Defining Marriage is Problematic

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Registered: 04-16-2003
Defining Marriage is Problematic
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Sat, 02-07-2004 - 10:49am
Laws Can't Define 'Man' or 'Woman,' So How Can They Ban Gay Marriage?

Commentary, William O. Beeman,

Pacific News Service, Feb 05, 2004

Editor's Note: Legislators' attempts to codify marriage as "between a man and a woman" won't work, writes PNS contributor William O. Beeman. Like it or not, there is no single, clear biological, psychological or cultural definition of "male" and "female." Already, courts are faltering on the ambiguity of gender.

The Massachusetts Supreme Court advisory, stating that nothing short of marriage for same-sex couples would satisfy the state constitution, has sent legislators throughout the nation as well as President Bush scrambling to define marriage as between "one man and one woman."

These legislative attempts are doomed, because there is no clear, scientific and strict definition of "man" and "woman." There are millions of people with ambiguous gender -- many of them already married -- who render these absolute categories invalid.

There are at least three ways one might try to codify gender under law -- biologically, psychologically and culturally. On close inspection, all of them fail.

Biologically, one must choose either secondary sexual characteristics -- things like facial hair for men or breast development for women -- or genetic testing as defining markers of gender. Neither method is clear-cut. Some women show male secondary characteristics, and vice versa. Before puberty, things are not necessarily any clearer. A significant proportion of all babies have ambiguous gender development. It has been longstanding -- and now, increasingly, controversial -- medical practice to surgically "reassign" such babies shortly after birth so that they will have only one set of sexual organs.

Sometimes doctors guess wrong, and children are "reassigned" and raised as males, when they are genetically female, and vice versa.

In one condition, androgen insensitivity syndrome, genetic males are born with a genetic immunity to androgens, the hormones that produce male sexual characteristics. Though they are genetic males, these children typically grow up looking like females, although they have no internal female organs.

Although figures are imprecise, experts in intersexuality, such as Dr. Anne Fausto-Sterling of Brown University, estimate that persons born with some degree of ambiguous gender constitute approximately 1 percent of the population. This means that there are 2 million Americans who may be biologically ambiguous.

Psychologically, another dilemma for those who seek to codify gender is the condition known as gender dysphoria, in which a person feels that their true gender is the opposite of that in which they were born. These individuals are often referred to as "transgendered." Some experts estimate as many as 1.2 million Americans are transgendered. Gender dysphoria is a matter of personal identity and has nothing to do with sexual orientation. A male-to-female transgendered person may be attracted to women or to men.

Finally, human societies around the world recognize individuals who are culturally female or culturally male no matter what their physical gender. The "berdache" is an umbrella term used by Europeans to designate a man who is culturally classified as a woman, and who may be a "wife" to another man. The practice is perhaps best known among the Zuñi Indians of Arizona, but is widely seen in other tribal groups as well. Outside of North America, the hijra of India, a cultural "third gender," is important in ceremonial life. Hijra are classified as "neither man nor woman," but they may marry males. These examples of cultural gender ambiguity are only two among dozens throughout the world.

If the United States tries to enact a national law defining gender conditions for marriage, it is only a matter of time before the law falters on one of these rocks of ambiguity. There are undoubtedly existing marriages where the wife is a genetic male or the husband is a genetic female. In a medical examination, if it is determined that this genetic fact is discovered, is the marriage then voided? When post-operative transgendered persons wed, whom will they be allowed to marry -- persons with the opposite set of chromosomes, or people with the opposite set of genitalia?

There has already been one Texas decision where two "women" were allowed to marry, because one of them had originally been a male. We can expect far more stories like this should this legislative circus proceed.

PNS contributor William O. Beeman (William_beeman@brown.edu) teaches anthropology at Brown University.

http://news.pacificnews.org/news/view_article.html?article_id=d3362852002e314524ffb9ac8eac3c91

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iVillage Member
Registered: 03-23-2003
Wed, 02-18-2004 - 11:43am

http://seattlepi.nwsource.com/national/apus_story.asp?category=1110&slug=Gay%20Marriage


Wednesday, February 18, 2004 · Last updated 7:43 a.m. PT


Gay weddings continue in S.F., for now


By LISA LEFF
ASSOCIATED PRESS WRITER


SAN FRANCISCO -- After two judges declined to immediately end San Francisco's same-sex wedding spree, the mayor said the city would keep issuing marriage licenses to gay couples as conservative groups vowed to take their case to higher courts.


During separate hearings Tuesday, a pair of Superior Court judges ruled that they were not yet prepared to prohibit city officials from engaging in the collective act of civil disobedience that has allowed more than 2,600 same-sex couples to be married at City Hall since Thursday.


"There was nothing particularly compelling after today that makes me think that we should back off," Mayor Gavin Newsom said in announcing that the city would go on sanctioning same-sex unions until told otherwise by the courts.


At the same time, it remains uncertain just how long San Francisco's unprecedented wedding march will go on. After denying an anti-gay marriage group's request for a temporary restraining order strictly on procedural grounds, one judge scheduled a Friday hearing on the matter.


In the other case, Superior Court Judge James L. Warren refused to grant a different group's petition for a stay that would have abruptly halted the weddings. He said the plaintiffs had not met the legal burden required for such an emergency order.


Warren did, however, agree to order the city to either "cease and desist" issuing the disputed licenses or to come back to court on March 29 and explain why they haven't, a ruling that attorneys for both sides claimed as a victory.


"The judge would not issue a cease and desist order unless the judge made a determination that the mayor is in violation" of the law, said Robert Tyler, a lawyer for the Proposition 22 Legal Defense and Education Fund, an anti-gay marriage group that takes its name from an approved ballot measure limiting legal marriage to heterosexual couples.


But City Attorney Dennis Herrera insisted the judge had made no such determination and that the city had scored a major triumph by getting six more weeks to issue marriage licenses to gay couples and the chance to argue its case "on the merits."


"We believe we have very strong arguments," Herrera said.


Newsom maintains he had the legal authority to direct the county clerk to allow same-sex couples to apply for marriage licenses because the California Constitution prohibits discrimination on the basis of sexual orientation.


Erwin Chemerinsky, a University of Southern California legal scholar, described Warren's ruling as a short-term victory for the city. But the final decision will ultimately rest with a higher court, Chemerinsky said.


"This is an issue that is going to be decided by the California Supreme Court," he said. "These are just the early stages of what's going to be a long legal battle."


Warren's nonbinding order frustrated conservatives who also failed earlier in the day to persuade another judge, Ronald Quidachay, to halt the weddings as part of a separate challenge, which was filed by the Campaign for California Families, a group that advocates limiting marriage to heterosexual couples.


On Tuesday afternoon, the group took its request for a restraining order to an appellate court in San Francisco, saying it had no choice but "to ask them to uphold California state law since Judge Quidachay is choosing not to act."


Tyler, the lawyer for the Proposition 22 fund, said his clients also would appeal Warren's decision to a higher court if San Francisco keeps permitting gay couples to wed, as Newsom clearly stated it would.


In addition to blocking San Francisco from sanctioning more same-sex unions, both groups are also seeking to have the marriages already recorded declared null and void.


Couples who were among the thousands to have exchanged vows here in recent days were cheered by Tuesday's court developments, but said they recognized they probably have to wait before they'll know what their marriage certificates will really mean.


Gay and lesbian couples from Europe and more than 20 states have lined up outside the ornate City Hall since city officials decided to begin marrying same-sex couples six days ago in a public challenge to President Bush's comments against gay marriage.


City officials said 172 couples were married Tuesday, a pace that would bring the total number who have taken vows promising to be "spouses for life" to over 3,000 by Friday.


On Tuesday, California Gov. Arnold Schwarzenegger urged city officials to stop the same-sex weddings.


"Californians spoke on the issue of same-sex marriage when they overwhelmingly approved California's law that defines marriage as being between a man and a woman," Schwarzenegger said in a statement. "I support that law and encourage San Francisco officials to obey that law. The courts should act quickly to resolve this matter."


ME:


iVillage Member
Registered: 03-26-2003
Wed, 02-18-2004 - 2:51pm
It does not matter as for now, what is going on is against the law.

The only reason that the judge did not allow for the immediate injunction yesterday was because of a typographical error in the brief, which changed the meaning. Once this is corrected, the injunction will go into effect.

The only reason this is being done is San Francisco is the only place in California that voted against the ban on same sex marriages. Every other town and city in California voted to put the ban into effect. Also, Newsom is now entrenched as the Mayor of San Francisco for as long as he can serve (unless the State or Court does something stupid and sends him to jail for issuing illegal licenses).

iVillage Member
Registered: 05-06-2003
Wed, 02-18-2004 - 6:11pm
hmmm. i think that guest may need to learn the difference between association and causality. one would think that by allowing more people to marry, one would have fewer single-parent homes.

perhaps the reason why the rate of single-parent families is so high may have more to do with the divorce rate?

iVillage Member
Registered: 03-23-2003
Wed, 02-18-2004 - 6:20pm

The only reason that the judge did not allow for the immediate injunction yesterday was because of a typographical error in the brief, which changed the meaning. Once this is corrected, the injunction will go into effect.


Which judge?


iVillage Member
Registered: 05-14-2003
Fri, 02-20-2004 - 1:42pm
All men and women are entitled to and cannot be denied human righs, and I think this holds true for gay and bisexual individual as well. However, I'm opposed to gay marriage and I think it will be problematic (legally especially) if we change the definition of marriage. I agree with the majority of Americans who are opposed to gay marriage but would be willing to support same-sex civil unions (as well as civil unions between a man and a woman.

Krissy

iVillage Member
Registered: 03-18-2000
Fri, 02-20-2004 - 1:50pm

Welcome

 


Photobucket&nbs

iVillage Member
Registered: 08-12-2003
Fri, 02-20-2004 - 3:14pm
The judge did not issue the injunction because the plaintiffs could not demonstrate an immediate and irreparable harm would result if the judge did not enjoin the city from issuing gender-neutral marriage licenses to same sex couples. The judge's ruling on the petition was a purely procedural finding and does not mean he approves of what the city is doing or favors gay marriage. He is simply saying that the legal question of whether the city is breaking a statute (as the anti-gay marraige forces say) or is following the California constituion (as the city says) can wait until further proceedings can be scheduled.

 

iVillage Member
Registered: 03-26-2003
Fri, 02-20-2004 - 4:53pm
Wrong.

The only reason that the judge did not allow for the injunction was because of a misplaced semi-colon in the brief, which changed the meaning of the brief.

The judge said that once this was corrected, he would proceed. He will issue the temporary injunction as the issuing of the marriage licenses is against the California Penal Code, which states that any official who knowingly issues fraudulent documentation is commiting a felony. (I cant remember which code they were citing on the news)

iVillage Member
Registered: 02-14-2004
Fri, 02-20-2004 - 9:23pm
Hi, I am sorry, but, Bush has every right to put in his religious beliefs. First of all, George Washington and all of our fourfathers were christians, and the wrote all of our political documents and based our laws on the Bible. Marriage is a union ordained by God, not, man, and it was never intended for 2 men or 2 women to be married, I have nothing against them at all, but, I know for a fact that each and every homosexual suffers from an emotional problem. Marriage was designed for procreation of the Earth, and anyone that has been watching the news would know, that populations will be dwindling soon.

George Bush is a very good man and has done a great deal for this country. Lord help us if we don't change our ways, or He won't continue to Bless the USA.
iVillage Member
Registered: 02-14-2004
Fri, 02-20-2004 - 9:50pm
I agree wholeheartedly.

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