Author Topic: Changing Definitions  (Read 2179 times)

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Offline bpjon

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Changing Definitions
« Reply #30 on: March 03, 2004, 03:15:23 AM »
ATTN FLA Brian

You wrote:

"If homosexual citizens of one locality are allowed to legally marry, then citizens of all communities must accept these "unions." Is it then OK for them to force their beliefs on us?"


States are not bound to recognize a marriage from another state if that marriage would not be allowed in the first state.  As an example, my cousin Tanya got married at age 14, while living in Texas.  If she and her husband had flown here to Minnesota immediately after the wedding, they would not have been considered married, as Minnesota does not allow 14 year olds to marry.  

The full faith and credit claue is enforced very selectively.  Just ask a lawyer, beautician or CCW holder.  Some states will honor their credentials from their home state, some won't.
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Offline Leftoverdj

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Changing Definitions
« Reply #31 on: March 03, 2004, 03:34:48 AM »
Quote from: Fla Brian


What we are talking about here when we discuss a constitutional amendment is, in fact, "due process of law."

I suppose you could also claim that the re-legalization of slavery by amendment would be by "due process of law". I ain't gonna worry about it since neither amendment will be adopted.

3. You made the assertion that we want to force our religious beliefs on others.

What about when it is the other way around?

I call you attention to the following:

"Article IV.

Section 1
Full Faith and Credit shall be given in each State to the public Acts, Records,
and judicial Proceedings of every other State. And the Congress may by general
Laws prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.

Section 2
The Citizens of each State shall be entitled to all Privileges and Immunities
of Citizens in the several States."

If homosexual citizens of one locality are allowed to legally marry, then citizens of all communities must accept these "unions." Is it then OK for them to force their beliefs on us?

They are not forcing BELIEF on you, nor must you ACCEPT them. Were your hypothesis correct, you would merely have to accord them the same legal rights as any other couple. That would not be a religious matter.

Your hypothesis is, however, largely erroneous. The settled law is that one may not circumvent the laws of one's state of residence by marrying in another state. The putative marriage is voidable upon challenge. Cases establishing that principle follow an unbroken line for at least 75 years. Those cases arose from persons seeking to evade laws on kinship, age, or other disability. There are also cases of persons claiming common law marriage in states that do not recognise it on the basis of qualifying as married under common law in a state that did. Those claims were rejected.


4. You asked the following question: "Major, would you care to explain how what people CALL their relationship affects your life, liberty, or property rights?"

Again, what they call themselves is irrelevant. What is relevant is the legal status they seek for their relationships.

The definition of "marriage" has remained consistent in cultures throughout the world, throughout the ages, throughout virtually all religious and/or secular beliefs or traditions. Marriage is a covenant between man and woman.

Actually not.  The Oxford English Dictionary (the ultimate authority on word usage) gives "An intimate union" as one definition with citations back to 1420.  It also includes "communal marriage" as a related phrase.

If the gays want the right to marry, it is, in truth, incumbent on them to alter the constitution, by amendment, to change their status and not upon us to amend that document to provide for what is already the legal standard that has existed throughout civilized history.

Their contention is that they already have such an amendment, the 14th. As you know, some courts agree with them. Since the USSC accepted this claim in striking down the sodomy laws recently, they are unlikely to reverse course on the question of marriage.
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Offline Fla Brian

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Changing Definitions
« Reply #32 on: March 03, 2004, 07:00:38 AM »
Quote from: Leftoverdj
Quote from: Fla Brian


What we are talking about here when we discuss a constitutional amendment is, in fact, "due process of law."

I suppose you could also claim that the re-legalization of slavery by amendment would be by "due process of law". I ain't gonna worry about it since neither amendment will be adopted.

In point of fact, distasteful as it may seem, it would be exactly that. Of course, as you said, I don't think it would ever happen. As to adoption of marriage protection by amendment, I wouldn't be so sure, if I were you, that it wouldn't be passed and ratified.

3. You made the assertion that we want to force our religious beliefs on others.

What about when it is the other way around?

I call you attention to the following:

"Article IV.

Section 1
Full Faith and Credit shall be given in each State to the public Acts, Records,
and judicial Proceedings of every other State. And the Congress may by general
Laws prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof.

Section 2
The Citizens of each State shall be entitled to all Privileges and Immunities
of Citizens in the several States."

If homosexual citizens of one locality are allowed to legally marry, then citizens of all communities must accept these "unions." Is it then OK for them to force their beliefs on us?

They are not forcing BELIEF on you, nor must you ACCEPT them. Were your hypothesis correct, you would merely have to accord them the same legal rights as any other couple. That would not be a religious matter.

Nice try, but no cigar. They would be forcing on me the BELIEF that their marriage was legal, because it would be, and that I must ACCEPT that fact legally. According legal rights means, in effect, accreptance of their legal, married status. Failure to do so, by myself or anyone else, could, in many cases, result in lawsuits in which I, or they, would have legal liability.

And, if history is to be our guide, acceptance and belief follow inevitably on the heels of legality. When the slaves were first emancipated, I would hazard the guess that few in the South accepted or believed in the premise that blacks are equal to whites. Today, that has completely changed. I would posit that only a relative handful of individuals still think that way. And even among those that don't believe in racial equality there is acceptance of the fact of legal equality.


Your hypothesis is, however, largely erroneous. The settled law is that one may not circumvent the laws of one's state of residence by marrying in another state. The putative marriage is voidable upon challenge. Cases establishing that principle follow an unbroken line for at least 75 years. Those cases arose from persons seeking to evade laws on kinship, age, or other disability. There are also cases of persons claiming common law marriage in states that do not recognise it on the basis of qualifying as married under common law in a state that did. Those claims were rejected.

As you pointed out, challenges to such marriages are based on "seeking to evade laws on kinship, age, or other disability." These, in general, do not apply in same-sex unions between consenting adults. Further, if it could be shown that a given same-sex marriage did, in fact, run afoul of such strictures, it also could also be challenged. For example if a gay man wished to marry a minor boy under the age of consenht in his state, but such were legal in another state, it could still be deemed not legal in the original state. The same would be true of common-law "marriages."

In short, if two consenting adults of the same gender, without any other disqualifying factors, were to marry, such marriage would have to be recognized in all states.


4. You asked the following question: "Major, would you care to explain how what people CALL their relationship affects your life, liberty, or property rights?"

Again, what they call themselves is irrelevant. What is relevant is the legal status they seek for their relationships.

The definition of "marriage" has remained consistent in cultures throughout the world, throughout the ages, throughout virtually all religious and/or secular beliefs or traditions. Marriage is a covenant between man and woman.

Actually not.  The Oxford English Dictionary (the ultimate authority on word usage) gives "An intimate union" as one definition with citations back to 1420.  It also includes "communal marriage" as a related phrase.

The OED may be "the ultimate authority on word usage," but it is not the "ultimate authority" on legal usage. Proof of this lies in your own reference. There is no state that legally recognizes communal marriage. Also, the definition "intimate union" does not, by itself, give credence to the idea of same-sex marriage. Has it ever occurred to you that the definition given for so many years was written without any though given to the idea of homosexual marriage, that it simply was not considered as a possibility.

It is a historical fact that, at the convention that crafted our Constitution, many did not believe that a written and codified Bill of Rights was superfluous as such rights were God-given and universally recognized. (It is a good thing that the other side in this debate prevailed.) I believe that the idea that marriage was an "intimate union" between a man and a woman was so universally recognized and understood that the very idea of same-sex marriage would be so unthinkable as to never have entered the framers' minds.


If the gays want the right to marry, it is, in truth, incumbent on them to alter the constitution, by amendment, to change their status and not upon us to amend that document to provide for what is already the legal standard that has existed throughout civilized history.

Their contention is that they already have such an amendment, the 14th. As you know, some courts agree with them. Since the USSC accepted this claim in striking down the sodomy laws recently, they are unlikely to reverse course on the question of marriage.

Here is the text of the relevant portion of that amendment:

"1. All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the
laws."

As a matter of fact, this clause bolsters my position.

The purpose of this amendment was to insure that the Bill of Rights would apply as against state governments as well as the federal government. Up until passage and ratification of this amendment, states were not considered legally bound by the rules as applied to the feds. It was placed in the Constitution as a direct result of the emancipation of the slaves. It was put in so that the individual states would have to recognize that emancipation and accord the freed slaves equal rights with other citizens.

Nothing in the language of this amendment can be construed to accord gays the right to marry. As federal law does not grant or recognize that right, states are not required to grant or recognize such rights. In order for this clause to apply, the federal government would have to enact legislation to accord such rights or the constitution would have to be amended to accord such rights.

And, in fact, it would also seem to suggest that, as in the "privileges and immunities" clause in the body of the Constitution, if any state were to accord such rights, the rest would have to follow suit, which is exactly my point.
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Offline Dali Llama

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Changing Definitions
« Reply #33 on: March 03, 2004, 07:17:07 AM »
Quote from: bpjon
I would explain it to that individual the same way I'll explain it to you, slowly and simply.  

Racist language itself is not illegal.  However, it can be used as evidence of intent.  For example, if I beat a black man on the head with a baseball bat while saying, "Pay me the money you owe me or I'll kill you."  Does this show any hatred or racism?  No, it just shows I'm not real familiar with normal business practices, and I probably should not loan money to deadbeats.  Now, if I use the same bat to hit the same black man on the head while saying, "You filthy, KFC eating, watermelon sucking porch monkey, I'll kill you," this shows that my attack may have been racially motivated.  

Using someone's speech as evidence of intent is nothing new or radical.  If I walked up to a man on the sidewalk and shot him, I would probably be charged with second degree murder.  If I walked up to a man on the sidewalk and shot him, and then said, "I've been planning to do this all week," I would almost certainly be charged with first degree murder.  Why?  Because my speech revealed my mindset and actions leading up to the shooting.  The speech itself is not illegal.  

Racist speech, when combined with a crime, can be considered an element of a "hate crime," but it is not illegal in and of itself.
Do all this mean that bpjon condone existence of separate and distinct category of "hate crime"?
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Offline Fla Brian

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« Reply #34 on: March 03, 2004, 07:25:37 AM »
bpjon,

In answer to your posts:

If the speech is used of evidence of intent, it is one thing, but if the speech is used to reclassify the crime into a category that requires additional punishment, that's a zebra of a different stripe. It becomes, in effect, an additional count in the prosecution. It's kind of like lying. In and of itself, lying is not a crime, but when one lies in a court of law, it becomes perjury - which is a crime. Whether or not speech is a crime depends on the context of its use. Is that slow and simple enough for you?
 
But then again, while it is true that hate speech, in general, and in and of itself might not be considered a crime, but it could be if it is interpreted as an "assault." If I were to approach a black person in a fit of rage and screamed out that I was going to beat his &*^#@)(  &(*#$^ brains out, and if he had reason to believe I was in earnest and had the ability to carry out the threat, and if he was in legitimate fear for his life, that might be grounds for prosecution for assault. Context again.

As to your second post, see the relevant section of my reply to leftoverdj.
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Offline Leftoverdj

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« Reply #35 on: March 03, 2004, 11:12:27 AM »
Brian, the quote and reply is getting too complicated for me to mess with so I'll just hit the high spots.

As things stand now, those states which are about to recognise homosexual marriage are doing so on the basis of their state constitutions. The courts in the states that do NOT recognise such marriages will look to the existing case law on attempts to evade state restrictions and almost certainly follow the examples I gave. (btw, I forgot to mention some epilepsy cases.) This is sound law and will be upheld until and unless there is a sweeping Supreme Court ruling.

That SC ruling is quite possible and would be based on using the 14th to apply the 9th and 10th to the states. That would be sound law as well as marriage is certainly one of the unenumerated rights.

Your contention that religion is somehow being forced on you is wholly bogus. All that is being sought is that you cease to seek to impose your religious beliefs on others by law. Your religion does not confer on you the right to abridge the rights of others. (Even if you have done so for a long time.)

The religious definition of marriage may be cast in stone, but the legal one is not. Legal marriage can be whatever the states say it is. (Polygamy being the most glaring example, although the changes in forbidden degrees of kinship come close) The rules for a religious marriage are set by the church; the rules for a legal marriage are set by the government.

And it sure looks to me like the rules for legal marriage are in for a big change.
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Offline Leftoverdj

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Re: Hate crimes
« Reply #36 on: March 03, 2004, 12:07:13 PM »
Quote from: bpjon
Bpjon most familiar with hate crime statutes, he former police officer.  He also know statutes not cover speech.  Speech only relevant if element of another crime, not crime themselves.


That other crime can and has been "disorderly conduct" in daring to say whatever elevated it to a "hate crime". Some poor fellow is now serving a term of several years for having the temerity to refuse (loudly, granted) to have his pizza served by a person he perceived as gay.

Cops and judges can get downright creative in abusing citizens.
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Offline Fla Brian

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« Reply #37 on: March 03, 2004, 12:51:08 PM »
DJ,

"The religious definition of marriage may be cast in stone, but the legal one is not."

I had failed to mention this before, but there is a federal statute that defines marriage as between a man and a woman. This statute has not been ruled unconstitutional, so, until it is ruled unconstitutional, it is cast in stone. Moreover there is a principle in law that states that where local and/or state law is in disagreement with federal law, then federal law supercedes.

Further, to contend that the religious beliefs of certain homosexuals is not being forced down my throat by this gay marriage thing is preposterous. As I last posted, belief and acceptance follow on the heals of legality. Failure on my part to accept the legal status of the parties to a same-sex marriage if such were to become legal could cause me to be exposed to rather unpleasant legal consequences. I'd have no legal option but to accept these "marriages." It is not as if I were trying to change the status quo ante to conform to my particular religious beliefs. Those beliefs, religious or otherwise, are, as I have pointed out, the law of the land until otherwise ruled by the Supreme Court.

The purpose of the constitutional amendment is to insure that activist judges do not "interpret" another constitutional right into existence out of whole cloth against every intent the framers expressed.

I challenge you to point out any writing, document or reference to show that it was the intent of the constitutional framers to recognize and/or accept the legality of same-sex marriage. It is a shame that the only way to insure the integrity of the Constitution in this case is to amend it so it will not be possible for activist, rogue judges to trash it once again as they have done in the past with regard to the first two amendments.

Once again, the contention that states do not have to recognize marriages made in other states is limited to certain conditions that you have specified and do not apply to same-sex marriages unless they fall afoul of those specific problem areas, eg. in the case where one of the parties was below the age of consent. Any marriage that would pass muster in all states would also pass muster if the genders of the two participants were the same if same-sex marriage were to be deemed legal in any state. In fact the basis for disallowing incestuous marriages would likely not apply in the case of same-sex marriages because procreation between the parties would not be possible.
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Offline Leftoverdj

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« Reply #38 on: March 03, 2004, 02:15:26 PM »
Quote from: Fla Brian

I challenge you to point out any writing, document or reference to show that it was the intent of the constitutional framers to recognize and/or accept the legality of same-sex marriage. It is a shame that the only way to insure the integrity of the Constitution in this case is to amend it so it will not be possible for activist, rogue judges to trash it once again as they have done in the past with regard to the first two amendments.

Once again, the contention that states do not have to recognize marriages made in other states is limited to certain conditions that you have specified and do not apply to same-sex marriages unless they fall afoul of those specific problem areas, eg. in the case where one of the parties was below the age of consent. Any marriage that would pass muster in all states would also pass muster if the genders of the two participants were the same if same-sex marriage were to be deemed legal in any state. In fact the basis for disallowing incestuous marriages would likely not apply in the case of same-sex marriages because procreation between the parties would not be possible.


You don't need me to find you the bits that say that all are equal under the law. Whether or not the founders really MEANT it is subject to question, but that's what they wrote and that's what the courts are likely to do. (Never can tell for sure about them courts.)

In the same vein, there is no case law of which I am aware, regarding same sex marriage. Lacking that existing law, in considering the relevance of the "full faith and credit" clause, the courts will surely look to the other cases involving marriages that are legal in some states but not the others. I am reasonably sure (can't be certain of nothing involving courts) that they will continue to follow the principle that the laws of one state may not be used to circumvent the laws of another.

And if you think federal laws are cast in stone, you ain't read nearly enough opinions.  Feredal gubmint flat ain't got the power to dictate state marriage law and DOMA was merely political grandstanding.

Ain't up to you and it ain't up to me, but I got a pretty good crystal ball for legal judgments, and I would bet (albeit modestly) that it's gonna go down just the way I say it will.  Hard to go any other way in light of O'Connor's opinion in the Texas sodomy case. Lower courts are mostly gonna follow that opinion and the SC ain't gonna be in no hurry to revisit it. SC picks and chooses the cases it will hear and unless Bush manages to pack the court it will be years or decades before they will touch a same sex marriage case.
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Offline dodgecity

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Changing Definitions
« Reply #39 on: March 03, 2004, 06:21:15 PM »
I have followed this thread with a great deal of amusement. After all the thousands of years of human society, we have actually arrived at a time, when what is assumed to be the most advanced, enlightened, and best educated generation in history, is confused as to what constitutes the most basic of human relationships. Marriage, in all times, is a union between male and female (in some cultures more than one of one), with the desired result of producing offspring from that union. The resulting family unit is the basic building block of any society. The fact that a man and a man, a woman and a woman, a man or woman and a dog, a hockey team, etc. decide to live together has never, at any time, in any society, been defined as marriage. Should these alternative relationships be illegal? No, not in a free society, but they are certainly not a marriage since, within their union, they cannot produce offspring. I'm going to be curious to see if the IRS recognizes these new "marriages" in the next tax year.

Offline Fla Brian

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« Reply #40 on: March 03, 2004, 09:31:51 PM »
DJ,

You assert that your position is supported by the Constitution, and, when I ask you to back it up with some kind of evidence, you reply that, "You don't need me to find you the bits that say that all are equal under the law." Further, you state that, "Whether or not the founders really MEANT it is subject to question, but that's what they wrote and that's what the courts are likely to do."

Well, it is true that we, as individuals are all equal under the law, but that is not to say that certain behaviors may not be proscribed by law. Further, researching into the intent of the framers is an integral part of interpreting the Constitution. Again I ask if you have anything to offer that would indicate that the framers meant to recognize any right of gays to engage in same-sex marriages. I reiterate that nothing they wrote into the Bill of Rights indicates any intent to recognize same. And, I believe that one could research into their opinions, writings and documents until Hades develops icicles and you will not find any support for a right to same-sex marriage.

You continue to assert that laws that proscribe marriages under certain conditions in some states and not others somehow disprove the application of the "full faith and credit" clause. Once again, such discrepancies relate to issues other than gender. There is absolutely no record of any state refusing to recognize the marriage of two consenting adults of different genders unless there is something in the particular case that would render one of the parties not fit to enter into such a contract. For example, it might be required, in the case in which one of the parties has been adjudged mentally incompetent that the marriage be not recognized.

I am well aware of the nature of judicial opinion, however a law not deemed unconstitutional is, in effect, cast in stone until such time as it is ruled unconstitutional or amended or rescinded by act of Congress.

As to whether or not the federal government "ain't got the power to dictate state marriage law," that has yet to be determined. The issue, moreover is whether or not the feds have the power to enact federal law with regard to the rights of citizens. I would argue that it does. In fact, in many areas of life in the states, federal law governs our activities.

I think your crystal ball is a mite cloudy. Once again, I do not advocate outlawing any sexual behavior between two consenting adults, and the Supreme Court agreed - that is not the issue. The Texas sodomy law case has little or no bearing on this issue as that case revolves around homosexual behavior and not the legality of homosexual marriage.

I have my doubts also as to whether the Supreme Court will want to involve itself in this issue. I have the feeling that the justices have gone as far as they are willing to go with homosexual issues for the present.

At this point, I must say that, as it is highly unlikely that either of us will put a dent into the other's view, it would be appropriate for us to agree to disagree. It's been interesting vying with you, but I'm sure that a good many of the members here are completely bored by the issue and would like to see us move on and allow this thread to die a merciful death.

Sayonara!
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Offline Dali Llama

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Changing Definitions
« Reply #41 on: March 04, 2004, 01:36:17 AM »
Quote from: dodgecity
Should these alternative relationships be illegal? No, not in a free society, but they are certainly not a marriage since, within their union, they cannot produce offspring.
Dali Llama say he concur with dodgecity. :D
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Offline bpjon

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« Reply #42 on: March 04, 2004, 02:32:05 AM »
Quote from: Dali Llama
Quote from: dodgecity
Should these alternative relationships be illegal? No, not in a free society, but they are certainly not a marriage since, within their union, they cannot produce offspring.
Dali Llama say he concur with dodgecity. :D


So, a women who has had a hysterectomy(sp) should not be allowed to marry?
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Offline dodgecity

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« Reply #43 on: March 04, 2004, 03:50:19 AM »
Nonsense, whether a particular couple makes a deliberate choice not to have offspring, or, are unable to do so because of a medical condition, does not alter the fact that their union is based on the ancient precept of opposite sexes and the resulting family unit. The redefining of marriage is on more example of secularism seeking to replace traditional values and norms with its own radical religious views.

Offline Leftoverdj

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« Reply #44 on: March 04, 2004, 06:40:26 AM »
I'm gonna have one more go at it, anyway.

There have been a slew of cases that have held that the "full faith and credit" clause does not allow a couple to circumvent the marriage laws of their home state by marrying in another state that permits such a marriage. "Full faith and credit" would apply to residents of a state who married in accordance with state law and later moved to a state that would have forbidden that marriage. It does not apply to those who seek out a state with favorable laws.

Marriage is a fundamental right as the SC recognised in Loving back in the late sixties. The SC just recently held that states cannot criminalize homosexual behavior (Lowell v Texas?). The Mass SC followed the guidance of those cases and ruled that under the Mass constitution, the state could not single out a group of citizens for unfavorable treatment on the basis of presumtive behavior that was non criminal in nature.

There's a good discussion of the Mass decision and the NJ decision to the contrary on Findlaw, btw.
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Offline Dali Llama

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« Reply #45 on: March 04, 2004, 12:57:27 PM »
Quote from: bpjon
Quote from: Dali Llama
Quote from: dodgecity
Should these alternative relationships be illegal? No, not in a free society, but they are certainly not a marriage since, within their union, they cannot produce offspring.
Dali Llama say he concur with dodgecity. :D


So, a women who has had a hysterectomy(sp) should not be allowed to marry?
Dali Llama say he sure dodgecity mean that if capability to produce offspring intact man and woman can produce child.  Dali say that not be so with homosexual relationship, no matter how hard they try. :D
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