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  1. #1
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    Which Branch Should Step In And Solve This Problem?

    Due March 7th

    The 2000 census found that 2.5 percent of the population is composed of gay men and 1.2 percent is composed of lesbians. Studies show that about 7.6 percent of the male and female populations claim a sexual interest in the opposite sex. Apparently, more men identify themselves as homosexuals than women. Today, more and more same-sex couples are seeking to solemnize their unions publicly. As a result, Massachusetts, Vermont, California, New Jersey, Hawaii have created an arrangement to formally recognize same-sex unions and grant them rights under law. The Massachusetts legislature was order by the State Judiciary to allow same-sex couples to marry. Vermont npermits same-sex couples to enter into civil unions. When California began to work toward granting “domestic partners” marriage-like status for both same-sex couples and opposite couples sex the voters took initiative and defined marriage by statute as a union between a man and a women. Like California, New Jersey created a Domestic Partnership Act that grants legal status to same-sex couples and opposite-sex couples over age 62. Hawaii flip flopped its position on the issue and developed a “reciprocal beneficiary” status. Meanwhile, municipal executives and judicial officers are trying to define marriage.

    Conflicts abound, the problem lies in the fact that thirty-seven states have enacted laws to ban same-sex marriage while other State’s are moving to redefine marriage in varying ways. In a nutshell, the States would like to maintain their traditional right to regulate marriage, and they do not see eye-to eye. Some states have altered the definition of marriage; whereas other states have expanded the marital concept leading to civil unions and domestic partnerships. Every state is running to its legislature to exercise its power to define marriage. Even the Federal Government has taken steps to define marriage as a union between a man and a woman under The Defense of Marriage Act (DOMA). Slowly but surely the judiciary is defining the marriage of the future without consent of the People.

    Among the many voices clamoring to define marriage are the people. A large majority have defined marriage as a union between a man and a woman. However, a minority of the People would like the Supreme Court to rule on issues of equality, and are pushing cases through judicial hierarchy. Finally, many people see Congress as the national law maker, and want a Federal Marriage Amendment to the Constitution.

    Society’s view of long-term committed domestic relationships, otherwise referred to as marriage, in relation to our legal system needs to be clarified by Congress, or it will be clarified by the Judiciary. Many people in society recognize alternative lifestyles and same-sex marriage, but our legal system is behind in the times, and needs some udating.


    Do you think that Congress should clarify marriage, or the Judiciary, or neither?


    I've decided have you?

    You opinions are welcome.
    This is a partial posting of my draft

  2. #2
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    Re: Which Branch Should Step In And Solve This Problem?

    At present things are quite clearly a bit of a mess. Official stats on the percentages of gay men can be open to question - there are issues of social pressures and consequent 'admission' or even 'internal' acceptance. On looking at figures, surveys, opinions and experiment, it seems that the figure fluctuates mainly between 5-10% and has a consistency and tenacity that leans toward it being a naturally occurring phenomena. We have trad. (pseudo)religious and social claims of this being deviant, wrong, immoral etc. that appears to clash with some scientific and genetic findings.

    The long held purpose and understanding of marriage is that it is a civil and/or religious sanction for a heterosexual couple to indulge sexually in order to produce the next generation. It may be argued at this point that this came about because of the early repression of homosexuality. This repression may be seen as a natural law - that of a herd rejecting fellow herd animals that exhibit different behaviour patterns - the instinct for conformity in conflict with the underlying natural law of diversity. There is also another argument that in a world before modern medicine and when the populations were small, homosexuality was both wasteful to the 'need' to procreate and compromised resources (food etc. in times of famine). Religion and society in general were seen as being holistic in nature and issues of homosexuality, food hygiene (kosher) found themselves as Biblical items of 'importance'.

    The general consensus is moving towards a greater tolerance in regard to homosexuality. In marriage the idea of bonding for life has also changed. In marriage increasing numbers of couples have no intention to attempt to have children (for a diversity of personal and socio-economic reasons). Marriage is becoming transient, many couples don't even marry.

    It would seem 'reasonable' and 'rational' for the greater acceptance of homosexuals in general society to be reflected in some sort of socio-economic accomodation in their relationships also. In religion, I can see the argument dragging on for along time yet, but as civil legislation should reflect the reality of the whole community, I feel that a civil service/ceremony/contract of marriage should not be out of the question, even at the present. But, as in most things that involve the due process of politics and human irrationality, I would advise many homosexual couples around the world not to hold their breath.

    Here in the UK, we are beginning to accept homosexuals in civil contracts that allow them all the rights of inheritance, taxation and other benefits that would go to a married couple, but there are still a few glitches to iron out and issues to be tested in court.
    Last edited by FruitandNut; February 24th, 2005 at 06:10 AM.
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  3. #3
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    Re: Which Branch Should Step In And Solve This Problem?

    Let me try:
    1) Marriage is not a purely religious tradition in a historical sense.
    2) Marriage is a tradition under Natural Law and under Positive Law.
    2a) Marriage is a bifurcated concept.
    2b) Positive Law and Natural Law have over-lapping magisteria.
    3) Marriage has two traditions
    3a) The first and older tradition belongs to Natural Law.
    3b) The second tradition belongs to Positive Law.
    4) Marriage has two institutions.
    4a) The first and older is a religious institution.
    4b) The second is a legal institution.
    5) Marriage has been governed by two over-lapping authorities
    5a) Marriage has been governed by the Church under Natural Law and religious institutions.
    5b) Marriage has been governed by the State under Positive Law, and civil institutions.
    6) The People disagree about the regulation of marriage
    6a) The People wish to define/redefine marriage.
    7) Separate The Church and The State
    7a) The Church will continue to govern marriage as it existed prior to the State.
    7b) The State will continue to govern civil union as these existed under the State.



    I'll use your example of Nero here.


    In ancient Rome, for example, the Emperor Nero is reported to have married, at different times, two other men in wedding ceremonies. Other Roman Emperors are reported to have done the same thing. The increasing influence of Christianity, which promoted marriage for procreative purposes, is linked with the increasing intolerance of homosexuality in Rome.

    http://www.answers.com/topic/same-sex-marriage

    Do I get more green boxes now?

  4. #4
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    Re: Which Branch Should Step In And Solve This Problem?

    How can the term marriage be applied to people of the same sex?

    Marriage - "to join as husband and wife."

    Let’s see are we going to re-define man and woman too?

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    Re: Which Branch Should Step In And Solve This Problem?

    Is marriage a right?

    So what kind of right is marriage, so that government can take procedural steps to alter its form and function?

    In order to legitimately, alter the form and function of marriage as a right government must claim that it is a civil right. Can government legitimately make this claim?

    Rights are correlated with duties and responsibilities. According to Rawls "a person's obligations and duties presuppose a moral conception of institutions and therefore … the content of just institutions must be defined before the requirement of individual can be set out." Let us don Rawls “veil of ignorance” and attempt to define marriage apart from knowledge about the parties’ moral judgment. Applying a Rawlsian perspective, a government that takes "original position" to claim a right ought to determine and select in a “definite order not only a concept of justice” but also a concept of the right, as well as, the duties and any correlated responsibilities associated with the right prior to allowing the parties to enter into the marriage contract. Otherwise, how can couples enter in to a marriage contract owning property and having financial commitments without knowing that they have commitments? They cannot. Hence, it is for this reason that children who cannot comprehend the meaning of marriage are barred entry into the social civil institution. Hence, government can legitimately claim that the present defintion of marriage is -- a basic civil right -- in a social civil institution. However, is this claim exclusive?


    No, government cannot exclusively claim that marriage is a basic civil right under a social institution. Why? Marriage existed before government. This pre-existence bars government from claiming that only government can alter and define marriage. The whole of society has an interest in the definition if society because it is an inalienable (natural) right. If marriage is an inalienable (unalterable) right that existed before government, then government cannot redefine that right because to do would be an alteration of that right -- marriage.

    Marriage is more than a basic civil right regulated and licensed by government. And government does an injustice when its judicial bodies attempt to innovatively and haphazardly define that right case by case.

    So, in response to the question, is marriage a right? It is a basic civil right and an unalterable natural right, which has been seize upon by government for the purpose of regulation.

  6. #6
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    Re: Which Branch Should Step In And Solve This Problem?

    If forgot about the history of marriage in America.

    Marriage in America prevented the bastardization of the States and guaranteed inheritance and property rights to martial offspring.

    In England, the ecclesiastical courts had jurisdiction over marriage. America had no such courts because American’s viewed marriage was a contract between a man and a woman. Hence, American law recognized two types of marital contracts: the formal and the informal. The formal marriage contract was documented publicly and came to be called the civil or religious ceremony. The informal marital contract was a private oral agreement, and was referred to as "common-law" marriage.

    Now, let’s look at marriage as a basic civil right and as an inalienable right in the context of Early American marriage practices. Recall, that many people came to America to make a new life and get away from another life or society. This included getting away for the religious views of others. Therefore, this will not be a discussion about morals. In colonial times, men and women often lived to together as man and wife by agreement without the slightest pretense of marriage. Cohabitation led to informal marriages by a verbal contract known as the "common-law marriage." This practice closely resembles the concept of marriage as an inalienable right. However, not all States recognized the common-law marriage, and while viewing marriage as a contract they follow English tradition and mandated religious or civil ceremonies.

    As with marriage, states differed on divorce. In the 1700 and 1800's, England was a divorceless society. The Aristocratic South held to English tradition. A Southern divorce was granted by the legislature. North of the Mason-Dixon Line divorces were judicial proceedings. Due to the conflict about marital contracts our nation has relied upon the Full Faith and Credit Clause of the Constitution.

  7. #7
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    Re: Which Branch Should Step In And Solve This Problem?

    "Marriage" utterly value laden. Society needs a generic term, such as Civil Union, which is completely set apart any associate moral or religious values. If we stick with "marriage" we're stuck in whirlwind of judgmental positivism. This is hypocrisy too.

    If our Government, here in America, is truly separate from the churches then the Government has no business endorsing "marriages" by issuing "marriage" licenses. It's simple. Just change everything to Civil Union. There is no hypocrisy here. If the states want to designate these unions as Homosexual Elderly Union, Homosexual Union, Heterosexual Union, or Heterosexual Elderly Union for statistical purposes then they may exercise that right as compelling state interest.

  8. #8
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    Re: Which Branch Should Step In And Solve This Problem?

    Let us not forget what happen during the Depression when FDR pushed through all sorts of legislation with the backing of a Court that he threatened to pack. The Commerce Clause is now used to justify everything as necessary and proper.

    The difference between what happened during the Depression and now is that the entire nation was suffering. People were jumping out of windows and starving when their crops turned to rust. We needed those agencies at that time. Now States just chose not to rely on themselves. They justify wastefulness to obtain a larger pie of the federal budget pie. It will take hundred of years to return power to the States who have now become grants-in-aid junkies of all the federal agency pushers created during the Depression.

    An innovative judicial flight of fancy over an ideology does not compare to a Presidential bull wrangling session during the Depression. FDR's wrangling with the Depression has lead to many problems. This lesson should cause trepidation because once powers are granted the effects of the powers cannot be completely foreclosed. I say separate church and state. The government would not perform "marriages" they should be termed civil unions.

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    Re: Which Branch Should Step In And Solve This Problem?

    Back to Value Judgments – Only opinions are value judgments.

    Natural Facts: Same-Sex marriages will lead to an increase in out-of wedlock births

    Mystical Facts: God disapprove of Same-sex Marriages.

    Opinion: Same-sex Marriages are bad. “ I hate same-sex Marriage.”

  10. #10
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    Re: Which Branch Should Step In And Solve This Problem?

    Homosexuality increases the incidence of HIV and AIDS
    Same-Sex unions increase the incidence of illegitimate children (Netherlands Study)

    The State has a compelling reason to ban same-sex marriages.

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    Re: Which Branch Should Step In And Solve This Problem?

    Due March 7th
    Draft 2

    When Separate is Constitutionally Equal


    Marriage is a union between a man and a woman. However, some argue that marriage is not a purely religious tradition in a historical sense, and wish to redefine marriage to meet the needs of gay and lesbian couples in America. Both natural law and positive law philosophies have enveloped the tradition of marriage. Natural law is associated with the will of God, and makes moral judgments. Conversely, positive law is emphasizes an “institutional rule of law,” and is “distinguished form morality” (Koerselman, 1998). Modern marriage is a bifurcated concept because positive law governs the civil activities, and natural law governs the religious. Today, under our present system these two realms of activity, religious and civil, have “non-overlapping magisteria” (Gould, 1999). Neither magisterium can envelope the panoply of the value-judgments and traditions related to marriage. Marriage has two traditions. The first and older tradition belongs to natural law. The second tradition belongs to positive law. Furthermore, marriages today have two institutions. The first and older is a religious institution; whereas, the second is a legal institution. Thus, marriage has been governed by two over-lapping authorities: the Church and the State. Under Positive law, the State through its civil institutions governs marriage and issues marriage licenses. However, since time immemorial, religious beliefs have governed marriage and shaped its sacraments for later congregations and the State. When governments arose they began to record and regulate marriage through ecclesiastical courts and civil institutions, and in time developed their own traditions related to marriage.

    In the American legal system, marriage has traditionally been regulated by the States. Today people disagree about how to define marriage and its regulation. Many people wish to constitutionally define marriage as a union between a man and a woman. However, others wish to redefine marriage as a union between two adults of any gender. A whirlwind of value-laden dialog is sweeping across our nation, and igniting a firestorm of legislation in the States as the people rush to preserve or create institutions that will protect their philosophical point of view and life style. Our constitution forbids the establishment of a religion. While issuing marriage licenses is not establishing “a religion” the term marriage has lead to conflict among the states about their right to prohibit or reject same-sex marriages with in their jurisdiction. Under the canopy of religion, the Church should govern the sacrament of marriage because it existed before the State, and the State should continue to regulate civil unions. However, the State should not issue marriage licenses. States should only issue licenses for civil unions. To solve these issues related to marriage an amendment should be proposed in Congress defining marriage as a union between a man and a woman, and prohibiting the issuance of marriage licenses by any State.

  12. #12
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    Re: Which Branch Should Step In And Solve This Problem?

    Are you looking for constructive criticism? Because I've got some to offer:

    Overall, your essay makes sense. Coherent. There is a conspicuous lack of sources cited, and if I were writing the essay, I'd change the organization. Also, when you write things like, "The first and older is a religious institution", you might want to provide an example.

    Are these the sort of comments that you're looking for?
    If I am capable of grasping God objectively, I do not believe, but precisely because I cannot do this I must believe. - Soren Kierkegaard
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    Re: Which Branch Should Step In And Solve This Problem?

    I cited my quotes, do you want me to use the dictionary to cite, "panoply"?

    The outline is mine. Logical, coherent, and tight just like a mathematical proof.
    Let me try:
    1) Marriage is not a purely religious tradition in a historical sense.
    2) Marriage is a tradition under Natural Law and under Positive Law.
    2a) Marriage is a bifurcated concept.
    2b) Positive Law and Natural Law have over-lapping magisteria.
    3) Marriage has two traditions
    3a) The first and older tradition belongs to Natural Law.
    3b) The second tradition belongs to Positive Law.
    4) Marriage has two institutions.
    4a) The first and older is a religious institution.
    4b) The second is a legal institution.
    5) Marriage has been governed by two over-lapping authorities
    5a) Marriage has been governed by the Church under Natural Law and religious institutions.
    5b) Marriage has been governed by the State under Positive Law, and civil institutions.
    6) The People disagree about the regulation of marriage
    6a) The People wish to define/redefine marriage.
    7) Separate The Church and The State
    7a) The Church will continue to govern marriage as it existed prior to the State.
    7b) The State will continue to govern civil union as these existed under the State.


    I guess you are asking me to cite myself.
    I will not change the organization.
    However, I will change the DRAFTED language later, as it's my custom.

  14. #14
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    Re: Which Branch Should Step In And Solve This Problem?

    1) Marriage is not a purely religious tradition in a historical sense.
    Cite a source for this info.

    2) Marriage is a tradition under Natural Law and under Positive Law.
    2a) Marriage is a bifurcated concept.
    2b) Positive Law and Natural Law have over-lapping magisteria.
    Same.

    3) Marriage has two traditions
    3a) The first and older tradition belongs to Natural Law.
    3b) The second tradition belongs to Positive Law.
    Same.

    4) Marriage has two institutions.
    4a) The first and older is a religious institution.
    4b) The second is a legal institution.
    Same.

    5) Marriage has been governed by two over-lapping authorities
    5a) Marriage has been governed by the Church under Natural Law and religious institutions.
    5b) Marriage has been governed by the State under Positive Law, and civil institutions.
    Same.

    6) The People disagree about the regulation of marriage
    6a) The People wish to define/redefine marriage.
    Same.

    7) Separate The Church and The State
    7a) The Church will continue to govern marriage as it existed prior to the State.
    7b) The State will continue to govern civil union as these existed under the State.
    I have a few questions, unrelated to the structure/writing of your essay: are married couples granted the same rights, privileges, etc., as couples in a civil union? Are you advocating the end of morals legislation? What about laws banning bestiality, adult incest, public nudity, etc.?
    If I am capable of grasping God objectively, I do not believe, but precisely because I cannot do this I must believe. - Soren Kierkegaard
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    Re: Which Branch Should Step In And Solve This Problem?

    Organization: I'm old-school. I like the classical structure: Present your thesis, give reasons, support with evidence. Present counter-arguments, and counter-counter-arguments. Your paper isn't bad. It isn't lacking. I merely stated that if I were writing it, I'd change the organization. That's all. It's not even a criticism, really, just a statement of preference.
    If I am capable of grasping God objectively, I do not believe, but precisely because I cannot do this I must believe. - Soren Kierkegaard
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  16. #16
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    Re: Which Branch Should Step In And Solve This Problem?

    Are yee picky!

    Clive, that is the intro. I have not posted any arguments.

    I disagree about citing what is common knowledge. Here, let me get the dictionary, and cite this word or that word. Or better yet, let's get the encycleopedia, and cite concepts. Here, here, let me find someone who thinks just like me, and quote them.

    Why must I cite someone else's idea when the idea is mine. Furthermore, if it is not common knowledge, well then, who does someone like Stephen Hawking cite when it is his idea, and not the idea of another person?

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    Re: Which Branch Should Step In And Solve This Problem?

    Why must I cite someone else's idea when the idea is mine.
    Well, with terms like "Natural law" and "Positive Law", it sounds like you're referencing specific conceptions that are not of your own creation. Like if I started talking about Phenomenology.

    When you say, "Marriage has two traditions: One in positive law, the other in natural law" (paraphrase), it sounds like you are referencing history. You are referencing the tradition of marriage, which, presumably, is not merely an idea of your own. When you talk about history (such as the history of marriage), you are referencing a work. Certainly, no one needs to provide citation for statements like, "The American Civil War began in 1861." However, I'd certainly like to see some sources, as the philosophical, political, and religious traditions of marriage are not common knowledge to me. Of course, if you're writing the paper for a class titled "Marriage and its historical roots", then I'm just blowing hot air.
    If I am capable of grasping God objectively, I do not believe, but precisely because I cannot do this I must believe. - Soren Kierkegaard
    **** you, I won't do what you tell me

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  18. #18
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    Re: Which Branch Should Step In And Solve This Problem?

    as for the first: marriage is (not) a traditionally religious tradition, i know many animals mate for life. as for the word itself, would y'all be pleased if the queer-folk called it: "fairrage"? so that people could say: "we're going to get fairried"... rather than we're going to get civilly united, which sounds like Victorian sex.
    "We must learn to live together as brothers or perish together as fools" -~- Martin Luther King, Jr.

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    Re: Which Branch Should Step In And Solve This Problem?

    LOL Nouvelian, thanks for the laugh.

    And.. who has been civilly married anyway?

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    Re: Which Branch Should Step In And Solve This Problem?

    Quote Originally Posted by CliveStaples
    Well, with terms like "Natural law" and "Positive Law", it sounds like you're referencing specific conceptions that are not of your own creation. Like if I started talking about Phenomenology.

    When you say, "Marriage has two traditions: One in positive law, the other in natural law" (paraphrase), it sounds like you are referencing history. You are referencing the tradition of marriage, which, presumably, is not merely an idea of your own. When you talk about history (such as the history of marriage), you are referencing a work. Certainly, no one needs to provide citation for statements like, "The American Civil War began in 1861." However, I'd certainly like to see some sources, as the philosophical, political, and religious traditions of marriage are not common knowledge to me. Of course, if you're writing the paper for a class titled "Marriage and its historical roots", then I'm just blowing hot air.

    Obviously, I am a student. Let's see, my initial post has a due date and says draft. Thus, you're points are will made. However, forums posters do not generally cite their sources, except maybe you. Furthemore, it seems as if you would like to see my cites. Why? Will, you give me more rep points if I cite my sources? :rolleyes:
    Clive, surely, you realize that you are asking me to make extra efforts just for you? Why?

    Finally, while your suggestions as to form and content are insightful and helpful, I did not ask you to help. So .....why are you intersted in helping me?

 

 
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