Here's a curious article from salon.com regarding the legalization of
same-sex marriage for gay transsexuals by the Kansas Supreme Court.  

The URI is:

http://www.salon.com/mwt/feature/2002/03/22/kansas_ruling/print.html

I'm curious to see what people here think about this.  

(For those who can't follow the link, or would rather not, I'll see if I
can paste the text into response #1.)

187 responses total.

SAME-SEX MARRIAGE, WITH A TWIST

The Kansas Supreme Court enforces a ban on gay marriage and clears the
way for -- gay marriage.

- - - - - - - - - - - -
By David Link

March 22, 2002  |  Let's face it, the subject of same-sex marriage tends
to unhinge rational debate. Otherwise sensible people scramble for
arguments to defend exclusionary marriage laws that barely stand up to
even modest scrutiny. The two state supreme courts that have tried to
sort through the mess and directly address the question -- Hawaii's and
Vermont's -- failed to find any reasoned case to defend
opposite-sex-only marriage. But when the issue was bounced back to the
legislative process, common sense again got short shrift. Hawaii's
voters took the extraordinary step of amending their state constitution
to require inequality. Vermont's legislature created a parallel
institution called "civil unions" to confer the rights and
responsibilities of marriage on same-sex couples, but refused to call
what walks, looks and swims like a duck a duck.

But when it comes to dysfunctional reasoning, the citizens of Vermont
and Hawaii have to take a backseat to the Kansas Supreme Court, which
has weighed in with what qualifies as a genuine first: a decision meant
to enforce a ban on same-sex marriage that actually clears the way for
same-sex marriage, as long as the union involves a gay transsexual. In
dealing with the case of a male-to-female transsexual who married the
man she loved, the court attempted to figure out whether the transsexual
was a male or a female. In the process, the justices tripped over the
state's ban on same-sex marriage and stumbled into the dilemma that's at
the heart of current marriage laws.

Best to begin at the beginning. The basic facts of "In re Estate of
Gardiner" are conventional enough to be almost archetypal: A young woman
meets an older, wealthier man, and four months later they get married.
The following year, the man dies, and his estranged son, who's out of
the will, challenges the marriage. It all winds up in court.

The twist, and it's a good one, is that the son challenged the marriage
as illegal because it was between members of the same sex, which is not
permitted under Kansas law. It turns out that the wife, J'Noel, had been
born a male, and four years prior to the marriage had undergone a
complete sex change operation. It had taken her three years of surgical,
psychological and pharmaceutical procedures to change her gender.

The final step in J'Noel's sex change odyssey had been to formally and
legally have her birth certificate, passport and related health
documents changed to reflect that she was a woman. Her husband, a former
state legislator and chairman of the Kansas Democratic party, was aware
of all of this. Indeed, there was no question in the case that he was
capable of making his own decisions.

In its ruling, the Kansas Supreme Court agreed with the son, holding
that anyone who is born a man is always a man, and nothing can ever
change that. Under Kansas law, which prohibits same-sex marriages,
J'Noel had been born a man, and thus her marriage to a man was illegal.

But by focusing so doggedly on preventing same-sex marriage, the Kansas
court has created a situation that may make Kansans feel like they
aren't in Kansas anymore. After Gardiner, a woman in Kansas can have
surgery to make herself a man, and then marry a man -- legally. Which
isn't even the weird part. The weird part is that Kansas, a state which
has no ambiguity in its law prohibiting same-sex marriages, is now one
of the few places on Earth that requires transsexuals to be homosexual
as a condition of marriage. Because if a transsexual is heterosexual
after surgery (i.e., a chromosomal woman who has the body of a man and
has sexual desires for women), he can't get married to anyone he has a
sexual desire for. It's only if he's attracted to other men that he can
rely on Kansas law to provide him with a legally binding marriage.

This rule certainly has the virtue of being easy to administer: To
determine whether a marriage is legal in Kansas, a couple will need to
show up at the clerk's office with a documented chromosome check and the
clerk will issue a marriage license. But it's hard to square this rule
with any of the arguments against same-sex marriage that we're used to.
Assume, for example, that J'Noel decides she is a lesbian and finds a
nice girl to settle down with in Wichita or Topeka. They decide to have
a child, and like heterosexual couples who have biological problems
procreating, use a little medical science to intervene. Or maybe they
adopt. Their child (or children) will have legally married homosexual
parents of the same (apparent) sex -- a configuration that many Kansans
find intolerable -- because the court has tried to enforce state law
against same-sex marriage.

J'Noel and her new wife could drop by the supermarket and shop arm in
arm, with all the world, and the world's kids, watching. If they kissed,
and anyone tried to make a big stink about it, J'Noel and her wife could
simply brandish the Supreme Court decision, demonstrating the legality
of their marriage. They would apparently be entitled to all the federal
tax benefits married couples get, not to mention all the rights and
responsibilities married couples have under Kansas law. In fact, they
might fit the profile of a model "normal" marriage in Kansas, though one
would have to see evidence of their chromosomal makeup to understand that.

In its decision, the Kansas court is up-front about the fact that the
legislature is ultimately responsible for what the law says, and that
the court is simply interpreting the law as best it can. But it's hard
to see how the legislature could make a better job of it than the court
did. It is difficult, if not impossible, to compulsively distinguish
between same-sex and opposite-sex marriages without facing the profound
question of what sex is and why it matters.

If the legislature does nothing, it permits homosexual transsexuals to
marry people of what appears to be the same sex, leaving heterosexual
post-op transsexuals out in the cold, along with all the non-transsexual
homosexuals in the state. If the legislature sees a problem in
legalizing apparent same-sex marriage, it could overrule the court and
permit transsexuals to marry someone who is the opposite of their
post-op gender, thus acknowledging that it is the appearance of opposite
sex that is ultimately the guiding force in creating public policy. But,
in order to apply that policy with any consistency, the legislature
would then be obliged to prohibit heterosexual cross-dressers from (a)
marrying, or (b) appearing in public with their spouses and expressing
affection. Option (b) would certainly present some interesting First
Amendment issues, and no one anywhere has proposed anything like option (a).

But that isn't the end of it. Most people, it's true, have either an XX
or an XY chromosome set to determine their gender. But some people have
more. What about those people who have three chromosomes? Who do they
get to marry? How would that be decided? And what about children like
the infamous John/Joan, who was born a male but whose parents approved
an operation to have his penis removed after a botched circumcision and
then raised him as a girl -- with very poor results. Unlike J'Noel,
he/she never had a choice about the sex change. Who should someone like
John/Joan be allowed to marry? And why should the state have any role in
that decision?

The Gardiner ruling, in all its stunning complexity, should illustrate,
better even than the cases dealing directly with same-sex marriage, how
extraordinary it is for the state to be inserting itself into the
relative gender of marital partners. Lesbians and gay men know, and
Gardiner may help some heterosexuals to realize, that it isn't the
relative sex of the partners that makes marriage valuable to both
society and individuals, and it certainly isn't the appearance of
opposite sex; it's the intimacy and satisfaction of the two partners. We
all benefit from couples who support one another, emotionally,
financially, spiritually and in all the other ways couples lean on one
another.

The question at the heart of Gardiner is not whether J'Noel is a man or
a woman, it's whether she is worth treating as a human being. As long as
Kansans focus on the first question, it will be necessary for them to
answer the second with a humiliating no.

Thanks for pasting, it helps those of us not using Backtalk.
The chromosome issue is more complicated than this article thinks.  There are
people genetically XY who lack the receptor for testosterone and are therefore
physically female, and considered to be so by genetics books (they are
sterile).  XXY is usually male (also sterile).  X (one chromosome missing)
is sterile female, as is, I think, XXX.  I could check.  There are also a few
mosaics, people with some cells which are XX and some XXY or XY, etc.

Is it still illegal in some states to cross-dress?

Does Kansas require a male to female transsexual to use public rest rooms as
a male?

Are people with Down's syndrome (one extra chromosome) considered by Kansas
to be human and therefore eligible to marry?  About half of their children
should statistically be born 'human'.  What about those with six fingers?

This is of course no sillier than the various rules which have in the past
prohibited people from marrying relatives of their godparents, or the children
of their wetnurses, as being too similar to them.  Or the rules in some
American states allowing cousins to marry only if they are past childbearing
age, which you would think admits that there are marriages formed for reasons
other than procreation.  

Perhaps Kansas ought to allow marriages only between adults who have conceived
and borne a child, as proof that they are capable of doing so.  Some societies
have had rules like this - I think some mountainous area of Peru for instance.
What better proof that you are of opposite sexes?

I cant disagree with this article. I cant see any reason why same 
gender legal marriages shouldnt exist. 

Why should  anyone care? It isn't anyone's business except the principles.

        Absolutely beautiful.

Back to the I am my own grandpa root of circular reasoning.  I f humans can
concieve it, they can create it.  And the law comes stumbling after.

Re #2: People with six fingers are considered witches and burned at the
stake in Kansas.

See http://slate.msn.com/?id=2063410 for an article about this by
William Saletan entitled "The Mutual Frustration of Transsexuals
and Conservatives."

I'd laugh this off as ridiculous, except that it happens to support my point
of view on one of my pet issues.  Therefore, it's the best legal argument I've
heard in years.  

I think #4 has a misspelling, but I'm not quite sure.
"principle" means "basic idea, tenet" and *would* make sense in context, but
not from Rane (context where it makes sense: "It's not that I have anything
against gays, but it's the principles of the thing: Marriage is a covenant
with God").
"principal" means "most important person" and makes a lot more sense coming
from Rane.

I thought about that when I wrote it, momentarily debated with myself,
and came to the wrong conclusion. However, if you would just *listen*,
you would understand... 8^}

Re #2:  They're only talking about sex.  Down's doesn't affect the sex
        chromosomes.

There is about a 50% chance of Down's syndrome in the child of a
Down's victim. The trisomy is also present in the somatic cells and
can be transmitted.

Are you rebutting what I said, or just adding information?  Your statements
and mine are not inconsistent.

I was bringing this up because people with Down's syndrome have also
frequently been banned from marrying, for eugenics reasons.  If Kansas can
prevent people from  marrying because they don't have a certain combination
of chromosomes, it seems like they ought to be able to ban anyone with any
chromosome abnormality from marrying as well, and therefore make everyone pass
a complete DNA analysis.

The difference is that there's no religious objection to people with Down's
marrying, and religion is why Kansas has that law.

I'm not sure its entirely religion.  There are plenty of nonreligious
homophobic people.  

as well as religious, nonhomophobic people - plenty of 'em.  
  
 uhhh, way back there in the opinion, what authority cites support 
for the holding that 
  
 "that anyone who is born a man is always a man, and nothing can ever
 change that."
  
is that the writer's interpretation, or quoted court text?
  
no one is 'born a man' nor 'born a woman' - nominally male/female perhaps.
  
and death changes either/any into a corpse, of course, it's tough for
a corpse to say 'i do.' 'i did,' perhaps but not 'i do.'
.

As long as the public has to support the results, maybe people
with genetically-transmitted diseases should have to buy
insurance against the chance of their children having said
disease.  If they use a sperm or egg donor or otherwise guarantee
that their children won't be affected, they would obviously not
have to pay (or qualify for a refund).

Call it what you want, but why should the public be paying for
other people's decisions, or subsidizing activities which
increase human suffering?

You mean things like war?

right on!

Yes, I DO have a problem with having to pay for some of Russ' decisions.
Can  I get a refund, Russ?

No, but you can vote.  And go through life pausing at each
major decision point and considering WWRD, and then do the opposite.

I wish russ's folks would pay society for our pain and suffering. 
*snort*

Seriously though, how can anyone guarantee that their child wont have 
some genetic health problem? 

Screening and pre-natal treatment or abortion help. 

Interesting Canadian news item last night, which described a genetic
defect of some prevalence among Cree native Americans, which causes 
death usually in the first year of life. This can be detected _in  utero_,
and screening is now used to to offer families some options. It is
a recessive defect, so pre-marriage screening can avoid its expression.
They  suggested the defect could be purged from the community this way,
but did not go into enough  genetic detail to explain how.  (One
statement was made that the defect was introduced into the Cree population
by a European trader, way back....I wondered how they could know that.)

        That'd be a blessing for the Cree people ... wait ... that's EUGENICS!

Should a woman with a child that has a genetic defect be forced to have 
an abortion if she cant afford to pay for that child's care after it is 
born? 

Should screening for defects be mandatory?

Should there be mandatory screening of every person and only those 
whose screens are perfect be allowed to breed?

        I'm of the opinion that giving people more information is seldom a bad
thing;  in this case, clearly giving parents the choice as to whether or not
they'd like to raise a child with little likelihood of surviving is a good
thing.

They mentioned that Tay-Sachs disease among people of Ashkenazi Jewish
descent has been largely eliminated through genetic screening. I looked
this up in the Merck Manual and it reports that that Tay-Sachs occurs
among "Ashkenazi Jewish and French Canadian parents". Hmmmm, could that
trader have been an Ashkenazi Jew? The specific Quebec Cree genetic defect
was not identified. 

The Merck Manual also identifies the following additional genetic defect
diseases for which screening is used: sickle cell anemia, the
thalassemias, systic fibrosis, adrenal hyperplasia, muscular dystrophy,
hemophilia A, Huntington's disease, and polycystic kidney disease. There
are probably more that have not yet been identified.

Re #27 % #28: that came up in the program too. They interviewed a woman
that considered it (a) god's will, and to be endured. She did not want to
know if her fetus was defective.

My father died of polycystic kidney disease, with the first symptoms at age
49.
You would not want to remove the genes for sickle cell anemia and thalassemia
from the population because if you have one copy you are protected against
malaria.  Cystic fibrosis in one copy may protect against tuberculosis (?).
But if you have two copies you are out of luck - which is where prenatal
screening would be useful.

There will probably be less discriminatory protections  against
malaria in the not too distance future, like a vaccine.

You are an optimist.  What if malaria mutates so a vaccine stops working?
Malaria is not dependent on humans like smallpox seems to be.

It is actually a drug, called G25, not a vaccine. It is now yielding
total cures of malaria in rodents and primates. The drug blocks
the synthesis by the merozoites of their own necessary lipid coats,
but does not affect the host erythrocyte, which has no similar
process. 

        You can avoid double copies of the genes for sickle cell anemia without
eliminating them entirely, at least until we can eliminate the disease
entirely.

I don't think we CAN eliminate malaria since it does not need humans as hosts.
It is happy living in birds and probably mammals other than humans.  Most
diseases manage to mutate so as to defeat the drugs designed to cure them.
For instance tuberculosis is now resistant to many drugs.  There are at least
five species of malaria which can infect humans, and two can also infect other
primates and one birds.  We would have to eradicate monkeys and birds to be
rid of malaria.

This response has been erased.

Re #25:  I doubt that such defect could have been introduced by
a single European trader and attain such a prevalence in the
population that it's a major difficulty.  Just think how many
people would have to be descended from that guy without loss
of that gene.  It doesn't fit.  At 4 children per generation
and 15 generations since 1700, it would only have spread to
32,768 people so far (figuring 50% of offspring get the gene).
If any of those kids failed to reproduce it would be a lot less.

That is, unless the other genes the European guy brought gave his
descendants a strong advantage over the native Cree.  That would
be tantamount to admitting that the natives were genetically
inferior, though...

Re #30:  But should such people be eligible for public assistance?
The question is whether the public should provide support; people can
otherwise do what they think is right to the limit of their abilities.

Re Cree: a native was shown with a geneological chart that covered
a small table, which she has been using to trace back the defect. 
There are, by the way, probably fewer than 32,768 Cree involved. It
is a small and probably partly inbred community. These aspects were
not discussed in the program.

- Backtalk version 1.3.30 - Copyright 1996-2006, Jan Wolter and Steve Weiss