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Author Topic: Gay Legislation  (Read 6587 times)

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Feral

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Re: Gay Legislation
« Reply #3 on: Tue, Mar 13, 2007, 19:14 »

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2) Spouses, meaning persons living in a close domestic partnership (sometimes more than 2 of them);
3) "Oath brothers", meaning persons who solemnly exchanded an oath of allegiance to eachother (OK, sounds childish and ancient but might be actually institutionallized in practice)

There is some question as to whether such relationships require government involvement at all. Gay people have formed (and ended) relationships with each other for -- well, forever -- without assistance from the government. Who one's friends are and who one's boyfriends are and who one chooses to cohabit with is obviously a matter of some interest to the individual and just as obviously not the interest of any government. But -- from time to time people will insist upon having their choices of associates accorded some force of law. Depending on the laws involved, this is a matter of some importance or great importance.

Were it up to me (and of course it is not), I would define "spousal" relationships as a voluntary association of persons for the purpose of a close domestic partnership. I am not so much interested in setting any limit to the number of persons, or to the character of the relationships involved in the domestic partnership.

I see the concept of "oath brothers" as being essentially the same legally as the concept of "spouses". If one can choose to register an association with another person as a "husband," why can you not choose to register an association with another person as a "brother" or "child"? I am not at all sure that the word "marriage" even needs to be part of such a law. There are a number of desirable domestic partnerships. If two women are living together as sisters, why should they be treated differently under the law than two women who are lovers?

The only thing separating the issue of adoption from these two concepts is the generally accepted idea that youths under some particular age are not legally capable of consenting to a voluntary relationship -- the matter requires more oversight from competent advocates for the child's interest. A youth who IS of an age to voluntarily agree to an adoption is similarly of an age to agree to be married. I do not pretend to know what that age is, nor do I think it is necessarily the same for all individuals. Declaring a specific person to be competent to make such choices is something that will likely have to be decided by a court with ample professional advice. If an individual person is competent to make their own choices, it ought not be the business of the state to determine which choices they may make.

Such a scheme might prove troublesome for persons accustomed to DNA determining these things for them. If genetically related persons choose to formalize this piece of happenstance by forming a domestic partnership, it is my hope that they shall freely be able to do so. No one, however, should be involuntarily placed in some legal relationship with another without prudent oversight from the courts.

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4) Teacher-disciple;

Tutorial relationships, where they occur, are vastly influential. I think the gay people probably ought to consider expanding the presence of this kind of relationship in gay culture. As far as I have seen, they have little use for it today other than in the most cursory fashion. I am reluctant to speculate on incorporating this practice into a legal structure because it is far too hypothetical at this point. This is not to say others should not do so.
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Feral

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Re: Gay Legislation
« Reply #2 on: Mon, Mar 12, 2007, 19:24 »

This is an enormous topic!

The area of family law is particularly important in terms of gay identity. I'm not at all sure that very much of the Utopian thought that gays are so prone to has been applied to this area -- more usually gays are too busy trying to find some clever way to shoe-horn their way into the heterocentric laws of the straight countries.

Laws regarding families must treat all persons exactly the same. There can be no difference under the law between infants who are adopted, children who come from some previous living arrangement, or youths or adults who have been permanently taken into a household.

Using the word "guardian" to the exclusion of "parent" is an acceptable description of the role such people play in other people's lives. To my knowledge, some straight polities have done just this. That one person lives with his or her genetic relations while another does not is a distinction that the law ought not acknowledge, nor should any privilege be granted to either possible situation. There is an argument that is gaining some currency around the world that "a child has a natural right to know and be raised by its biological parents." Whether straight polities wish to enshrine such a notion into their laws is a matter for them; both ideas are, however, inherently false from a gay perspective. It is much more often the case that a gay child has the natural right to be rescued from its biological parents.

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By default, the State has the guardianship upon any minor within its jurisdiction. The guardianship must be first formally transferred to the persons in question to become effective. This could be accomplished by a decision of a special "family judge". There is nothing to be said against customary determining the biological parents to be the child's guardians, but this will be certainly often enough not the case.

This brings up the question of "to whom do children belong?" Simply put, I am in complete agreement -- the state, though it is miss-stated. All people belong solely to themselves, regardless of their age or capacity... it is the responsibility for their welfare that belongs to the state. It is expedient for the state to delegate much of this responsibility, even nearly all of it, so long as it maintains some degree of oversight.

In a hypothetical Family Court such as you envision, I would suggest that a woman's status as a surrogate is irrelevant, just as some man's status as biological father would be irrelevant. Before the judge is the question of the welfare of a child, not some imagined "rights" encoded in DNA. Children ought to have caring guardians, and with all speed. Unless there is some clear reason why a child would suffer in the care of a surrogate or its biological father, the guardianship should be granted. "I gave birth to this child" is no more forceful an argument than "I found this child in a basket floating in the river" and both are irrelevant. What statement the judge needs to hear is only "I will give this child a loving home." It is the needs of young citizens that the court should be ensuring, not imagined rights of people seeking guardianship.
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Mogul

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Gay Legislation
« Reply #1 on: Mon, Mar 12, 2007, 14:56 »

A very interesting point is what would be SPECIAL in a "gay legislation", if compared to any other legislation we know from the ancient and our contemporary world. It is understood that every legislation partially reflects the customs of a particular people, and partially implements the ideological bias of the legislator.

What actually ARE customs and needs of the Gay people? What are our real needs and expectations towards a "just society" in a gay country? The answers would interest me as well. It can namely happen, that some of the customs run contrary to the REAL needs of a people. If so, the legislator would do well to implement laws aimed to suppress particular customs, and to encourage other ones. It will be challenging to distinguish "what is right" from "what is wrong" in a gay society. Let's say there is a particular people which does not respect private property very much. Shall the legislator now try to eradicate theft from this society, or simply acknowledge the fact that there is no such thing as private property recognized by the law? To stick to this particular example, some "primitive" societies solved the dilemma very elegantly: they required to ASK before taking some thing from the neighbour, but they also made it "illegal" to deny such a request, if the desired thing was not currently in use.

What might be our conflicting situations? I could imagine some:

1) Transmission of HIV knowingly, lying to the partner about one's status;
2) Drug use;
3) Regulations on relationships - special rights/obligations for couples?
4) Parenting - special rights/obligations for biological parents?

Point "1" might be regarded as exposing another person to bodily harm, on the other side everybody is responsible for himselfe and must know that use of rubbers is strongly advised. What would be the just solution?

Drugs are partially widely used, some of them being really harmful. Shall we acknowledge a total freedom of an individual to do whatever he/she wishes to him/herself? In my view, there will be a need to enlist "soft drugs" and teach folks to use them properly, and effectively prevent the use of more dangerous hard drugs (e.g. heroin).

The known special regulations for heterosexual families put marriage and kinship into a superiour position, in heterosexual societies. Obviously, these special regulations do not reflect realities of gay people. The need for "equal rights" actually is originated in the denial of essential rights to individuals, who aren't in kinship with eachother. Simply put, blood and genes count more than love and friendship. Friends and lovers are not allowed to visit a sick person, but hated relatives are. Biological parents have more rights on children than any de-facto guardians who might have spent years rising the brats to worthy individuals. Biological children have superiour inheritance rights, while close disciples do not, and even testamentary wills are often successfully overturned by judges.

Gay legislation will have to reflect different approach towards interpersonal relations. Sexual affiliation is obviously neither required, nor sufficient for establishment of strong emotional bonds between individuals. Former lovers might become the worst enemies of a person, while non-sexuallized friendships, alike teacher-disciple relationships, might last forever. The legislator can of course generally ignore all the various shades of affiliation, and treat all individuals equally. But would this be right? Probably not, as any good legislation shall take into account the actually existing interrelations of individuals.

So, what kind of outstanding interrelations are worthy of special recognition by gay legislation? With no claim of encompassing all of them, the following seem of most prominent to me:

1) Guardian - Child, independently from biology (can be more than 1 or 2 of them);
2) Spouses, meaning persons living in a close domestic partnership (sometimes more than 2 of them);
3) "Oath brothers", meaning persons who solemnly exchanded an oath of allegiance to eachother (OK, sounds childish and ancient but might be actually institutionallized in practice);
4) Teacher-disciple;
5) Clan membership, reflects the actually widespread practice of the gay clique.

I would advocate to substitute the word "parents" with "guardians", because it is more suitable to describe the actual role of these people in the life of the child, and there can be 1, 2 or more of them. It is also possible to impose some kind of hierarchy in responsibilities of these persons - e.g. introducing the levels of "Primary Guardians" and "Secondary Guardians" with specified rights and obligations to the child. Those guardians can be empowered to make decisions together or alone, depending on their status. By defauld, the State has the guardianship upon any minor within its jurisdiction. The guardianship must be first formally transferred to the persons in question to become effective. This could be accomplished by a decision of a special "family judge". There is nothing to be said against customary determining the biological parents to be the child's guardians, but this will be certainly often enough not the case. For example, surrogate mothership should be regarded as absolutely normal. The legislator can, however, prescribe that before any formal transfer of guardianship of a child, a hearing of involved adults shall take place and their abilities to raise a child should be assesed. There shall be no automatism in transferring the guardianship upon the biological parents, thus it is advisable to make such arrangements BEFORE the birth of the child.

The conventional way of cohabitation, namely the 2-person household based on sexual intimacy, will probably remain one of the most popular models for a relationship. There is no need to install the rigid institution of "marriage" as heterosexuals have used to do, but some recognition of domestic partnerships must be implemented. We could make it like the archaic Greeks used to do: the couple went to the temple and made an official declaration of "belonging together", which could be at any time dissolved by one of the partners through a solemn declaration in presence of 2 eligible witnesses.

The practice of "oath brothership" came out of fashion in our days, but it was popular through various times and cultures. We should consider to implement some regulations for this practise, in case there will be some demand for the custom.

In ancient times, the role of the tutor was a very sifgnificant one. This person was responsible for the moral and physical forthcoming of the youth, and out of this relationship certain obligations were established also for the future. The disciple was required to help his tutor in case of necessity, and the tutor was responsible for misdeeds of the youth. Very effective system, even if the sexual aspects seem somewhat unnecessary from today's perspective. Similarly, medieval master-apprentice relationships were even more important than parent-child relationships. Now I am not saying that we should copy these customs 1:1, but they can certainly be usefull as inspirations for a society based not on bodily kinship.

The gay clique is a widely spread phenomenon. In the West, such cliques usually encompass some 5-30 individuals, who are interdependent in more or less strong relationships. Though there is much bipartnership within each group, there is also a strong pattern of "institutionallized" joint activities: partying, travelling, sport etc. There is also a certain degree of social responsibility within such groups, e.g. the wealthier ones often allow the poor ones to participate in some activities, or organnize more often a party than the others. These are clearly the usual friendship structures known also from the straight society, but who says gays could not give them more weight? The establishment of such cliques shall be encouraged, in the Gay state, they might become indispensable instruments of successfull integration of new citizens into society.
« Last Edit: Mon, Mar 12, 2007, 15:23 by Mogul »
"Never let your sense of morals prevent you from doing what is right!" Salvor Hardin
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