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"Privacy rights" are actually minor rights that the US has developed an excessive stress on because of the narrow way in which the rights to life and liberty have been interpreted for much of US history.
If you read Morgentaler, you will find that a woman's right to abortion in Canada, as recognized by our Supreme Court, had nothing at all to do with "privacy".
It had to do with the rights to life and liberty and not to be deprived thereof except in accordance with the principles of fundamental justice. ("The principles of fundamental justice" include due process.)
That is the real basis for women's right to abortion. Any attempt to deny access to abortion will restrict women's liberty in matters that are their own business, and compel women to assume risks to their life and security of the person that they do not wish to assume.
My point about "privacy" had to do *only* with the question of being compelled to disclose a pregnancy.
My objection to your proposal that individuals be compelled to remain married, by which you mean remain part of the same household in order to rear children, had nothing to do with privacy -- although I don't doubt that it might be framed that way in the US.
A law that permitted individuals to sell themselves into slavery, or to contract themselves into indentured labour to pay off a debt, would be invalid -- unconstitutional -- in both the US and Canada.
Liberty is one of those things recognized as "inalienable" -- individuals cannot contract out of it. And a society cannot / may not purport either to take it away or to permit individuals to sell it. (Without good justification, that is -- we do believe we are justified in severely restricting the liberty of individuals convicted of serious crimes, e.g.)
There simply is no good justification for permitting, let alone requiring, individuals to give up their liberty -- to freely determine the course of their own lives -- when they marry.
And so, several issues collide. I assume that you advocate a position which limits the government from acknowledging the presence of a child before it is notified by the submission of a Birth Certificate. I respect that. I almost totally agree, in fact.
Not remotely. Not an iota. A child is a human being, and its existence has nothing whatsoever to do with the parents' "privacy". For that reason, I am entirely of the opinion that parents should be compelled, i.e. required on pain of penalty for failure, to register the births of their children.
Now of course, what I suspect is that you meant that until a child is born the government may not "acknowledge its presence". Of course I'd agree, although I'd be answering a loaded question. That's because, again, until a child is born, there is no child whose presence even can be acknowledged.
So, the only issue of privacy is regarding the unborn child (to use an overused phrase).
It is not an over-used phrase. It is a fictional piece of propagandistic bullshit. There is no such thing as an "unborn child", any more than there is an "unbuilt house". An "unborn child" is the child that exists only in someone's mind, just like an unbuilt house. It may exist in future -- but then again it may not.
I would be perfectly willing to add clauses for the care of children to the stipulations of a Marriage Licence. Then, the courts could more easily enforce the rights of a child - which are also a ripe topic.
Completely unnecessary. Perhaps what you really need is a fuller understanding of the law of custody and support as it now exists.
Courts have inherent jurisdiction over children -- and that includes the children of both married and unmarried parents. They may make orders in the best interests of the children no matter what either parent says, or even what both parents agree to. No agreement made either before or after the birth of a child, concerning its custody or support, is binding on the parties if a court finds that it was not in the best interests of the child.
I believe that the Supreme Court will soon test the abortion laws of the US. Is it possible, then, that by more carefully defining the obligations of voluntarily obtaining a marriage licence we may protect the rights of the child sufficiently as to prevent the need to challenge privacy laws?
The relevance of this is lost on me.
As I noted earlier, "privacy" really has nothing at all to do with parents' obligations to children or rights in respect of children, or the liberty rights of people who happen to be parents.
In fact, if by marrying two people agree and acknowledge their responsibilities for any subsequent child, whether natural born or adopted, ...
"By marrying" ... as distinct from what? Parents have obligations to their children regardless of whether they are married or not. (As I noted, the requirement in the law that is the topic of the thread, that a woman disclose her pregnancy in divorce proceedings, was purely a matter of convenience. Non-disclosure would have had absolutely no effect on the child's right to paternity or support, or the father's right to custody or access.) I trust you are not also wanting to return to a time when children of unmarried parents were labelled "illegitimate" and excluded from the rights granted to "legitimate" children.
I hope you can tell that I am no expert on law. I'm nothing more than a person who desperately wants to repair the damage I see that has undone my home country.
Well, again, I think you need to open the window a little wider to both historical and contemporary reality.
The reality of marriages that could not be dissolved at the will of the parties was that many women were held hostage in abusive situations -- emotionally, physically, and economically abusive. And a whole lot of other people were just plain miserably unhappy. Make for great parenting, those things do.
That reality persists today through force of circumstance, when women who do not perceive a way of providing a decent life for themselves and their children remain in abusive or at least miserably unhappy marriages because the alternative seems worse. That is yet another discussion -- but the likely effects of the arrangement you are proposing can be seen by looking at such marriages: people held hostage to other people's influence on their lives by force of circumstance.
However, if a Marriage Licence is not a binding contract between two willing parties, then I think we should just get rid of the thing all together.
Actually, a marriage is *not* a binding contract between two parties. It is an "institution" -- a creature of the law defining a certain practice. Any obligations that the parties contract to each other -- for instance, to love, honour etc., are not binding on them in any way. The other obligations that they have to each other -- e.g. support obligations -- are binding because they are imposed by the state as a characteristic of the institution they have chosen to govern their relationship. In fact, they usually cannot contract *out* of those obligations. And all that applies to non-marital conjugal relationships in most jurisdictions like ours these days, too.
I'd have no problem at all getting rid of the thing, myself. I don't want the terms of my relationship with anyone determined by the laws of an institution I might choose to participate in for reasons other than those particular terms. But the economic and social circumstances we live in do continue to make it necessary for the welfare of many people, most particularly women, to impose conditions that go at least some way toward levelling the playing field between the two parties.
Nonetheless, those imposed conditions really have absolutely nothing to do with child custody or support in our times.
And, if it is a binding contract, and I believe it is, then I am convinced that it is about to be more carefully defined, and I want a say in what it really means.
Well, again, I really don't know what that means.
Up here, marriage has just been officially "redefined". In 2001, the Canadian courts began holding that denying same-sex couples access to the institution of marriage was an unjustified violation of their constitutional equality rights. This summer, the Parliament of Canada officially legislated a definition of marriage to include same-sex marriages; not strictly necessary, but a definitive disposition of the question.
I've always been slightly offended by the eagerness of gay men and lesbians -- particularly gay men -- to get in on an institution that was designed, and has long been used, as a means of exercising both individual and collective patriarchal control over women; it seemed to me that they were closing their eyes to, and refusing to acknowledge, this unpleasant reality. What we are likely to see now, though, and more rapidly as a result of same-sex couples joining the team, is a new "institution" emerge, one that performs some organizing function within society (although I am far from convinced that this is needed) but is less and less about subordinating individuals to the will of other individuals or the state, as more and more couples want to decide the terms of their marriage for themselves.
The very existence of marriage and divorce laws implies that the state has some interest in how individuals organize their personal/sexual relationships. Increasingly, it doesn't.
Where I'm at, there is virtually nothing that the parties to a marriage are entitled to, as between themselves, that an unmarried conjugal couple (and that has included same-sex couples for a few years) is not entitled to -- support, inheritance rights, public pension rights, private benefit package rights, etc. Property rights are about the only area where differences exist.
Quebec, where 50 years ago married women still were not entitled to control their own property or income and the Roman Catholic Church ruled society with an iron fist, now has the highest percentage in Canada of unmarried conjugal couples -- including couples with children. That really is the face of the future, even if it's going to take a fair bit longer to come about in the US than in the entire rest of the "industrialized western" world.
All I can imagine your proposals accomplishing is two very undesirable things:
- the re-creation of two classes of couples -- married and unmarried -- and for no good reason or justification. In the old days, unmarried couples retained freedoms that married couples did not have (not being bound to each other by the rules of the institution), but the less-powerful party in a marriage had considerably fewer rights. As I said, we have rejected these arrangements because of the intolerable limitations on freedom and because of the need to protect the vulnerable parties in both marital and non-marital conjugal relationships.
- the re-creation of two classes of children -- "legitimate" and "illegitimate" -- with, again, lesser rights in the latter case, and for no good reason or justification.
And I fail to see anything remotely progressive about encouraging either phenomenon.
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