Marriage Debate

[HeavyAaron]

Way to miss the point. I was showing you how this statement is false:

Wow.... I thought I had already tacitly acknowledged that by saying that I don't think that laws should determine hospital policy. But okay, yes, you win. There are undoubtably some people who want hospitals to be forced by law to acknowledge their marriage.

I suppose I could weasel my way out by saying the government could still make the hospital acknowledge the marriage without acknowledging the marriage itself, but that's not really what I would like either.

So... I should have been more precise. I didn't mean to mislead or confuse by it, and I appologize for not having been more clear.

Aaron

 

[HeavyAaron]

I'm not talking about the ER. I'm talking about anytime in the hospital.

Huh? Is not the ER one of the times spent in the hospital? Specifically the time spent in your theoretical example where one would be unconcious?

Aaron

 

[Upchurch]

Wow.... I thought I had already tacitly acknowledged that by saying that I don't think that laws should determine hospital policy. But okay, yes, you win. There are undoubtably some people who want hospitals to be forced by law to acknowledge their marriage.

I don't know how I was supposed to make the jump from "the government shouldn't legislate hospital policy" to "you're right, simple contracts really can't take the place of legal marriage," but thanks, I guess.

 

[Upchurch]

Huh? Is not the ER one of the times spent in the hospital? Specifically the time spent in your theoretical example where one would be unconcious?

Of course the ER is one of the times spent in the hospital and family members are allowed in the ER. They are not allowed in the Operating Room, but that's because it puts the patent's life at risk.

And, no, neither the ER nor the OR are the only places where a patent might be unconscious in their hospital stay.

 

[Meadmaker]

He has also expressed that extramartial sex is to be prohibted, presumably including extramrtial sex with mutual informed consent.

It's interesting how consistently you can miss the point. No matter what is done with mutual informed consent between two contracting partners it can't break a contract. If they agree, it doesn't break the contract. It might be considered to nullify the contract, but it can't break it.

 

[Meadmaker]

Please replace "real agreement" with a detailed list of the rights, restrictions and responsabilites you would like to see the courts apply to all married people of all genders and religious backgrounds.

I thought I already did that. It started with "to love honor and cherish" and ended with "til death do us part." But I'm willing to let people modify it as they see fit, with the mutual consent of both parties.

 

[Meadmaker]

Quite serious. I'm not talking about the legal wedding license. I'm talking about a wedding vow made in a church as part of a religious ceremony.

Take all the time you need.

Well, it doesn't matter if it was made in a church, or a JOP office, or for that matter between two people in private. The ceremony itself was never part of US law. Under common law, if two people agreed to be married, and presented themselves as married, they were married. The legal function of the ceremony was that it was public, so the parties couldn't deny the existence of the vows. The point is that the agreement they made when they made their marriage vows was a legally binding agreement, and that agreement was in fact represented by the marriage vows themselves.


I'm having more trouble than I thought I would. Google has its limits. It seems the Supreme Court rarely deals with marriage and family law, in part because it has left such things to states, in part because there wasn't any controversy. Everyone understood it. But I want to get the quote that leaves no doubt and can't be weaseled out of with a "but that's not what you said." Another problem is that marriage laws weren't often statutory, but common law. Again, everyone understood it.

Meanwhile, everyone writing about it today seems to be on an opinion site, usually on the subject of gay marriage. Interestingly, there were several pretty good quotes from proponents of gay marriage, but nothing perfect.

 

[Meadmaker]

Maynard v. Hill has some interesting stuff. (1888)

A passing comment in Dartmouth College v. Woodward is very interesting. (1819, by Chief Justice John Marshall)

There are tons of references to the "marriage contract", but I haven't found anything that specifically referred to the vows themselves as the text of that contract. Although, if you compare the reasons for which one might seek an at-fault divorce, which was the only sort available in the US before 1969, you would find that the available causes for divorce exactly mirrored violation of the marriage vows, and there is reference to that as severance of the marriage contract.

Any reasonable person might conclude that the marriage vows were a contract, and violation thereof resulted in a cause of action under that contract. Therefore, I guess I'll have to find something that states it more explicitly.

 

[Skeptic Ginger]

I thought I already did that. It started with "to love honor and cherish" and ended with "til death do us part." But I'm willing to let people modify it as they see fit, with the mutual consent of both parties.

Marriage vows are personal and not a legal contract. You can vow anything you want. The court rarely looks at vows and only would if there was something specific.

My brother included vows to his stepdaughter in his wedding vows and it was relevant in a custody dispute with grandma when his wife died before he adopted the stepdaughter. That was a very unusual event for a court to even hear wedding vows.

This differs from a prenup agreement but that agreement has limited applicability AFAIK. Like it may only cover finances and property. I'd have to see the specific statute but my guess is you can't do a whole lot to dictate behavior.

I read a lot of marriage statutes and family law helping my brother. The laws are pretty limited in what they actually cover. The laws I read included Oregon, Hawaii and Australia. You would be amazed how complicated things can get when it involves living in one state, getting married in another, having a previous marriage in another country, forging one of the the divorce documents in the state you live in but not the state you married in and the first marriage with the forged divorce document having been fraudulent for immigration purposes only in the first place, then having the person who forged the document die suddenly 3 months after the new marriage and having a child by artificial insemination so there was no biological father, only grandma and my brother. Think I could sell the story to Hollywood?

Oh, and the only reason for forging the divorce document was it was too much trouble to track down some guy from 20 years prior who the marriage had been to to say he didn't contest the divorce. These two people never bothered to officially divorce even though they only married so my brother's wife could stay in Australia. But once grandma heard about the forged document she got the idea the marriage could be voided on the grounds the deceased daughter was never really divorced before marrying my brother. The stupid thing was, if she wasn't divorced, this guy from 20 years ago would now be the legal father and the heir to the deceased's estate. Not smart, that grandma. Fortunately the courts are not so stupid.

 

[Huntster]

Marriage vows are personal and not a legal contract.

When did "personal" become "not legal?"

Damned lawyers..........

You can vow anything you want. The court rarely looks at vows and only would if there was something specific.

"Swear in", then lie. The courts might become extremely interested then.

 

[Meadmaker]

Interesting phenomenon I discovered while looking up vows and their legal status. A lot of people, mostly religious people, have observed that wedding vows are indeed legally useless today, so they're developing standard pre-nuptual agreements that say what wedding vows said, but in legalese. That's a trend that will continue, and gain momentum, I predict.

 

[Darat]

Interesting phenomenon I discovered while looking up vows and their legal status. A lot of people, mostly religious people, have observed that wedding vows are indeed legally useless today, so they're developing standard pre-nuptual agreements that say what wedding vows said, but in legalese. That's a trend that will continue, and gain momentum, I predict.

Can you provide some links? I find this very puzzling.

 

[Upchurch]

Well, it doesn't matter if it was made in a church, or a JOP office, or for that matter between two people in private. The ceremony itself was never part of US law.

One step closer. You're getting warmer.

Under common law, if two people agreed to be married, and presented themselves as married, they were married. The legal function of the ceremony was that it was public, so the parties couldn't deny the existence of the vows. The point is that the agreement they made when they made their marriage vows was a legally binding agreement, and that agreement was in fact represented by the marriage vows themselves.

And one step back. Common law marriages have a time component. People are not married via common law the moment they decided they were married. There is a time component involved somewhere on the order of 10 to 15 years where they have to present themselves as a married couple. Heck, vows aren't even necessary. All the couple has to do is be of legal consenting age and present themselves as a married couple for a minimum length of time.

eta: the criteria for, and the legality of, common law marriages differ from region to region.

I'm having more trouble than I thought I would.

Yes. I know.

It seems the Supreme Court rarely deals with marriage and family law, in part because it has left such things to states, in part because there wasn't any controversy. Everyone understood it.

Well, that's one possibility. Can you guess what the other is?

But I want to get the quote that leaves no doubt and can't be weaseled out of with a "but that's not what you said." Another problem is that marriage laws weren't often statutory, but common law.

Take your time.

Maynard v. Hill has some interesting stuff. (1888)

A passing comment in Dartmouth College v. Woodward is very interesting. (1819, by Chief Justice John Marshall)

Such as?

There are tons of references to the "marriage contract", but I haven't found anything that specifically referred to the vows themselves as the text of that contract.

Why do you think that is? Because "everyone just understood it" or because marriage vows hold no legal power? No, don't tell me. I can guess what you're answer will be.

Any reasonable person might conclude that the marriage vows were a contract, and violation thereof resulted in a cause of action under that contract. Therefore, I guess I'll have to find something that states it more explicitly.

Take your time.

 

[Meadmaker]

Such as?

Maynard v. Hill called marriage "more than a contract" because unlike other contracts, it could not be dissolved by the parties themselves. It actually saidthat the contract was with "a higher power". The context made it clear that the 'higher power' was the state legislature, and it was equally clear that they thought there was a different "higher power" involved as well.

It cited several precedents for noting that marriage was a legal contract, but it made only passing references to the vows themselves.

In "Dartmouth College v. Woodward", the issue was whether a state could pass a law nullifying contracts, and if it did so, would that violate the constitution's contracts clause.

Justice Marshall noted that if any law were to be passed that would allow one partner of a marriage to unilaterally terminate the marriage, that such a law might violate the contracts clause, but since no state had done so, that wasn't an issue at this time.

There is no doubt about the contractual nature of marriage in their eyes, and i would ask if the nature of that contract is not found in the vows themselves, where is it?

ETA: An interesting modern view upholding the view in Maynard v. Hill can be found in Baker v.State, from Vermont, a case some of you may have heard of.

 

[Upchurch]

There is no doubt about the contractual nature of marriage in their eyes, and i would ask if the nature of that contract is not found in the vows themselves, where is it?

I don't know, what were the vows that you believe this contractual nature springs from?

And I'd be weary about using such boadly sweeping terms as "there is no doubt" or "everybody knows". That's fine to use if it is part of the common ground of an argument, but it if isn't, then all you are doing is proclaiming or re-proclaiming an assumption that isn't taken for granted.

 

[Meadmaker]

This link from the Ohio Bar Association says that wedding vows are a legal contract, but no backup to the actual statutes, if any, are provided.

http://www.ohiobar.org/pub/lawfacts/index.asp?articleid=14

 

[Huntster]

Originally Posted by Meadmaker :
There are tons of references to the "marriage contract", but I haven't found anything that specifically referred to the vows themselves as the text of that contract.

Why do you think that is? Because "everyone just understood it" or because marriage vows hold no legal power? No, don't tell me. I can guess what you're answer will be......

Here's mine:

In times past (and not so long ago) a person's word was expected to be valid.

Today, either everyone is a liar, or something has made verbal speech meaningless.

I can speculate that the lawyers have done it, and I can speculate that debate tactics (whether political or ideological) like those commonly seen on this forum have done it.

The bottom line is that it has to be in writing, and there can still be doubt and aversion ascribed to it by those with forked tongues.

 

[Upchurch]

This link from the Ohio Bar Association says that wedding vows are a legal contract, but no backup to the actual statutes, if any, are provided.

http://www.ohiobar.org/pub/lawfacts/index.asp?articleid=14

Yes, but are they speaking literally or metaphorically? Seems the latter to me, considering the very next paragraph about obligations doesn't mention anything about adhereing to the words spoke in the marriage vow.

Chapter 3103 of Ohio State Law (don't think I can link directly to it, you may have to dig), outlines the obligations husband and wife. Nothing there in reference to the wedding vows.

eta: No, I couldn't link directly. It's under Title XXXI.

 

[KingMerv00]

When did "personal" become "not legal?"

Remember that when you are talking contracts, you are asking the government to intervene on your personal promises. "Personal" does not trump "legal".

Legally speaking, I think marriage vows could be viewed as an illusory promise. Sort of like "I'd gladly pay you Tuesday for a Hamburger today."

Damned lawyers..........

Up yours too.

"Swear in", then lie. The courts might become extremely interested then.

Perjury is a criminal offense. Contract law is civil.

 

[Upchurch]

Here's mine:

In times past (and not so long ago) a person's word was expected to be valid.

Yes, and mommy and daddy always loved one another and the kids were always respectful of their elders. No one ever used that kind of language and no one ever had sex until marriage. Heck, the only crime in town was the occasional speeder, but Andy and Barney always cought 'em.

Ah, the good ol' days.

I can speculate that the lawyers have done it, and I can speculate that debate tactics (whether political or ideological) like those commonly seen on this forum have done it.

Yeah, challenging people's false assumptions in the light of reality is really a rotten thing to do, huh?