuits benefits no one at all.

            Just to make it clear: If you wish to make _all_ rights and privileges that ‘marriage’ has extendable to random people, you’re going to need a bunch of laws which give people ‘the right to extend rights’ that they do not normally have.

            (Including a bunch of rights that people normally have no ability to alter. I have no right to control who becomes a US citizen normally, but if I marry someone they can. So give me the random ability to sign a contract with someone to make them a US citizen…well, hey, I’ll put up an ad where to send the check.)

            Of course, you could make this simple by just having one form they could fill out that will give them all the rights and privileges. Something they can fill out and have all the hundreds of things happen at once.

            And you can save paper by making it bidirection, by having two people sign at once.

            And you could make that even simpler by just _calling_ that form a marriage license, and then you don’t have to change any laws at all.

      • DavidCheatham

        Oh, also, having opposite genders isn’t the only qualification for marriage.

        People who get married must be:
        Unmarried to other people
        Not related to each other
        Depending on state, they need a blood test

        And, of course, they must be able to consent to marriage, (Of age, not mentally incompetent.) but ‘able to consent’ is something that applies to a lot of thing and is not specifically a marriage rule, but applies to pretty much all government licenses.

        Of course, none of those things mention gender at all, or have anything to do with gender, and hence cannot be sexual discrimination.

        Actually, that’s a bit wrong. A lot of the anti-incest laws seem to have gender in them for no apparent reason. That should probably get fixed before someone sues on the grounds they could legally marry their sister if they were female. Or, even stupider, two sisters get married, which is going to set the whole ‘gay marriage’ thing back decades. (As apparently we’ve decided to slowly do it in each individual state instead of the Supreme Court actually stepping in and pointing out the obvious WRT sexual discrimination.)

        For course, now North Carolina has put gender in ‘unmarried to other people’, in an attempt to be completely stupid.

        There always was an open question about other states that failed to recognize same sex marriages. But just because they didn’t recognize that relationship as a ‘marriage’ didn’t mean they couldn’t recognize it as something that _stops_ a marriage. They could just say ‘You can’t be married or in a civil union that any other state recognizes to get married here, regardless of whether we recognize it as marriage. We simply recognize it as something that stops a marriage.’.

        But, now,  North Carolina, they now refuse to recognize same sex relationships _at all_, in any sense. It’s unconstitutional. Which means it’s now _illegal_ for North Carolina to stop people who are married to people of the same sex from getting married to people of the opposite sex. (Because to do so they would have to _recognize_ such a marriage exists.)

        Yes, North Carolina just legalized polygamy by accident.

        • Martin Brock

          A lot of the anti-incest laws seem to have gender in them for no apparent reason.

          So do statutory rape laws.

          That should probably get fixed before someone sues on the grounds they could legally marry their sister if they were female.

          Alabama repealed fornication laws without repealing sodomy laws with exceptions for married couples, so for years, oral and anal sex were illegal outside of marriage, but procreative sex was not.

          Yes, North Carolina just legalized polygamy by accident.

          Well, if gay marriage doesn’t exist legally, then a gay relationship is not a marriage, so having a gay relationship while being married is not two marriages. Having a gay relationship while being married is nothing new, of course, and I suppose it’s grounds for divorce. I’ve never researched it.

          • DavidCheatham

            Well, if gay marriage doesn’t exist legally, then a gay relationship is not a marriage, so having a gay relationship while being married is not two marriages.

            That’s just because I didn’t mention the last step, ‘They then leave North Carolina.’ Let’s use names:

            Adam marries James in Massachusetts or somewhere.

            James leaves Adam, but does not get divorced. 

            He moves to Georgia, and meets Sandy.

            James and Sandy _cannot get married_ in Georgia. While Georgia law does not recognize what James and Adam have as a ‘marriage’, it does recognize it as actually existing, and until it is dissolved, James cannot marry.

            But let’s say that James does not want to get divorced. (Perhaps James ran off with some joint property like a car, and does not want to lose it in divorce proceedings.)

            Luckily, there’s a way around this. Sandy and James drive to North Carolina, where James’ marriage does not exist in _any_ manner, and get married there. (Incidentally, some states have laws against such drive-by marriage, but I don’t know North Carolina is one.)

            A month later, Adam shows up, pissed, and…what? What is Georgia supposed to do with James, who is married to two people? How do the joint property laws work? How do the divorce laws work?

            When gay people started getting married in some states, the courts of other states had to figure out how to deal with them, but it  was pretty easily…sure, they couldn’t get married here, and don’t have marriage rights here, but they can get divorced and all sorts of things, and this worked because marriages just had two people so the law worked anyway.

            But North Carolina just made all other states deal with polygamy. Um, yay?

            Oh, and let’s not forget the fact North Carolina isn’t free of problems, either.  If instead James and Sandy lived in North Carolina…what happens when Adam shows up and wants his half of his car back? Lawsuit? The state refuses to recognize the marriage exists, so how can it talk about joint property that exists due to that marriage? But..if the couple doesn’t jointly own it…who does?

            What happened is that idiots have, for years, been yammering about how their state doesn’t ‘recognize’ gay marriage, and maybe there’s even ‘laws’ saying that. But there are other laws also, and court decisions on those other laws, which mean that, strictly speaking, _all_ states recognize all(1) marriages, just not as those having the rights and privildges of marriage in that state. Except now North Carolina _literally_ cannot see those other marriages, because they put such a stupid thing in their constitution, overriding court decisions and bigamy and divorce laws.

            1) In fact, they recognize foreign marriages also, which means, yes, occassionally polygamy does show up. But it’s incredibly rare, and not much precendent exists.

          • martinbrock

            What is Georgia supposed to do with James …

            If Georgia does recognize James’ first marriage in Massachusetts, I suppose Georgia finds that James’ second marriage in North Carolina was not legal under Georgia law. I see your point about the confusion though.

            The state refuses to recognize the marriage exists, so how can it talk about joint property that exists due to that marriage?

            People can own property jointly, through a partnership, without marriage anyway, and these people can also marry. Joint property is distinct from a marital asset. If a married couple owns property jointly, the disposition of this property is not the legally identical to the disposition of marital assets in a divorce.

            When a husband and wife buy a house, the house is not jointly owned automatically. They must agree to joint ownership separately, even though they’re married. A divorced couple may continue to own a property jointly after a divorce in principle, so North Carolina can still recognize James’ claim on the car.

          • DavidCheatham

            A divorced couple may continue to own a property jointly after a divorce in principle, so North Carolina can still recognize James’ claim on the car.

            I do not know the joint property laws in Massachusetts, but I’m pretty certain you have oversimplified them, as they all vary by state. Some places do not have joint property besides real estate outside of marriage. Some places have all property gained during marriage automatically be joint property. Some places let anyone do anything in joint property. Almost all of them have special inheritence rights for spouses. Etc, etc.

            If North Carolina literally cannot see the marriage, all those rights are going to be weird if any gay married couple brings in property from outside the state. (And ‘property’ includes ‘bank balance’.)

            Here’s the base text of the amendment: ‘marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.’

            The problem isn’t ‘valid’, that’s fine. To rephrase the problem part, ‘No domestic legal unions except marriage between one man and one woman shall be recognized’. 

            The problem is ‘recognize’ isn’t actually a synonym for ‘valid’, as the drafters appeared to assume. If courts and laws don’t ‘recognize’ something, they behave as if they do not see it at all. That’s what ‘recognize’ means in a technical and legal sense. (For example, speakers are recognized at a meeting.)

            Granted, ‘not recognize gay marriages’ has shown up in the law before, but that was _the law_. If one part of the law says they don’t recognize something, and another part talks about it existing, clearly the first law is crazy. Likewise, if the law says it doesn’t recognize something, but this produces absurd outcomes in the courts, the courts will quietly continue to recognize that thing.

            But now it’s in the constitution, which means even courts in North Carolina are supposed to behave as if something that is true is not known. The fact that ‘James and Adam are married under the laws of Massachusetts.’ is not allowed. (It seems like it would be  akin to the ‘fruit of the poisioned tree’ concept.) Instead of them just saying ‘He married there, and stuff happened there that we have to sort out now, even though we don’t treat that as a valid marriage here’, which is how all the other states handle it.

  •  “Instead, the state should get out of the gender business and let everyone choose their own gender identity.”

    People are born with what they have, and the idea that a person could choose gender is something that only an intellectual or academic in an ivory tower could come up with.

    Gays and “transgendered” people should not be persecuted but rather be pitied. They have faulty wiring. The only redeeming part of this is that libertarians who believe this nonsense aren’t going to be demanding that the rest of us pay for it under the rubric of “rights.”

    I am proud to say I voted for Amendment One. Take your shots; I won’t be back for several days.

    • Martin Brock

      I object to “faulty”.

    • DavidCheatham

      Gays and “transgendered” people should not be persecuted but rather be pitied.

      I am proud to say I voted for Amendment One.

      Why do I have the strangest idea that you have no idea what ‘pity’ or ‘persecute’ actually means?

      There truly are people out there who think there are something wrong with gay people, and that they should be pitied, like someone born with, for example, no legs. 

      Such a person would be in _favor_ of same sex marriage, just like they would be in favor of wheelchair ramps. These would allow those poor pitied people to have at least a semblance of ‘normal life’.

      I disagree with this completely, this is not a good way of looking at people with disabilities and it’s exceptionally stupid for gay people, who are not disabled. But I could, at least, _respect_ a person with that position. They are compassionate and at least they’re _trying_ to help, even if it’s being phrased in a somewhat offensive manner.

      You, OTOH, look at the man with no legs, claim he should be pitied and not persecuted…and at the same time are proud to have voted an amendment to the North Carolina constitution requiring  the government to not add wheelchair ramps on its buildings. (Despite the fact it was already not doing that, so you apparently voted entirely out of spite.)

      You want to hate on gays, fine, but don’t expect to get away with doing _while at the same time_ stating that’s not what you’re doing.

      (And, just to make it clear, I completely disagree with the entire premise here, I’m just pointing out the utter nonsense of Keith Water claiming he’s ‘pitying’, not ‘persecuting’. Pitying is _not_ a ‘good’ POV, but he’s not even doing that.)

    • Sharon Presley

      Keith Waters: And you know this because? Funny thing, a lot
      of transgender people and organizations think otherwise and I really doubt that
      they’re all academics. In fact I’m sure they’re not. THEY are the ones who
      started the organization, not us academics, so why do you suppose they decided
      to do that?  Did they make it all up? Or is there maybe a real problem? What?
      You think they did it just to get welfare? Or aggravate people like you?

      You say “People are born with what they have” but apparently you
      don’t seem to know what that is.  Do you think all people are either XX or
      XY?  Then you would show your lack of knowledge. In regard to sex, all
      people are not simply born female or male, XX or XY.  There are many
      chromosomal variations, just for starters, including but not limited to XO,
      XXY, XYY and the true hermaphrodite XY/XY. Then for a variety of physiological
      and genetic reasons, the hormones released prenatally may result in children
      who are XY but who have ambiguous or female-looking genitalia, ones who are
      born XX but who also have ambiguous genitalia, plus a variety of other problems.
      What should they decide? Are you going to insist that they choose by
      chromosomes? Many medical doctors would disagree with you that it is that
      simple or that such a chocie is appropriate. Do you think you know more or
      better than the doctors do? Ah, the arrogance of ignorance.

      But more importantly for a libertarian blog, who are you to
      tell people what they should or should not do with their personal lives? The
      essence of libertarianism is “laissez faire,” “live and let live.” It’s not
      just an economic doctrine, it’s a social one. Personal choice and autonomy, individual
      sovereignty. Ever heard of those? If some individuals are uncomfortable with
      the sex they were assigned at birth, for whatever reason, including the above,
      what the hell business is it of yours? Why don’t you mind your own business,
      instead of other people’s?  And why are
      you so threatened by the idea of people who do not fit your neat little
      constricted view of “propriety”?  Let
      people choose whatever makes them happy that doesn’t harm other people. That’s the
      libertarian way, instead of getting prissy about other people’s personal choices.

  • DJF

    Since the purpose of a ID document whether government issued or private is to identify the person it seems that allowing people to choose whether they are male or female is defeating the purpose of the document. If I declare I am female then I am?

    What next, if I am 5 foot tall can I have my ID say I am 6 foot tall since I feel 6 foot tall?

    Or how about if I am 300 lbs can I have my ID say I am 100 pounds because I feel petite?

    Or may I am 60 years old but I feel 15 can my ID say I am 15?

    So when the 60 year old, 5 foot, 300 lb male shows up and the ID say 15 year old, 6 foot, 100lb female then the ID is worthless. Even private ID.

    • DavidCheatham

      Indeed.

      I mean, what is the police officer suppose to do if, after looking at someone’s ID, if he checks the person’s genitalia and it doesn’t match what’s on the ID!

      I mean, hair color and even eye color can be changed, and height is easy enough to fake by several inches in either direction.

      So, basically, we’re stuck with genitalia checks, which are hard to fake. Yes, occasionally a cop gets fooled by a well done tuck or a prosthetic penis, but, sadly, it’s the only solution for ID we’ve come up with.

      Luckily, there are tens of millions of genders, so it’s a fairly definite trait. Imagine how inexact the ID check it would be if there were only two! Why, half the population would be the same gender, so checking that would basically demonstrate nothing. I mean, the only people who had the wrong gender on their ID would either be the stupidest criminals ever, or trans people.

      But, currently, we live in a world where people can’t get fake ID of the correct gender, and instead often have the wrong one, so the genitalia check catches them.

      Of course, scientists say some day we might be able describe what people look like more than ‘has a penis’. We have attempted to describe faces, but we all know what a terminology nightmare that was.

      There’s a theory that we could actually make a flatten replica of their face, which has the science-fiction-ish name of a ‘photograph’ (Greek for ‘light drawing’.) , and put it on the ID, and compare it against their actual face.

      But such technology, I fear, is far in the future. Until then, we shall have to continue to pull down our pants at ID checks, to make sure we are not operating under fraudulent IDs of another gender.

      • DJF

        But if I can put any gender, weight, height, age on the ID that I want then why can’t I put any photo on it as well. Maybe I think that actual photos of me don’t actually look like me, instead I get a picture of Fabio  since I think it more represents who I really am. You would not want me to be oppressed by mere physical reality would you?

        • DavidCheatham

          Also, if I can get married to people of the opposite gender, why can’t I get married to the planet Earth and then, under the laws of California, own half the planet?

          And since w’ere apparently allowing people to drink from public water fountains for free in the park, what’s stopping people from driving tanks into public swimming pools?

          These, and all of tonight’s non-sequiter slippery-slopes questions, are sponsored by Strawman Inc. Remember folks, use Strawman Inc for all your debating needs, because everyone else wants to eat your cat.

    • As long as every frakking document lists legal sex, every frakking form requires legal sex, and we can face violence over it, being able to amend the documents can be the difference between life and death. I have faced violence over it, and over my body neither fitting people’s expectations of one sex nor of the other. I am struggling with ptsd.

      If you consider yourself libertarian, don’t support policies which injure and kill people.

  • martinbrock

    @DavidCheatham:disqus 

    Uh, no, you’re talking about removing an insitution from people who do not fit your definition of it.

    You’re right. I am.

    For what appears to be no reason at all, or at least, you have not bothered to _give_ such a reason.

    I have given the reason. I don’t see the point of tax breaks and other benefits for childless couples, and I don’t see the point of a legislature writing the terms of a relationship between two people, terms involving only the two people that are no one else’s business, regardless of sexual orientation. In my way of thinking, advocates of this statutory institution and its benefits bear the burden of proving its utility.

    As I pointed out, if you wish to give benefits to children, the correct and obvious way to is, tada, give benefits to children.

    Of course. A childless married couple receiving benefits, designed for a family with a non-wage earning mother, makes no sense to me. This benefit is an accident of history. These days, when most couples have two earners, if a childless couple wants one earner not to work, I see no reason to subsidize this choice.

    But I don’t want to “give benefits to children”. Children are obliged to support their children, rightly so. I want children to owe their supportive parents reciprocal support in old age. Labor is the most valuable means of production, empirically. Raising children is a real investment in a real means of production, and a recipricoal obligation to support aging parents is a real return on investment. The rationale for this benefit is its economic rationality, the real proportionality between current expenditure and future production.

    Even if it wasn’t anything to do with marriage, even if it was called ‘flooble’ or something, giving it to people that _say_ they want children makes no sense, and is subject to scammers and liars.

    I added “declared intention to have children”, because marriage historically involves the expectation that you describe, but defining marriage strictly in terms of the children makes more sense.

    No, we do not flooble couples, and give priviledges to people who want children.

    If that’s your point, I withdraw “declared intention to have children”. I would define marriage strictly as the relationship between parents of the same children, already conceived. The legal relationship begins with a pregnancy that the mother intends to continue. A father’s obligation should begin at this point.

    Today, we simply give benefits to straight couples that get a license from the state, for no apparent reason, and gay couples and others rightly feel short-changed, but healing this inequity by extending the same benefits to gay couples makes no sense to me.

    Historically, these benefits are related to a presumption that married couples found families with children. This presumption becomes archaic in the 20th century with the emergence of more reliable birth control and changing cultural norms.

    Uh, no. They don’t. As gay people have repeatedly pointed out.

    Which terms of the relationship are not addressed by contract, power of attorney, wills and joint ownership of property?

    I’m not discussing statutory benefits associated with childless straight marriage. The existence of these benefits for childless straight couples does not justify extending them to gay couples. If the benefits are not defensible for childless straight couples, withdrawing them from childless straight couples is the solution.

    Uh, no. The entire history point of monogamy is ensuring that _women only procreate with known men_.

    Well, that’s equivalent to the partners procreating only with one another, which is what I said. The issue is paternal certainty. I make this point repeatedly

    Traditional marriage protects interests of fathers. It is part of a system of governance properly called “paternalism”.

    I don’t defend paternalism, because I support gender equality, but I want to replace many statist institutions with customs that might be called “parentalism”, a more gender neutral form of the traditional standards.

    You’re trying to foist a general neutral definition onto something that, historically, is entirely about ensuring that a man knows the offspring of a woman is his.

    I’m not trying to neutralize anything. A man reasonably wants to know that his wife’s children are his progeny; otherwise, he has no control over his own reproduction. I’m not hiding this motivation. I have no reason to hide it.

    Wow, like halfway into through that you completely forgot what you were trying to say, which was that having ‘people who wish to get married declare their intention of having children’.

    I didn’t forget anything. I describe a possible reform of current law in one context, and I describe the past in another. Again, if your objection is all about “declared intention”, I withdraw it.

    Firstly, no, they would not think me odd.

    Everyone who married expected children unless they knew they were infertile, which was very hard to know unless you were a post-menopausal woman, or they intended to be chaste, which is hard to imagine. Shakers were celebate, but they didn’t marry.

    People understood marriage with a strong desire to have children, but fertile people didn’t understand marriage with no intention of having children.

    In the historical context, if you ask a marrying couple if they intend to have children, even if they don’t seem interested in children, you’re basically asking them if they intend to have vaginal intercourse. They might look at you and say, “Uh. Night follows day …” They might think you rude and say nothing. Either way, they think you odd.

    However, as I was pointing out, plenty of people got married with the intention of _not_ having them. (Although this was a crapshoot.)

    People with an intention of not having children became nuns or Shakers or something. Plenty of people marry with an intention of not having children today, but this plenty is thoroughly modern.

    However, more to the point, you’ve completely forgotten what you were arguing, which that ‘Marriages only existing with the intention of having children’ should be enacted, because that is what they were ‘historically’.

    I say that marrying with a declared intention to have children is “much closer to” traditional marriage, when marriage generally involved an expectation of children, but this intention is not my point. Most children are not carefully planned. Intention is highly overrated. It’s a comforting illusion of control.

    But congratulations on your incredible absurd libertarian way of dodging the gay marriage bullet, which is like the traditional ‘The government shouldn’t do marriage at all’, but with enough of a twist to sound brand new, and yet being so crazy it’s hard to argue against.

    Review the post you’re disputing. “Declared intention” did not rule out gays marrying. I say, “a declared intention to procreate or to adopt jointly“, precisely to anticipate your objection.

    You argue against a single phrase that I introduced recently and that is not particularly relevant to my point, so I’ll just withdraw that phrase. Calling me crazy doesn’t bother me. I can get that just for having sex with men.

  • martinbrock

    @DavidCheatham:disqus 

    That does _not_ suffice. Often only family members have visitation rights, such as in ICU. Likewise, if the person is unconscious, the _family_ controls who is in the room, not power of attorney.

    If you refer to statutory law here, can you cite the statute? You seem to refer to the visitation policies of specific hospitals.

    If I grant you legal authority to make medical decisions on my behalf, and if a hospital with custody of my unconscious body will not even allow you to see my body, I suppose this hospital has violated my rights. Since you must make uninformed decisions under the circumstances, I suppose the hospital is also guilty of malpractice, so I suppose the state should force this hospital to respect my declared wishes.

    If power of attorney doesn’t compel a hospital this way, I believe this law should change. Changing this law is much easier than enacting gay marriage.

    And if you want to change them to require marriage, I have no problem with that.

    I want two parents jointly responsible for a child to be married by definition, but I don’t want tax exemptions for children at all. I want children obligated to support aged parents that supported them.

    You seem to have a ‘solution’ that has nothing to do with the ‘problem’, …

    A hospital’s respect for my declaration of a power of attorney is my solution to the problem you raise above.

    Your problem appears to be with taxes and children, neither of which actually has anything do with ‘marriage’ at all, …

    The “married filing jointly” status obviously has something to do with marriage, and it has nothing legally to do with having children. I don’t want this option extended to childless gay couples, because I don’t want any childless couples to have it. I don’t much want families with children to have it either. I prefer other policies.

    Except that absolutely no one, from random people to the government, will _recognize_ them as family.

    That’s not true. Have you ever attended the Metropolitan Community Church? I’m not conventionally religious, but I have attended with friends. Many other free associations, like the Unitarian Universalist Association, also recognize gay relationships.

    My children are adults now, but I was their noncustodial parent for years, so I know all about statutory interference in familial relationships. I don’t want the state deciding who belongs to my family. Family is not a matter of statutory recognition. My children are my family even if states declare otherwise, and I’m very willing to meet statutory force with my own over this principle.

    They can’t, for a completely random example, testify during the sentencing phrase for someone who killed their lover.

    I just don’t see that as a compelling argument for gay marriage, but if you really care about it, you could lobby the legislature to allow gay lovers to testify this way.

    The idea of ‘family members’ legally exists.

    We can discuss the customary rights of family members that ought to apply to gay lovers. My sister and I can’t marry, so we can’t file a joint income tax return and the rest. I see no point in loading “marriage” with every sort of familial relatonship imaginable.

    Also, “family” describes biological kinship in my way of thinking, with exceptions for adoption and similar situations in which other relationships substitute for biological relationships. My children’s mother and I belong to the same family, because we are both biologically related to our children, not because we love each other, and we belong to the same family, indissolubly, regardless of any legal decree otherwise. Legal decrees do not determine who belongs to my family.

    Yes, _some_ of those assumptions can be done contractually…but some can’t.

    Can you be more specific here?

    That’s _why there is a formal process to turn lovers into family members_, called ‘marriage’.

    Traditionally, it’s about procreating exclusively with the lover. That’s why the relationship is sexually exclusive and why sex without the relationship is unlawful.

    You propose removing that process because a) you don’t like the tax benefits (Which are a completely independent issue and can be removed separately.), and b) I have no idea.

    I propose removing marriages that don’t involve joint responsibility for children, because I do see the point of a very strong obligation to cooperate and mutally support under the circumstances, and I don’t see the point of such a strong bond otherwise.

    We could name parental partnership “parental partnership” and associate this title with a very strong, largely indissoluble bond between two people, with associated rights and obligations to one another and to children, and we could remove the strong bond from “marriage” (which has practically happened already) and also remove many associated benefits while permitting any couple to “marry”. I would support this reform. The word is not important to me.

    • DavidCheatham

      We could name parental partnership “parental partnership” and associate this title with a very strong, largely indissoluble bond between two people, with associated rights and obligations toward one another and their children, and we could remove the strong bond from “marriage” (which has practically happened already) and also remove many associated benefits while permitting any couple to “marry”. I would support this reform. The word is not important to me.
      Then I respectfully suggest you shut up.

      Seriously, you just spent days arguing to _take away marriage rights_ from a vast section of society, arguing that everyone who doesn’t have kids should have to spend vast amounts of effort doing all sorts of work, and being subject to the whims of random individuals as to what rights they can actually exercise over family members.

      And, now, you’re like ‘Of course, we could just leave marriage, remove some of the benefits, and call the thing I want to do something else if it’s easier.’

      OF COURSE IT’S EASIER TO DO THAT. THAT IS WHAT EVERYONE HAS BEEN SAYING. OVER AND OVER.

      And as this is a libertarian site, it was entirely possible that you could have _convinced_ some people if you had said ‘We should remove all tax benefits from married people and only apply them to people with children, because most of the assumption behind those benefits was about children, and are no longer true’. It’s a valid point.

      But, instead, you decided to go tilting at windmills and trying to remove a institution that is so useful that, (And I can’t believe I have to point it out) a minority segment of society are currently arguing they have the right to do it.

      So, basically, no one has actually listened to your actual proposal to move some tax benefits around, because they were too horror-struck at the idea of straight couples having to deal with the well-documented shit that gay couples have to deal with, where their legal status as ‘spouses’ or ‘family members’ does not exist and every day is a battle to do things that married people take for granted.

      So here’s a few free hints if you want people to listen:

      First, stop bringing this up when people talk about gay marriage. It really doesn’t have a lot do with that. 

      Second, if you do bring this up anywhere near gay marriage, people will assume this is related to the idiotic anti-gay idea that ‘Because gay people can’t ‘have kids’, they shouldn’t be able to get married.’. Because you understand that gay people can adopt, and can have biological kids of one of the parents, you understand this is stupid, but as that claim is _very_ common anti-gay marriage position, you need to make sure you don’t look like you’re making it.

      Third, stop talking about marriage. You want to give tax benefits to couples with children, then just say that, and call it parental partnership from the start. (Although at some point someone’s going to point out that you’re apparently saying that children with only one parent should _not_ be given any sort of tax break, which is…uh…odd. But that, at least, is an actual objection to what you want to do, not people running in horror because you’ve randomly discarded all marriages for no real reason.)

      • martinbrock

        Then I respectfully suggest you shut up.

        I respectfully suggest that you speak up. I don’t fear what you have to say.

        And, now, you’re like ‘Of course, we could just leave marriage, remove some of the benefits, and call the thing I want to do something else if it’s easier.’

        That’s right. I’m not obsessing over a word here.

        OF COURSE IT’S EASIER TO DO THAT. THAT IS WHAT EVERYONE HAS BEEN SAYING. OVER AND OVER.

        If it’s so easy, why are we having this discussion? Why DOMA? Why this constitutional amendment in NC? Why amendments to 30 different state constitutions?

        And as this is a libertarian site, it was entirely possible that you could have _convinced_ some people if you had said …

        I did say it. I’ve said it all along.

        So, basically, no one has actually listened to your actual proposal to move some tax benefits around, …

        Believe it or not, you don’t speak for everyone.

        But, instead, you decided to go tilting at windmills …

        My windmills are no more tilted than yours, in reality.

        … a minority segment of society are currently arguing they have the right to do it.

        A minority of a minority segment are saying they want a right to it, while a large number of the people already entitled do it are avoiding it. The number of unmarried straight couples living together has increased over ten fold since the sixties. I don’t find a percentage at the moment, but among young people, the percentage must be high. 80% of these couples never marry.

        I get these statistics from a “pro-marriage” web site by the way. The site finds these statistics alarming. I don’t. I think these unmarried couples are making rational choices.

        First, stop bringing this up when people talk about gay marriage. It really doesn’t have a lot do with that.

        I don’t agree. Marriage is drifting away from the institution I favor, and this drift creates a sense of inequity among gay couples, understandably. Gay marriage is a reform addressing this inequity, but it’s not the only possible reform addressing the inequity.

        Second, if you do bring this up anywhere near gay marriage, people will assume this is related to the idiotic anti-gay idea that ‘Because gay people can’t ‘have kids’, they shouldn’t be able to get married.’.

        Disputing idiotic assumptions is why we’re here. Some take longer to dispute than others.

        Third, stop talking about marriage.

        That’s just what opponents of gay marriage say. “Stop stealing our word”. The word is not my point.

        “Marriage” happens to describe an institution that was similar in the past to an institution that I advocate now, and I don’t have another word for the institution that I advocate without making one up.

        Gay marriage advocates are in the same boat, you know. I know it.

        You want to give tax benefits to couples with children, then just say that, and call it parental partnership from the start.

        I have said from the start, and to you specifically, that I do not want to give tax benefits to couples with children. I want children to support aging parents that supported them.

        … you’re apparently saying that children with only one parent should _not_ be given any sort of tax break …

        I never say anything like it. I never anywhere ever advocate these tax breaks for anyone.

        … people running in horror because you’ve randomly discarded all marriages …

        People run in horror from gay marriage. Why would this horror deter me? It doesn’t deter you.

  • billwald

    “Employment rights” problems should only arise in scab states. I don’t know of any union contract which requires unequal pay for equal work. 

    • martinbrock

      Unequal pay for equal work is largely mythical empirically in the United States, never mind any contract.

  • Patrocles

    If  I may go back to the basic problem for a moment –

    1. The concern of trans people is, as far as I see, to change their classification from “man” to “woman” or the other way round. That makes sense only if they speak about biological “sex” (or “gender” as identical with “sex”) because only then the classification makes sense at all (from the perspective of biological sex, nearly 95 % of mankind are either men or women) – if we define “gender” as different from biological sex, a system of two “genders” seems  rather arbitrary.

    2. The position of trans people is quite reasonable if we indeed believe that brains are hardwired to be masculine or feminine, but at the same time not accordant with chromosomes or genitals. (I’m not quite convinced that they are hardwired.) But then the best logical solution would be to put them in the same class as the other 5 % of people whose genitals are not accordant to their chromosomes etc., namely as a third class of “indefinites” or “disaccordants” or “in-betweens”.

    3. The concern of the trans people is definitely not only how they see themselves (that is of course their private matter and society hasn’t to interfere with it). They want to have a say about how other people see them. Well, but in this case the other people must have their say, too. If you are Elizabeth Warren and (perhaps, it’s not documented) 1/32 of your ancestors were “native  Americans”, you’re welcome to see yourself as a “native American”. But you can’t claim that native Americans must see you as “one of us”. If you are a trans man but you still want to have sex with women you can call yourself a lesbian. But you can’t claim that lesbians must see you as “one of us”. (That’s a real life case, not my invention.)

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