so i'm reading this case in school from back in the fifties. it arose over a probate matter, and it involves the estate of this chick who, back in the teens, married her uncle. here are the facts:
sam and fannie got married in rhode island. they were both jews. they both lived in new york city. sam was fannie's uncle, but they were both the same age. they went to rhode island to get married since incest and were prohibited in new york, but were cool in rhode island if and only if the marriage was in accord with jewish law, which this one was.
not that this really matters, but fannie was sam's niece by half-blood, which means that sam's half-sister was fannie's mother.
the big issue was whether new york had to recognize the validity of the marriage that took place in rhode island and was in accord with rhode island law.
what do you guys think? should new york be forced to recognize the validity of a marriage repugnant to its own laws but cool with the laws of another state? how much of your answer to that question is influenced by your own personal beliefs about whether or not you should be able to marry your niece or uncle? how much of your answer relates to how you feel about recognizing a gay marriage entered into in another state?
Initially, I would think this case would be affirmed by the Full Faith and Credit Clause. But the State of New York could argue for a public policy exception, and they have a pretty strong argument that they have an invested interest in not promoting consanguine unions which could yield children with deleterious genes. Like our case above. This exception does not, however, cover cases of miscegenation or same-sex marriages.
Arkansas forum.
What he said.
The Full Faith and Credit clause only applies to judgments, not status declarations. That's why gay marriage is such a weird issue right now; when you get married based on the laws of one state, it's not like a court in that state is making a judgment about the validity of that marriage. If their had been some adjudication about the validity of the marriage in Rhode Island, then a New York court would have to give full faith and credit to that judgment, but when it's only a marriage certificate, the Article IV Section 1 doesn't apply.
You're on the right track with the public policy exception, but it takes more than the public policy of New York in this case. The state must either have an express statute discrediting marriages that take place among domiciliaries of that state in other jurisdictions, or the marriage has to violate "natural law" (whatever that means).
Miscegenation is violative of the Equal Protection clause, so that can't be regulated by state statute. But no court that matters has come along and said that banning gay marriage violates Equal Protection. Also, a state could (and a few have) pass a law that domiciliaries of that state won't get their gay marriages or civil unions entered into in another state recognized as against public policy.
This is interesting. You're right, it's after the fact because it's a probate case. Very murky ground. What court was this case in? And what was the decision? If you know.
In re May's Estate, 305 NY 486 (1953). It was in the New York Supreme Court. From a legal realist perspective, this case is interesting because the majority opinion was written by a Jew and the dissent written by a Catholic. The probate issue was whether the decedent's uncle/husband should be executor of the estate; one of her kids (with him) had received letters of execution. I think the case is interesting because it deals with incest and has an interesting analog in gay marriages.
From a policy standpoint, I can understand the Jewish law allowing uncle/niece and aunt/nephew marriages; it's a relic of a time when the Jews had their numbers decimated by the long exodus out of Egypt and swift propagation was essential for the survival of the race. I think that law is obsolete now, but it has become entrenched in the faith so I can see why it's still around (at least with the Orthodox and Conservative Jews, not the Reform Jews).
I can also see why NY would want to prohibit this since it does tend to hamper diversity in the gene pool and might increase the risk of hemophilia and .
So here's the thing with this case; it's okay to ALLOW a marriage offensive to society at large if it has it's basis in RELIGIOUS law. With gay marriage, what we are doing is saying that it's okay to DISALLOW a marriage which might or might not be offensive to society at large if it has it's basis in RELIGIOUS law. In both situations, we have the religious beliefs of one group of people dictating how the law applies. I don't think most people would say that a Jewish uncle marrying his Jewish niece is a bad thing if it's cool with Jewish law. But I think a ton of people would say that an athiest gay man marrying his athiest gay lover is a bad thing since it's not cool with Judeo-Christian law. Does anyone see a contradiction there? Or is there some way to reconcile the two?
As a person who considers myself a fairly devout Christian, there are a few facets of your question that would need to be addressed individually.
First, the contradiction of a same-sex marriage is the an hesis of any major religious group, not simply Judeo-Christian. This is simply not a matter of conveniently lumping the issue in with all the other things that the ultra-right wing "Bible thumpers" are against. This is an issue that is not reconcilable in every major religious sect, regardless of personal interpretation of any schisms of those religious sects. I understand if your reference to Judeo-Christian law was related to many of the founding principles of our society, but I wish to make it clear that this issue is at odds with all religion.
Second, and please feel free to correct me if I am wrong, but the definitive clause of a marriage is related to a union of two (and only two) opposing gender partners. While there is no legal requirement to do such, the act of procreation is limited to opposing gender partners; thus, that union would be unique in its ability from the union of same gender couples. Thus one is a marriage and one is a civil union. While I struggle with the concept of granting civil unions as it places some legitimacy on the relationship, I have to concede that if I am willing to state that co-inhabiting opposing gender partners should be recognized in relation to benefits and beneficiaries, then I must be consistent and recognize that as well for same gender partners. In my opinion, this is the only validation for civil unions.
Yeah, I agree that no currently practiced religions allow gay marriage. Only dead religions (like polytheistic Greek and Roman), and even that wasn't about marriage but more about societal acceptability.
If you're going to grant all the same legal rights to a civil union that you are to a marriage, the difference is only semantical from a legal perspective. But the issue is not really about what to call it; it's about whether those legal rights should be recognized at all, regardless of what the relationship is called. I get the impression that most people who oppose gay marriage don't just have a problem with calling it "marriage," they have a problem with the LEGAL recognition of any rights attendant to this type of relationship.
Let me try to flesh out the contradiction I see a little more:
From a SOCIETAL perspective, most people are opposed to an uncle marrying a niece, but think it should be LEGAL if they are exercising their RELIGIOUS beliefs.
From a SOCIETAL perspective, most people (I guess) are opposed to a gay man marrying another gay man, and think it should be ILLEGAL even if those people are not violating their RELIGIOUS beliefs (i.e., they're athiests or whatever).
So most Christians think it's okay for some people to do something that violates their Christian beliefs if it comports with their particular (religious) beliefs. But most Christians think it's NOT okay for other people to do something that violates their Christian beliefs even if it comports with their particular (non-religious but moral) beliefs. I think it's contradictory because there is no NECESSARY reason to favor Jewish beliefs over Gay beliefs. Both practices are IMMORAL in the eyes of a typical Christian, but one gets deference while the other is condemned, even though both are horrible sins according to Christian law.
I'm not trying to rag on Christians in particular because I'm all about Jesus and . But I just don't see why religious beliefs factor in so much to the LEGAL discussion, and that there also might be a contradiction in the way Christians apply their religious beliefs to the law.
I understand and follow your premise, but would need to take exception to your statement that socially most people would not accept incestial relationships but religiously they would. You would be hard pressed to find even a small minority in our American society that wants to or can find a religious justification for incest.
That's the point. Most people in society are okay with letting the Jews do it, even though they aren't Jewish and their own religion abhors the practice.
That is the statement to which I take exception. What empirical data do you have to support your supposition that the majority of people would be accepting of this practice?
Well, the fact that nowadays 3/4 of the states in the U.S. have an exception to the incest law akin to RI's covering Jewish marriages is a pretty good empirical datum.
And try to ease up on the big words, that post took me like fifteen minutes to understand since I had to look up all that cir locutory .
Were those exceptions based on judicial ruling or populace vote? I cannot ever recall something of that nature being on the ballot, but then I am Republican and we are only concerned with big oil, war and making the white folk happy.
i don't think they should accept itim not a law guy or anything but incest should be stop for one reason...
if both of them are carriers of a horrible disorder and they try to have a child... the child would suffer...
being family and all there's a bigger chance that both of them carry a sleeper so...
i don't know much about jewish customs but im still guessing they'd try that... even if they don't accepting such would probably coax more people into doing it.
Well, neither. They were all legislative enactments since the judiciary cannot carve out an exception to a statutory prohibition unless there is an equal protection or due process violation, which there clearly isn't with forbidding incest.
The reason you don't recall it on the ballot is that it's been around for years in most jurisdictions, usually since the turn of the (last) century. Texas doesn't have one, either, so you wouldn't have heard much about it here.
But I have a quick question for you sandman, and I'm not trying to criticize you for being Chrisitian or Republican or whatever, and I promise this is not a loaded question...do you think that it should be illegal for a Jewish uncle/aunt to marry their Jewish niece/nephew in accordance with ancient Jewish law? Why or why not?
Yes, mainly because the practice was based on a particular dispensation in Jewish history and was in accordance with the propogation promised in the Abrahamic Covenant. That dispensation has long passed along with the threat of ethnic extinction. While the law may have been appropriate at one point in their history, it's current use does not facilitate the purpose behind the original enactment, but rather allows them to act in a manner that may be contrary to the greater whole of Rabbinical law. Does that make sense?
Yeah that makes sense. I guess I would respond by asking that if you see the problem with the law as it being no longer applicable to the Jewish plight, shouldn't it be the Jews themselves who make that determination and decide to repeal the law? In other words, shouldn't the government honor their religious laws and leave the decision of whether or not those law should still be part of the Jewish faith to the actual Jews themselves instead of coming in and telling them "We're the government, we don't think your laws are valid in the modern world so you either repeal them or we'll repeal them for you."
In the context of our specific country, the government is not beholden to uphold any religious laws. Religious liberty allows an individual to practive their beliefs as they see fit. Society recognizes that with religious liberty comes religious differences and the need to have a genous, non-religious based set of values with which to govern all citizens, regardless of their religious affiliation. In creating a normative environment, there will inevitably be laws, regulations, codes that come in conflict with certain aspects of the various religious beliefs. The burden of responsibility for the conflict falls on the individual citizen, forcing them to make a decision between their religious beliefs and their society values. Many times these decisions are traditional or preferentially based, and the abdication to the society norm does not necessarily involve an irrepairable harm to good standing with one's religious beliefs or organization. In the event that the deviation from the social norm and the religious belief is so great and requires adherence to one's belief, then the citizen must look for a society that is in harmony with their beliefs. This does not mean that I do not attempt to be an agent of change in society to make it more acceptable of all aspects of my personal belief system, but I must recognize that others who believe differently are attempting to do the same. The binding agent of our society is not religion like as in Iran, but rather it is religious diversity. Granted that our society here in America is based extensively on Judeo-Christian principles, I do not believe that society is required to honor each specific, obscure portion of a particular religious canon.
sandman seems way smart.
<psst!> give me your paypal account number again
Yeah, I hear all of that. I know our society isn't required to honor a bunch of obscure religious laws, but we do it all the time, despite the fact that the "binding agent" of America is supposed to be "religious diversity," not the approbation of one set of religious doctrines over another. However, one struggles to find even a small corner of our country governed by a " genous, non-religious set of values."
An example of society honoring an obscure religious canon is a community that has mandated the teaching of Creationism in schools. Let's forget about all the separation-of-church-and-state bull for a second and examine that for what it really is: a group of devotees requesting that the laws of society recognize their obscure, and perhaps obsolete, religious beliefs. While the Genesis of the Earth is not nearly as arcane as the sanctioning of pseudo-incestuous relationships as far as religious dogma goes, this movement embodies the same principles as the Jews who seek recognition of their (un)orthodox marriages. What you have is a small group of people who want the law to protect, not conflict with, a certain aspect of their religious beliefs. This aspect is also an hetical to the pervasive mores of our society, but again, not nearly as significantly as incest is. Yet the difference is one of degrees, not of kind. Now, I don't know how you feel about communities deciding that they want their kids to learn about God's Creation or whatever. But if you say that it's okay for society to preclude Jews from practicing a tenet of their religion that has existed for 3000+ years, then it must also be okay for society to make the public teaching of Creationism illegal if it sees fit. Concordantly, if you believe that society should or must allow schools to teach Creationism, your only justification boot-straps Jewish incest, unless you want to start drawing arbitrary lines based on degree and not on kind.
In theory, our society is supposed to operate around a set of non-religious values. But seeing as how our country really isn't very religiously diverse (and was definitely much less so in the recent past), in practice, many of our laws reflect the precepts of one particular theological perspective. The binding agent of America is most certainly not "religious diversity," no matter how much lip service it gets paid. The nearly unadulterated preference given to Christian values at the expense of other religious practices belies your contention. True religious diversity exists only where the majority sacrifices its monopoly over the law and its accordant social values.
I guess in the end my point is that the religious beliefs of the majority directly determine the social values of society, and thus the law. In America, the vast majority of citizens have been and are Christian, so Christian values permeate every crevice of the law. The conflicts between "religious beliefs and society values" that you speak of exist almost entirely among the adherents to minority religions. Framing the problem as one that exists among all citizens is unfair, since a conflict between a Christian's religious beliefs and society's values is much less likely to occur than an analogous conflict involving a Jew. The "burden of responsibility for the conflict" will be an acutely felt by the minority, in this case by the Jews who want to pracitce their religion in a way offensive to Chrisitans.
Claiming that this is a conflict between an individual's religious beliefs and society's mores is technically correct, but incomplete. The conflict actually lies between the minority and the majority religions of the nation.
Last edited by conqueso; 10-03-2006 at 10:58 PM.
Not to muddy the waters but aren't these polygamists claiming their religious beliefs guide them, as well?
Yeah, that's a tough issue though since the vast majority of Americans aren't down, and it's only a ridiculously tiny contingent of conservative Mormons, the "crazies," and the displaced Muslims who think that is cool.
Personally, I don't give a since I don't think it's immoral, but that's not the point.
The social ethic of America is Judeo-Christian. Neither the Judeos or the Christians think polygamy is cool. Thus, illegal. But it's a lot harder to find a compelling public policy justification for banning that than it is for something like incest. So the question remains, why is their an exception to incest for the Jews but not an exception to polygamy for the Mormons/crazies/Muslims?
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