"Equal Protection Versus Equal Endowment : Constitutional Review Of Same Sex Marriage"
** Marriage Is A Civil Contract **
In general, any civil contract is a "marriage", even though additional connotations may be contrived.
And, in order for "marriage" to be outlawed, a negative right to form a civil contract would have to be made criminal or be legally rejected by civil courts and this is not the case.
It is possible for individuals, which includes corporations, to enter into civil contracts for disposition of common properties, private properties, or willful intents.
Such civil contracts may entail the interests of one or more individuals; therefore, unconventional "marriages' such as homosexual or commune marriages are not outlawed.
That is because the formation of civil contracts is a negative right, which is equally protected, whereby the government has not prohibited their formation through criminal or civil statute.
Exceptions do exist such as through antitrust laws for corporations.
** Marriage Registration Is A Petition For Positive Wrights **
Now, recognition of marriage by the state will be explained as a positive right which may not be equally endowed.
The public, through elected government, may legislate positive wrights, or positive obligations, requiring the state (and public) to perform some action or to provide some benefit to contract holders whose civil arrangements conform to particular guidelines under a title of "marriage".
In the case of conventional "marriage", civil contracts whose guidelines conform to heterosexual, monogomous, non-sibling, non-retarded, etc. relationships can be registered with the state in order to receive certain benefits (social security of deceased spouse, inheritance of copyright ownership, etc.).
Therefore, the "recognition of marriage by the state" does not imply that unconventional marriages have been outlawed, it implies that positive obligations - positive wrights for conventional marriages have been legislated.
The disparity in entitlements is accepted according to the following assertion, "Negative wrights may be equally protected, while positive wrights may not be equally endowed."
Those lauding for equal wrights fail to make a distinction between equal protections and equal endowments, and the two are not indistinguishable from each other.
** Basic Purposes ** Libertarians may question, "What is the necessity of state involvement in marriage?" Consider that registration of a civil contract with the state guarantees security against fraud; whereby, parties are prevented, by prosecution, from promising private property to more than one person. The state also seeks to intervene in assuring that sibling and retarded persons do not breed, although the state's ability is limited by common law relationships. Consider that standard civil contracts provided by the state for "conventional marriage" offer provisions and assumptions of civil law, such as: power of attorney, end of life decisions, property entitlements, visitation, and child custody based upon fitness. Thus, standard civil contracts serve the conventions of civil courts which must litigate divorce of relationships; however, the vast majority of the elements inherent to the standard contracts can be drafted through legal services.
Thus, to avoid fraud a notice by availability of public record, it is reasonable to enter such civil contracts into a state register, while it is not necessary to presume equal endowments for all styles of civil contract, just as corporations are given tax breaks or tax credits depending upon the line business that each conducts and just as each files notices of incorporation.
** Parting Ways **
Clearly, a contentious issue is for state endowments provisioned through registration of one style of civil contract or an other.
Now, consider that social security for surviving spouses was based upon conventions of a traditional heterosexual "marriage", a civil contract where the female did not enter the private work force, and exercised a role as a permanent care taker. One may personally believe that such roles do not extend to homosexual civil contracts and, thus, would not concede to an equal endowment for social security to surviving spouses of same sex relationships. Indeed, as current positive wrights for "marriage" were legislate with an understanding, and directive, that the beneficiaries would be in civil contracts that are "conventional", it violates the validity of the contract pre-suppositions, upon which the registration was arranged through legislation, for the alternative civil contracts to be assumed as equal.
The "marriage penalty" may be acceptable, whereby the state taxes same sex civil contracts as a combined income as has been prejudicially implemented in the past against the institution of heterosexual marriage.
Nonetheless, there is nothing preventing unconventional civil contracts from receiving equal endowments except that its positive wrights be legislated separately.
** Nuances of Public Bias ** Ultimately, a party must establish that state policies violate equal protection by establishing that a prejudicial implementation of positive rights prevents them from exercising their choice of behaviour, and that is not easy to do. In terms of the non aggression principle of libertarianism, one is not obligated to feed another, it is only necessary that they do not intentionally starve another by restraining them or restricting their access to available resources.
Oddly, given that the state exercises affirmative action based upon sex and race, it is consistent and valid to decline to offer positive wrights for a style of civil contract deemed miscegenation.
Whence, libertarianism may regard positive wrights with suspicion for the potential of its prejudicial lattitude.
** Polygamous Positive Wrights **
Polygamy is legal in that civil contracts are negative wrights, although their formation must be free of fraud and valid through informed consent; and it is only if the state chooses not to adjudicate such arrangements that polygamy would be illegal. Currently, the state only allows one registration of a civil contract - petition for positive wrights, and registration of more than one civil contract is an attempt to defraud the state of positive endowments. Consider that a registration of a civil contract with the state, and the complications of state involvement, are largely due to taxation or entitlements such as social security benefits after retirement. Is there some expectation that multiple surviving spouses are to receive a full share or split a full share (multiple survivors, or divorce) of survivor benefits provided by the state? Positive wrights do not need to be equally endowed, and a split share is all that the public may be willing to provision the polygamy style of civil contract, unless elevated contributions are levied to cover the resources. In the case of polygamy, informed consent is a valid concern for the state, as coercion and subjugation may be issues within such arrangements; whence, disposition of property through a divorce or probate becomes complicated.
Clearly, a standardized contract or statute available through the state may have provisions which differ from the expectations of the participating parties, and those participating parties may choose to be responsible for their own civil contracts, although the contracts need to be reasonable before the court.
Consider the following: http://www.rrtierra.com/LAPROBATEX.h...nheritance Law Louisiana has very strict probate and succession laws that control where property goes after someone dies. If there is no will, the state has a succession order set forth under the statutes in which certain assumptions are made. The first assumption is that the spouse should not inherit anything from the other spouse if there are children. The next assumption is that for separate property, nieces and nephews should inherit before a spouse. This usually comes as a big surprise to the surviving spouse.
** Summation of Choice Words ** One can agree with court rulings that a negative right exists to form a civil union - a civil contract - a "marriage" - which is equally protected, while disagreeing with court rulings that equal protection is synonymous with equal endowment.
Legislation that reserves the term "marriage" as something other than a civil contract with positive wrights is disengenuous in its approach.
The positive wrights associated with conventional civil contracts were drafted with a presumption that the parties were heterosexual, monogamous, non sibling, and non retarded, and uninfected; and polygamous civil contracts, same sex civil contracts, and given affirmative action - even miscegenation civil contracts, may not presume that the negative wrights of protection equate with positive wrights of endowment.
Ultimately, it is possible to address legal issues within each category of civil contract style separately and to afford basic decency and respect for the motivations of other parties, while not demeaning the character of the state as a religious institution.
## REFERENCES : SYNOPSIS ## Negative and Positive rights According to this view, positive rights are those rights which permit or oblige action, whereas negative rights are those which permit or oblige inaction. Rights considered negative rights may include civil and political rights such as freedom of speech, private property, freedom from violent crime, freedom of worship, habeas corpus, a fair trial, freedom from slavery and the right to bear arms. Rights considered positive rights may include other civil and political rights such as police protection of person and property and the right to counsel, as well as economic, social and cultural rights such as public education, health care, social security, and a minimum standard of living. In the "three generations" account of human rights, negative rights are often associated with the first generation of rights, while positive rights are associated with the second and third generations. Under the theory of positive and negative rights, a negative right is a right not to be subjected to an action of another person or group. A government, for example, usually in the form of abuse or coercion. A positive right is a right to be subjected to an action of another person or group. In theory, a negative right forbids others from acting against the right holder, while a positive right obligates others to act with respect to the right holder. In the framework of the Kantian categorical imperative, negative rights can be associated with perfect duties while positive rights can be connected to imperfect duties.[citation needed] Belief in a distinction between positive and negative rights is usually maintained, or emphasized, by libertarians, who believe that positive rights do not exist until they are created by contract. The constitutions of most liberal democracies guarantee negative rights, but not all include positive rights.
** "Three Generations Of Human Rights" ** 19th century philosopher Frederic Bastiat summarized the conflict between these negative and positive rights by saying: “ M. de Lamartine wrote me one day: "Your doctrine is only the half of my program; you have stopped at liberty; I go on to fraternity." I answered him: "The second half of your program will destroy the first half." And, in fact, it is quite impossible for me to separate the word "fraternity" from the word "voluntary." It is quite impossible for me to conceive of fraternity as legally enforced, without liberty being legally destroyed, and justice being legally trampled underfoot. [3]