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Equal Protection Versus Equal Endowment : Constitutional Review Of Same Sex Marriage

"Equal Protection Versus Equal Endowment : Constitutional Review Of Same Sex Marriage"

"Marriage Is A Civil Contract With Positive Rights"

For an explanation of negative versus positive rights reference the end of this introduction.
To begin, an important emphasis to note is that negative rights may be equally protected, while positive rights may not be equally endowed.
Also, any civil contract is a "marriage", even though additional connotations may be contrived.

Firstly, 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; this is not the case.
It is possible for individuals, which include 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.

Secondly, "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 rights, or positive obligations, which require 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. 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 have been legislated and they may not be equally endowed.

Current positive rights for "marriage" were drafted with an understanding, and directive, that the beneficiaries would be in civil contracts which are conventional in their relationship.
Wherefore, it is a violation of validity in contract formation, as legislation, that alternative civil contracts are presupposed equal to those upon which the previous basis of registration was allowed.
There is nothing preventing civil contracts for unconventional relationships from receiving benefits except that they be legislated separately.

Furthermore, under this convention, given that the state exercises affirmative action based upon race, it is consistent and constitutionally valid to retract, or decline to offer positive rights, obtained through a registration of "marriage" for civil contracts holders egaging in miscegenation.


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]
"Challenging The Malfeasance Of Generalized Registration Preconditions For Positive Rights"

"Complex Engagements"

Is there some confusion about the legalities mentioned in the OP?

** Simple Beginnings **

Libertarians question, "What is the necessity of state involvement in marriage?"

Consider that registration of a civil contracts 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 contract provided by the state, for "conventional marriage", offers provisions and assumptions of civil law, such as: power of attorney, end of life decisions, property entitlements, visitation, and child custody based upon fitness.

The default 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.

** Nanny State **

Now it would be helpful to refer to topics covered by direct and indirect taxation, and direct and indirect apportionment.

Clearly, one is well within their reason to contest that taxes should not be allocated to elements or institutions which they do not condone or support.

For example, one may believe that abortion services should be legal, however agree that state funding is contrary to the liberty of others who object.

Respectively, the assumption is that the state is to proportionally reduce the burden of taxation, in order to facilitate private contributions and personal volition.

** Parting Ways **

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.

In fact, the marriage penalty may be acceptable, whereby the state taxes the income of civil contracts as a combined income.

The marriage penalty has been prejudicially implemented in the past against the institution of heterosexual marriage, and may be implemented against same sex registrations, while not being implemented against heterosexual registrations.

And, since positive rights may not be equally endowed, such policies are acceptable and also consistent with the concept of tax relief from obligations which one does not condone or support.

Consider that affirmative action is a positive right which is not equally endowed, and consider that as a result of such conventions in policy, miscegenation may be placed into a category of behaviour which the public at large may choose not to condone through positive endowments from the state.

** Nuances **

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.

"Demanding Convoluted Efforts"

Polygamy is legal in that civil contracts are negative rights, 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 rights, 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 those petitions for taxations and positive rights 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 rights do not need to be equally endowed, and a split share is all that many would be willing to provision, and the complications of separate dispersals may lead to elevated taxes on the particular marriages to cover the resources.

Recall that any civil contract where there is a mutual interest in community property is a "marriage".

In the case of polygamy, consent is a valid concern for the state, as coercion and subjugation are significant issues within such arrangements; whence, disposition of property through a divorce or probate becomes complicated.

Consider the following:
http://www.rrtierra.com/LAPROBATEX.html]LOUISIANA SUCCESSION LAW (Probate) Inheritance 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.

Clearly, a default contract available through the state would have provisions which differ from the expectations of the participating parties, and those participating parties may as well be responsible for their own civil contracts.

One may disposition portions of their private property to a trust fund for a dog, but a dog is not capable of making sound decisions, or offering informed consent which would prohibit a civil contract between a dog and a human.

One issue to be addressed is legal inclusion as an immediate family member, so that visitation may be allowed during crisis situations, which can be provisioned by law through a separate registration from "marriage".

"Forced To Comply"

In large part, a civil union is all that is being described.

One can agree with the court that a negative right exists to form a civil union - a civil contract - a "marriage" - is equally protected, while disagreeing with the court that the equal protection is not synonymous with equal endowment and therefore reject a premise of "equal wrights".

The positive rights associated with "marriage" laws were drafted with a presumption that the parties were heterosexual, monogamous, non sibling, and non retarded, and uninfected.

Therefore, my disagreement with the courts is that it is ignoring that the positive rights, in association with civil contracts, may not be equally endowed and in that the court is contending that those positive rights qualify for equal protections.

The issue of positive rights is not being forwarded by those seeking a distinction between styles of civil contract, even as the court petitioned for a compelling justification between contract styles.

I do believe that polygamous civil contracts, same sex civil contracts, and given affirmative action - even miscegenation civil contracts, may not receive positive rights from the state.

A majority of policies seek to undermine the conventions of society by basing laws upon public ignorance and self righteous disregard for victimless crimes.

Leave people alone; live and let live; and make contributions to vocations that serve greater personal developments, rather than fretting and busying with trivial issues like saving homosexuals from metaphorical damnation, which is failing to perpetuate their genetic identity.
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