Husband who gave birth may not be able to get divorce...

[Fairportfan]

Ariz. divorce case hits snag after marriage's validity questioned because husband gave birth

An Arizona couple seeking a divorce hit an unusual snag that could prevent the marriage from legally being dissolved.

A judge is questioning whether a same-sex marriage ban bars him from ending the union — or even recognizing its validity — because the husband was born a woman and underwent a sex change but retained female reproductive organs and gave birth to three children.

Thomas and Nancy Beatie are eager to end their nine-year marriage. But their divorce plans stalled when Maricopa County Family Court Judge Douglas Gerlach said in late June that he was unable to find any legal authority defining a man as someone who can give birth. Gerlach has questioned whether the union was a same-sex marriage.

The judge is expected to issue a decision in early February.

[jwhouk]

I'm starting to think the Pub is turning into the Wapsi World News.

[ShneekeyTheLost]

That sounds backwards...

If there is no legal definition of a man which can give birth, then it should not, legally, be considered a same-gender marriage, and so the marriage and subsequent divorce should be easy to define and annul.

Unless the couple is insisting on the same-gender status of their marriage, which would set a dangerous precedent to get around the ban, so the judge is not willing to agree to it. Glah, I hate this kind of court-wrangling.

I don't understand why there's still a ban on same-gender marriage. Unconstitutionality aside (being a form of prejudice against homosexuality), it's just a legal contract which describes a specific type of partnership.

If you have a problem with separation of Church and State, then define the legal term 'civil union', which shall then possess all rights and responsibilities a current marriage license possesses with respect to next-of-kin rights, inheritance, tax code, and all other legal rights and responsibilities.

Then you have a clear and concise separation of church and state... marriage is a religious rite which the law no longer recognizes, and a civil union is a legal contract which doesn't require a priest to perform. Couples must obtain a civil union license separately from the religious rite of Marriage for it to be legally recognized.

Problem solved.

[Mark N]

That sounds backwards...

I don't understand why there's still a ban on same-gender marriage. Unconstitutionality aside (being a form of prejudice against homosexuality), it's just a legal contract which describes a specific type of partnership.

If you have a problem with separation of Church and State, then define the legal term 'civil union', which shall then possess all rights and responsibilities a current marriage license possesses with respect to next-of-kin rights, inheritance, tax code, and all other legal rights and responsibilities.

Then you have a clear and concise separation of church and state... marriage is a religious rite which the law no longer recognizes, and a civil union is a legal contract which doesn't require a priest to perform. Couples must obtain a civil union license separately from the religious rite of Marriage for it to be legally recognized.

Problem solved.

I have a friend that uses that reasoning as a way to help the Marriage for everyone people. But every-time he uses it they say he is anti gay rights. But as he puts it "I think everyone has the right to a civil union, if they just drop the word marriage unless their chosen religious institution wants to use the word and give a marriage certificate to go along with a government required Civil union one".
part of the problem is the word "marriage". To be exact it is a word that has its roots in religion and has been hijacked by everyone including the state. Older religions still practiced today have other words for the act of a couple being together after all, ever heard of a Hand Fastening Ceremony? But people want to have the word as well as the rights, that is part of the problem in establishing an agreement.

[ShneekeyTheLost]

I have a friend that uses that reasoning as a way to help the Marriage for everyone people. But every-time he uses it they say he is anti gay rights. But as he puts it "I think everyone has the right to a civil union, if they just drop the word marriage unless their chosen religious institution wants to use the word and give a marriage certificate to go along with a government required Civil union one".
part of the problem is the word "marriage". To be exact it is a word that has its roots in religion and has been hijacked by everyone including the state. Older religions still practiced today have other words for the act of a couple being together after all, ever heard of a Hand Fastening Ceremony? But people want to have the word as well as the rights, that is part of the problem in establishing an agreement.

As the Great Bard once said... "What is in a name? That which we call a rose. By any other name would smell as sweet"

As long as Civil Union will incorporate the totality of the legal rights and responsibilities that marriages currently have, then it's all good. It is only when you have Civil Union as separate from marriage without the same rights that you end up with "Separate, but not equal" which was eventually used back in the '60's to put an end to racial segregation.

As far as a hand fastening... I've not only heard of it, I've stood Guardian of one of the Quarters at more than one. More than one of them has been with same-gender couples. Legally, of course, they couldn't marry, but they took comfort in the religious ceremony anyways.

That's what it should be... a religious ceremony, not a legal distinction. Ironically, the current laws concerning marriage are a violation of the 1st amendment's original intent of separation of church and state, because it is a religious belief which is dictating legislation.

[Mark N]

That's what it should be... a religious ceremony, not a legal distinction. Ironically, the current laws concerning marriage are a violation of the 1st amendment's original intent of separation of church and state, because it is a religious belief which is dictating legislation.

That is what I mean. Give Civil Union equal rights and take the government out of the use of the word marriage. The Church and State will be separated and everyone will be happy. But so many people are fixated on keeping the word marriage in the mix (a case of wanting their cake and eating it too.)

[DinkyInky]

That's what it should be... a religious ceremony, not a legal distinction. Ironically, the current laws concerning marriage are a violation of the 1st amendment's original intent of separation of church and state, because it is a religious belief which is dictating legislation.

That is what I mean. Give Civil Union equal rights and take the government out of the use of the word marriage. The Church and State will be separated and everyone will be happy. But so many people are fixated on keeping the word marriage in the mix (a case of wanting their cake and eating it too.)

I know some people who would LOVE to have "civil union" being legal and allowed. They say "marriage" is more about semantics and less about sanctity of union these days.

I just think the Government needs to stay out of America's bedrooms.

Agree or disagree, as always, it's...

Just my 2cp.

[bmonk]

One of the problems is that marriage is a human institution, and both state and church have an interest in it--because of the children.

In some ways, Catholics would have less problem than many churches about the state defining marriage as including same-sex couples--we already distinguish the legal aspect and the sacramental aspect of marriage. We just don't believe that it's possible to redefine marriage that way....

But, while the obvious solution is to say--if they were a same-sex couple when it was not legal for them to be married, hence the marriage should be annulled--that's not how the law works. It often seems to find an obscure way to do things, thereby creating more interesting issues to spark future court cases. At least that's how it looks to me.

[Yamara]

Actually, virtually all of the gender, rights and responsibility issues vanish if any two consenting adults can have a marriage and call it a marriage. Secular government has had this covered since before Christ... and in many places with different cosmologies. Religious organizations can opt out, and contemplate the consequences. People are starting to get this.

[Dave]

Actually, virtually all of the gender, rights and responsibility issues vanish if any two consenting adults can have a marriage and call it a marriage.

Yup... and the western legal systems have been headed in this direction for quite some time.

Marriage used to be a highly-asymmetrical relationship (in a legal sense), with very different rights and responsibilities for the husband and the wife.

Look back at the state of English marriage law, a few centuries ago. The moment a woman married, she ceased to exist as a legal individual... she lost her right to earn an independent income, lost the right to own her own property, and lost the right to make most important legal decisions affecting herself. The married couple was "one legal person" rather than two, with the husband in charge of almost all decisions. Husbands used to have the legal right to beat their wives (with some legal limit on how large a stick they could use... I am not joking!) without recourse by the wives. It wasn't until the late 1800s that married women in England gained the right to own property independently... and the right to vote only came along decades later (as it did here in the U.S.).

In recent years, the asymmetry has become much less so, to the degree that in many states in the U.S. (possibly most), the legal rights and responsibilities of husband and wife are entirely equivalent. That fact has been a significant element in the legal debates over same-sex marriage... it makes it difficult to claim that *only* a man and *only* a women can fill the two roles in the marriage, when the two roles have been legally equivalent for decades.

As to whether any particular church or religion chooses to bless a marriage (same-sex or opposite-sex), perform such a wedding, admit the two parties into the church's membership... that's entirely up to the church, and I see no conflict between a church's decision to "not call that a marriage" and a state's declaration that it's a valid marriage. Divorced Catholics have been having secular second marriages (which the Church will not acknowledge) for decades, and the universe has not collapsed into a pile of neutrons as a result

Suggested reading on this point: Freedom and Necessity by Emma Bull and Steven Brust (a cracking-fine epistolary novel by a couple of authors I thoroughly enjoy).

[ShneekeyTheLost]

There have also been cases in Boston, where same-gender marriage is allowed, where a Catholic church was sued by a gay couple for refusing to marry them, citing that it is their right to get married. While preposterous in theory, the actual litigation was rather expensive, and as a result, it's been a sticking point for same-gender marriages, and a rally-point behind which a significant portion of the anti-same-gender-marriage people fall in behind.

Defining a relationship between two people as a civil union instead of marriage knocks that pedestal out from under them.

[Dave]

There have also been cases in Boston, where same-gender marriage is allowed, where a Catholic church was sued by a gay couple for refusing to marry them, citing that it is their right to get married. While preposterous in theory, the actual litigation was rather expensive, and as a result, it's been a sticking point for same-gender marriages, and a rally-point behind which a significant portion of the anti-same-gender-marriage people fall in behind.

Defining a relationship between two people as a civil union instead of marriage knocks that pedestal out from under them.

Yes, that's unfortunate. The US is a litigation-happy society, because anybody can sue anyone about anything (for all practical purposes). It isn't a "loser pays the costs" system, which (in some other countries) has deterred this sort of nuisance litigation.

I believe that some of the legislation which has recently been passed, or proposed, to authorize same-gender marriages, has included a specific "hold harmless" clause which states that churches and ministers cannot be held liable in any way for declining to perform or sanction a marriage ceremony. This seems like a good way to defuse this particular objection.

[Yamara]

There have also been cases in Boston, where same-gender marriage is allowed, where a Catholic church was sued by a gay couple for refusing to marry them, citing that it is their right to get married. While preposterous in theory, the actual litigation was rather expensive, and as a result, it's been a sticking point for same-gender marriages, and a rally-point behind which a significant portion of the anti-same-gender-marriage people fall in behind.

Defining a relationship between two people as a civil union instead of marriage knocks that pedestal out from under them.

Yes, that's unfortunate. The US is a litigation-happy society, because anybody can sue anyone about anything (for all practical purposes). It isn't a "loser pays the costs" system, which (in some other countries) has deterred this sort of nuisance litigation.

I believe that some of the legislation which has recently been passed, or proposed, to authorize same-gender marriages, has included a specific "hold harmless" clause which states that churches and ministers cannot be held liable in any way for declining to perform or sanction a marriage ceremony. This seems like a good way to defuse this particular objection.

That's how New York State handled it, in heavily pre-negotiated legislation. Massachusetts, for better or worse, accepted marriage equality as a then-surprising judicial decision that held discrimination to be against the constitution of the Commonwealth. So every little detail is more open for litigation there.

IANAL, but I think one of the big problems with the civil union status is it leaves the potential for every last little thing to go to court, because whatever the status is supposed to be, it is some kind of not-marriage, and is therefore open for endless trolling. Way easier to just call it what it is.

If the Catholic Church doesn't want to reinstate and readapt adelphopoiesis, that should be up to them. Defending their right to refuse ceremonial performance is the least of their legal worries these days.

[Julie]

IANAL, but I think one of the big problems with the civil union status is it leaves the potential for every last little thing to go to court, because whatever the status is supposed to be, it is some kind of not-marriage, and is therefore open for endless trolling. Way easier to just call it what it is.

Ermm...what does IANAL mean...because not knowing makes your statement very weird.

[Fairportfan]

"I Am Not A Lawyer".

Bur what you were thinking is probably more entertaining...