Marriage and other LGBTQ Rights

[xilman]

Here's a curiosity of English law, a situation in which I sympathize with the wife and think that the law should be changed so as to treat all parties equallty. It concerns alleged adultery of a husband with another man. In English law this is an act which is impossible to perform.

[Brian-E]

Originally Posted by xilman

Here's a curiosity of English law, a situation in which I sympathize with the wife and think that the law should be changed so as to treat all parties equallty. It concerns alleged adultery of a husband with another man. In English law this is an act which is impossible to perform.

Very interesting situation. The following views by pro-equality groups quoted in that article really exemplify the concept of equality and pseudo-equality, to my mind:

The Peter Tatchell Foundation says that while it feels adultery is an antiquated aspect of the marriage laws, "nevertheless, this differential in the law governing same-sex and opposite-sex married couples is not equality".
However, The Equality Network, a Scottish gay rights group, held focus groups with their members when the Marriage and Civil Partnership (Scotland) Act 2014 was being debated, and they didn't feel the law on adultery needed to change. Unreasonable behaviour was considered to be sufficient.

I think the Equality Network made a huge mistake here. Saying that the adultery laws do not need to be changed because "unreasonable behaviour" will always suffice is a bit like saying that equal marriage is unnecessary because same sex partners have the same rights in civil partnerships as opposite sex married couples do. No, any different treatment of people on the grounds of their gender or their sexual orientation is unacceptable, and that includes applying divorce based on adultery differently.

I agree with the Peter Tatchell Foundation completely (as I usually do). If there must be adultery laws then they must apply equally for all people regardless of the gender of the person with whom the adultery is committed. But I would prefer to see the whole concept of "adultery" removed from law entirely. A marriage should be dissolved if, and only if, at least one of the married partners wishes it to be dissolved. Details of why either partner would want that should not be the concern of the courts.

[only_human]

Originally Posted by xilman

Here's a curiosity of English law, a situation in which I sympathize with the wife and think that the law should be changed so as to treat all parties equallty. It concerns alleged adultery of a husband with another man. In English law this is an act which is impossible to perform.

Speaking of curiosities, the gay panic defense is still an affirmative defense for murder:
'Gay Panic' Is Still a Murder Defense in Some States of Australia
May 12, 2015

"Gay panic" is a kind of provocation defense recognized in Queensland and South Australia. What it means is, if someone of the same sex hits on you, the shock of that advance can legally render you temporarily insane. Officially known as the homosexual advancement defense, it harkens back to a time when certain situations could be seen as a slight against a man's honor and therefore provoke him into a killing that he's not 100 percent responsible for. Individuals who successfully employ the tactic can expect their charges to be downgraded from murder to manslaughter.

---

Affirmative Defense legal definition of Affirmative Defense
legal-dictionary.thefreedictionary.com/Affirmative+Defense‎
Affirmative Defense. A new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true.

Home > Vol 12, No 2 (2012) > Kent Blore
The Homosexual Advance Defence and the Campaign to Abolish it in Queensland: The Activist’s Dilemma and the Politician’s Paradox

Abstract
Two recent murder trials in Queensland served as reminders that the ‘homosexual advance defence’ is still being employed in courtrooms as a species of provocation, resulting in verdicts of manslaughter instead of murder. The cases sparked a campaign for the abolition of the defence from Queensland law and very nearly succeeded. After setting out what the ‘homosexual advance defence’ is and how efforts to eradicate it have fared elsewhere in Australia, this article seeks to give a full account of the campaign in order to elucidate lessons for future law reform efforts as well as for queer theory.
Full Text: PDF (228KB)

[Zeta-Flux]

Brian,

But I would prefer to see the whole concept of "adultery" removed from law entirely. A marriage should be dissolved if, and only if, at least one of the married partners wishes it to be dissolved. Details of why either partner would want that should not be the concern of the courts.

I can see why you would feel this way. Let me offer some reasons why adultery and other "fault" laws may indeed be beneficial.

1. Divorces do not only impact the marriage partners. They impact children incredibly hard. Further, in society the example of easy divorce can lead to others to choose the "easy way out".

2. That said, divorce does impact marriage partners in unexpected ways. Numerous studies show that people are no happier five years after a divorce (on average).

3. Having "fault" laws makes it clear what one should reasonably expect from a marriage relationship. There are certain universal expectations from government and society about what should occur in a marriage.

4. Fault laws allow judges to protect the partner not at fault.

5. Finally, fault laws make it clear to the people entering the marriage that they are not just joining together until "one of you decides you are done" but "until death do you part". The very act of making it easier to get out of a marriage changes what a marriage is.

[Brian-E]

Originally Posted by Zeta-Flux

1. Divorces do not only impact the marriage partners. They impact children incredibly hard. Further, in society the example of easy divorce can lead to others to choose the "easy way out".

Yes, children are impacted hard. But children are not helped by artificially keeping their unhappy parents together. The situation is tragic, but the damage has already occurred.

And there is no "easy way out" of this awful situation.

2. That said, divorce does impact marriage partners in unexpected ways. Numerous studies show that people are no happier five years after a divorce (on average).

Which says nothing about whether they would be any happier if they had been forced to stay in the unhappy marriage. It seems very unlikely to me that they would.

3. Having "fault" laws makes it clear what one should reasonably expect from a marriage relationship. There are certain universal expectations from government and society about what should occur in a marriage.

Yes, and those expectations need to play a big role. Their role should be to encourage people to think carefully before getting married (and before taking any major decision related to marriage).
Fault laws do not prevent mistakes altogether, however.

4. Fault laws allow judges to protect the partner not at fault.

For financial purposes, yes. But they cannot repair a broken relationship.

5. Finally, fault laws make it clear to the people entering the marriage that they are not just joining together until "one of you decides you are done" but "until death do you part". The very act of making it easier to get out of a marriage changes what a marriage is.

No-one thinks about the laws surrounding divorce at the time they are marrying. I agree that it is vital that people think carefully before marrying, but making divorce difficult will not achieve that.

[only_human]

Originally Posted by Zeta-Flux

Brian,
5. Finally, fault laws make it clear to the people entering the marriage that they are not just joining together until "one of you decides you are done" but "until death do you part". The very act of making it easier to get out of a marriage changes what a marriage is.

This is one way that domestic partnerships shortchange people by requiring less commitment. Both registration and dissolution are easier paths in many cases:
Domestic partnership in California

Registration

Domestic partner registration is an uncomplicated process, more simple and less costly than entering into a marriage. Both parties must sign a declaration listing their names and address.[13] Both signatures must be notarized. The declaration must then be transmitted to the Secretary of State along with a $10 filing fee (plus an additional $23 fee for same-sex couples to help fund LGBT-specific domestic violence training and services).[14] In this regard it is not like a marriage or civil union. Those unions require a ceremony, solemnized by either religious clergy or civil officials, to be deemed valid.[15]

Dissolution

In most cases, a domestic partnership must be dissolved through filing a court action identical[16] to an action for dissolution of marriage. In limited circumstances, however, a filing with the Secretary of State may suffice. This procedure is available when the domestic partnership has not been in force for more than five years. The couple must also meet many other requirements that the dissolution be both simple and uncontested: no children (or current pregnancy) within the relationship, no real estate (including certain leases), and little joint property or debt. The parties must also review materials prepared by the Secretary of State, execute an agreement dividing assets and liability, and waive claims to domestic partner support. Where all the requirements are met, the partnership will terminate six months after the filing, unless either party revokes consent.

So domestic partnerships are easier to get into and out of than marriage. By not requiring the same commitment people do not receive the benefits of the same commitment.

[Zeta-Flux]

only_human,

That is a good point, and something I have overlooked in the past.

--------------------

Brian,

As one of those children whose parents divorced, let me offer my point of view on the matter. I admit it is only one data point, and definitely not universal. But I hope it may help you see through my eyes a bit on this issue. I'll also offer some thoughts as a man who has been married for 15 years now.

Originally Posted by Brian-E

Yes, children are impacted hard. But children are not helped by artificially keeping their unhappy parents together. The situation is tragic, but the damage has already occurred.

And there is no "easy way out" of this awful situation.

When I used the phrase "easy way out" I was using an idiom common here in America. From my experience, people often take the path of least resistance, and from the point of view of couples in marital trouble, no-fault divorce offers little resistance. So I was using the phrase to mean that many people see divorce as a easiest way to escape their pain/unhappiness, but often it isn't.

Let me add that I don't know that there is anything "artificial" about helping a couple understand that they made an important commitment to each other, which shouldn't be dissolved at the first (or even seven times seventieth) sign of trouble. I can attest to the fact that every marriage has its ups and downs. There will always be unhappy times. But, more often than not, if both parties stick it out and try their best to work through those times, things get better.

As for children, there are certainly circumstances where having the couple stay together can be damaging. But those situations usually involve a lot of "fault" from one or both parties. I know that I would have preferred (back when I was 12) for my parents to have stuck it out, even though one of them was at fault. [This certainly isn't universal, e.g. this Huffington post article takes the opposite view. Whereas this article by clinical psychlogist Ruth Peters takes a position more to my experience (since my parents weren't abusive, and didn't argue in front of us).]

Which says nothing about whether they would be any happier if they had been forced to stay in the unhappy marriage. It seems very unlikely to me that they would.

I agree with your implicit premise, that happiness is important in a marriage. I also agree with you that common sense might lead us to guess it is unlikely that people would be happier if they stuck to an unhappy relationship.

But sometimes life is stranger than we imagine. Indeed, according to sociological studies, people who stick to their marriages through hard times report higher happiness just a few years later.

That said, let me give you my personal point-of-view. When I married, I made the conscious decision to put my wife's happiness above my own. Or, to put it another way, her happiness is a requirement for my happiness. On those occasions where she tells me we need a change, I swallow my pride and do everything I can to make things better. This is not to say I'm perfect at it, only that it is something I try to do.

For me, unhappiness is not a deal breaker, it is a sign that changes need to be made, not covenants needing to be broken.

Yes, and those expectations need to play a big role. Their role should be to encourage people to think carefully before getting married (and before taking any major decision related to marriage). Fault laws do not prevent mistakes altogether, however.

Agreed. I would add that those higher expectations can (as only_human pointed out) prevent a couple from being shortchanged into a lesser relationship.

For financial purposes, yes. But they cannot repair a broken relationship.

Broken things cannot always be mended, and judges are probably the least likely ones to serve as healers for hurt souls. I agree.

But when fault occurs, those not at fault need protections, either financially, or in helping protect children, etc...

No-one thinks about the laws surrounding divorce at the time they are marrying.

I did. In my case it made me extra careful to pick someone who I believed had the same commitment I did to NEVER mention the word divorce if we could avoid it.

My fiance and I talked about divorce quite a bit actually, and we made the goal in our marriage to never threaten each other with it (in the sense of holding it over the other's head). So far as I can remember, we broke that goal only once. It was an incredibly dark time for me, bringing back many memories of the pain of my parents divorce. Fortunately, we worked through it.

In my experience, many other couples do weight the benefits and risks of marriage before going through with it. (Some, of course, do not.) I think this is one reason why so many nowadays do not get married--because there are so few barriers to ending the relationship, and the costs (financial, emotional, etc...) are just to high, that they decide not to bother.

I agree that it is vital that people think carefully before marrying, but making divorce difficult will not achieve that.

Not for everyone, but I would argue that for a sizable group of people it would make a difference. (It certainly made a difference the other way, when no-fault divorce laws were passed.)

[only_human]

Originally Posted by only_human

This is one way that domestic partnerships shortchange people by requiring less commitment. Both registration and dissolution are easier paths in many cases:
Domestic partnership in California

So domestic partnerships are easier to get into and out of than marriage. By not requiring the same commitment people do not receive the benefits of the same commitment.

Originally Posted by Zeta-Flux

only_human,

That is a good point, and something I have overlooked in the past.

--------------------

But that is only one of the ways lesser commitments than marriage short-change people.

Any marriage, including secular marriages, requires a ceremony. Participants often invite friends and family to see them exchange vows, rings, wear specific clothes, record the event for posterity and seal the ceremony with a kiss.

Afterwards there may tears and laughter, dancing, gifts, music and food. Sometimes people renew the vows at a later date to reaffirm the commitment.

So any relationship that does not have these features does not gain as much respect and responsibility for themselves or in the eyes of society. They don't receive receive whatever stability this recognition adds to their relationship. Anyone else that depends on the stability of the relationship is also unnecessarily harmed if these features aren't available.

The harm extends to any elderly parent being cared for by the relationship participants or any proximate children regardless of provenance.

[retina]

Originally Posted by only_human

But that is only one of the ways lesser commitments than marriage short-change people.

Any marriage, including secular marriages, requires a ceremony. Participants often invite friends and family to see them exchange vows, rings, wear specific clothes, record the event for posterity and seal the ceremony with a kiss.

Afterwards there may tears and laughter, dancing, gifts, music and food. Sometimes people renew the vows at a later date to reaffirm the commitment.

So any relationship that does not have these features does not gain as much respect and responsibility for themselves or in the eyes of society. They don't receive receive whatever stability this recognition adds to their relationship. Anyone else that depends on the stability of the relationship is also unnecessarily harmed if these features aren't available.

The harm extends to any elderly parent being cared for by the relationship participants or any proximate children regardless of provenance.

Not every place on this planet is the same as yours. Perhaps for your community and/or township that is true, but other places exist.

[only_human]

Originally Posted by retina

Not every place on this planet is the same as yours. Perhaps for your community and/or township that is true, but other places exist.

s/any/many

Any Many marriages, including secular marriages, including city hall marriages require a ceremony. Participants often invite friends and family to see them exchange vows, rings, wear specific clothes, record the event for posterity and seal the ceremony with a kiss.

Afterwards there may tears and laughter, dancing, gifts, music and food. Sometimes people renew the vows at a later date to reaffirm the commitment.

So any many relationships that do not have these features do not gain as much respect and responsibility for themselves or in the eyes of society assuming these features provide any such benefits. They don't receive receive whatever stability this recognition may add to their relationship. Anyone else that depends on the stability of the relationship is also unnecessarily harmed if these features (provided these things are beneficial) aren't available.

FTFY

[retina]

Originally Posted by only_human

s/any/many
AnyMany

FTFY

These is more than one way to do things. But your arguments suggests to me that you are saying there is only one "proper" way. But if my impression is wrong please correct me.